United States District Court, W.D. Missouri, Western Division
NANETTE K. LAUGHREY United States District Judge
before the Court are Plaintiffs Neil and Heta Desai's
Motion to Remand, Doc. 7, and Defendant Garcia Empire,
LLC's Motion to Remand, Doc. 9. For the following
reasons, the motions are granted.
present matter involves an insurance dispute, arising out of
an incident between Plaintiff Neil Desai and an employee of
Defendant Garcia Empire, LLC, which resulted in Desai's
fractured right arm. On October 2, 2017, Neil and his wife,
Heta, (“the Desais”) obtained a judgment against
Garcia Empire in the amount of $6, 932, 831, for damages
suffered as a result of Garcia Empire's conduct. Prior to
entry of the judgment, the Desais and Garcia Empire entered
into a settlement agreement pursuant to Mo. Rev. Stat. §
537.065, which limited recovery to any insurance coverage
provided by Defendant Specialty Insurance Company.
Desais subsequently filed this lawsuit in the Circuit Court
of Jackson County on November 6, 2017, seeking equitable
garnishment under Mo. Rev. Stat. § 379.200. Pursuant to
that statute, Garcia Empire and Seneca are both named as
defendants. On December 21, 2017, Seneca removed the matter
to this Court on the basis of diversity jurisdiction. The
Desais and Garcia Empire now move to remand, arguing that
Seneca failed to obtain Garcia Empire's consent to
removal, and, alternatively, that equitable garnishment under
Mo. Rev. Stat. § 379.200 constitutes a direct action
under 28 U.S.C. § 1332, which prevents removal.
removing an action to federal court, the defendant bears the
burden of proving by a preponderance of the evidence that the
court has subject matter jurisdiction over the case. In
re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th
Cir. 2010); Hatridge v. Aetna Cas. & Sur. Co.,
415 F.2d 809, 814 (8th Cir. 1969). “Removal statutes
are strictly construed, and any doubts about the propriety of
removal are resolved in favor of state court jurisdiction and
remand.” Baumgartner v. Ford Motor Credit Co.,
No. 07-4084-CV-C-NKL, 2007 WL 2026135, at *1 (W.D. Mo. July
9, 2007) (citing In re Business Men's Assurance Co.
of America, 992 F.2d 181, 183 (8th Cir. 1993)).
undisputed that there is complete diversity of citizenship
among the parties. The Desais are citizens of Georgia, Garcia
Empire is a citizen of Missouri, and Seneca is a citizen of
Delaware and New York. Ordinarily, however, all defendants
must consent to removal or the case will be remanded.
Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062
(8th Cir. 2008) (“[T]he failure of one defendant to
consent renders the removal defective . . . .”). In the
present matter, Seneca removed the action without Garcia
maintains that Garcia Empire's consent is not required
because it is only a nominal party. “[N]ominal
defendants, those ‘against whom no real relief is
sought, ' need not join in the petition [for
removal].” Thorn v. Amalgamated Transit Union,
305 F.3d 826, 833 (8th Cir. 2002); see also Dumas v.
Patel, 317 F.Supp.2d 1111, 1113 n.5 (W.D. Mo. 2004).
However, most courts limit this “exception” for
nominal party defendants “to situations in which it is
clear that the defendant is not a necessary or an
indispensable party as a matter of law, the party has nothing
at stake in the litigation, and no real, present claim for
relief is being sought against the party.” Balling
v. Bendickson, No. 4:12-CV-860 CAS, 2012 WL 3715810, at
*2 (E.D. Mo. Aug. 27, 2012) (citing Maryville Data Sys.,
Inc. v. Holman, No. 4:05CV1535JCH, 2005 WL 3416470, at
*2 (E.D. Mo. Dec. 13, 2005)).
Empire is a necessary and indispensable party to the
litigation, and therefore the nominal party exception to the
unanimous consent requirement does not apply. Mo. Rev. Stat.
§ 379.200 requires plaintiffs to join both the judgment
debtor and the insurance company in equitable garnishment
actions filed under the statute. Glover v. State Farm
Fire & Cas. Co., 984 F.2d 259, 261 (8th Cir. 1993)
(recognizing “the plain statutory command that the
judgment debtor be joined in an action under §
379.200”). The requirement remains even where, as is
the case here, the parties enter into a settlement agreement
pursuant to Mo. Rev. Stat. § 537.065. See Id.
(“[T]he Missouri legislature had good reason to require
that the judgment debtor be joined in the statutory action,
even if that action does not expose the judgment debtor to
any risk of additional liability.”). Therefore, despite
the fact that the Desais and Garcia Empire entered into a
Section 537.065 agreement, the Desais were required by
statute to join Garcia Empire as a defendant in this action.
As such, Garcia Empire cannot be considered a nominal party,
and their consent was required for removal. See Spencer
v. GEICO Indem. Co., No. 14-00104-CV-W-GAF, 2014 WL
12607827, at *2 (W.D. Mo. Mar. 25, 2014) (finding that
judgment debtor's consent to removal required in
equitable garnishments pursuant to Mo. Rev. Stat. §
379.200). Notably, the Court is not alone in coming to such a
conclusion. Many other courts within this District and the
Eastern District have similarly rejected the argument that
judgment debtors are merely nominal parties in equitable
garnishment actions under Mo. Rev. Stat. § 379.200.
See, e.g., Bullar v. U.S. Specialty Ins.
Co., No. 4:15CV822 JCH, 2015 WL 4243438, at *2 (E.D. Mo.
July 13, 2015) (“[Defendant] contends [the judgment
debtor's] consent was not necessary as they are merely
nominal Defendants, whose presence is unnecessary to the
adjudication of this case. Upon consideration the Court
disagrees . . . .”); Spencer, 2014 WL
12607827, at *2 (“[The judgment debtor] is not a
nominal party to Plaintiff's claims under Missouri
Revised Statute § 379.200.”); Reed v.
ASSURANT, INC., No. 13-01183-CV-W-GAF, 2014 WL 12607826,
at *3 (W.D. Mo. Feb. 6, 2014) (The insured defendant
“is not a nominal party to Plaintiff's claims under
Missouri Revised Statute § 379.200.”); Demann
v. Liberty Mut. Fire Ins. Co., No. 4:12CV00990 ERW, 2012
WL 3939827, at *2 (E.D. Mo. Sept. 10, 2012) (“[T]he
defendant cannot be a nominal party.”); Kendall v.
N. Assur. Co. of Am., No. 09-0539-CV-W-GAF, 2009 WL
2632757, at *2 (W.D. Mo. Aug. 25, 2009)
(“Northern's fleeting argument that ‘the
[insured defendants] are merely nominal or formal
parties' is unpersuasive.”).
maintains that the Court must find that Garcia Empire's
consent is not required due to a recent Eighth Circuit
opinion, Williams v. Employers Mutual Casualty
Company, 845 F.3d 891 (8th Cir. 2017). The Court does
not agree. Williams never discusses the unanimity
consent requirement, and the judgment debtor's consent to
removal is not an issue in the case. Id. Indeed,
Williams was removed under the Class Action Fairness
Act, which permits class actions to be removed “by any
defendant without the consent of all defendants.” 28
U.S.C. § 1453(b); Blockbuster v. Galeno, 472
F.3d 53, 56 (2nd Cir. 2006). As such, the motion to remand in
Williams focused exclusively on whether the claim
was a class action at all. Williams, 845 F.3d at
899. Furthermore, while Williams does refer to the
judgment debtor as “nominal, ” it does so only in
the context of analyzing whether the consent judgment was
appealable. Id. at 897. Because the issues in
Williams are different than those in the present
matter, the Eighth Circuit's use of the phrase
“nominal” in Williams does not suggest
an intent to change consistent case law on an unrelated
Rev. Stat. § 379.200 requires Garcia Empire to be joined
as a defendant in this action. As such, it is a necessary and
indispensable party whose consent was required for removal to
be proper. Because Seneca failed to obtain Garcia
Empire's consent, removal of the action to this Court is
defective, and it must be remanded. Spencer, 2014 WL
12607827, at *2. The question of whether Mo. Rev. Stat.
§ 379.200 constitutes a “direct action, ” as
that phrase is used in 28 U.S.C. § 1332(c)(1), does not
affect the outcome of these motions, and therefore the Court
need not address the issue.
foregoing reasons, Plaintiffs Neil and Heta Desai's
Motion to Remand, Doc. 7, and Defendant Garcia Empire,