1

Gregory Moorer’s last name is spelled two different ways in the record. For

consistency, we will use Moerer, the spelling primarily used by the parties.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3699

___________

Carl W. Bailey, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Bayer CropScience L.P.; *

Greg Moorer;1

 Jamie Jackson, * 

* 

Appellees. *

__________

Submitted: October 17, 2008

Filed: April 9, 2009

___________

Before RILEY, BOWMAN, and COLLOTON, Circuit Judges. 

___________

RILEY, Circuit Judge.

Carl W. Bailey, Sr. (Bailey) filed suit against Bayer CropScience (BCS) in

Missouri state court, alleging intentional infliction of emotional distress (IIED). BCS

removed the case to federal court. Bailey subsequently moved to amend the complaint

by adding two additional defendants. Bailey did not notify the court such joinder
2

The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

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would destroy diversity. The district court2

 permitted joinder, and Bailey then moved

to remand due to lack of jurisdiction. Upon learning the joinder destroyed diversity,

the district court reconsidered its prior decision, and dismissed the joined defendants.

BCS moved for summary judgment, and the court granted the motion. Bailey now

appeals, alleging (1) the district court abused its discretion in dismissing a properly

joined defendant, and (2) the district court erred in granting summary judgment. We

affirm.

I. BACKGROUND

Bailey, an African-American male, worked for BCS, a pesticide manufacturing

facility located in Kansas City, Missouri, from August 1996 until December 2003. In

August 2001, BCS moved Bailey from the production area to security. Bailey claims

he was demoted due to a low score he received on an aptitude test. BCS contends

Bailey was transferred, along with eight other employees, because there was not

enough work on the production line. Bailey alleges he repeatedly asked to see his test

score, but was not permitted to see his score until December 19, 2001. Bailey asserts

the confrontation which led to this lawsuit occurred forty-five minutes after Bailey

received his test score. 

Both parties agree Gregory Moerer (Moerer), a BCS manager, and Jamie

Jackson (Jackson), a Human Resources representative, contacted Bailey on December

19, 2001, and asked him to meet with them in the personnel office. During that

meeting, Jackson and Moerer told Bailey someone accused Bailey of sexual

harassment. Bailey became very upset and started frantically guessing who made the

complaint. Jackson and Moerer then implied the person who made the allegation was

not a female. In response, Bailey asked, “Are you trying to say I’m gay?” and Jackson

allegedly shrugged his shoulders. Jackson and Moerer eventually informed Bailey
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another BCS employee, Michael Shipley (Shipley), made the allegation. During the

course of this litigation, Shipley submitted an affidavit in which he denied ever

making a complaint of sexual harassment against Bailey. The December 19, 2001,

meeting lasted less than twenty minutes, and throughout the meeting, Bailey was

emotional, which included yelling, swearing, and crying. When the meeting was over,

BCS granted Bailey several days off work, with pay, to compose himself. Bailey

alleges the purpose of the meeting was to punish him for demanding to see his test

score. 

Bailey claims when he returned to work, several co-workers knew something

about the allegations despite Moerer’s assurances the incident would remain

confidential. Some of these co-workers were supportive, while others began to treat

Bailey differently. On one occasion, Bailey felt as though he had to shower in a

separate locker room to avoid the reaction of other male employees. Bailey also

began regularly to suffer panic attacks. When Bailey sought treatment, he was

diagnosed with post-traumatic stress disorder (PTSD). His symptoms included

depression, fear, flashbacks, nightmares, memory loss, confusion, and psychotic

episodes. Bailey continued to work at BCS and was later transferred, along with eight

other employees, back to the production area. Bailey received the highest possible

rating for his work performance when he was evaluated at the end of 2001. 

In August 2002, Bailey suffered a severe panic attack while at work. As a

result, the BCS medical department advised him to seek further treatment and not to

return to work until he was released by his psychiatrist. Bailey continued with

treatment and medication and was placed on paid medical leave. Bailey remained off

work receiving company disability payments and other benefits until December 2003.

At that time, Bailey’s benefits expired and he was offered an open position at BCS.

Bailey declined the offer to return to work and his employment was terminated.

 
3

In appeal briefs, Bailey also alludes to filing a claim for negligent infliction of

emotional distress (NIED). During oral argument, Bailey’s counsel conceded no

claim for negligent infliction of emotional distress had been made. We find no NIED

claim alleged or pursued in the district court, and we will not address any NIED

assertion now.

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Bailey initially filed suit against BCS on February 17, 2006, in the Circuit Court

of Jackson County Missouri, alleging IIED.3

 BCS, the only named defendant,

removed the action to federal court. On March 15, 2007, over one year after the

action was filed and removed, Bailey moved to amend his complaint by adding

Jackson and Moerer as defendants. Bailey did not inform the district court such

joinder would destroy diversity jurisdiction, and the court granted Bailey’s motion to

amend. Less than a month later, when Bailey moved for remand to state court, the

district court learned Moerer’s presence in the suit destroyed diversity jurisdiction.

The district court reconsidered its earlier decision granting Bailey’s motion to amend

and denied the motion. Both Moerer and Jackson were dismissed without prejudice

and Bailey was granted leave to join Jackson, so long as Jackson’s presence would not

destroy diversity. With diversity jurisdiction restored, the district court denied

Bailey’s motion to remand. 

On August 15, 2007, BCS filed a motion for summary judgment. The district

court granted BCS’s motion, explaining Bailey failed to create a genuine issue of

material fact to suggest the behavior of BCS employees rose to the level of extreme

and outrageous conduct. This appeal followed.

II. DISCUSSION

A. Joinder

Bailey argues the district court abused its discretion by (1) reconsidering its

previous joinder decision granting Bailey’s motion to amend his complaint,

(2) subsequently denying the motion, (3) dismissing Moerer and Jackson from the

action, and (4) denying Bailey’s motion to remand. When a plaintiff requests leave
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to amend his complaint before trial, “[t]he court should freely give leave when justice

so requires.” Fed. R. Civ. P. 15(a)(2). “[P]ermission to amend may be withheld if the

plaintiff . . . is guilty of undue delay, bad faith, dilatory motive, or if permission to

amend would unduly prejudice the opposing party.” Williams v. Little Rock Mun.

Water Works, 21 F.3d 218, 224 (8th Cir. 1994) (citing Foman v. Davis, 371 U.S. 178,

182 (1962)). “The trial court’s decision whether to allow amendment will be

reviewed only for an abuse of discretion.” Id. “We review the district court’s denial

of the remand motion de novo.” Menz v. New Holland North America, Inc., 440 F.3d

1002, 1004 (8th Cir. 2006). 

First, we must consider whether the district court could reconsider Bailey’s

motion to amend his complaint. Several courts hold, when a trial court grants a

plaintiff leave to amend the complaint by naming additional defendants, and the

plaintiff fails to inform the court that one or more of those defendants will destroy

diversity, the trial court may reconsider its earlier decision. See, e.g., Faye v. High’s

of Baltimore, 541 F. Supp. 2d 752, 756-58 (D. Md. 2008) (listing cases). In Le Duc

v. Bujake, 777 F. Supp. 10, 11-12 (E.D. Mo. 1991) (citing Hensgens v. Deere & Co.,

833 F.2d 1179, 1182 (5th Cir. 1987)), the court explained, 

Where, as here, the record indicates that the problem of the

addition of the non-diverse defendant was not brought to the attention of

the Court or recognized by the parties, the filing of the amended

complaint should be considered a nullity and the Court given an

opportunity to consider whether justice requires that [the plaintiff] be

permitted to join [the additional] defendant.

In the present case, the district court granted Bailey’s motion to amend his complaint

and permitted Bailey to name two additional defendants without the court realizing

such joinder destroyed the court’s diversity jurisdiction. When the district court

discovered the joinder defeated diversity jurisdiction, the court had discretionary

authority to reconsider and reverse its previous joinder decision. 
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Second, we must determine whether the district court abused its discretion

when, upon reconsideration, it denied Bailey’s motion to amend. When an action is

removed from state to federal court, and “after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject matter jurisdiction, the

court may deny joinder, or permit joinder and remand the action to the State court.”

28 U.S.C. § 1447(e). Joinder would be required if the plaintiff satisfied Fed. R.

Civ. P. 19 by showing that the new parties are necessary and indispensable to a full

resolution of the case. The plaintiff must first satisfy Fed. R. Civ. P. 19(a) by showing

the new parties are necessary to a full resolution of the case. Joinder of Moerer and

Jackson under Rule 19(a) is not required because their absence would not impair the

court’s ability to accord complete relief between Bailey and BCS, and neither Moerer

nor Jackson have claimed an interest relating to the subject of the action.

Even if Moerer and Jackson were determined to be necessary parties under Rule

19(a), they are not indispensable parties pursuant to Fed. R. Civ. P. 19(b). If a

potential defendant, whose joinder would destroy jurisdiction, is determined to be

indispensable, the district court must either permit joinder and grant remand under

§ 1447(e), or dismiss the action pursuant to Rule 19(b). Only when the potential

defendant is deemed dispensable may the district court deny joinder and retain

jurisdiction over the action. “The determination of whether or not a person is an

indispensable party is one which must be made on a case-by-case basis and is

dependant upon the facts and circumstances of each case.” Helzberg’s Diamond

Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 819 (8th

Cir. 1977) (citations omitted). The factors to consider when determining whether a

party is indispensable include: 

(1) the extent to which a judgment rendered in the person’s absence

might prejudice that person or the existing parties; 
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(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment; 

(B) shaping the relief; or 

(C) other measures; 

(3) whether a judgment rendered in the person’s absence would be

adequate; and 

(4) whether the plaintiff would have an adequate remedy if the action

were dismissed for nonjoinder.

Fed. R. Civ. P. 19(b). 

We find none of these factors mandate joinder of Moerer and Jackson. Bailey

alleges Moerer, Jackson, and BCS were joint tortfeasors. “It has long been the rule

that it is not necessary for all joint tortfeasors to be named as defendants in a single

lawsuit.” Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7 (1990) (citations omitted).

Instead, tortfeasors with joint and several liability are merely permissive parties. Id.

In the present case, Moerer and Jackson are not indispensable parties, and the district

court had full discretionary authority to deny joinder and retain jurisdiction over the

action. 

The district court’s decision is further supported by Rule 21 of the Federal

Rules of Civil Procedure. Under Rule 21, “the court may at any time, on just terms,

add or drop a party.” The Supreme Court has explained, “Rule 21 invests district

courts with authority to allow a dispensable nondiverse party to be dropped at any

time, even after judgment has been rendered.” Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 832 (1989). The district court accurately determined the joined

defendants were dispensable parties under Rule 19(b), and the district court did not

abuse its discretion in dismissing Moerer and Jackson from the action. 

The district court also properly considered whether justice required Moerer and

Jackson be joined as defendants and the case remanded to state court. As the Fifth

Circuit spelled out:
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The district court, when faced with an amended pleading naming a new

nondiverse defendant in a removed case, should scrutinize that

amendment more closely than an ordinary amendment. Rule 15(a) of the

Federal Rules of Civil Procedure provides that leave to amend “should

be freely given when justice so requires,” and Rule 20 permits joinder of

proper parties. In this situation, justice requires that the district court

consider a number of factors to balance the defendant’s interests in

maintaining the federal forum with the competing interests of not having

parallel lawsuits.

Hensgens, 833 F.2d at 1182 (creating a balancing test which has been adopted by

courts in various jurisdictions). “[T]he Court is required to consider 1) the extent to

which the joinder of the nondiverse party is sought to defeat federal jurisdiction, 2)

whether [the] plaintiff has been dilatory in asking for amendment, and 3) whether [the]

plaintiff will be significantly injured if amendment is not allowed.” Le Duc, 777 F.

Supp. at 12 (citing Hensgens, 833 F.2d at 1182). See also, Alpers Jobbing Co. v.

Northland Cas. Co., 173 F.R.D. 517, 520 (E.D. Mo. 1997) (collecting cases which had

adopted the Hensgens balancing test). 

In the present case, the district court accurately considered the relevant factors

and held the balancing test weighed against the addition of the nondiverse defendant.

First, Bailey waited a year before filing his motion to amend. When he finally filed

the motion, Bailey failed to inform the court such joinder would destroy diversity.

Less than a month after the joinder order, Bailey filed a motion for remand, suggesting

he had known about the jurisdictional issues. These facts and reasonable inferences

support the district court’s conclusion the defendants were joined primarily for the

purpose of defeating federal jurisdiction. 

Second, Bailey knew all of the involved parties before he filed the action.

Despite knowing all the parties, Bailey originally filed suit only against BCS, waiting

over a year before submitting a motion to join Moerer and Jackson. Bailey claims this

delay resulted from his lack of knowledge as to the residences of the two putative
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defendants. Yet, no evidence in the record suggests Bailey previously made

unsuccessful attempts to determine the residences of Moerer and Jackson. The record

sufficiently supports the district court’s conclusion Bailey was dilatory in filing his

motion to name additional defendants. 

Finally, because Bailey alleged the parties were joint tortfeasors, Bailey will not

be significantly injured if amendment is not allowed. Thus, the district court did not

abuse its discretion in first reconsidering, and then in denying Bailey’s motion to

amend his complaint. Upon denying Bailey’s motion, diversity jurisdiction was

restored, and the district court properly denied Bailey’s motion to remand. 

B. Summary Judgment 

Bailey also maintains the district court erred in granting BCS’s motion for

summary judgment. “We review de novo the district court’s order granting the

defendant’s motion for summary judgment.” Seymour v. City of Des Moines, 519

F.3d 790, 795 (8th Cir. 2008). “Summary judgment is appropriate when the evidence

viewed in the light most favorable to the nonmoving party presents no genuine dispute

of material fact and the moving party is entitled to judgment as a matter of law.” Id.

at 796. The mere existence of a factual dispute between the parties is not sufficient

to deny a summary judgment motion. See Get Away Club, Inc. v. Coleman, 969 F.2d

664, 666 (8th Cir. 1992). Instead, the disputed issue of fact must be material to

determining the outcome of the controversy. Id. 

To state a claim for IIED under Missouri law, “a plaintiff must plead extreme

and outrageous conduct by a defendant who intentionally or recklessly causes severe

emotional distress that results in bodily harm.” Gibson v. Brewer, 952 S.W.2d 239,

249 (Mo. 1997) (en banc) (citing K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996) (en

banc)). The defendant’s intent in acting must have been “only to cause extreme

emotional distress to the victim.” Id. (citing K.G., 918 S.W.2d at 799). “The conduct

must have been ‘so outrageous in character, and so extreme in degree, as to go beyond
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all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.’” Id. (quoting Warrem v. Parrish, 436 S.W.2d 670, 673

(Mo. 1996)). Liability for IIED 

clearly does not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities. The rough edges of our society

are still in need of a good deal of filing down, and in the meantime

plaintiffs must necessarily be expected and required to be hardened to a

certain amount of rough language, and to occasional acts that are

definitely inconsiderate and unkind. There is no occasion for the law to

intervene in every case where someone’s feelings are hurt. 

Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566, 569 (Mo. 1965) (abrogated

on other grounds) (quoting Restatement (Second) of Torts § 46, comment (d) (1965)

(Restatement)). 

Taking the facts in the light most favorable to Bailey, the alleged events can be

summarized as follows: Moerer and Jackson concocted a charge of sexual harassment

against Bailey; Moerer and Jackson asked Bailey to meet them in the personnel office;

they informed Bailey a complaint of sexual harassment had been made against him;

the person who allegedly made the complaint later denied making the charge; during

the meeting, Moerer and Jackson permitted Bailey to guess frantically as to who made

the allegation; Bailey asked, “Are you trying to say I'm gay?”; Jackson shrugged his

shoulders; several of Bailey’s co-workers learned about the allegations and began

treating Bailey negatively; Bailey perceived male employees glaring at him,

particularly in the BCS employee shower; and, as a proximate result, Bailey began

having panic attacks and was eventually diagnosed with PTSD.

“Missouri case law reveals very few factual scenarios sufficient to support a

claim for IIED.” Dunham v. City of O'Fallon, 945 F. Supp. 1256, 1262 (E.D. Mo.

1996) (citing Gibson v. Hummel, 688 S.W.2d 4, 7 (Mo. Ct. App. 1985)). Based on
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governing Missouri precedent, we do not think Missouri courts would consider falsely

accusing someone of making homosexual advances to be “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized community.” Brewer, 952

S.W.2d at 249 (quoting Warrem, 436 S.W.2d at 673). See also Ward v. Wal-Mart

Stores, Inc., No. 3:05-0777, 2006 WL 3098800, at *3 (M.D. Tenn. Oct. 30, 2006)

(holding an “alleged statement made by Defendant’s manager, in the presence of three

other employees of Defendant, that the prime reason for Plaintiff’s termination was

that he was ‘gay,’ does not constitute outrageous conduct as a matter of law”);

Carraway v. Cracker Barrel Old Country Store, No. 02-2237, 2003 WL 21685909, at

*14 (D. Kan. July 16, 2003) (deciding that spreading of false rumors to former coworkers and customers “that plaintiff stole money, used drugs, had a drinking and/or

gambling problem and was [a] lesbian” was not “extreme and outrageous” conduct

establishing intentional infliction of emotional distress). But see Joffe v. Vaughn, 873

P.2d 299, 303 (Okl. Civ. App 1993). 

Further, there are many undisputed facts in the record which contradict Bailey’s

assertion Moerer and Jackson intended only to cause Bailey severe emotional distress.

Bailey had almost no interaction with either of these supervisors before Moerer and

Jackson met with Bailey on December 19, 2001. After the meeting, Bailey was

granted several paid days off to compose himself. BCS informed Bailey of available

counseling services and provided Bailey with company benefits throughout the

remainder of his employment. Bailey also received a positive performance evaluation

and was eventually returned to the production line. Although Moerer informed the

BCS plant manager a complaint of sexual harassment had been made in the

department, no details were given. There is no direct evidence in the record either

Moerer or Jackson told anyone that a charge of sexual harassment had been made by

Shipley against Bailey. These facts do not suggest a singular intent to cause severe

emotional distress.
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Finally, Missouri courts have, in large part, adopted the Restatement’s

definition of IIED. See, e.g., Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo. Ct. App.

1998) (“In Pretsky v. Southwestern Bell Telephone Co., 396 S.W.2d 566 (Mo. 1965),

our Supreme Court recognized the tort of extreme and outrageous conduct, essentially

adopting Restatement (Second) of Torts § 46 (1965).”). “The comments to § 46 are

instructive as to the meaning ordinarily attached to the term ‘emotional distress.’” Id.

The comments explain, “[t]he distress must be reasonable and justified under the

circumstances, and there is no liability where the plaintiff has suffered exaggerated

and unreasonable emotional distress, unless it results from a peculiar susceptibility to

such distress of which the actor has knowledge.” Restatement (Second) of Torts § 46,

cmt. j (1965). Thus, a reasonable person standard should be used when determining

whether a plaintiff has a claim for IIED. In Bailey’s case, two supervisors allegedly

reported an accusation that Bailey made homosexual advances toward another male

employee. As a result, Bailey suffered severe panic attacks and was diagnosed with

PTSD. Bailey’s reaction was not one consistent with a reasonable person under the

circumstances. The decline of Bailey’s mental health is unfortunate, but there is no

evidence Moerer or Jackson, or anyone else, knew or suspected how strongly Bailey

would react to the allegations or realized Bailey was in a fragile or vulnerable state.

Id. As a consequence, Bailey’s IIED claim fails and summary judgment was proper.

III. CONCLUSION

We affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

I agree that the district court did not abuse its discretion in denying Carl

Bailey’s motion to amend, and that Missouri courts are not likely to extend the cause

of action for intentional infliction of emotional distress to the facts of this case. As

Bayer CropScience has not argued that Bailey suffered “exaggerated and unreasonable

emotional distress,” ante, at 12 (internal quotation omitted), and there appears to be
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no evidence in the record on this question, I do not rely on Bailey’s reaction to the

alleged events in reaching my conclusion.

______________________________