United States District Court, W.D. Missouri, Western Division
PEGGY PETROVIC, INDIVIDUALLY AND AS PLAINTIFF AD LITEM FOR ALEXANDER PETROVIC, JR., Plaintiff,
BP CORPORATION NORTH AMERICA INC., BP PRODUCTS NORTH AMERICA INC., JAMES BLAISE, RONALD W. GINSON, Defendants.
ROSEANN A. KETCHMARK, JUDGE
the Court is Plaintiff's Motion to Remand. (Doc. 7.) The
motion is fully briefed. (Docs. 8, 13, 17.) After careful
consideration, the motion is GRANTED. This
case is REMANDED to the Circuit Court of
Jackson County, Missouri. However, Plaintiff's request
for costs for seeking the remand of this action is
originally filed this action for the wrongful death of her
husband, which Plaintiff alleges was caused by exposure to
pollutants released from a facility owned by Defendants BP
Corporation North America, Inc. and BP Products North
America, Inc., (collectively, “Amoco”).
Plaintiff's action also names two former Amoco employees,
Defendants James Blaise and Ronald Ginson. (Doc. 1-1 at
¶¶ 6, 7.) Plaintiff's action involves the
following counts: negligence (Count I), negligence per se
(Count II), res ipsa loquitur (Count III), inherently
dangerous activity (Count IV), and battery (Count V).
Plaintiff filed the action in Missouri state court, and
Blaise removed. Plaintiff maintains that because Ginson is a
citizen of Missouri, his presence precludes removal under the
forum-defendant rule. See 28 U.S.C. §
1441(b)(2). However, Defendants argue this Court has
diversity jurisdiction because Ginson is fraudulently
joined. Plaintiff disputes this and seeks remand.
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).
The removing party has 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).
otherwise removable solely on the basis of diversity
jurisdiction “may not be removed if any of the parties
in interest properly joined and served as defendants is a
citizen of the State in which such action is brought.”
28 U.S.C. § 1441(b)(2). “Fraudulent joinder occurs
when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent
removal.” In re Prempro Prods. Liab. Litig.,
591 F.3d at 620. In assessing fraudulent joinder,
the district court's task is limited to determining
whether there is arguably a reasonable basis for predicting
that the state law might impose liability based upon the
facts involved. In making such a prediction, the district
court should resolve all facts and ambiguities in the current
controlling substantive law in the plaintiff's favor.
Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th
Cir. 2003). “[I]f there is a ‘colorable'
cause of action--that is, if the state law might
impose liability on the resident defendant under the facts
alleged-then there is no fraudulent joinder.”
Id. at 810.
Court is tasked with determining whether there is a
reasonable basis in Missouri state law to support a claim
against Ginson under the facts alleged. See Dannix
Painting, LLC v. Sherwin-Williams Co., 732 F.3d 902, 905
(8th Cir. 2013) (federal courts sitting in diversity apply
the state law). Plaintiff makes the following relevant
allegations in her Complaint. From approximately 1904 to
1982, Amoco owned and operated a 430-acre oil refining
facility in Sugar Creek, Missouri. (Doc. 1-1 ¶¶
11-12.) Since 1982, Amoco operated the facility as an asphalt
plant and a petroleum marketing and distribution terminal.
(Id. at ¶ 13.) Ginson is a former Amoco
employee who served as Coordinator of Environmental Control
at the facility. (Id. at ¶¶ 7.) Defendants
controlled the construction, operation, and maintenance of
the facility. (Id. at ¶ 38.) Defendants
spilled, leaked and dumped “hundreds of millions of
gallons” of pollutants onto the ground, surfacewater,
and into the groundwater, leading to the migration of
pollutants beyond the borders of the facility. (Id.
at ¶ 39.) Defendants knew or should have known that the
pollutants were discharged “but failed to take
reasonable and necessary steps to prevent the migration of
[p]ollutants[.]” (Id. at ¶ 45.)
deceased husband, Alexander Petrovic, lived in Sugar Creek,
Missouri, from 1948 (the year he was born) to
1970. (Id. at ¶ 20.) Mr. Petrovic
lived and played near the facility and was exposed to
pollutants through inhalation and dermal absorption.
(Id. at ¶¶ 21-22, 24.) Testing performed
by Amoco verified that chemical pollutants are present in
groundwater, soil and indoor air in the neighborhoods near
the Facility. (Id. at ¶ 18.) In 2017, Mr.
Petrovic was diagnosed with Acute Myeloid Leukemia
(“AML”). (Id. at ¶ 25.) Mr.
Petrovic's exposure to pollutants released by the
facility caused or contributed to cause him to develop AML.
(Id. at ¶ 26.) Mr. Petrovic died of AML in
2017. (Id. at ¶ 25.)
Complaint, among other claims, asserts a claim for negligence
against Ginson. “The elements for a claim of negligence
are as follows: (1) defendant has a legal duty to use
ordinary care to protect plaintiff from injuries; (2) breach
of that duty; (3) proximate cause between the breach and
resulting injury; and (4) actual damages to plaintiff's
person or property.” Phelps v. Bross, 73
S.W.3d 651, 657 (Mo. App. 2002) (citing Hoover's
Diary, Inc. v. Mid Am. Dairymen, Inc., 700 S.W.2d 426,
431 (Mo. banc 1985). Under Missouri law, employees may be
held personally liable to a third party in certain instances.
Hutchen v. Wal-Mart Stores East I, LP, 555 F.Supp.2d
1013, 1018 (E.D. Mo. 2008) (citing State ex rel. Kyger v.
Koehr, 831 S.W.2d 953, 956 (Mo.Ct.App. 1992)).
“First, when an employee has or assumes full and
complete control of his employer's premises, his
liability to the public or to invitees is the same as that of
his employer.” Id. (citation omitted).
“A second situation involves liability on the part of
the employee who does not have complete control of the
premises but may be liable for injury to third persons when
he breaches some duty which he owes to such third
person.” Id. (citation omitted). “In the
second situation, the test is whether [the employee] has
breached his legal duty or has been negligent with respect to
something over which he did have control.” Id.
(quotation marks and citation omitted).
review, the Court concludes that the Complaint, although
inartfully, states facts sufficient to make a colorable claim
against Ginson under Missouri law. See Junk v. Terminix
Int'l Co., 628 F.3d 439, 446 (8th Cir. 2010)
(fraudulent joinder is not evaluated based on “the
artfulness of the plaintiff's pleadings”);
id. at 445 (fraudulent joinder standard is less
demanding than when considering a Rule 12(b)(6) motion to
dismiss). Plaintiff alleges that Ginson was an employee at
Amoco and served as Coordinator of Environmental Control.
Defendants admit Ginson was employed from 1961 to 1982, which
overlaps the time period when Mr. Petrovic is alleged to have
lived nearby. In addition, Plaintiff alleges that Defendants
“knew or should have known” that the pollutants
were discharged but failed to take reasonable steps to
prevent the migration of pollutants beyond the facility, and
that Mr. Petrovic's exposure to pollutants released by
the facility caused or contributed to cause him to develop
AML, which was ultimately terminal. A different judge of this
Court found nearly identical ...