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Harvey v. Great Circle

United States District Court, E.D. Missouri, Eastern Division

October 29, 2019

KYLE HARVEY, Natural and Biological Father of A.H., a Deceased Minor, Plaintiff,
v.
GREAT CIRCLE, et al., Defendants.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Procedural Background

         This 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.

         Motion for Remand

         First, 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 Removal.

         Any 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. Id.

         In this 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 denied.

         Motion to Dismiss

         Next, 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.

         Qualified Immunity for Section 1983 Claim[1]

         Harvey's 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.

         An 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, 690 (1978)).

         The 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 ...


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