Khoshneviszadeh v. Sams West, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

MOHAMMAD KHOSHNEVISZADEH, )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-00012-RK

)

SAMS WEST, INC., KEVIN COKELEY, )

)

Defendants. )

ORDER

This action was originally filed in state court and was removed to this Court by Defendants

Sam’s West, Inc., and Kevin Cokeley on January 10, 2022. (Doc. 1.) Now before the Court is

Plaintiff’s motion to remand. (Doc. 13.) The motion is fully briefed. (Docs. 14, 24.)1 After

careful consideration and for the reasons below, the motion to remand (Doc. 13) is GRANTED.

I. Background

Plaintiff initially filed this action pro se2 in Missouri state court asserting various claims of

discrimination and violation of Missouri’s service letter law against his former employer,

Defendant Sam’s West, Inc., and claims of defamation and tortious interference with contract

against Defendant Kevin Cokeley, Plaintiff’s former co-employee. (See generally Doc. 1-2.)3

1 Plaintiff did not file a reply in support of his motion to remand and the time for doing so has

passed.

2 Plaintiff is now represented by counsel.

3 Plaintiff filed an amended complaint in this action on February 9, 2022, after it had been removed

to this Court. (Doc. 12.) For purposes of the instant motion to remand, however, the Court considers the

operative complaint at the time of removal – Plaintiff’s initial pro se petition filed in state court. See

Bohnenkamp v. Hog Slat, Inc., __ F. Supp. 3d __, 2021 WL 2941988, at *6 (N.D. Iowa July 13, 2021)

(noting while the Eighth Circuit has not squarely addressed this issue, “[t]he vast majority of district courts

in this circuit . . . have held that the fraudulent joinder analysis should be based on whichever pleading was

in effect at the time of removal, even if the complaint was subsequently amended”) (collecting cases); Tasic

v. Wells Fargo Bank, N.A., No. 4:13CV00840 AGF, 2013 WL 3157791, at *3 (E.D. Mo. June 20, 2013);

see also Knudson v. Sys. Painters, Inc., 634 F.3d 968, 975 (8th Cir. 2011) (recognizing, for purposes of

subject matter jurisdiction based on diversity of citizenship, “diversity of citizenship must exist both when

the state petition is filed and when the petition for removal is filed”) (collecting cases) (citation and

quotation marks omitted); Rick v. Hedrick, 167 F. Supp. 491, 492 (W.D. Mo. 1958) (remanding case after

individual defendant died subsequent to removal because the defendant was a party at the time of removal

and thus “his presence destroyed diversity of citizenship”); but see Legacy Bldg. Grp., LLC v. Liberty Mut.

Fire Ins. Co., No. 4:21-cv-266-MTS, 2021 WL 4819570, at *2 (E.D. Mo. Oct. 15, 2021).

Plaintiff was employed by Defendant Sam’s Club West, Inc., as a pharmacist from February 2000

until September 2020. (Id. at ¶¶ 5-7.)

On August 14, 2020, Plaintiff became aware his wife had tested positive for COVID-19.

(Id. at ¶ 14.) Plaintiff contacted his managers, closed the pharmacy and left work. (Id.) After

testing negative for COVID-19, Plaintiff was placed back on the work schedule five days after

having notified his employer about the COVID exposure. (Id.) When he returned to work,

Plaintiff underwent daily temperature tests and screenings, checking his temperature every day

throughout the day. (Id. at ¶ 15.) Plaintiff was told to use a pharmacy application to do so and

always used the “screening entrance” when going into work. (Id.) Plaintiff tried to use the

pharmacy application, but it was not working. (Id. at ¶ 16.) Later that night, Plaintiff learned he

did have a temperature and informed his employer, who advised Plaintiff he should not return to

work until his symptoms receded and he had been subsequently tested for COVID. (Id. at ¶ 17.)

Despite having had no discipline and few complaints by either customers or co-workers,

Plaintiff was terminated on September 6, 2020, Defendant Cokeley, a co-employee, falsely

reported to the Board of Pharmacy “among other things” that Plaintiff had failed to properly abide

by Defendant Sam’s West’s screening process during the COVID-19 pandemic. (Id. at ¶¶ 8-9, 18-

19, 68.) Plaintiff alleges Defendant Cokeley’s statements to the Board of Pharmacy “were made

outside the scope of his employment with Defendant Sam’s, and [were] not a part of his job duties.”

(Id. at ¶ 68; see id. at ¶ 74 (“Cokeley performed these actions outside and beyond the scope of his

employment with Sam’s.”).) After he had been terminated, the Pharmacy Board determined

Plaintiff had done nothing wrong. (Id. at ¶ 24.)

Plaintiff subsequently filed charges of discrimination with the Missouri Commission on

Human Rights and the Equal Opportunity Commission asserting claims of age, race and color,

national origin, and disability discrimination. (Id. at ¶ 32.) Plaintiff alleges in his petition the

EEOC issued a notice of right to sue letter “[o]n September 16, 2021.” (Id. at ¶ 33.)

Plaintiff alleges Defendant Sam’s West discriminated against him based on “inappropriate

comments to the Plaintiff,” harassment, reprimanding Plaintiff but not certain other similarly

situated employees, placing Plaintiff in a position where performing his job was more difficult, or

terminating Plaintiff because of his age, race and color, national origin, or disability. (Id. at 6-11.)

Additionally, Plaintiff asserts a claim that Defendant Sam’s West violated Missouri’s service letter

law, § 290.140, RSMo, when it failed to issue a proper service letter as requested. (Id. at 11-12.)

Finally, Plaintiff asserts a claim of defamation and tortious interference with contract against

Defendant Kevin Cokeley based on the statements he made to the Board of Pharmacy. (Id. at 12-

14.)

In their notice of removal, Defendants assert this Court has subject matter jurisdiction

under 28 U.S.C. § 1332, notwithstanding Defendant Cokeley’s Missouri citizenship because the

fraudulent joinder doctrine applies to Plaintiff’s tort claims against Defendant Cokeley.4

Defendants argue Plaintiff’s defamation and tortious interference claims against Defendant

Cokeley are barred by the Missouri Human Rights Act’s (“MHRA”) exclusive-remedy provision

and are therefore barred as a matter of law.

II. Legal Standard

Defendants, who collectively invoke this Court’s jurisdiction,5 bear the burden of proving

that all prerequisites to jurisdiction are satisfied. Green v. Ameritrade, Inc., 279 F.3d 590, 596

(8th Cir. 2002). “A defendant may remove a state law claim to federal court only if the action

originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th

Cir. 2010) (citation omitted).

Diversity jurisdiction under 28 U.S.C. § 1332(a) requires an amount in controversy greater

than $75,000 and complete diversity of citizenship among the litigants. “Complete diversity of

citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds

citizenship.” Prempro, 591 F.3d at 620 (citation omitted). Fraudulent joinder – the filing of a

4 In addition, the notice of removal asserted federal question jurisdiction under 28 U.S.C. § 1331

since Plaintiff’s petition alleges only he has received a right to sue letter from the EEOC rather than the

Missouri Human Rights Commission. (Doc. 1 at 2-3.) In his motion to remand, Plaintiff contends the

reference in the petition to the EEOC’s right to sue letter was in error since the Missouri Human Rights

Commission’s right to sue was issued on September 16, 2020 (see Doc. 14-1) and the EEOC’s right to sue

letter (attached to Defendants’ notice of removal as Doc. 1-3) was issued on September 29, 2021. (Doc. 14

at 10.) Defendants do not continue to argue in opposing Plaintiff’s motion to remand that this Court has

federal question jurisdiction. Under these circumstances and because it is ultimately the Defendants’

burden as the removing party to establish federal subject matter jurisdiction, In re Bus. Men’s Assur. Co. of

Am., 992 F.2d 181, 183 (8th Cir. 1993), the Court does not consider federal question jurisdiction further.

5 In his motion to remand, Plaintiff suggests removal was also improper because “there is nothing

in the removal notice showing that all defendants have consented to the removal” as required under 28

U.S.C. § 1446. This argument is without merit for the sole reason that the notice of removal was signed by

counsel representing both defendants. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933

(8th Cir. 2012) (“We also emphasize that non-removing defendants who wish to evince consent to removal

should either sign the notice of removal or file a timely and unequivocal consent to such course of

conduct.”). Plaintiff presents no legal authority or argument, and the Court is aware of none, that this is not

sufficient to satisfy § 1446(b)’s requirement that all defendants who have been properly joined and served

must consent to the removal of the action.

“frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal” – acts

as an exception to the complete diversity rule. Id. Stated differently, “a plaintiff cannot defeat a

defendant’s ‘right of removal’ by fraudulently joining a defendant who has ‘no real connection

with the controversy.’” Knudson, 634 F.3d at 976 (citation omitted).

Whether a non-diverse party has been fraudulently joined such that the federal court may

nonetheless obtain subject matter jurisdiction depends on “whether there is arguably a reasonable

basis for predicting that the state law might impose liability based upon the facts involved.”

Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007) (citation and quotation marks

omitted). The Eighth Circuit has explained that the “reasonableness of the basis underlying the

state claim” is critical to this inquiry. Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.

2003). In Filla, the Eighth Circuit explained the critical difference between circumstances in

which courts should find a non-diverse defendant was fraudulently joined and those in which they

should not: “Where applicable state precedent precludes the existence of a cause of action against

a defendant, joinder is fraudulent” but “if there is a ‘colorable’ cause of action – that is, if the state

law might impose liability on the resident defendant under the facts alleged [or, in other words, if

there exists a reasonable basis in fact and law supporting the claim] – then there is no fraudulent

joinder.” Id. (citations and footnote omitted); see also Hayes v. Rad Transport, Inc., No. 10-0787-

CV-W-ODS, 2010 WL 3807052, at *2 (W.D. Mo. Sept. 23, 2010) (noting, “[t]he Court’s task is

to determine whether the claim clearly lacks any basis – that is, if it is barred as a matter of law or

if it is based on facts that clearly provide no basis for liability”).

“By requiring the defendant to prove that the plaintiff’s claim against the non-diverse

defendant has no reasonable basis in law and fact, [courts] require the defendant to do more than

merely prove that the plaintiff’s claim should be dismissed pursuant to a Rule 12(b)(6) motion.”

Knudson, 634 F.3d at 980. In the fraudulent-joinder analysis, the Court does not focus on the

artfulness of the plaintiff’s pleadings. Id. at 980 (citation omitted). That is because the reasonable

basis standard articulated in Filla is distinct from and less demanding than the Rule 12(b)(6)

plausibility standard. Id.; see also Hayes, 2010 WL 3807052 at *2 (“Where the sufficiency of the

complaint against the non-diverse defendant is questionable, ‘the better practice is for the federal

court not to decide the doubtful question . . . but simply to remand the case and leave the question

for the state courts to decide.’”) (quoting Filla, 336 F.3d at 810). Any doubts about the propriety

of removal or federal jurisdiction must be resolved in favor of remand. Block v. Toyota Motor

Corp., 665 F.3d 944, 948 (8th Cir. 2011).

III. Discussion

Defendants argue this Court has subject matter jurisdiction notwithstanding Defendant

Cokeley’s non-diverse citizenship under the fraudulent joinder exception to the complete diversity

requirement to establish jurisdiction under § 1332. Defendants assert Plaintiff’s tort claims for

defamation6 and tortious interference with a contract against Defendant Cokeley are not colorable

because they are expressly barred by the MHRA since these claims “arise from [Plaintiff’s]

employment [with Defendant Sam’s West].” (Doc. 24 at 2.)

The MHRA makes it unlawful for employers to discriminate on the basis of an employee’s

race, color, national origin, age, or disability. § 213.070.1(3); see Mo. Rev. Stat. § 213.055.1(1)

(setting forth particular “unlawful employment practice[s]”). In addition, § 213.070.2 states:

“This chapter . . . shall provide the exclusive remedy for any and all claims for injury or damages

arising out of an employment relationship.” Thus, as the parties appear to agree, the critical inquiry

here is whether Plaintiff’s tort claims against Defendant Cokeley, a non-diverse co-employee,

“aris[e] out of an employment relationship.”

Generally, federal courts that have considered the MHRA’s exclusive-remedy provision in

this context consider (1) whether the tort claim “arise[s] from the same factual allegations

underlying Plaintiff’s MHRA claims,” Winfrey v. Ford Motor Co., No. 4:19-CV-00889-DGK,

2020 WL 1558117, at *2 (W.D. Mo. Apr. 1, 2020) (citation omitted); and (2) whether the

complaint or petition establishes that the alleged tortious conduct occurred outside the scope of an

employment relationship. Compare Van Alst v. Mo. CVS Pharmacy, LLC, No. 4:20-cv-00155-

NKL, 2020 WL 2319882 (W.D. Mo. May 11, 2020) (relying in part on plaintiff plausibly pleading

the alleged tortious acts by co-employee occurred outside the scope of the co-employee’s

employment to find the plaintiff asserted a colorable claim against the non-diverse co-employee,

requiring remand) with Johnson v. Midwest Div.-RHB, LLC, No. 4:20-CV-00728-BCW, 2021 WL

5541783 (W.D. Mo. Jan. 11, 2021) (distinguishing Van Alst since plaintiff pleaded co-employee’s

6 In the petition filed before the state court, Plaintiff asserts a claim against Defendant Cokeley for

“slander and defamation.” (Doc. 1-1 at 12.) As Missouri courts have recognized, “[m]odern law combines

libel and slander as the generic tort of defamation.” Boyd v. Schwan’s Sales Enters., Inc., 23 S.W.3d 261,

264 n.3 (Mo. Ct. App. 2000) (citation omitted). Thus, the Court refers to this tort claim as a claim for

defamation.

alleged tortious acts occurred within the scope and course of her employment with the defendant-

employer, such that plaintiff’s tort claim against the non-diverse co-employee was barred by the

MHRA’s exclusive-remedy provision, denying plaintiff’s motion to remand).

For example, in Huskey v. PetSmart, Inc., No. 18-00813-CV-W-NKL, 2019 WL 122873

(W.D. Mo. Jan. 7, 2019), in addition to MHRA claims brought against her employer, the plaintiff

asserted a tort claim against a non-diverse co-employee for civil conspiracy to violate her rights

under the MHRA. There, the district court found the civil conspiracy claim necessarily “ar[ose]

from an ‘employment relationship’” such that the MHRA’s exclusivity provision applied to the

claim since the civil conspiracy claim “concerns what the statute defines as ‘unlawful employment

practice[s].’” Id. at *2-3.7

Here, Defendants argue Plaintiff’s tort claims for defamation and tortious interference with

contract against Defendant Cokeley arise from the same facts supporting Plaintiff’s claims under

the MHRA against Defendant Sam’s West. (Doc. 24 at 4.) The Court disagrees. It appears

Defendants primarily argue Plaintiff’s tort claims fall under the MHRA’s exclusive-remedy

provision since the alleged tortious acts by Defendant Cokeley, a co-employee, occurred during

and within the context of Plaintiff’s employment with Defendant Sam’s West. That the torts

asserted against Defendant Cokeley concern alleged acts that occurred in the context of the

workplace, however, does not automatically mean the claims “arise from an employment

relationship.” See also Van Alst, 2020 WL 2319882, at *2 (finding issue of fact as to whether

plaintiff’s claim arose from employment relationship to require remand even where the alleged

tortious acts occurred in the workplace). Plaintiff’s claims against Defendant Cokeley arise from

Cokeley’s (allegedly false) statements made to the Board of Pharmacy that Plaintiff failed to abide

by their employer’s health screening process – statements Plaintiff specifically pleads were made

outside the scope and course of his employment with Defendant Sam’s West.

To be sure, Plaintiff’s petition does not plead why he was terminated (other than he believes

he was terminated because of characteristics such as his age, race and color, national origin, or

7 Additionally, in Hoaglin v. Hyvee Inc., No. 6:18-03262-CV-RK, 2019 WL 1928536 (W.D. Mo.

April 30, 2019) and Reese v. Tyson Foods, Inc., No. 3:21-05087-CV-RK, 2021 WL 5625411 (W.D. Mo.

Nov. 30, 2021), both cited by Defendants, the court found plaintiff’s tort claims would be without merit

since the claims were based “on the same facts as those that form the basis of her claims [under the

MHRA],” Hoaglin, 2019 WL 1928536, at *1, and “ar[o]se from the same factual allegations underlying

Plaintiff’s MHRA claim.” Reese, 2021 WL 5625411, at *6 (cleaned up).

disability). Even if he were terminated in relation to Defendant Cokeley’s complaint to the

Pharmacy Board, however, such claim would not appear to arise from an employment relationship

in a manner giving rise to MHRA exclusivity, however. Cf. Husky, 2019 WL 122873, at *2-3

(finding plaintiff’s civil conspiracy claim against co-employee arose from an employment

relationship since it was based on acts otherwise prohibited under the MHRA). Nonetheless,

Plaintiff’s allegation that Defendant Cokeley’s allegedly false statements to the Board of Pharmacy

that he did not abide by their employer’s health screening process occurred outside the scope of

Defendant Cokeley’s employment is plausible. Moreover, on the face of the complaint, it does

not appear Plaintiff’s tort claims against Defendant Cokeley arise from the same factual basis as

his MHRA claims against Defendant Sam’s West.8

In the context of a fraudulent joinder analysis the Court must resolve all facts and

ambiguities in the substantive law in favor of Plaintiff. See id. at *2; Hayes v. Rad Transport, Inc.,

No. 10-0787-CV-W-ODS, 2010 WL 3807052, at *2 (W.D. Mo. Sept. 23, 2010) (“The Court is not

to resolve factual issues, and the Court should not resolve issues of law,” but instead “[t]he Court’s

task is to determine whether the claim clearly lacks any basis – that is, if it is barred as a matter of

law or if it [is] based on facts that clearly provide no basis for liability.”) Moreover, the fraudulent-

joinder analysis does not consider the sufficiency of the complaint to state a claim but rather

“[w]here the sufficiency of the complaint against the non-diverse defendant is questionable, ‘the

better practice is for the federal court not to decide the doubtful question . . . but simply to remand

the case and leave the question for the state courts to decide.’” Hayes, 2010 WL 3807052, at *2

(quoting Filla, 336 F.3d at 810).

Because the petition does not establish on its face Defendant Cokeley was acting within

the scope of an employment relationship or Plaintiff’s tort claims arise from the same factual basis

as his MHRA claims against Defendant Sam’s West and thus is not barred by the MHRA’s

exclusive-remedy provision, the Court concludes Missouri law might impose liability based on

8 Additionally, Defendants’ reliance on Hoaglin and Reese here is not persuasive to the extent

neither case explained how or why the claims asserted were based on the same facts as the plaintiff’s MHRA

claims. These cases do not aid Defendants’ argument other than establishing the general principle that

claims based on the same facts as a plaintiff’s MHRA claim are barred under the MHRA’s exclusive-

remedy provision. And as previously noted, it is Defendants’ burden to establish federal subject matter

jurisdiction and therefore that the fraudulent joinder exception applies to establish diversity of citizenship

jurisdiction under § 1332 despite Defendant Cokeley’s non-diverse citizenship. Commercial Sav. Bank v.

Commercial Fed. Bank, 939 F. Supp. 674, 680 (N.D. Iowa Sept. 23, 1996) (collecting cases).

Plaintiff’s tort claims against Defendant Cokeley.9 In other words, since it appears the state court

might impose liability against Defendant Cokeley notwithstanding the MHRA’s exclusive-remedy

provision, Plaintiff’s tort claims against Defendant Cokeley are colorable, and the fraudulent

joinder exception does not apply as the case is presented to this Court. Accordingly, the Court

lacks subject matter jurisdiction since complete diversity of citizenship did not exist at the time of

removal. Therefore, the case must be remanded pursuant to 28 U.S.C. § 1447(c) (“If at any time

before final judgment it appears that the district court lacks subject matter jurisdiction, the case

shall be remanded.”). Plaintiff’s motion to remand (Doc. 13) is GRANTED and the case is

remanded to state court. 10

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: April 19, 2022

9 Although not explicitly raised by either party, the Court recognizes at least one other court in this

district has suggested common law tort claims asserted against a co-employee not specific to an employee-

employer relationship (such as assault, battery, etc.) remain colorable state-law causes of action under

Missouri law given the 2017 amendment to the MHRA’s definition of “employer” to specifically exclude

from that definition “[a]n individual employed by an employer.” Mo. Rev. Stat. § 213.010(8)(c); see Coats

v. Tyson Foods, Inc., No. 21-cv-06154-SRB, 2022 WL 138128, at *3 (W.D. Mo. Jan. 14, 2022) (finding

addition of common law claims for defamation and invasion of privacy and/or false light against co-

employee would not be futile as barred by the MHRA’s exclusive-remedy provision; recognizing these

causes of action against a co-employee “do[es] not fall within the scope of MHRA’s exclusivity provision”);

Matthews v. Syncreon.us, Inc., No. 20-CV-6140-SRB, 2020 WL 6538332, at *4 (W.D. Mo. Nov. 6, 2020)

(noting, “Nothing indicates, either in statute or Missouri case law, that the Missouri legislature intended to

grant complete immunity from all liability for co-workers” and “a state court might conclude that Missouri

law would not impose liability against a co-employee for a violation of human rights, but would impose

liability for assault, battery, and other common law causes of action”).

10 Also pending before the Court is Defendant Cokeley’s motion to dismiss Plaintiff’s defamation

and tortious interference claims. (Doc. 22.) Because the Court finds it lacks subject matter jurisdiction and

must remand the case to state court, it does not take up Defendant’s motion to dismiss.