Bloomer v. Ouellette, Case No. 18-2275-JWL
| Decision Date | 10 August 2018 |
| Docket Number | Case No. 18-2275-JWL |
| Citation | 333 F.Supp.3d 1172 |
| Parties | Jeremiah BLOOMER, Plaintiff, v. Chris OUELLETTE; Christina Koury, n/k/a Christina Bianchino; and Target Corporation, Defendants. |
| Court | U.S. District Court — District of Kansas |
Bert S. Braud, Cooper S. Mach, The Popham Law Firm, PC, Kansas City, MO, for Plaintiff.
Chris R. Pace, Elizabeth E. Tobin, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Kansas City, MO, for Defendants.
This matter comes before the Court on plaintiff's motion to remand the case to state court (Doc. # 13). As further set forth below, the Court concludes that plaintiff did not fraudulently join the non-diverse defendant. Accordingly, the Court grants the motion, and this case is hereby remanded to the District Court of Johnson County, Kansas.1
In his state-court petition, plaintiff alleged as follows: Plaintiff worked as a pharmacy technician at a Target store. On November 6, 2014, plaintiff filled a prescription for medications for a customer. On November 7, the customer returned to the store and stated that she had not received a bottle of prescribed amphetamines
the previous day. Video revealed that plaintiff had removed an empty bottle from the bag while helping the customer. No amphetamines were found missing from the store's inventory. On November 10, police officers arrested plaintiff based on the surveillance video, and plaintiff's employment was terminated. Plaintiff continually maintained that he did not take any pills from the customer's bag. On November 11, the same customer, while shopping at the store, informed the pharmacist-in-charge (plaintiff's supervisor) that she had found the bottle in question at her home and that no medications were therefore missing. The criminal complaints against plaintiff were eventually dismissed.
Target reported the initial incident to the Kansas Board of Pharmacy ("the Board"), although it did not inform the Board when the customer reported that the pills were not in fact missing. On January 8, 2015, the Board issued an order revoking plaintiff's license, and on July 6, 2016, an administrative law judge (ALJ) upheld the revocation. Plaintiff appealed that decision to the District Court of Shawnee County, Kansas, and on May 3, 2017, that court ruled in plaintiff's favor and reversed the ALJ's decision.2
Plaintiff filed the present suit in the District Court of Johnson County, Kansas. In his petition, plaintiff asserts claims of malicious prosecution and defamation against Target Corporation ("Target"); Chris Ouellette, the store manager; and Christina Bianchino, another Target employee. Defendants subsequently removed the case to this Court.
In removing this action, defendants invoked the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332, which requires complete diversity of citizenship between the adverse parties. See id. ; Symes v. Harris , 472 F.3d 754, 758 (10th Cir. 2006). Complete diversity is lacking here—the parties agree that plaintiff is a Kansas citizen and that defendants Ouellette, Bianchino, and Target are citizens of Kansas, Missouri, and Minnesota respectively. Defendants nevertheless argue in their notice of removal and in their response to the remand motion that the Court may exercise diversity jurisdiction because Mr. Ouellette has been fraudulently joined as a defendant.3
A fraudulently joined defendant is ignored for purposes of assessing complete diversity. See Dutcher v. Matheson , 733 F.3d 980, 987-88 (10th Cir. 2013).
To establish fraudulent joinder, the removing party must demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of the plaintiff.
See id. at 988 (citations and internal quotations omitted). Defendants have not accused plaintiff of actual fraud in his pleading; rather, defendants argue that plaintiff cannot establish a cause of action against Mr. Ouellette, the non-diverse defendant. Thus, the Court considers whether plaintiff has asserted a viable claim against that defendant.
In his state-court petition, plaintiff asserts malicious prosecution and defamation claims against Mr. Ouellette, but in his response to the motion to dismiss, plaintiff concedes that he has no cognizable defamation claim against that defendant. Plaintiff insists, however, that his malicious prosecution claim against Mr. Ouellette is viable, that Mr. Ouellette has not been fraudulently joined for that reason, and thus that remand is appropriate.
The parties agree that under Kansas law4 a plaintiff asserting a civil claim for malicious prosecution must prove the following:
See Nelson v. Miller , 227 Kan. 271, 276, 607 P.2d 438 (1980) (citations omitted); accord Bergstrom v. Noah , 266 Kan. 829, 836-37, 974 P.2d 520 (1999). Defendants do not dispute that plaintiff's allegations satisfy the fourth and fifth elements, as the revocation of plaintiff's license by the Kansas Board of Pharmacy was eventually overturned, and plaintiff has alleged that he sustained damages from having gone through the revocation proceedings. Defendants do challenge plaintiff's ability to satisfy the first three elements, however.
Plaintiff's theory in asserting this claim is that defendants initiated the Board's revocation proceeding against plaintiff and that they continued the proceeding by failing to report to the Board that the customer had retracted her complaint of missing amphetamines. Defendants argue that plaintiff cannot satisfy the first element for this claim because they did not initiate or continue the Board's proceeding as a matter of law.
With respect to that element, defendants first argue that they are effectively immune from liability for malicious prosecution because they merely reported facts to investigatory officials. Defendants rely on Arceo v. City of Junction City, Kansas , 182 F.Supp.2d 1062 (D. Kan. 2002), in which the court granted summary judgment in favor of a defendant on a claim of malicious prosecution under Kansas law. See id. at 1087-89. In that case, the court summarized the law as follows:
As in a case of action for false imprisonment, merely reporting facts to a law enforcement officer who then deems a crime to have been committed and directs the defendant's arrest is not sufficient to establish this element. Persons supplying information to a public prosecutor will not be liable for malicious prosecution when the prosecutor initiates criminal proceedings, if the person supplies the information in good faith and represents all of the information available to the informant through diligent effort.
See id. at 1087-88 (citations omitted). Defendants argue that they should similarly be protected concerning their reporting of facts to the Board. The standard on which defendants rely, however, requires the good faith and truthful reporting of all known facts, and plaintiff has alleged that defendants did not report the information that the customer did not in fact complain of missing pills. Defendants argue repeatedly that their earlier report of missing pills was never proved false because the customer never produced the bottle for them or otherwise "confirmed" that the missing bottle had been found. The Court cannot conclude, however, that plaintiff cannot satisfy this element of the claim as a matter of law. Viewing the facts in plaintiff's favor, the initial report had been prompted by and based on a complaint that the customer effectively disavowed and retracted, and thus the facts as initially reported by defendants were no longer completely true, as there was no longer any basis to believe that the pills were missing.
Defendants also argue, with respect to this first element, that their reporting to the Board was not the determining factor in the Board's decision to proceed with the revocation because the Board undertook its own investigation. This element of causation, however, presents an issue of fact that must be viewed in plaintiff's favor at this juncture. In Arceo , the court quoted the Restatement in noting that if a prosecuting officer has been given false information, an intelligent exercise of the officer's discretion to proceed becomes impossible. See Arceo , 182 F.Supp.2d at 1088 (). Thus, even this issue turns on whether defendants made a full disclosure to the Board, which issue must be resolved in favor of plaintiff for purposes of defendants' assertion of fraudulent joinder.
Defendants also argue that plaintiff has not pleaded sufficient facts to support a claim for malicious prosecution against Mr. Ouellette specifically. See Nelson , 227 Kan. at 276, 607 P.2d 438 (). Defendants further argue that the state-court order (incorporated into the petition) shows that Mr. Ouellette did not know about the customer's retraction and thus could not have been required to report that information to the Board. The Court rejects this argument. Plaintiff alleges in his petition that Mr. Ouellette was the store manager; that he and the other defendants failed to tell the Board...
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