United States District Court, W.D. Missouri, Western Division
ROSEANN A. KETCHMARK, JUDGE.
the Court is Plaintiff's Motion to Remand. (Doc. 12.) The
motion is now fully briefed. (Doc. 12, 12-1, 14, 16.) After
careful consideration, the motion is GRANTED
and the case is REMANDED to the Circuit
Court of Jackson County, Missouri.
of procedural background, this case was originally filed in
state court on May 10, 2018. (Doc. 1-2.) In that complaint,
Plaintiff alleged claims against four defendants (First Data
Corporation; CardConnect, Corporation; CardConnect, L.L.C.;
and Renny Palumbo) for equitable disgorgement, defamation,
violations of the Missouri Service Letter Statute, violations
of the Kansas Statutory Employee Protection Act, violations
of Missouri's Statutory Action for underpayment of wages,
and a claim pursuant to Mo. Rev. Stat. § 290.110.
(Id.) Defendant Renny Palumbo
(“Palumbo”) is one of the original named
defendants. (Id.) At the time the original complaint
was filed, both Plaintiff and Palumbo were citizens of
Missouri. In May 2019, Palumbo moved to Illinois. (Doc. 1.)
Plaintiff then filed an amended Complaint on July 30, 2019.
(Id.) The amended Complaint added an additional
party, FISERV, Inc. (“FISERV”), and four
additional counts. (Id.) Defendant FISERV was added
as a defendant because they acquired an original defendant,
First Data Corporation (“First Data”).
(Id.; Doc. 12.) Three of the additional counts were
added by way of uncoupling the individual statutory
provisions of the Kansas Statutory Protection Act.
(Id.) The amended complaint only added one new
claim, a claim for the tort of outrage, which consisted of a
single paragraph. Defendants then removed the action to this
Court on August 29, 2019, on the basis of diversity. (Doc.
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).
“[F]ederal courts have an independent obligation to
ensure that they do not exceed the scope of their
jurisdiction[.]” Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). 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). Jurisdiction is
determined based “upon the state of things at the time
the action [is] brought.” Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567, 570 (2004). 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 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 case cannot be removed to federal court based on diversity
of citizenship “more than one year after commencement
of the action.” 28 U.S.C. § 1446(b). See
Lindsay v. Dillard's, Inc., 306 F.3d 596, 600 (8th
Cir. 2002) (the “[f]ailure of a party to remove within
the one year limit precludes any further removal based on
diversity”); Jackson v. C.R. Bard, Inc., 2017
WL 2021087, at *3 (E.D. Mo. May 12, 2017) (the rationale
behind the one-year limitation is that a suit filed in state
court should remain in state court if the case has been using
state resources for over a year).
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).
case was removed to this Court based on 28 U.S.C.
§§ 1332(a) and 1441. For removal to be proper under
§ 1332(a), two requirements must be satisfied: the
amount in controversy exceeds $75, 000 and complete diversity
of citizenship exists. Here, the parties do not contest the
amount in controversy exceeds $75, 000. The question the
Court must then determine is whether complete diversity of
citizenship exists. As mentioned above, citizenship of the
parties is determined at the time of filing. Grupo
Dataflux, 541 U.S. at 570-71. At the time the initial
complaint was filed, both Plaintiff and Palumbo were citizens
of Missouri. Therefore, federal jurisdiction is lacking
because diversity of citizenship is destroyed and the forum
defendant rule is violated. Federal jurisdiction is also
lacking because the one-year rule has been violated as the
case was originally filed in 2018 and was not remanded until
October 2019. (See Doc. 1.) Defendants make four
arguments as to why the Court should disregard the
citizenship of Palumbo at the time the original complaint was
filed, and find federal jurisdiction proper. Defendants argue
Palumbo was fraudulently misjoined, fraudulently joined, the
revival doctrine supports removal, and Palumbo's
citizenship should be determined at the time of the First
Amended Complaint. (Id.) The arguments are without
merit and the Court will address each in turn.
Palumbo was not Misjoined or Fraudulently Misjoined
misjoinder applies “when a plaintiff sues a diverse
defendant in state court and joins a viable claim involving a
nondiverse party . . . even though the plaintiff has no
reasonable procedural basis to join them in one action
because the claims bear no relation to each other.”
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620
(8th Cir. 2010) (quoting Ronald A. Parsons, Should the
Eighth Circuit Recognize Procedural Misjoinder?, 53 S.D.
L. Rev. 52, 57 (2008)). The fraudulent misjoinder rule is an
exception to the complete diversity rule that has been
accepted by some courts. Id. The Eleventh Circuit
has warned in their articulation of this doctrine that mere
misjoinder is not fraudulent misjoinder. Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996).
“In Prempro the Eighth Circuit neither
‘adopt[ed] [n]or reject[ed] the fraudulent misjoinder
doctrine.'” Graham v. Mentor World Wide
LLC, No. 4:19-CV-01637, 2019 WL 3253185, at *4 (E.D. Mo.
July 19, 2019) (citing Lafoy v. Volkswagen Group of
America, Inc., 2016 WL 2733161 at *3 (E.D. Mo. May. 11,
2016)). Rather, the Eighth Circuit, looking at Rule 20, found
the claims of unrelated plaintiffs were “‘not so
egregious as to constitute fraudulent misjoinder' and was
‘likely to contain common questions of law and
fact.'” Id. (citing Lafoy, 2016
WL 2733161 at *3 (E.D. Mo. May. 11, 2016)); Prempro,
591, F.3d at 622-23.
addresses the permissive joinder of defendants. Joinder under
Rule 20 requires: (1) a claim for relief asserting joint,
several, or alternative liability arising from the same
transaction, occurrence, or series of transactions or
occurrences, and (2) a common question of law or fact.
Fed.R.Civ.P. 20(a). The Eight Circuit has stated “that
the transaction/occurrence requirement prescribed by Rule
20(a) is not a rigid test and is meant to be ‘read as
broadly as possible whenever doing so is likely to promote
judicial economy.'” Prempro, 591 F.3d at
622 (8th Cir. 2010) (citations omitted). This prescribed
flexibility does not depend “so much upon the
immediateness of their connection as upon their logical
relationship." Id. at 622. Further, “the
majority of courts demand more than simply the presence of
nondiverse, misjoined parties, but rather a showing that the
misjoinder reflects an egregious or bad faith intent on the
part of the plaintiffs to thwart removal.”
Prempro, 591 F.3d at 623.
relies upon the doctrine of fraudulent misjoinder to oppose
remand, asserting that Plaintiff's joinder of his claims
against Palumbo, along with his claims against the other
Defendants, is intended only to defeat diversity because the
claims do not “arise out of the same transaction,
occurrence, or series of transactions or occurrences.”
(Doc. 1, p. 7). However, Defendant has failed to establish a
factual basis that Plaintiff's claims were grossly and
egregiously misjoined intending to avoid diversity
jurisdiction, reaching beyond mere misjoinder to the level of
fraudulent misjoinder. Here, Plaintiff's claims all arise
out of a series of interactions among employees within a
shared workplace and are logically related to one another due
to the alleged factual circumstances under which they arose.
See Horne v. Tex. DOT, No. 4:19-CV-405-KPJ, 2019
U.S. Dist. LEXIS 185979, at *11 (E.D. Tex. Oct. 28, 2019)
(finding that in an employment context, a series of
transactions or occurrences is logically connected when the
transactions or occurrences take place in the same workplace
location, during the same timeframe, under the same
supervisory regime). Further, Plaintiff alleges the