*3 COLLOTON, Cirсuit Judges. RILEY, Judge. Circuit Bailey, Carl (Bailey) W. Sr. filed suit (BCS) against Bayer CropScience in Mis- *4 court, souri alleging state intentional inflic- (IIED). tion of emotional distress BCS removed the case to federal Bailey court. subsequently moved to amend the com- plaint by adding two additional defendants. Bailey did not notify the court joinder such destroy diversity. The district court2 permitted joinder, and Bailey then moved to jurisdic- remand due to lack of Upon tion. learning joinder destroyed diversity, the district court reconsidered decision, prior its joined dismissed the defendants. BCS moved for summary judgment, granted and the court the mo- (1) tion. Bailey now appeals, alleging district court abused its discretion dis- missing properly joined defendant, and (2) the district court erred in granting summary judgment. We affirm.
I. BACKGROUND Bailey, male, an African-American BCS, pesticide worked for manufacturing facility Missouri, located in City, Kansas from August 1996 until December 2003. August In Bailey BCS moved from production area to security. Bailey claims he was demoted due to a low score he received on aptitude an test. BCS Bailey transferred, contends along was eight employees, with other because there Cole, argued, City, Joni Suzanne enough Kansas was not production work on the MO, appellant. for Bailey line. alleges repeatedly he asked to Whipple, 2. The Honorable Dean United of Missouri. Judge District States for the Western District occasion, score, differently. Bailey On one felt as permitted but was see his test separate though 2001. he had shower in a until December his score see of other led locker room to avoid the reaction the confrontation which Bailey asserts regu- employees. Bailey began minutes male also forty-five lawsuit occurred to this panic Bаiley larly to suffer attacks. When Bailey received his test score. after treatment, diagnosed with sought he was agree Gregory Moerer parties Both (PTSD). post-traumatic disorder stress (Moerer), manager, a BCS and Jamie fear, symptoms depression, His included (Jackson), a Human Resources Jackson flashbacks, loss, memory con- nightmares, De- contacted representative, fusion, psychotic episodes. him to meet and asked cember to work and was later continued at BCS personnel During office. them in the with transferred, along other em- eight told meeting, that Moerer Bai- back to the area. ployees, production Bailey of sexual Bailey someone accused highest rating ley possible received very upset became harassment. performance work he was evalu- his when made frantically guessing who and started ated at the end of 2001. *5 then complaint. Jackson and Moerer the 2002, allega- August Bailey the In a severe the who made suffered implied result, Bai- while response, panic not a female. In attack at work. As tion was asked, you say I’m trying department “Are to the BCS medical advised him ley shrugged his further and not to re- gay?” allegedly and Jackson to seek treatment until Moerer eventual- turn to work he was released shoulders. Jаckson and his Bailey Bailey employee, continued with treat- ly psychiatrist. informed another BCS placed made the alle- medication Shipley (Shipley), Michael ment and and was litiga- the leave. gation. During paid Bailey course of this medical remained off tion, Shipley receiving company disability pay- submitted an affidavit work complaint making which he denied ever ments and other benefits until December time, Bailey. Bailey’s harassment At that benefits ex- against of sexual 2003. 19, 2001, less meeting pired open position December lasted and he was offered an twenty minutes, Bailey the throughout than and at BCS. the offer to return declined emotional, Bailey in- meeting, employment was which to work and his was terminat- yelling, crying. swearing, cluded and ed. over, meeting granted BCS
When was Bailey initially against filed suit BCS on work, Bailey days to pay, several off 2006, 17, February Court of the Circuit pur- compose Bailey alleges himself. Missouri, County alleging IIED.3 meeting him for pose punish of the was to BCS, defendant, only named removed demanding to see his test score. 15, action to federal March court. On work, Bailey year claims when to over one action he returned after the was removed, something Bailey co-workers about several knew filed moved amend allegations despite complaint by аssur- adding Moerer’s his Jackson and in- Bailey the incident confiden- as did not ances would remain Moerer defendants. joinder sup- tial. Some of these were form the district court such would co-workers Bailey diversity portive, began destroy jurisdiction, while others to treat briefs, filing appeal 3. of had In also alludes to infliction emotional distress been alleged negligent a claim for infliction of emotional made. We find no NIED clаim or (NIED). court, argument, During pursued Bai- in the and we will not distress oral district ley’s negligent any NIED counsel conceded no claim for address assertion now. Bailey’s granted court motion amend. review the district court’s denial of the later, than a month when Less remand motion de novo.” Menz v. New court, moved for remand to state the dis- America, Inc., Holland North 440 F.3d presence (8th Cir.2006). trict court learned Moerer’s in 1002, 1004 destroyed diversity jurisdiction. the suit First, wе must consider whether The district court reconsidered its earlier the district court could Bailey’s reconsider granting decision motion to amend motion to amend complaint. his Several and denied the motion. Both Moerer and hold, courts when a trial court grants a Jackson were dismissed without prejudice plaintiff leave to amend complaint by granted join was leave to Jack- defendants, naming additional and the son, long presence so as Jackson’s plaintiff fails to inform the court that one destroy diversity. diversity ju- With or more of those destroy defendants will restored, risdiction the district court de- diversity, may the trial court reconsider its Bailey’s motion nied to remand. See, earlier decision. e.g., Faye v. High’s 15, 2007, August On BCS filed a motion Baltimore, 541 F.Supp.2d 756-58 summary judgment. The district court (D.Md.2008) cases). (listing In Le Duc v. motion, granted explaining Bailey BCS’s (E.D.Mo. Bujake, 777 F.Supp. 11-12 genuine failеd to create a issue of material 1991) (citing Co., Hensgens v. Deere & suggest fact to the behavior of BCS em- (5th Cir.1987)), F.2d the court ployees rose to the level of extreme and explained, outrageous conduct. This appeal followed. Where, here, as the record indicates *6 problem II. that the DISCUSSION of the addition of the non-diverse defendant was not brought A. Joinder to the attention of the or recog- Court Bailey аrgues the district court by parties, nized the filing of the (1) reconsidering abused its discretion complaint amended should be considered previous joinder its granting decision Bai nullity and the given oppor- Court an (2) ley’s motion to amend complaint, his tunity to consider justice whether re- (3) motion, subsequently denying the dis quires plaintiff] that permitted [the be to missing Moerer and Jackson from the ac join [the additional] defendant. (4) tion, and denying Bailey’s motiоn to case, In present the district court plaintiff requests remand. When a leave granted Bailey’s motion to amend com- his trial, complaint to amend his before “[t]he plaint permitted and Bailey to name two freely give court should justice leave when additional defendants without the court re- 15(a)(2). requires.” so Fed.R.Civ.P. alizing joinder such destroyed the court’s “[Pjermission to may amend be withheld if diversity jurisdiction. When the district plaintiff ... guilty delay, of undue joinder court discovered the defeated di- faith, motive, dilatory bad if permission or jurisdiction, versity the court had discre- unduly to prejudice op amend would tionary authority to reconsider and reverse posing party.” Williams v. Little Rock previous joinder its decision. (8th Works, 218, Mun. 21 Water F.3d 224 Cir.1994) Davis, (citing Second, Foman v. 371 U.S. we must determine 83 S.Ct. 222 9 L.Ed.2d whether the district court abused its dis (1962)). when, “The trial reconsideration, court’s decision wheth cretion upоn it de er to allow amendment will be reviewed nied motion to amend. an When only for an abuse of discretion.” Id. “We action is removed from state to federal
308 existing or the that prejudice plaintiff removal
court, and “after parties; defendants whose join additional to seeks juris- subject matter destroy joinder (2) any prejudice would to which the extent joinder, or may deny diction, by: the court lessened or avoided could be to the action remand joinder and permit (A) judg- provisions in the protective 1447(e). § 28 U.S.C. court.” the State ment; required plaintiff if the be would Joinder (B) relief; shaping the or that by showing Fed.R.Civ.P. satisfied (C) measures; other necessary and indis- are parties new (3) in the judgment rendered whether the case. full to a resolution pensable adequate; would be person’s absence satisfy Fed. must first plaintiff 19(a) parties the new by showing R.Civ.P. (4) have an plaintiff would whether of the necessary to a full resоlution are dis- remedy if the action were adequate un- of Moerer and Jackson Joinder case. nonjoinder. missed 19(a) required because is not der Rule 19(b). Fed.R.Civ.P. impair the court’s their absence relief between ability complete accord to of these factors We find none BCS, nor neither Moerer Bailey and joinder of Moerer and Jackson. mandate relating an interest have claimed Moerer, Jackson, Bailey alleges BCS subject of the action. to the long “It been joint tortfeasors. has were joint necessary for all
the rule that it is not
if Moerer and Jackson
Even
in a
to be named as defendants
tortfeasors
necessary parties
determined
be
were
Synthes Corp.,
Temple
lawsuit.”
single
19(a),
indispens
they are not
under Rule
Ltd.,
5, 7,
U.S.
111 S.Ct.
Fed.R.Civ.P.
pursuant
parties
omitted).
able
(1990) (citations
In
L.Ed.2d 263
19(b).
defendant, whose
potential
If a
steаd,
joint and several
tortfeasors with
jurisdiction, is de
destroy
joinder would
merely
parties.
Id.
liability
permissive
are
*7
the district
indispensable,
to be
termined
case,
and Jackson
present
In the
Moerer
joinder
grant
permit
must either
court
parties, and the dis
indispensable
are not
1447(e),
§
or dismiss
remand under
discretionary authority
full
trict court had
19(b). Only
to Rule
when
pursuant
action
jurisdiction
deny joinder and retain
over
dispens
defendant is deemеd
potential
action.
deny joinder
may the district court
able
is further
The district court’s decision
the action.
jurisdiction
and retain
over
Federal Rules
by Rule
of the
supported
or not a
“The determination of whether
Rule
“the
Procedure. Under
of Civil
party is one
indispensable
is an
terms,
time,
any
just
add
may
court
at
case-by-case
on a
which must be made
Supreme
Court has
drop party.”
or
a
upon the facts and
dependent
basis and is
“Rule 21 invests district courts
explained,
Helzberg’s Di
circumstances of each case.”
dispensable
a
non-
authority to allow
Des
Valley
Inc. v.
West
Shops,
amond
time,
any
at
dropped
to be
party
diverse
Inc.,
Center,
564 F.2d
Shopping
Moines
rendered.”
judgment has been
even after
omitted).
(8th Cir.1977) (citations
816, 819
Newman-Green,
Alfonzo-Larrain,
Inc. v.
determining
when
The factors to consider
109 S.Ct.
490 U.S.
include:
party
indispensable
a
is
whether
(1989).
court
The district
L.Ed.2d 893
joined defen-
(1)
accurately determined
judgment
a
ren-
the extent to which
under Rule
parties
dispensable
dants were
might
absence
person’s
dered
19(b), and the district court did not abuse
joinder
failed to inform the court such
in dismissing
its discretion
Moerer and
destroy diversity.
Less than a
from the action.
joinder order,
month
Bailey
after the
filed
remand,
a motion for
suggesting he had
court
properly
The district
also
jurisdictional
known about
issues.
justice required
whether
Moer
considered
These facts and reasonable
sup-
inferences
joined
er and Jackson be
as defendants
port the district court’s conclusion the de-
and the case remanded to state court. As
joined primarily
fendants were
pur-
for the
spelled
the Fifth
out:
Circuit
pose
jurisdiction.
of defeating federal
court,
The district
when faced with an
naming
amended
a
plеading
new nondi-
Second, Bailey knew all of the involved
case,
defendant
in a
verse
removed
parties before he filed the action. De-
scrutinize that
should
amendment more
spite knowing all the parties, Bailey origi-
closely
ordinary
than an
amendment.
nally
only
BCS,
filed
against
suit
waiting
15(a)
Rule
of the Federal Rules of Civil
year
over a
submitting
before
a motion to
provides
Procedure
that leave to amend join Moerer and
Jackson.
claims
freely given
justice
“should be
when
so
delay
this
resulted from lack
his
of knowl-
requires,”
permits joinder
and Rule 20
edge as to the residences of the two puta-
proper parties.
situation, jus-
In this
Yet,
tive defendants.
no evidence in the
requires
tice
that the district court con-
suggests Bailey
record
previously made
sider
number of factors to balance the
attempts
unsuccessful
to determine the
in maintaining
dеfendant’s interests
residences of Moerer and Jackson. The
competing
federal forum with the
inter-
sufficiently
record
supports the district
having parallel
ests of not
lawsuits.
court’s
conclusion
was dilatory in
Hensgens,
Duc, F.Supp. 777 at 12 (citing Hensgens, stored, and the distriсt court properly de- 1182). also, at Alpers 833 F.2d See Job Bailey’s nied motion to remand. Co., bing Co. v. Northland Cas. 173 F.R.D. 517, (E.D.Mo.1997) 520 (collecting cases Summary Judgment B. adopted which had the Hensgens balancing test). Bailey also maintains the dis case,
In present the the district trict court in granting erred BCS’s motion accurately court summary considered the relevant judgment. “We review de balancing factors and held the test novo the district court’s granting оrder the weighed against the addition of the nondi defendant’s summary judg motion for First, Bailey Moines, verse defendant. Seymour City waited a ment.” v. Des of (8th year 790, Cir.2008). filing before his motion to amend. 519 F.3d 795 “Sum motion, finally When he filed the Bailey mary judgment is appropriate when the 310 Co., Tel. 396 v. Bell Pretsky Southwestern light in most favorable the viewed
evidence (Mo.1965) (abrogated 569 S.W.2d genu- no presents nonmoving party to the (Sec- Restatement grounds) (quoting other moving fact and the material of dispute ine (d) (1965) ond) § Torts comment of as a matter judgment to entitled party is (Restatement)). mere existence The Id. at 796. of law.” parties the dispute between a factual of light facts in the most Taking the judgment deny summary a to not sufficient alleged can Bailey, to events favorable Club, Away Inc. v. Cole- motion. See Get and as follows: Moerer be summarized (8th Cir.1992). man, F.2d 666 charge of sexual concocted а Jackson of fact must be Instead, disputed issue Bailey; Moerer and against harassment outcome of the determining the material to Bailey to meet them in the asked Jackson Id. controversy. office; Bailey a they informed personnel had been complaint of sexual harassment IIED un a claim for To state him; alleg who against made law, plaintiff plead “a must der Missouri mak edly complaint made the later deniеd a outrageous conduct de and extreme during meeting, Moer ing charge; recklessly intentionally or fendant who permitted guess and er distress that re severe emotional causes allegation; frantically as to who made Brewer, v. bodily in harm.” Gibson sults asked, you trying say I’m “Are (en banc) (Mo.1997) 239, 249 952 S.W.2d shoulders; shrugged his gay?”; Jackson R.T.R., 795, 799 v. 918 S.W.2d (citing K.G. of co-workers learned several (en banc)). (Mo.1996) defendant’s in The treating allegations began about “only tо acting in must have been tent male Bailey negatively; perceived distress to the cause extreme emotional him, in employees glaring particularly at K.G., at (citing Id. 918 S.W.2d victim.” shower; and, prox employee the BCS as 799). must have been ‘so “The conduct result, Bailey having panic began imate character, and so extreme in outrageous in eventually diagnosed with attacks and was beyond possible all bounds degree, go as to PTSD. regarded to be as atro decency, of very fac “Missouri case law reveals few cious, in a utterly intolerable civilized a claim support tual scenarios sufficient to ” v. community.’ (quoting Id. Warrem O’Fallon, City for IIED.” Dunham v. (Mo.1969)).
Parrish, 670, 673 436 S.W.2d (E.D.Mo.1996) (cit F.Supp. Liability for IIED Hummel, 4, 7 ing 688 S.W.2d Gibson insults, (Mo.Ct.App.1985)). governing Based on clearly not extend to mere does threats, annoyances, precedent, we do not think Mis petty Missouri indignities, falsely would consider accus or other trivialities. souri courts oppressions, making homosexual ad society ing of our are still in someone of rough edges character, down, filing outrageous and vances to be “so good need of deal of degree, go beyond as to plaintiffs in the meantime must neces- and so extreme *9 decency, sarily required possible all bounds of and be expected be and be utterly intoler rough regarded a amount of as atrocious hardened to certain Brewer, community.” in a civilized language, and to occasional acts that are able Warrem, (quoting at 249 436 definitely and unkind. 952 S.W.2d inconsiderate 673). at See also Ward v. Wal- There no occasion for the law to inter- S.W.2d is Stores, Inc., 3:05-0777, Mart No. 2006 WL every vene in case where someone’s feel- 2006) (M.D.Tenn. Oct.30, 3098800, at *3 ings are hurt. 311 (“In by “alleged Pretsky an statement made v. Southwestern Bell (holding Tele- Co., of manager, presence phone (Mo.1965), 396 566 Defendant’s S.W.2d our Defendant, of that employees Supreme three other recognized Court the tort of ex- conduct, reason for Plaintiffs termination treme prime outrageous essentially (Second) ‘gay,’ that he was does not constitute adopting was Restatement of Torts law”); (1965).”). § conduct as a matter of outrageous § 46 “The comments to Carraway Country v. Barrеl Cracker Old are instructive to the meaning as ordinari- Store, 02-2237, 21685909, at ly No. 2003 WL attached to the term ‘emotional dis- ” 2003) (D.Kan. July that (deciding *14 explain, tress.’ Id. The comments “[t]he of false rumors to former co spreading justified distress must be reasonable and plaintiff circumstances, and customers “that stole workers under the and there is no money, drugs, drinking used had a liability where plaintiff has suffered and/or problem and was gambling exaggerated [a] lesbian” and unreasonable emotional distress, outrageous” was not “extreme and conduct unless it results from a peculiar establishing intentional infliction of emo susceptibility to such distress of which the distress). (Sec- Vaughn, tional But see knowledge.” actor has Restatement Joffe (Okl. 1993). ond) (1965). P.2d App Thus, § Civ. of j Torts cmt. a person reasonable standard should be used Further, many undisputed there are when determining plaintiff whether a has a facts in the rеcord which contradict Bai- case, claim for IIED. In Bailey’s two su- ley’s assertion Moerer and Jackson intend- pervisors allegedly reported an accusation only Bailey ed to cause severe emotional Bailey that made homosexual advances to- Bailey had distress. almost no interaction result, ward another employee. male As a supervisors with either of these before Bailey panic suffered severe attacks and Bailey Moerer and met Jackson with diagnosed was Bailey’s with PTSD. reac- meeting, December 2001. After the tion was not one a consistent with reason- Bailey granted paid days was several off to able under the circumstances. The compose Bailey himself. BCS informed decline of mental health is unfor- counseling provided available services and tunate, but there no evidence Moerer or company throughout benefits Jackson, else, anyone or knew or suspect- employment. Bailey the remainder of his ed how strongly would react to the positive performance also received a evalu- allegations or realized was in a eventually ation and was returned to the fragile or vulnerable a state. Id. As conse- production Although line. Moerer in- quence, Bailey’s IIED claim fails and sum- plant manager formed the BCS a com- mary judgment proper. was plaint of sexual harassment had been made department, in the no given. details were III. CONCLUSION There is no direct evidence in the record anyone either Moerer or told that judgment We affirm the of the district charge of sexual harassment had been court. against Bailey. Shipley made These suggest singular do not COLLOTON,
facts intent to Judge, Circuit concurring cause sеvere emotional distress. in part concurring judgment. in the have,
Finally, agree Missouri courts I that the district court did not large part, adopted the defi abuse its in denying Restatement’s discretion Carl Bai- See, amend, ley’s e.g., nition of IIED. Wallace v. Van motion to and that Missouri *10 Pelt, (Mo.Ct.App.1998) likely S.W.2d courts are to extend the cause of of emotional infliction intentional
action for Bay- this case. As to the facts of
distress argued that has not CropScience
er unreasonable “exaggerated and
suffered (internal distress,” ante, at 311
emotional omitted), appears there
quotation ques- this the record on no evidence
be rely
tion, reaction to I do not my conclu- reaching alleged events
sion. CORPORATION, MOTORS
GENERAL
Plaintiff-Appellant, BROWN’S, LLC,
HARRY
Defendant-Appellee.
No. 08-3924. Appeals, States
United Court
Eighth Circuit. 12, 2009.
Submitted: March
Filed: 2009. April