Opinion
No. 2:20-CV-4227-WJE
2020-12-15
Stephanie KOVACH, Plaintiff, v. MFA, INCORPORATED, Defendant.
Benjamin B. Nelson, Allen & Nelson, PC, Columbia, MO, for Plaintiff. Thomas Owen McCarthy, Robert D. Younger, McMahon Berger, St. Louis, MO, for Defendant.
Benjamin B. Nelson, Allen & Nelson, PC, Columbia, MO, for Plaintiff.
Thomas Owen McCarthy, Robert D. Younger, McMahon Berger, St. Louis, MO, for Defendant.
ORDER GRANTING MOTION TO DISMISS
Willie J. Epps, Jr., United States Magistrate Judge
Pending before the Court is Defendant MFA, Incorporated's ("MFA") motion to dismiss (Doc. 3), and suggestions in support thereof (Doc. 4). Plaintiff Stephanie Kovach has filed suggestions in opposition (Doc. 8), to which MFA untimely replied. (Doc. 10). Because Ms. Kovach has impermissibly split her claims between this lawsuit and a previously filed state-court action, MFA's motion is granted.
In ruling on a Rule 12(b)(6) motion, a court treats all well-pleaded facts in a complaint as true and construes them in the plaintiff's favor. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In July 2020, Ms. Kovach filed a lawsuit against MFA in the Circuit Court of Audrain County, Missouri, asserting claims of sex discrimination and retaliation under the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010, et seq. ("MHRA"). (Doc. 4-1). Ms. Kovach's Audrain County complaint arises from the following allegations.
The Court has taken some facts from Ms. Kovach's complaint filed in the Circuit Court of Audrain County. Because that complaint is a public record, this Court may consider it for purposes of ruling on the instant motion to dismiss. Levy v. Ohl , 477 F.3d 988, 991 (8th Cir. 2007).
In late 2016, a male coworker began sexually harassing and propositioning Ms. Kovach, and, on one occasion assaulted her while at work. (Id. at ¶ 8-9). She also was sexually harassed by other male coworkers after the assault. (Id. at ¶ 13). Although she advised her supervisors of the harassment and assault, she claims no adverse action was taken against her male coworkers, and, instead, she was reprimanded for reporting them, given more physically demanding work assignments, and prohibited from taking breaks. (Id. at ¶¶ 10-12, 16, 23, 27). In the summer of 2018, Ms. Kovach sought counseling for her anxiety arising from the assault and harassment, but her supervisor often would not allow her to leave work to attend her counseling appointments. (Id. at ¶ 30). This caused her to be late to, or miss entirely, her appointments. (Id. at ¶ 30-33). After reporting the assault, she also was prohibited from taking breaks that were previously allowed, assigned more physically demanding work than she was previously required to perform, and obligated to provide doctor's notes for absences even though her male coworkers were not so required. (Id. at ¶¶ 22-23, 34-35). She then complained to her union representative, and an investigation was conducted in January 2019, which concluded that Ms. Kovach's allegations could not be proven or disproven. (Id. at ¶ 36-39). Ms. Kovach was terminated eight months later—in August 2019. (Id. at ¶ 40).
After filing her Audrain County complaint, Ms. Kovach sought a change of venue to Boone County, Missouri. (Doc. 4-2). The state-court judge granted her request in part, allowing a change in venue, albeit to the Circuit Court of Montgomery County, Missouri. (Doc. 4-2).
After her case was transferred to Montgomery County, Ms. Kovach filed a second complaint against MFA in the Circuit Court of Boone County, Missouri. (Doc. 1-1). In that complaint, Ms. Kovach alleges the following facts.
On July 12, 2019, Ms. Kovach requested leave under the Family Medical Leave Act, 29 U.S.C. § 2601 ("FMLA"), due to symptoms related to her sexual assault and harassment. (Id. at ¶¶ 4-5, 7). Although she was granted leave, her supervisor regularly did not allow her to leave work for her doctor's appointments or to take breaks that were previously allowed. (Id. at ¶¶ 9-10, 18). She also was assigned more physically demanding work than she was previously required to perform and obligated to provide doctor's notes for absences even though her male coworkers were not so required. (Id. at ¶¶ 13-14, 18-19).
Moreover, Ms. Kovach claims her supervisors purposefully failed to tell her when her FMLA expired so they could punish her for missing work. (Id. at ¶¶ 9-10, 15). Accordingly, approximately two-and-a-half months after her FMLA expired, MFA terminated Ms. Kovach. (Id. at ¶¶ 5, 24). Thus, she asserts in her Boone County complaint that MFA interfered with her rights under the FMLA by refusing to allow her to leave work to attend her medical appointments and retaliated against her for taking FMLA leave by terminating her employment. (Id. at ¶¶ 21-30).
On November 16, 2020, MFA removed Ms. Kovach's Boone County complaint to this Court and filed the instant motion to dismiss, arguing she has impermissibly split her claims between her first-filed case and the instant lawsuit, in violation of Missouri law. (Docs. 3, 4).
II. STANDARD OF REVIEW
Under Rule 12(b)(6), the court may dismiss a complaint for "fail[ing] to state a claim upon which relief can be granted." A complaint survives a Rule 12(b)(6) motion if it contains "sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is plausible on its face when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While "legal conclusions can provide the framework of the complaint," those conclusions "must be supported by factual allegations." Hager v. Ark. Dep't of Health , 735 F.3d 1009, 1014 (8th Cir. 2013) (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Mere labels and conclusions, or formulaic recitations of the elements of a cause of action, are insufficient. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
III. DISCUSSION
MFA argues that Ms. Kovach impermissibly split her claims between her first complaint filed in Audrain County and the one she removed to this Court. Thus, MFA contends the Court must dismiss this action. Ms. Kovach disagrees, responding that because the first-filed complaint has not been fully adjudicated and the two complaints are based on different subject matter and evidence, the defense of claim splitting is inapplicable.
The Court does not address Ms. Kovach's arguments that she was entitled to file her case in Boone County, Missouri, and that she has a right to have her FMLA claims heard in federal court. Indeed, it is undisputed that Boone County has jurisdiction over her claims and that her FMLA claims can properly be heard before a federal court. But these arguments do not address the issue central to MFA's motion of whether Plaintiff has impermissibly split her claims between two forums.
Under Missouri law, "[i]mproper splitting of claims occurs when a party sues on a claim which arises out of the same ‘act, contract or transaction’ as the previously litigated claims." Kesterson v. State Farm Fire & Cas. Co. , 242 S.W.3d 712, 716 (Mo. 2008) (quoting King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints , 821 S.W.2d 495, 501 (Mo. 1991) ). "The rule against splitting a claim for relief serves to prevent a multiplicity of suits and appeals with respect to a single cause of action, and is designed to protect defendants against fragmented litigation, which is vexatious and costly." Id. (internal citations omitted).
a. A final adjudication is not required for the claim-splitting defense to apply.
First, Ms. Kovach argues that claim splitting does not apply because there has been no final adjudication of her first-filed lawsuit. This Court recognizes that two federal district courts have held that, under Missouri law, adjudication of the first lawsuit is an essential element of the affirmative defense of claim splitting. See Christenson v. Freeman Health Sys. , 71 F. Supp. 3d 964, 969 (W.D. Mo. Dec. 2, 2014) (interpreting Missouri law on claim splitting) ("Because the remedy presupposes a prior judgment on the merits, adjudication in the first lawsuit is an implicit element of the affirmative defense of claim splitting."); Lifrak v. Boy Scouts of Am. , No. 4:16-CV-2024-CEJ, 2017 WL 1281429, at *3 (E.D. Mo. Apr. 6, 2017) (citing Christenson to hold that a final adjudication is required for claim splitting to apply). But both cases rely upon the Missouri Supreme Court's decision in King , which quoted from an earlier intermediate appellate decision that "[a] cause of action which is single may not be split and filed or tried piecemeal, the penalty for which is that an adjudication on the merits in the first suit is a bar to a second suit." 821 S.W.2d at 501 (quoting Burke v. Doerflinger , 663 S.W.2d 405, 407 (Mo. App. E.D. 1983) ).
Such reliance is misplaced. King held the plaintiff's claims were barred by res judicata , not improper claim splitting. Id. at 501-02. Thus, although the King Court recognized that claim splitting was a species of res judicata , it did not consider or discuss whether a claim splitting defense could bar a new lawsuit while a prior suit was still pending. Neither has any other Missouri Supreme Court case.
Burke also dismissed the plaintiff's claims based on res judicata rather than a claim splitting defense raised while the prior suit remained pending. 663 S.W.2d at 407-8.
Thus, this Court must "attempt to predict how the highest court would resolve the issue, with decisions of intermediate state courts being persuasive authority." Progressive Northern Ins. Co. v. McDonough , 608 F.3d 388, 390 (8th Cir. 2010) (citing Minn. Supply Co. v. Raymond Corp. , 472 F.3d 524, 534 (8th Cir. 2006) ). The Missouri Court of Appeals has repeatedly addressed this issue and in each case held that a subsequently filed case should be dismissed for claim splitting while a party's prior suit remains pending. HFC Investments, LLC v. Valley View State Bank , 361 S.W.3d 450, 457 n. 6 (Mo. App. W.D. 2012) (mot. for rehearing or transfer denied); Bagsby v. Gehres , 139 S.W.3d 611, 615 (Mo. App. E.D. 2004) ; Welch v. Contreras , 174 S.W.3d 53, 55 n. 3, 57 (Mo. App. W.D. 2005) ; Hutnick v. Beil , 84 S.W.3d 463, 466 (Mo. App. E.D. 2002). The Court is persuaded by this authority.
Since "Missouri appellate courts are constitutionally bound to follow the last controlling decision of Missouri's Supreme Court, regardless of how many years have passed since that decision as rendered," State v. Naylor , 505 S.W.3d 290, 298 (Mo. App. W.D. 2016), these Missouri Court of Appeals’ decisions undermine reading King to require a final adjudication before dismissing a case for improper claim splitting.
Only this outcome upholds the purpose of the claim splitting defense: to "prevent a multiplicity of suits and appeals with respect to a single cause of action" and "to protect defendants against fragmented litigation, which is vexatious and costly." Kesterson , 242 S.W.3d at 716. Indeed, allowing Ms. Kovach (or any other plaintiff) to file a single case in multiple courts would result in the "vexatious and costly" litigation Missouri law seeks to prevent. It would also encourage forum shopping and congest dockets with duplicative litigation. Put simply, requiring a party challenging a second suit based on claim splitting to wait until the first suit was adjudicated would render the rule meaningless. Accordingly, this Court finds that a final adjudication is unnecessary for the defense of claim splitting to apply.
b. The defense of claim splitting requires dismissal.
Having determined a final adjudication is not required for improper claim splitting to bar a subsequent lawsuit, the Court must next determine whether Ms. Kovach has split her claims. To determine whether an action is split, the court should consider: "(1) whether the separate actions brought arise out of the same act, contract or transaction; (2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions." King , 821 S.W.2d at 501 (quoting Burke , 663 S.W.2d at 407 ). The word "transaction" has been "defined as the aggregate of all the circumstances which constitute the foundation for a claim" and includes "all of the facts and circumstances out of which an injury arose." Id. In determining whether claims may be split, "a court must look to the factual bases for the claims, not the legal theories." Kesterson , 242 S.W.3d at 716. It must also determine whether there are any "new ultimate facts, as opposed to evidentiary details, that form a new claim for relief." Id.
Here, Ms. Kovach's FMLA claims arise from the same transaction that underlies her MHRA claims. Specifically, Plaintiff alleges in both lawsuits that she was subjected to a series of discriminatory and retaliatory actions by MFA and its employees, culminating in her termination. Both lawsuits require evidence regarding the circumstances of her assault and harassment, leave taken as a result of the assault, and termination. This evidence will likely include the documentation from Ms. Kovach's employment and termination, and testimonial evidence from the same counselors, co-workers, supervisors, and MFA representatives.
That Ms. Kovach's FMLA claims will require a greater focus on her leave and termination, rather than on the assault, does not create a separate claim for the purposes of claim splitting. Nor does the fact that she alleges a different animus for MFA's discriminatory and retaliatory behavior in each lawsuit. Even though the evidentiary details to maintain both of causes of action may be slightly different, the Missouri Supreme Court has held that is of no consequence so long as there are no new ultimate facts forming her FMLA claims. Kesterson , 242 S.W.3d at 716. There are none; Ms. Kovach's claims all originate from ultimate facts surrounding her assault, leave, and termination. See id. (finding that two separate causes of action arising from the same car accident were impermissibly split). Thus, her claims cannot be pursued in separate actions.
IV. CONCLUSION
Accordingly, it is hereby ORDERED that MFA's Motion to Dismiss (Doc. 3) is GRANTED.