United States District Court, W.D. Missouri, Western Division
ROSEANN A. KETCHMARK, JUDGE
the Court is Defendants' Notice of Removal. (Doc. 1.)
Defendants' Notice of Removal was filed on May 29, 2018.
To date, Plaintiff has not filed any response to
Defendants' Notice of Removal, and the time for doing so
has expired. 28 U.S.C. § 1447(c). On July 9, 2018, the
Court ordered Plaintiff to provide supplemental briefing on
Defendants' allegations of fraudulent joinder and for
Defendants BP Chestnut AZ 2 LLC; BGF Private Real Estate Fund
1 Chestnut, LLC; and Bridge Co-Investment Fund 1 Chestnut,
LLC to provide citizenship of each of their members to the
Court (doc. 1 at 7-9). (Doc. 12.)
Court finds jurisdiction is lacking because Defendant DeeAnn
Helm (“Defendant Helm”) is a citizen of the state
in which removal is sought. See 28 U.S.C. §
1441(b). Accordingly, for the reasons below, it is
ORDERED that this action is remanded to the
Circuit Court of Jackson County.
April 10, 2018, Plaintiff filed this action in the Circuit
Court of Jackson County, Missouri. See Agunbiade v. BP
Chestnut AZ 2 LLC et al., 1816-CV09310. Plaintiff's
Complaint alleges negligence against all Defendants arising
from injuries resulting from a slip and fall at The Ridge at
Chestnut Apartment Homes located in Kansas City, Missouri.
timely removed the action to this Court on May 29, 2018,
asserting diversity jurisdiction under 28 U.S.C. § 1332.
(Doc. 1.) Defendants further assert that the Missouri
citizenship of Defendant Helm should not be considered
because Defendant Helm was fraudulently joined.
courts have an independent obligation to ensure that they do
not exceed the scope of their jurisdiction, and therefore
they must raise and decide jurisdictional questions that the
parties either overlook or elect not to press.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S.
428, 434 (2011). “[F]ederal courts are courts of
limited jurisdiction.” Ark. Blue Cross & Blue
Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d
812, 816 (8th Cir. 2009). A party may remove an action to
federal court if there is complete diversity of the parties
and the amount in controversy exceeds $75, 000. 28 U.S.C.
§§ 1332(a) and 1441(a). Even if all parties are
diverse, the “forum defendant rule” provides that
the action cannot be removed to federal court if any of the
properly joined and served defendants are citizens of the
state in which the federal court where the action is brought.
See 28 U.S.C. § 1441(b); Horton v.
Conklin, 431 F.3d 602, 605 (8th Cir. 2005). In the
Eighth Circuit, violation of the forum defendant rule is a
jurisdictional defect and cannot be waived. Id.
Therefore if the forum defendant rule is violated, the court
must remand the case to the state court from which is was
removed. 28 U.S.C. § 1447(c). A party seeking removal
and opposing remand carries the burden of establishing
federal subject-matter jurisdiction by a preponderance of the
evidence. In re Prempro Prods. Liab. Litig., 591
F.3d 613, 620 (8th Cir. 2010). Furthermore, any doubts about
the propriety of removal should be resolved in favor of
remand. In re Bus. Men's Assurance Co. of Am.,
992 F.2d 181, 183 (8th Cir. 1993) (per curiam).
all parties are diverse, the action cannot be removed to
federal court if any of the defendants are citizens of the
state in which the action is filed. See 28 U.S.C.
§ 1441(b). This is commonly referred to as the forum
defendant rule. Horton v. Conklin, 431 F.3d 602, 605
(8th Cir. 2005). A violation of the forum defendant rule is a
jurisdictional defect and cannot be waived. Id.
argue Defendant Helm was fraudulently joined in this action;
therefore, Defendant Helm's citizenship should not be
considered in the Court's jurisdiction analysis. See
Newby v. Wyeth, Inc., 2011 WL 5024572, at *2 (E.D. Mo.
Oct. 21, 2011) (“When, as here, the basis for removing
a case is diversity jurisdiction . . . the plaintiff has
joined a . . . [citizen] of the forum state as a defendant,
the removing party may avoid remand only by demonstrating
that the non-diverse party was fraudulently joined”)
(citing Filla v. Norfolk Southern Ry. Co., 336 F.3d
806, 809 (8th Cir. 2003)).
Court must accept the allegations in the complaint as true.
Hragyil v. Walmart Stores East LP, 2015 WL 12843193,
at *2 (W.D. Mo. Mar. 31, 2015). Plaintiff's Complaint
alleges Defendants negligently maintained premises under its
control in Jackson County, Missouri, on July 19, 2015,
resulting in injury to Plaintiff.
plaintiff has named a defendant that destroys jurisdiction,
the defendant may avoid remand only by showing that the
non-diverse party was fraudulently joined. Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)
(citation omitted). Joinder is fraudulent “when there
exists no reasonable basis in fact and law supporting a claim
against the [domiciled] defendants.” Wiles v.
Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir.
2002) (citation omitted). “However, if there is a
colorable cause of action - that is, if the state law might
impose liability on the [domiciled] defendant under the facts
alleged - then there is no fraudulent joinder.”
Filla, 336 F.3d at 809 (citation and internal
quotations omitted). Additionally, if the sufficiency of the
complaint is in question, “the better practice is for
the federal court not to decide the doubtful question in
connection with a motion to remand but simply to remand the
case and leave the question for the state court to
decide.” Iowa Pub. Serv. Co. v. Med. Bow Coal
Co., 556 F.2d 400, 406 (8th Cir.1977).
parties dispute the position Defendant Helm held at the time
of the accident. Defendants contend Defendant Helm was a
regional manager for Defendant Bridge Property Management and
managed approximately ten properties in Missouri and Kansas.
Defendant Helm visited The Ridge at Chestnut Apartment Homes
one to two times each month. Under Missouri law, an employee
may be held personally liable to a third party if the
employee, while not having complete control of the premises,
breached a duty that the employee owed to the third person.
State ex rel. Kyger v. Koehr, 831 S.W.2d 953, 956
(Mo. E.D. 1992) (citation omitted). “The test is
whether [the employee] has breached his legal duty or been
negligent with respect to something over which he did have
control.” Id. (citation omitted). Here,
viewing the allegations in the Complaint as true, Plaintiff
has stated a colorable claim of liability against Defendant
Helm in her position as ...