ASBERRY v. AMERICAN HEALTH PARTNERS LLC (2025)

ORDER

Now pending is Plaintiff's Motion to Remand. (Doc. #7.) Upon review, the motion is GRANTED, and this case is REMANDED to the Circuit Court of Jackson County, Missouri.

The Clerk of the Court is directed to mail a certified copy of this Order to the Clerk of the Circuit Court of Jackson County, Missouri, as required by 28 U.S.C. § 1447(c).

I. Background

Plaintiff's remand motion concerns whether Defendants’ removal of this case was contrary to 28 U.S.C. § 1446(c)(1), which is one of the federal statutory provisions governing removal. Federal removal jurisdiction is a complex body of law, and this case has an extended procedural history which touches several interrelated removal statutes. The Court therefore begins by reviewing the governing law and this case's history to frame the parties’ § 1446(c)(1) dispute.

As relevant here, a federal court has diversity jurisdiction over a case in which no plaintiff has the same citizenship as any defendant, 28 U.S.C. § 1332, and diversity jurisdiction is a basis for a case filed in state court to be removed to federal court, 28 U.S.C. § 1441. Federal statutes govern removal, 28 U.S.C. §§ 1441-1455, and several of them impact this case:

• Section 1445(c) contains a “workers’ compensation” rule against removal, stating that a case which alleges a claim under a state's workers’ compensation law is not removeable.1

• Section 1446(b)(3) contains a “later paper” rule permitting removal, generally stating that, if a case as initially pleaded is not removeable, the case can nonetheless be removed if some paper—such as a court order—later shows that the case has become removeable.2

• Section 1446(c)(1) contains a “one year” rule against removal, generally stating that a case which was not removeable as initially pleaded but which became removeable later cannot be removed more than one year after the case was filed.3

• But § 1446(c)(1) also contains a “bad faith” exception permitting removal, stating that if the plaintiff acted in bad faith to prevent removal then the “one year” rule against removal does not apply and thus the case is removeable.4

If removal of a case was improper, a plaintiff may move to remand the case to state court. 28 U.S.C. § 1447(c).

The above remand statutes have played a key role in this case:

• Plaintiff initially filed this case in Missouri state court in September 2023. (Doc. #1-4 at 9-22.) Plaintiff's Count 3 alleged a claim for workers’ compensation retaliation under Missouri law. (Id. at 9-22 ¶¶ 55-72.)

• Defendants—contending Plaintiff's workers’ compensation retaliation claim was baseless and fraudulently alleged to avoid federal jurisdiction—removed this case a first time in November 2023, leading to Case No. 4:23-cv-00801-SRB.

• The parties disputed whether Defendants’ first removal was proper. The Court ultimately remanded the case, concluding that Plaintiff had alleged a viable workers’ compensation retaliation claim and thus § 1445(c) prohibited removal. (Case No. 4:23-cv-00801-SRB, Doc. #22.)

• Back in Missouri state court, litigation of this case proceeded. Defendants deposed Plaintiff in July 2024, leading to testimony that is key to the parties’ instant § 1446(c)(1) remand dispute as discussed further below. But in short, Defendants contend Plaintiff's deposition testimony showed her workers’ compensation claim lacked evidentiary support and thus Plaintiff's continued assertion of it constituted bad faith under § 1446(c)(1).

• In March 2025, the Missouri state court judge presiding over this case entered a summary judgment order which dismissed with prejudice Plaintiffs’ workers’ compensation claim. (Doc. #1-4 at 1219-22.)

• Defendants then removed this case again, contending removal was proper because: (1) the summary judgment order disposed of Plaintiff's workers’ compensation retaliation claim, so § 1445(c)’s “workers’ compensation” rule no longer prohibited removal; (2) the summary judgment order made the case removeable under § 1446(b)(3)’s “later paper” rule; and (3) Plaintiff's conduct triggered § 1446(c)(1)’s “bad faith” exception to its “one year” rule against removal. (Doc. #1.)

Against that procedural history is now pending Plaintiff's remand motion based on § 1446(c)(1). (Doc. #7.) There is no dispute that Defendants’ removal was untimely under § 1446(c)(1)’s “one year” rule against removal, as Plaintiff initially filed this case in September 2023 and Defendants filed the instant removal in March 2025. The parties’ dispute is instead whether that “one year” rule is inapplicable because Plaintiff's assertion of her workers’ compensation retaliation claim satisfies § 1446(c)(1)’s “bad faith” exception.

Plaintiff's Count 3 workers’ compensation retaliation claim alleges the following. (See Doc. #1-4 at 9-22.) Defendants employed Plaintiff as a nurse practitioner to provide health care services to patients at various facilities. (Id. at ¶¶ 8-9.) In December 2019 Plaintiff sent her supervisor a written report raising concerns about compliance and patient care issues, and later that same month Defendants placed Plaintiff on a performance improvement plan. (Id. at ¶¶ 20, 22.) On January 6 and 7, 2020, Plaintiff discussed or reported similar concerns both internally within Defendants’ organization and externally to a governmental regulator. (Id. at ¶¶ 23-25.) On January 9, 2020, Plaintiff complained to Defendants’ human resources department that she was being retaliated against for making her reports. (Id. at ¶ 27.) On January 15, 2020, Plaintiff's supervisor removed her from assignments at two facilities about which she had raised concerns. (Id. at ¶ 28.) On January 17, 2020, Plaintiff reported to Defendants’ human resources department that Defendants’ retaliatory actions were causing her extraordinary emotional distress. (Id. at ¶ 29.) Plaintiff contends her January 17 report of her extraordinary emotional distress constituted an exercise of her rights under Missouri's workers’ compensation law and alleges that thereafter Defendants continued to subject her to hostile and harassing environments. (Id. at ¶¶ 61-67.) On February 28, 2020, Defendants terminated Plaintiff's employment. (Id. at ¶¶ 30, 66-68.)

Defendants’ argument that Plaintiff's assertion of her workers’ compensation retaliation claim was in bad faith arises from Plaintiff's testimony in her July 2024 deposition:

Q. ․ What information or knowledge do you have that your report to TruHealth about being emotionally upset about what was happening at work was a factor of any kind in the company's decision to ultimately terminate your employment on February 28th, 2020?

A. I don't know that my upset was a factor. I -- I was upset due to the process that was happening.

Q. ․ [D]o you have any evidence of any kind that your report to TruHealth about being upset was a factor of any kind in the company saying, “We've got to fire her”?

A. I have no idea.

(Doc. #1-2 at 3-4.)

Defendants contend that Plaintiff's “no idea” testimony is effectively an admission she has no evidentiary basis for her claim and should have prompted her to voluntarily dismiss it. Defendants contend Plaintiff's refusal to dismiss the claim prevented them from removing this case, as Plaintiff was deposed in July 2024 and thus a prompt dismissal would have enabled them to remove this case before § 1446(c)(1)’s “one year” deadline expired in September 2024. Defendants therefore argue that Plaintiff's continued assertion of her workers’ compensation claim after her deposition was a bad faith tactic to prevent removal. (See Docs. #1, 9.) Plaintiff disputes Defendants’ argument at all turns and raises many rebuttal arguments. (See Docs. #7, 8, 12.) Below the Court resolves the parties’ dispute.

II. Discussion

The parties’ dispute is whether Plaintiff pursued her workers’ compensation retaliation claim in bad faith. “Bad faith” is not defined for purposes of § 1446, see, e.g., 28 U.S.C. § 1451, and as noted in the parties’ briefing it appears no binding precedent has addressed the term. In the absence of such precedent several authorities provide guidance. The leading legal dictionary defines the term as: “Dishonesty of belief, purpose, or motive.” Black's Law Dictionary, “bad faith” (12th ed. 2024). Several lower courts have developed tests for bad faith—albeit for assessing whether a plaintiff sued a non-removeable defendant in bad faith, rather than the issue of here of assessing whether the plaintiff asserted a non-removeable claim in bad faith. See Leeds v. Norfolk S. Ry. Co., No. 25-00020-CV-W-LMC, 2025 WL 83372 (W.D. Mo. Jan. 13, 2025) (reviewing law). Under one test, if the plaintiff actively litigated in state court against the non-removeable defendant then the plaintiff receives a rebuttable presumption of good faith, but thereafter the defendant can rebut that presumption with direct evidence of bad faith. Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225 (D.N.M. 2014). Under another test, the Court considers a wide variety of factors.⁵ Finally, an analogy can be made to the related removal jurisdiction concept of fraudulent joinder, under which the question is whether the challenged claim has “a reasonable basis in fact and law.” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003).

Defendants contend Plaintiff acted in bad faith by refusing to voluntarily dismiss her workers’ compensation retaliation claim after her deposition, arguing her “no idea” testimony revealed she had no evidentiary to support the claim's fourth element of causation. Under Missouri law a workers’ compensation retaliation claim has four elements: “(1) Plaintiff was employed by Defendant; (2) Plaintiff exercised a right under the Missouri Workers’ Compensation Law; (3) Defendant discriminated against or discharged him; and (4) Plaintiff's exercise of rights under the statute was a motivating factor in his termination.” Morris v. Westrock Servs. LLC, No. 4:21-CV-00928-DGK, 2022 WL 2276356, at *3 (W.D. Mo. June 23, 2022) (interpreting Mo. Rev. Stat. § 287.780). As to the causation element, a motivating factor is one that “actually played a role in the discharge” and had a “determinative influence on the discharge or discrimination.” Mo. Rev. Stat. § 287.780. Close temporal proximity between a plaintiff's exercise of her rights and the defendant's retaliation can support causation. E.g., Lightner v. Catalent CTS (Kansas City), LLC, 89 F.4th 648, 655-56 (8th Cir. 2023) (discussing Missouri and federal law).

The Court finds Plaintiff's post-deposition assertion of her workers’ compensation claim does not constitute “bad faith” for purposes of § 1446(c)(1) under any conception of that term. A plaintiff's testimony is an important source of evidence, but it does not define the universe of supporting evidence or preclude the plaintiff from relying on unidentified evidence. The Court does not give Plaintiff's “no idea” dispositive weight and finds the record does contains evidence supporting causation, specifically (1) the timeline between Plaintiff's January 17 report and Defendants’ alleged subsequent retaliation against Plaintiff and ultimate termination of her employment and (2) Defendants’ knowledge of Plaintiff's emotional state, (e.g., Doc. #8-4 at 29; Doc. #8-17 at 8).⁶ The Court notes Plaintiff's actions here are nothing like the conduct other courts have found to constitute bad faith. E.g., Hoyt v. Lane Constr. Corp., 927 F.3d 287, 292-93 (5th Cir. 2019), as revised (Aug. 23, 2019) (finding a plaintiff acted in bad faith, in that the plaintiff pursued a claim against the defendant only half-heartedly, the plaintiff's expert made no serious effort to establish the defendant's liability, and the plaintiff dismissed the defendant without receiving any consideration in lieu of accepting the defendant's settlement offer); Hiser v. Seay, No. 5:14-CV-170, 2014 WL 6885433, at *4 (W.D. Ky. Dec. 5, 2014) (same, where the plaintiffs declined to accept the defendants’ early settlement offers so as to keep the defendants in the case until the “one year” deadline passed and thus thwart removal). The Court also finds Plaintiff's workers’ compensation retaliation claim had at least a reasonable basis in law, as the records indicates it survived several motions challenging it in both federal and state court. (E.g., Case No. 4:23-cv-00801-SRB, Docs. #20, 22.) The Court acknowledges and respects the Missouri state court judge's entry of summary judgment against Plaintiff's claim, but that ruling does not compel the conclusion that Plaintiff pursued the claim in bad faith, particularly given that the summary judgment ruling was based on the element's second “exercise of rights” element, (Doc. #1-4 at 1220-21), while Defendants’ argument is based on the claim's fourth “causation” element.

III. Conclusion

The Court finds Plaintiff did not pursue her workers’ compensation retaliation claim in bad faith and thus § 1446(c)(1)’s “bad faith” exception is inapplicable and its “one year” rule prohibits removal. Plaintiff's Motion to Remand, (Doc. #7), is GRANTED, and this case is REMANDED to the Circuit Court of Jackson County, Missouri.

IT IS SO ORDERED.

FOOTNOTES

1.   28 U.S.C. § 1445(c): “A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.”

2.   28 U.S.C. § 1446(b)(3): “Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”

3.   28 U.S.C. § 1446(c)(1) (emphasis added): “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

4.   28 U.S.C. § 1446(c)(1) (emphasis added): “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

5.   Such factors include “the timing of a non-diverse defendant's dismissal,” “whether plaintiff actively pursued his claim against the defendant,” “plaintiff's knowledge that his claim against the non-diverse defendant was no longer supported by evidence,” “whether plaintiff received consideration for dismissing the defendant,” “when the plaintiff named the defendant,” “the plaintiff's basis for bringing the relevant claims,” and “whether there was a viable and consistent explanation for dismissing the defendant.” H&B Ventures, LLC v. State Auto Prop. & Cas. Ins. Co., 686 F. Supp. 3d 846, 851 (E.D. Mo. 2023).

6.   The Court makes no comment about this evidence beyond noting it exists.

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE