                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2396
                                    ___________

Crissy Simpson,                          *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Tim Thomure,                             *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: December 15, 2006
                                   Filed: May 7, 2007
                                   ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Crissy Simpson’s right hand was severely injured in an accident at work while
she was operating a power press machine. Simpson filed suit in Missouri state court
against the out-of-state power press manufacturer and Tim Thomure, her supervisor,
a fellow Missouri resident. The manufacturer defendants removed. The district court1
denied Simpson’s motion to remand to state court and dismissed her claim against
Thomure, concluding that he was fraudulently joined and therefore the court had
diversity jurisdiction over the action. After resolving her claims against the out-of-

      1
      The Honorable FERNANDO J. GAITAN, United States District Judge for the
Western District of Missouri
state manufacturer defendants, Simpson appealed the order denying her motion to
remand and dismissing her claim against non-diverse defendant Thomure. Reviewing
that order de novo, we affirm.

                             I. The Procedural Setting

       Simpson’s complaint alleged that the power press machine could be operated
in two control modes: with palm buttons that ensure the operator’s hands are outside
the die spaces when the press is operating, or with a foot pedal that allows the press
to operate when the operator’s hands are in danger. Simpson alleged that supervisor
Thomure “knew that the machine should not have been operated with a foot pedal,”
that he controlled a key that turned the machine from foot pedal mode to palm button
mode, and that he “affirmatively set the machine up so that it could be activated by
foot pedals and then had [Simpson] operate the machine in this dangerous condition”
without giving her adequate safety instructions. Simpson alleged that Thomure was
liable in damages because his affirmative negligence created a hazardous condition
and breached a personal duty to Simpson.

       There is no federal diversity jurisdiction if the plaintiff and any defendant are
citizens of the same State. 28 U.S.C. § 1332(a). However, the right of an out-of-state
defendant to remove a diversity suit to federal court “cannot be defeated by a
fraudulent joinder of a resident defendant.” Wilson v. Republic Iron & Steel Co., 257
U.S. 92, 97 (1921). Invoking this principle, the out-of-state defendants filed a timely
notice of removal under 28 U.S.C. § 1446(b), asserting that defendant Thomure was
fraudulently joined because, as Simpson’s co-worker, he was immune from suit under
the Missouri Workers’ Compensation Law. See Mo. Rev. Stat. § 287.120.2. Simpson
responded with a timely motion to remand under 28 U.S.C. § 1447, arguing that
Thomure was not fraudulently joined because there was a “reasonable basis in fact and
law” supporting the claim against him and therefore the district court lacked diversity



                                          -2-
jurisdiction. Menz v. New Holland N. Am., Inc., 440 F.3d 1002, 1004 (8th Cir. 2006),
quoting Wiles v. Capitol Indem. Corp., 280 F.3d 868, 871 (8th Cir. 2002).

       The district court denied the motion to remand and dismissed Simpson’s claim
against Thomure for failure to state a claim upon which relief may be granted. See
Fed. R. Civ. P. 12(b)(6). After dismissing Thomure, the court had diversity
jurisdiction to proceed with Simpson’s claims against the manufacturer defendants.
See Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). Four months later, the
remaining parties filed stipulations of dismissal, and the court entered final judgment.
Simpson then appealed the order denying her remand motion and dismissing her claim
against Thomure.

      On appeal, Simpson argues that the district court erred in denying her motion
to remand because a Missouri court might impose co-worker liability on Thomure
based on the facts alleged in her complaint. She argues that Missouri law of co-
worker liability is fact intensive and ambiguous; therefore, the district court was
obligated to “resolve all facts and ambiguities in the current controlling substantive
law in the plaintiff’s favor” and remand. Filla v. Norfolk S. Ry. Co., 336 F.3d 806,
811 (8th Cir. 2003).2

      In our view, Simpson attacks the wrong half of the district court’s order.
Caterpillar v. Lewis teaches that, because Thomure, the non-diverse party, was
dismissed from the case, we must decide this appeal based upon the present procedural

      2
        We doubt this is a sound principle for deciding fraudulent joinder issues that
turn on the non-diverse defendant’s alleged immunity from suit. We also note that the
Filla opinion discussed the merits of the fraudulent joinder issue before dismissing,
for lack of appellate jurisdiction, an appeal from the grant of a remand motion. See
28 U.S.C. § 1447(d). This discussion was of no precedential force because we lacked
jurisdiction to review the merits of the remand order “whether erroneous or not and
whether review [was] sought by appeal or by extraordinary writ.” Thermtron Prods.,
Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976).

                                          -3-
posture of the case. Compare Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S.
567, 572-73 (2004). At this time, final judgment has been entered, so there is nothing
to remand to state court unless the district court’s Rule 12(b)(6) dismissal of
Simpson’s claim against Thomure is reversed. If that claim is revived, remand will
follow automatically because Simpson and Thomure, the only remaining defendant,
are citizens of the same State. Thus, the significant issue on appeal is whether the
district court erred in dismissing the claim against Thomure on the merits. Our review
is still de novo, but we may not grant Simpson relief simply because Missouri law
may be unclear or hard to apply. Rather, we must review under state law the
correctness of the district court’s decision to dismiss, just as we would if Simpson and
Thomure were citizens of different States and the district court granted Thomure’s
Rule 12(b)(6) motion to dismiss.

                                   II. The Merits

     The Supreme Court of Missouri has succinctly stated the principle governing
whether supervisor Thomure is immune from employee Simpson’s negligence claim:

      The [Missouri] Workers’ Compensation Law provides the exclusive
      remedy against employers for injuries covered by its provisions. This
      immunity from suit extends to employees of the exempt employer, albeit
      in a more limited fashion. Suits against employees personally for breach
      of the duty to maintain a safe working environment are preempted by the
      workers’ compensation remedy: “However, an employee may sue a
      fellow employee for affirmative negligent acts outside the scope of an
      employer’s responsibility to provide a safe workplace.”

State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621-22 (Mo. banc 2002), quoting
Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 672 (Mo. banc 1993). In Taylor,
plaintiff’s claim was based on alleged negligent driving by a co-worker. The Court



                                          -4-
concluded that the co-worker was entitled to immunity from suit because the claim
simply alleged breach of the employer’s duty to maintain a safe work environment.

       The Missouri courts treat this issue as one of subject matter jurisdiction.
Taylor, 73 S.W.3d at 623. Therefore, a motion to dismiss is the proper way to raise
the issue, and the trial court then has the option of deciding the motion on the
pleadings or receiving evidence addressing disputed jurisdictional facts. See Risher
v. Golden, 182 S.W.3d 583, 586-87 (Mo. App. 2005). In this case, although
defendants submitted an affidavit by Thomure in opposition to Simpson’s motion to
remand, the district court relied solely on Simpson’s complaint in dismissing her claim
against Thomure for failure to state a claim.

       The question whether a co-worker committed the kind of “affirmative negligent
act” that creates an exception to workers’ compensation immunity is decided “on a
case-by-case basis with close reference to the facts in each individual case.” Taylor,
73 S.W.3d at 622. The Supreme Court of Missouri has addressed the issue in three
cases. In 1993, the Court reversed the grant of summary judgment in favor of a
supervisor, holding that evidence he personally arranged a “make-shift” hoist system
that failed, causing an employee’s injuries, “may constitute an affirmative negligent
act outside the scope of his responsibility to provide a safe workplace . . . . Such acts
constitute a breach of personal duty of care owed to plaintiff.” Tauchert v. Boatmen’s
Nat’l Bank, 849 S.W.2d 573, 574 (Mo. banc 1993). However, eight months later, the
Court affirmed the grant of summary judgment in favor of five co-workers who
designed and constructed a “corn flamer” that exploded, severely burning a fellow
employee. The Court concluded that “the condition of the corn flamer was part of the
employer’s nondelegable duty to provide a safe workplace,” distinguishing Tauchert
because there was no evidence the corn flamer was “make-shift” or “jerry-rigged.”
Kelley, 865 S.W.2d at 672.




                                          -5-
        In subsequent decisions applying Tauchert and Kelley, the Missouri Court of
Appeals noted two considerations important in determining whether a co-worker is
not entitled to workers’ compensation immunity because his alleged conduct
constituted the kind of affirmative negligent act that breached a personal duty of care.
First, immunity is likely to attach if the co-employee’s negligence occurred while he
was regularly carrying out ordinary duties for the employer. See Collier v. Moore, 21
S.W.3d 858, 862 (Mo. App. 2000); Felling v. Ritter, 876 S.W.2d 2, 5 (Mo. App.
1994). On the other hand, a supervisor is not entitled to his employer’s immunity if
he directed the plaintiff employee “to engage in dangerous conditions that a
reasonable person would recognize as hazardous beyond the usual requirements of
employment.” Sexton v. Jenkins & Assocs., Inc., 41 S.W.3d 1, 5 (Mo. App. 2000); see
Logsdon v. Killinger, 69 S.W.3d 529, 533 (Mo. App. 2002); Hedglin v. Stahl
Specialty Co., 903 S.W.2d 922, 927 (Mo. App. 1995).

      The Missouri Supreme Court returned to the co-employee immunity issue in
Taylor, holding that a co-worker was entitled to immunity from a suit alleging that his
negligent driving of the employer’s truck in the course of his regular duties injured his
passenger, a fellow employee. “This is not the kind of purposeful, affirmatively
dangerous conduct that Missouri courts have recognized as moving a fellow employee
outside the protection of the Workers’ Compensation Law’s exclusive remedy
provisions.” 73 S.W.3d at 622.

      A large majority of the Missouri Court of Appeals decisions since the decision
in Taylor have held co-worker defendants immune from suit. In several cases, the
defendant supervisors had instructed the plaintiffs to engage in conduct which put
them at risk, but the conduct was within the usual requirements of their jobs. See
Risher, 182 S.W.3d at 587-89; Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 578-
79 (Mo. App. 2005); State ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417, 423 (Mo.
App. 2005); Graham v. Geisz, 149 S.W.3d 459, 462 (Mo. App. 2004). In the one case
where dismissal of a co-worker was reversed on the merits, plaintiff complained that

                                          -6-
her machine was malfunctioning dangerously. Her supervisor replied, “quit whining,”
and instructed plaintiff to keep using the machine without correcting the malfunction
or even inspecting the machine’s condition, which “effectively created the dangerous
condition resulting in the injuries sustained.” Groh v. Kohler, 148 S.W.3d 11, 16
(Mo. App. 2004).

       In this case, Simpson alleges that she was injured while performing her normal
duty of operating the power press machine. The machine was not “make shift” or
“jerry-rigged,” nor did her injury result from a malfunction of which Thomure was
aware and ignored. Rather, Thomure was allegedly negligent for setting the machine
to operate in the more dangerous of its two control modes and for allowing Simpson
to operate the machine in that control mode without adequate safety instruction. Like
the corn flamer in Kelley, the condition of the power press machine “was part of the
employer’s nondelegable duty to provide a safe workplace.” 865 S.W.2d at 672.
Failing to install a recommended safety device relates to the employer’s general duty
to provide a safe work environment. Felling, 876 S.W.2d at 3, 5. And allegations of
inadequate training or inadequate safety warnings also relate to the employer’s general
duty. See Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 529-30 (Mo.
App. 2005).

        There is no allegation in Simpson’s complaint of the kind of “purposeful,
affirmatively dangerous conduct” that the Supreme Court of Missouri required in
Taylor, nor was Thomure alleged to have directed Simpson to engage in conditions
that a reasonable person would recognize as hazardous beyond the usual requirements
of her job. In these circumstances, the district court correctly concluded that Thomure
was entitled to workers’ compensation immunity and dismissed Simpson’s negligence
claim.

      The judgment of the district court is affirmed.
                     ______________________________

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