United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on plaintiff Tracey
Kershaw-Wood's motion for remand (#13) and defendant
David Harbison's motion to dismiss (#6). The matters are
fully briefed. Because this Court finds that Harbison was not
fraudulently joined as a defendant, Kershaw-Wood's motion
for remand will be granted.
2015, Kershaw-Wood worked for Titanium M s Corporation
(“Titanium”). In March of that year, she
complained to management-including Harbison-about a coworker
who was sexually harassing her. Nothing was done. The next
month, Kershaw-Wood complained again, and she was told that
nothing could be done. Kershaw-Wood then filed a restraining
order against the coworker. When management found out about
the restraining order, Kershaw-Wood was sent home for the
day. Next, Harbison suspended Kershaw-Wood from work until
after the court date for the restraining order. A week later,
Kershaw-Wood was fired.
filed a Charge of Discrimination (“Charge”) with
the Missouri Commission on Human Rights (the
“MCHR”). She listed Titanium as the employer that
discriminated against her. Under the
“Particulars” section of the Charge, she wrote:
I reported the [harassment] to my employer who said there was
nothing they could do. After filing a restraining order on
April 21, 2015, I was sent home from work, I then returned on
April 23, 2015 and was suspended and told the suspension was
in effect until the [sic] after the court date on the
restraining order. I was terminated on April 30, 2015. I
believe I was terminated in retaliation for reporting and
objecting to the harassment.
Kershaw-Wood did not mention Harbison anywhere in the Charge.
There was no effort to resolve the claim through
conciliation, and the MCHR issued a Notice of Right to
then sued Titanium and Harbison in state court. She
alleged counts of gender discrimination and retaliation
against both defendants. Although Kershaw-Wood and Harbison
are both allegedly citizens of Missouri, Titanium removed the
case to this Court under 28 U.S.C. § 1332(a)(1).
Harbison claims he was fraudulently joined because
Kershaw-Wood did not exhaust her administrative remedies
against him because she failed to name Harbison in the
administrative Charge. Harbison then moved to dismiss the
claims against him (#7). Kershaw-Wood claims that Harbison
was not fraudulently joined and moved for remand (#13).
jurisdiction under 28 U.S.C. § 1332(a)(1) requires
complete diversity of citizenship between plaintiffs and
defendants. Buckley v. Control Data Corp., 923 F.2d
96, 97 n.6 (8th Cir. 1991). When there is not complete
diversity, district courts must remand the case under 28
U.S.C. § 1447(c).
joinder is an exception to the requirement that complete
diversity must exist both when the state petition is filed
and when the petition for removal is filed. Knudson v.
Sys. Painters, Inc., 634 F.3d 968, 976 (8th Cir. 2011).
“[A] plaintiff cannot defeat a defendant's
‘right of removal' by fraudulently joining a
defendant who has ‘no real connection with the
controversy.'” Id. (quoting Chesapeake
& Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152
(1914)). “[T]o prove that a plaintiff fraudulently
joined a diversity-destroying defendant, [the Eighth Circuit
has] required a defendant seeking removal to prove that the
plaintiff's claim against the diversity-destroying
defendant has ‘no reasonable basis in fact and
law.'” Id. at 977 (quoting Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)).
this standard, ‘if it is clear under governing
state law that the complaint does not state a cause of action
against the non-diverse defendant, the joinder is fraudulent
and federal jurisdiction of the case should be
retained.'” Id. at 980 (quoting
Filla, 336 F.3d at 810). But “joinder is not
fraudulent where ‘there is arguably a reasonable basis
for predicting that the state law might impose liability
based upon the facts involved.'” Id.
(footnote omitted) (quoting Filla, 336 F.3d at 811).
In making this prediction, the district court resolves all
facts and ambiguities in the law in the plaintiff's
favor. Filla, 336 F.3d at 811. The defendant must
“do more than merely prove that the plaintiff's
claim should be dismissed pursuant to a Rule 12(b)(6)
motion.” Knudson, 634 F.3d at 980.
deciding whether joinder is fraudulent, the court may not
step from the threshold jurisdictional issue into a decision
on the merits.” Walters v. Sensient Colors,
LLC, No. 4:14-CV-1241-HEA, 2015 WL 667986, at *3 (E.D.
Mo. Feb. 17, 2015). If “the sufficiency of the
complaint against the non-diverse defendant is questionable,
‘the better practice is for the federal court not to
decide the doubtful question . . . but simply to remand the
case and leave the question for the state courts to
decide.'” Filla, 336 F.3d at 811
(quoting Iowa Pub. Serv. Co. v. Med. Bow Coal Co.,
556 F.2d 400, 406 (8th Cir. 1977)).