United States District Court, E.D. Missouri, Eastern Division
KYLE HARVEY, Natural and Biological Father of A.H., a Deceased Minor, Plaintiff,
GREAT CIRCLE, et al., Defendants.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Great Circle's
Motion to Dismiss Plaintiff's Complaint pursuant to
Fed.R.Civ.P. 12(b)(6), Plaintiff's Motion for Remand to
State Court, and Plaintiff's Motion to Amend
Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 15(a)(2).
[Docs. 5, 14, 25.] Defendant Kelly Ann Connelly joined in
Great Circle's Motion to Dismiss, with the Court's
approval. [Doc. 22.] The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons
set forth below, the Court will deny Plaintiff's Motion
for Remand to State Court, deny Defendants' Motion to
Dismiss Plaintiff's Complaint, and deny as moot
Plaintiff's Motion to Amend.
case is a wrongful death action filed by Harvey asserting
liability against Defendants for the death of his child A.H.
Harvey originally filed this action in state court asserting
Missouri state law claims of wrongful death due to negligence
and intentional tort and wrongful death pursuant to 42 U.S.C.
§§ 1983, 1985 against Defendants Great Circle and
Kelly Ann Connelly. On April 9, 2019, Defendant Great Circle
removed this action from Missouri state court based on
federal question jurisdiction over the federal constitutional
claims in Count III. [Doc. 1.] Defendant Great Circle also
filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6), which
Connelly subsequently joined. [Docs. 5, 22.] On April 24,
2019, Harvey filed a Motion for Remand to State Court. [Doc.
14.] On May 8, 2019, Harvey filed a Response in Opposition to
Defendants' Motion to Dismiss or, in the alternative, a
Motion to Amend Plaintiff's Complaint Pursuant to
Fed.R.Civ.P. 15(a)(2). [Doc. 25.] On May 22, 2019, Defendants
filed a Reply Brief in Support of their Motion to Dismiss.
[Doc. 28.] The motions are now fully briefed.
the Court will address Harvey's Motion for Remand to
State Court. [Doc. 14.] In his motion, Harvey contends that
this action should be remanded because Defendant Kelly Ann
Connelly had not joined in or consented to the Notice of
civil action brought in a state court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or defendants to the district
court of the United States for the district and division
embracing the place where such action is pending. 28 U.S.C.
§ 1441(a). There are several requirements a defendant
must follow to remove an action, including the requirement
that all defendants who have been properly joined and served
must join in or consent to the removal of the action. 28
U.S.C. § 1446(b)(2)(A). As the party seeking removal and
opposing remand, Great Circle has the burden of establishing
federal subject matter jurisdiction. In re Business
Men's Assur. Co. of America, 992 F.2d 181, 183 (8th
Cir. 1993). The district court is required to resolve all
doubts about federal jurisdiction in favor of remand.
case, Plaintiff has not demonstrated that Connelly had been
properly served at the time of removal. There is no return of
service indicating that Connelly had been served with legal
process before Connelly's entry into the action in this
Court. The state court record indicates that service of
Connelly was attempted but, not effected, and an alias
summons was issued on March 21, 2019. [Doc. 1-2.] “It
is well recognized that the consent of unserved defendants
need not be obtained to effectuate removal.”
Roberts v. Palmer, 354 F.Supp.2d 1041, 1044 (E.D.
Mo. 2005). Harvey has not alleged any other defects regarding
removal. Therefore, Harvey's motion to remand will be
the Court will address Defendants' Motion to Dismiss
Harvey's claims for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6) and on the basis of qualified immunity
under federal and state law.
Immunity for Section 1983 Claim
Complaint asserts liability against Defendants Great Circle
and Kelly Anne Connelly for wrongful death in violation of
A.H.'s civil rights pursuant to 42 U.S.C. § 1983. As
an initial matter, the Court finds it necessary to address
some confusion regarding the parties and immunities available
in this matter. Title 42 U.S.C. § 1983 provides
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State … subjects,
or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
organization acting under color of state law for purposes of
§ 1983, will only be held liable for its own
unconstitutional policies. Sanders v. Sears, Roebuck
& Co., 984 F.2d 972, 975 (8th Cir. 1993) (citing
Monell v. Department of Social Servs., 436 U.S. 658,
Complaint alleges that Great Circle is a non-profit
organization that is privately contracted to provide foster
care services on behalf of the State of Missouri. The
Complaint further alleges that Connelly is an individual
employed by Great Circle, “tasked with providing the
services Great Circle contracts to perform with the State of
Missouri Department of Social Services and/or the
Children's Division.” (Compl. ¶ 5). Because
Defendants were performing services for the State of
Missouri, Harvey alleges that Great Circle and ...