MEMORANDUM AND ORDER
LIMBAUGH, District Judge.
Plaintiff originally filed this slip-and-fall action in the Circuit Court for the City of St. Louis. On June 27, 1995 defendants filed a notice of removal based upon fraudulent joinder of resident defendant Maureen Kellogg. Furthermore, on the same date as the filing of the notice of removal, defendant Kellogg filed a motion to drop her for misjoinder and/or fraudulent joinder, or in the alternative, for summary judgment on Count II of plaintiff's complaint (# 6). Responsive pleadings have been filed.
As stated before, defendants removed this lawsuit from state court on June 27, 1995. They contend that the non-diverse defendant Kellogg was fraudulently joined in order to defeat federal diversity jurisdiction. They argue that there is no possibility that the plaintiff can establish a cause of action against resident defendant Kellogg. Consequently, if defendant Kellogg was fraudulently joined, her residency is disregarded for purposes of determining diversity jurisdiction. Federal Beef Processors, Inc. v. CBS, Inc., 851 F.Supp. 1430, 1434 (D.S.D.1994).
Title 28 U.S.C. § 1441(b) allows a defendant who meets certain requirements to remove a civil action from state court to federal court on the basis of diversity of citizenship. The requirement of complete diversity is fully applicable to cases removed on the basis of diversity. Brown v. Southland Corp., 620 F.Supp. 1495, 1496 (E.D.Mo.
In the present case, defendant Kellogg does not allege fraud in the pleading of jurisdictional facts. Therefore, the issue for this Court to consider is whether the plaintiff has stated a basis for recovery, under Missouri law, against resident defendant Kellogg.
In ruling on the issue, courts appear to be divided as to the proper standard to apply. Some courts have applied a summary judgment standard, i.e. considering all material on the record including the pleadings, deposition testimony, and affidavits.
In 1983, the Eighth Circuit stated "[f]raudulent joinder exists if, on the face of the plaintiff's state court pleadings, no cause of action lies against the resident defendant." Anderson v. Home Insurance Co., 724 F.2d 82, 84 (8th Cir.1983). This is clearly a motion to dismiss standard. However, in 1987, the district court in Monroe v. Consolidated Freightways, Inc., 654 F.Supp. 661, 663 (E.D.Mo.1987), without citing Anderson v. Home Insurance Co., supra., stated that the Court may consider all material on the record including the pleadings, affidavits, and deposition testimony. This is clearly a summary judgment standard. In 1990, another district court in Missouri applied the dismissal standard of Anderson v. Home Insurance to the issue of fraudulent joinder. St. Louis Trade Diverters, et al. v. Constitution State Insurance Co., 738 F.Supp. 1269, 1271 (E.D.Mo.1990). In 1993, two district courts in Minnesota, citing Anderson v. Home Insurance, supra., applied a motion to dismiss standard in addressing the issue of fraudulent joinder. Schwenn, et al. v. Sears, Roebuck & Co., et al., 822 F.Supp. 1453, 1455-56 (D.Minn.1993); Banbury v. Omnitrition International et al., 818 F.Supp. 276, 279-80 (D.Minn.1993).
Recently, the district court in South Dakota, disagreeing with the Schwenn case, held that "piercing the pleadings"
Finally, just a short time ago, another district court in this district also addressed the issue of fraudulent joinder by "piercing
Id., at 93.
After careful consideration of the matter, this Court agrees with the district courts' analysis both in Schwenn and Parnas, supra. The only Eighth Circuit case addressing the issue of determining the fraudulent joinder issue is Anderson v. Home Insurance Co., supra. Anderson appears to set forth a standard similar to that for a motion to dismiss. Anderson, at 84. The Schwenn Court found the application of a summary judgment standard inappropriate
Id., at 1455.
However, the Schwenn court further found that in those instances where a court pierces the pleadings and considers factual and legal materials outside the pleadings, it should only consider whether these materials establish facts supporting the claims, not whether these materials resolve the merits of the plaintiff's claims. Id., at 1456. This was the avenue taken by the district court in Parnas. It used outside materials to determine whether they established facts supporting the plaintiff's claims against the challenged defendant. This Court believes that this is the most prudent method of determining if defendant Kellogg was fraudulently joined.
After careful consideration of the matter, the Court finds that the primary objective of the presence of resident defendant Kellogg is to defeat federal jurisdiction. The reason being that there is no factual or legal support for a claim against Kellogg for the plaintiff's injuries.
This is a slip-and-fall case. Plaintiff contends that in the late evening of December 1, 1994, while in the lingerie area of the Wal-Mart store in Fenton, Missouri, she tripped over alleged "ragged" carpeting and fell, injuring her back. The non-diverse defendant is Maureen Kellogg, the manager of the store.
Under Missouri law, there are certain instances wherein an employee may be held personally liable to a third party.
State ex rel. Kyger v. Koehr, 831 S.W.2d 953, 956 (Mo.App.1992).
Plaintiff concedes that defendant Kellogg did not have full and complete control of the premises.
Plaintiff's only rebuttal to Kellogg's testimony is her affidavit in which she states that she has witnesses who will testify that the rug was in the alleged defective condition for some extended period of time prior to the accident. This affidavit fails to provide a reasonable basis in fact or colorable ground supporting the plaintiff's claim against Kellogg. Firstly, plaintiff's affidavit is improper as it contains hearsay and lacks any personal knowledge on the part of the plaintiff as to the length of time the carpet was in the alleged defective condition. Secondly, plaintiff fails to provide any facts showing that defendant Kellogg had personal or constructive knowledge of the alleged defective condition of the carpet and breached a duty to repair or remove it.
Defendant Kellogg has provided materials establishing that she had only been transferred as manager to the Fenton store three days prior to the accident, was not in the store at the time of the accident, and had not been aware or made aware of the alleged defective condition of the carpet. Plaintiff has failed to effectively rebut these facts or to provide any factual basis that the carpet had been in the alleged defective condition for some time prior to defendant Kellogg's arrival at the store and that she had been made aware of its alleged defective condition. Consequently, plaintiff has failed to demonstrate a reasonable basis in fact or colorable ground that supports her claim of negligence against defendant Kellogg.
It is this Court's considered opinion that plaintiff cannot state a claim against non-diverse defendant Kellogg for negligence in this cause of action. The only reason for her presence in this lawsuit would be to destroy federal jurisdiction. The Court determines that defendant Kellogg has been fraudulently joined and that her dismissal from this federal lawsuit is mandated.