United States District Court, E.D. Missouri, Eastern Division
KATHLEEN E. PATRICO and JOSEPH A. PATRICO, Plaintiffs,
BJC HEALTH SYSTEM d/b/a BJC HEALTHCARE and INTUITIVE SURGICAL, INC., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant Intuitive
Surgical, Inc.'s motion to strike (#7), plaintiffs'
motion to remand (#10), and defendant BJC Health System's
motion to dismiss for failure to state a claim (#19). For the
reasons stated below, plaintiffs' motion to remand will
be GRANTED and all other motions will be
DENIED AS MOOT.
2015, plaintiffs filed a state court action against BJC and
Intuitive Surgical for personal injuries Kathleen Patrico
suffered during her employment as a nurse at Missouri Baptist
Medical Center. See Kathleen E. Patrico et al. v. BJC
Health System et al., No. 15SL-CC04228 (St. Louis Cnty.
Cir. Ct. 2015). Specifically, plaintiffs allege Kathleen,
while assisting during a surgery, fell over a stool when the
robotic arm of a “da Vinci Surgical System”
manufactured by Intuitive Surgical “moved rapidly and
unpredictably toward her causing her to step back to avoid
coming in contact [with it].” Her fall resulted in
“traumatic brain injury.” Plaintiffs asserted
various claims against the defendants including negligence
and loss of consortium.
August 21, 2017, BJC moved for summary judgment arguing it
owed no duty of care to Kathleen because she was not employed
by BJC. Plaintiffs argued the basis for such a duty arose as
part of an “affiliation agreement” between
Missouri Baptist and BJC. The state court, however,
“declined to read the affiliation agreement in such a
way that would establish any duty” and, therefore,
granted summary judgment in BJC's favor on March 29,
2018. (Doc. #1-4). Plaintiffs did not request the court to
make the interlocutory summary judgment order a final,
appealable judgment “for which an appeal lies”
under Missouri Supreme Court Rule 74.01(b). Instead, on April
18, 2018, plaintiffs voluntarily dismissed their state court
action under Rule 67.02(a)(1), including all claims against
same basic dispute now comes before this Court after
plaintiffs refiled their claims in state court on April 17,
2019. See Kathleen E. Patrico et al. v. BJC Health System
et al., No. 19SL-CC01565 (St. Louis Cnty. Cir. Ct.
2019). On June 7, 2019, BJC filed a motion to dismiss arguing
that res judicata barred claims against it. However,
before that motion could be heard, Intuitive Surgical removed
the case under diversity jurisdiction. In seeking removal,
Intuitive Surgical argues BJC-the only non-diverse
defendant-has been fraudulently joined in light of what
transpired in the 2015 state court action; in essence,
Intuitive Surgical mirrors the arguments made by BJC in its
motion to dismiss.
Standards for Applying the Fraudulent Joinder
joinder is defined as “the filing of a frivolous or
otherwise illegitimate claim against a non-diverse defendant
solely to prevent removal.” Filla v. Norfolk
Southern Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003).
“Joinder is fraudulent when there exists no reasonable
basis in fact and law supporting a claim against the resident
defendants.” Id. at 810 (quoting Wiles v.
Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir.
2002)). A plaintiff “cannot defeat a defendant's
right of removal by joining a defendant who has ‘no
real connection to the controversy.' ”
Herkenhoff v. Supervalu Stores, Inc., 2014 WL
3894642 at *2 (E.D. Mo. Aug. 8, 2014) (quoting Donner v.
Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013)).
“[I]t is well established that 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.” Filla, 336 F.3d at 810 (quoting
Iowa Public Service Co. v. Medicine Bow Coal Co.,
556 F.2d 400, 406 (8th Cir. 1977) (emphasis in original)).
However, if there is a “colorable” cause of
action against the defendant, “that is, if the state
law might impose liability on the resident defendant under
the facts alleged” then there is no fraudulent joinder.
Id. (emphasis in original). Indeed, “[a]ll
doubts about federal jurisdiction should be resolved in favor
of remand to state court.” Block v. Toyota Motor
Corp., 665 F.3d 944, 948 (8th Cir. 2011). In
accomplishing its task of considering how the fraudulent
joinder doctrine affects its subject-matter jurisdiction, a
court is not to engage in the merits of a dispute. See
Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 896 (8th
Whether Res Judicata Applies in this Case Taking
into Account Plaintiffs' Prior Voluntary Dismissal under
Missouri Supreme Court Rule 67.02(a)
diversity action such as this, “[state] law [controls]
on the substantive question of res judicata.” St.
Paul Fire and Marine Ins. Co. v. Compaq Computer Corp.,
539 F.3d 809, 822 (8th Cir. 2008). Under Missouri law, res
judicata “operates as a bar to the reassertion of a
cause of action that has been previously
adjudicated in a proceeding between
the same parties or those in privity with them.”
Lauber-Clayton, LLC. v. Novus Properties Co., 407
S.W.3d 612, 618 (Mo. App. E.D. 2013) (emphasis added). The
“doctrine of res judicata … speak[s] to the
preclusive effect in one action of a
judgment entered in a prior
action.” Harter v. Director of Revenue, 514
S.W.3d 9, 16 (Mo. banc. 2017) (emphasis in original). Thus,
an interlocutory order-such as a partial summary judgment-has
no res judicata effect because it has adjudicated nothing to
the point of finality. See Comm. for Educ. Equality v.
State, 878 S.W.2d 446, 454 (Mo. banc. 1994); Gould
v. Rafaeli, 822 S.W.2d 494, 494-495 (Mo. App. E.D. 1991)
(noting “the term ‘judgment' in
‘partial summary judgment' is a misnomer [because]
the determination  is interlocutory  has no res judicata
effect  is subject to revision at any time [and] is not
reviewable by appeal or enforceable by execution”);
Golden Valley Disposal, LLC. v. Jenkins Diesel Power,
Inc., 183 S.W.3d 635, 640-641 (Mo. App. S.D. 2006)
State ex rel. Fortner v. Rolf, the Missouri Court of
Appeals considered almost the precise issue confronted by
this Court today. See 183 S.W.3d 249 (Mo. App. W.D.
2005). There, one of several defendants had filed a motion
for partial summary judgment on certain counts and damage
theories against it. The trial court entered a ruling on its
docket stating that it was sustaining the defendant's
motion. The next day, however, plaintiffs filed for
voluntarily dismissal under Rule 67.02(a). Id. at
250-251. On appeal, the court acknowledged defendant's
argument that it would “be unjust to allow the
[plaintiffs] to dismiss their cause of action and refile
their case [after] the trial court granted [defendant's]
partial summary judgment.” Id. at 255.
However, because the trial court's order was merely
interlocutory and because the interlocutory appeal was not
certified as an appealable judgment under Rule 74.01(b) prior
to the time when plaintiffs dismissed their case, it was held
that dismissal was effective and that the case did not result
in a “disposition of the case on the merits.”
Id. The case at hand is no different.
result may seem harsh-the opinion acknowledges as much-but it
is not an outlier. Id. Numerous courts following
Fortner have explained that a Rule 67.02(a)
dismissal makes it “as if the suit had never been
filed.” Hart v. Impey, 382 S.W.3d 918, 921
(Mo. App. S.D. 2012); Williams v. Southern Union
Co., 364 S.W.3d 228, 235 (Mo. App. W.D. 2011);
Richter v. Union Pacific R. Co., 265 S.W.3d 294, 297
(Mo. App. E.D. 2008). And at least four appellate court have
agreed with Fortner that a Rule 67.02(a) dismissal
makes it as if an adverse interlocutory order had never been
entered- preventing the preclusive effect of res judicata.
See State ex rel. Frets v. Moore, 291 S.W.3d 805,
812 (Mo. App. S.D. 2009) (adverse partial summary judgment
entered for defendants was interlocutory and, therefore,
effect of voluntary dismissal was to treat the case “as
if [it] were never brought”); Hart, 382 S.W.3d
at 921 (adverse interlocutory order deciding plaintiffs'
entitlement to attorneys' fees and litigation expenses
“must be treated as thought it had never been
entered”); Lewis v. Dept. of Soc. Servs., 61
S.W.3d 248, 256-257 n.4 (Mo. App. W.D. 2001) (findings made
by probate judge were not entitled to collateral estoppel
effect where plaintiff voluntarily dismissed his case prior
to final adjudication); Stewart v. Mills, 22 S.W.3d
797 (Mo. App. S.D. 2000) (res judicata did not apply where
plaintiff voluntarily dismissed case under Rule 67.02
following judgment against plaintiff in small claims court,
but before trial de novo was conducted by the circuit court).
counteract Fortner, Intuitive Surgical points this
Court to the more recent decision of State ex rel. St.
Charles Cnty. v. Cunningham, 401 S.W.3d 493 (Mo. banc.
2013), in which the Missouri Supreme Court clarified that
“an appealable judgment
following a summary judgment motion is the equivalent to a
bench trial on the merits, ” and would, therefore,
render dismissal under Rule 67.02(a) inappropriate.
Id. at 496 (emphasis added). But, in so holding, the
court acknowledged “[t]he disputed issues between
[plaintiff] and [defendant] were litigated
fully through summary judgment” and
resulted in an appeal that was resolved by the ...