United States Court of Appeals

For the Eighth Circuit

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No. 12-1415

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George A. Donner; Christine L. Donner

lllllllllllllllllllll Plaintiffs - Appellees

v.

Alcoa, Inc.

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 20, 2012

 Filed: March 6, 2013

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Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.

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BYE, Circuit Judge.

George Donner sued Alcoa, Inc., in Missouri state court. Donner alleged he

contracted pulmonary fibrosis after working with aluminum for many years and that

Alcoa failed to warn him of the dangers associated with the use of its aluminum

products. After Alcoa removed the case to federal court, Donner moved to voluntarily

dismiss his action. He stated an intention to add his Missouri employer to a new suit

in state court, thereby destroying diversity jurisdiction. The district court granted the
motion. Alcoa appeals contending the joinder of Donner's employer would be

"fraudulent" in the procedural sense. We agree and therefore reverse and remand for

further proceedings.

I

Donner worked with aluminum products for twenty-seven years. He was 

employed by Western Forms, a company in Kansas City, Missouri, that manufactures

aluminum forms and related accessories for the pouring of concrete walls and other

concrete structures. Employees of Western Forms cut, saw, grind, weld and otherwise

process and manipulate aluminum sheet stock. Donner started his career as a grinder,

a person who grinds the weld spots off of aluminum products. He worked his way up

through the company, advancing to a machine operator, welder, supervisor, manager,

and eventually vice president and general manager, all the while being exposed to raw

aluminum. Donner then retired from Western Forms to start his own construction

business. Two years later, he sought medical treatment after suffering from a sudden,

violent coughing attack. A biopsy revealed small aluminum particles embedded in

Donner's lungs. He was diagnosed with pulmonary fibrosis resulting from exposure

to aluminum. He had a double lung transplant at the age of forty-nine.

In July 2010, Donner brought suit against aluminum manufacturer Alcoa stating

claims for (a) strict liability–design defect; (b) strict liability–failure to warn; (c)

negligent design and failure to warn; and (d) a loss of consortium claim on behalf of

his wife. The suit was brought in Missouri state court. In September 2010, Alcoa

removed the action to federal district court based on diversity jurisdiction: the

Donners are Missouri residents and Alcoa is a Pennsylvania corporation with its

principal place of business in New York.

While Donner's case was pending in federal court, the Missouri Court of

Appeals decided KCP&L Greater Missouri Operations Co. v. Cook, 353 S.W.3d 14

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(Mo. Ct. App. 2011), which addressed whether the exclusive remedy provisions of

workers' compensation laws applied to an employee's contraction of mesothelioma

due to asbestos exposure in the workplace. The court held contracting the

occupational disease of mesothelioma did not constitute an injury "by accident" under

workers' compensation laws and thus did not preclude an employee's common law

claims for premises liability and negligence against his own employer. Id. at 19-20.

Relying upon Cook, Donner filed a motion to voluntarily dismiss his federal

action pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. Donner

stated his intention to add Western Forms as a defendant. Because the addition of

Western Forms would destroy diversity jurisdiction, Donner sought voluntary

dismissal of his federal action so he could refile his claim in state court.

Alcoa opposed the motion. Noting Donner had failed to present any expert

medical evidence to connect his lung condition to products made or sold by Alcoa (the

deadline for disclosing experts expired on the same day Donner brought his motion

for voluntary dismissal),1

 Alcoa argued Donner was simply attempting to avoid a

dismissal on the merits. Alcoa further argued Donner was forum shopping by seeking

to take advantage of more relaxed expert evidence standards in state court. Finally,

Alcoa contended Donner's stated intention for seeking a dismissal of the federal action

– to add Western Forms as a defendant – was improper because Donner had already

received workers' compensation benefits for his injuries and therefore Missouri's

election of remedies doctrine would bar a tort suit against Western Forms.

1

Although Alcoa had agreed to allow Donner to seek an extension of the

deadline for disclosing experts, Alcoa's consent was conditioned on the case

remaining in federal court. Donner's motion for voluntary dismissal, if successful,

would mean the case would not remain in federal court.

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Without considering whether Donner's purported claims against Western Forms

were legally viable, the district court granted Donner's motion for voluntary dismissal

and entered a final order dismissing the action. Alcoa filed a timely appeal.

II

We review a district court's decision to allow a plaintiff to voluntarily dismiss

an action for an abuse of discretion. Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d

1212, 1213 (8th Cir. 2011). The factors a district court should consider when deciding

whether to allow a voluntary dismissal include

whether the party has presented a proper explanation for its desire to

dismiss; whether a dismissal would result in a waste of judicial time and

effort; and whether a dismissal will prejudice the defendants. Likewise,

a party is not permitted to dismiss merely to escape an adverse decision

nor to seek a more favorable forum.

Id. at 1213-14 (quoting Hamm v. Rhone–Poulenc Rorer Pharm., Inc., 187 F.3d 941,

950 (8th Cir. 1999)).

On appeal, Alcoa contends the district court abused its discretion in granting the

voluntary dismissal without addressing whether Donner's purported basis for adding

Western Forms as a defendant had a reasonable basis in fact and law. Cf. Knudson

v. Sys. Painters, Inc., 634 F.3d 968, 977-980 (8th Cir. 2011) (discussing the standard

we apply when deciding if a plaintiff is improperly attempting to join a diversitydestroying defendant). We agree. The viability of Donner's claims against Western

Forms is relevant to determining whether Donner's purpose in seeking a voluntary

dismissal was proper or improper, and thus the district court should have considered

the issue. In Thatcher, we determined the district court abused its discretion by

declining to address a jurisdictional issue which "was at the crux of the issue of

whether the motion to dismiss was being used for the improper purpose of seeking a

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more favorable forum." 659 F.3d at 1215. Similarly, in this case, the district court

abused its discretion when it failed to consider whether Donner's purported claims

against Western Forms had a reasonable basis in fact and law, because "under the

fraudulent-joinder exception, a plaintiff cannot defeat a defendant's right of removal

by 'fraudulently joining a defendant who has no real connection with the

controversy.'" Id. at 1214 (quoting Knudson, 634 F.3d at 976). If a plaintiff has no

legally viable claim against a putative defendant, that party has no real connection

with the controversy.

Our own consideration of Donner's stated basis for the voluntary dismissal leads

us to conclude the claim against Western Forms has no reasonable basis in law. Cook

does not help Donner because he has already elected to pursue and receive workers'

compensation benefits for his injuries.2

 Under Missouri's election of remedies

doctrine, "[a]n injured employee who has accepted benefits paid by his employer in

compliance with the [workers'] compensation action cannot maintain a tort action

against his employer." Ballinger v. Gascosage Elec. Corp., 788 S.W.2d 506, 516 (Mo.

1990), overruled on other grounds by Zueck v. Oppenheimer Gateway Props., 809

S.W.2d 384 (Mo. 1991); see also Neff v. Baiotto Coal Co., 234 S.W.2d 578, 580 (Mo.

2

Donner concedes he has received workers' compensation benefits. He

subsequently filed his proposed suit against both Alcoa and Western Forms in state

court, a suit Alcoa then removed to federal court. In his motion to remand this related

case to state court, Donner admitted he "has received workers' compensation benefits

under a 'Temporary Order' but no final order has been entered." See Donner v. Alcoa,

Inc., et al., No. 4:12-cv-00431-GAF, Docket #14 at 2 (W.D. Mo. May 7, 2012). The

temporary order indicates Western Forms "is liable to claimant for temporary total

disability compensation at $675.90 per week beginning on November 8, 2007 and

continuing until claimant is found to be at maximum medical improvement." Id. at

Docket #1, Exhibit B. We may take judicial notice of the matters filed in this related

case. See United States v. Evans, 690 F.3d 940, 943 (8th Cir. 2012) ("[F]ederal courts

may sua sponte take judicial notice of proceedings in other courts if they relate

directly to the matters at issue." (quoting Conforti v. United States, 74 F.3d 838, 840

(8th Cir. 1996))).

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1950) (indicating a plaintiff's election to receive monthly workers' compensation

benefits as well as hospital and medical benefits precluded the maintenance of a tort

action against his employer for personal injuries suffered on the job).

Donner argues the district court was not obligated to consider whether the

election of remedies doctrine barred his claims against Western Forms because there

has been no full and final settlement in his workers' compensation proceeding. We

disagree. The lack of a full and final settlement is immaterial to whether Donner

elected his remedy. In Neff, it was the receipt of workers' compensation benefits, not

the presence of a final award or judgment, that triggered application of the election of

remedies doctrine. 234 S.W.2d at 580. "Plaintiff's retention of the compensation

benefits constitutes an election precluding the maintenance of the 'inconsistent' tort

action." Ballinger, 788 S.W.2d at 515; see also Alexander v. Link's Landing, Inc., 814

S.W.2d 614, 620 (Mo. Ct. App. 1991) ("Where a party has a right to pursue one of

two inconsistent remedies, makes his election [and] receives something of value on

the claim, he cannot thereafter pursue another and inconsistent remedy."); Grote Meat

Co. v. Goldenberg, 735 S.W.2d 379, 386 (Mo. Ct. App. 1987) (indicating the election

of remedies doctrine is binding when "there has been a gain by the plaintiff and a loss

by the defendant").

Donner further argues the district court was not obligated to consider the

potential merits of his claims against Western Forms because election of remedies is

an affirmative defense, see Berger v. Mercantile Trust Co., 353 S.W.2d 644, 647 (Mo.

1961), and Western Forms may or may not raise the defense in state court. Donner

argues the district court was not obligated to "speculate" about the outcome of an

affirmative defense before granting a voluntary dismissal under Rule 41(a)(2). For

this proposition, Donner cites our decision in Calahan v. Rohan, 423 F.3d 815 (8th

Cir. 2005). We do not find Calahan helpful in guiding our analysis here.

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Calahan involved two New Jersey coworkers, Calahan and Rohan, who suffered

a car accident during a work-related trip to Minnesota. The district court determined

Calahan's claim against Rohan (the driver of the car) was barred by New Jersey's

Workers' Compensation Act. But instead of dismissing the claim with prejudice

following summary judgment, the district court sua sponte dismissed the claim

without prejudice, apparently to allow Calahan to pursue his claim under the theory

that the Minnesota Workers' Compensation Act should apply to his injuries rather than

New Jersey law. Id. at 818. The fighting issue in Rohan's cross appeal was whether

the district court erred when it granted a dismissal without prejudice, instead of

dismissing the claim with prejudice. See id. at 816.

In Donner's case, we are not reviewing a district court's sua sponte decision to

dismiss a claim without prejudice following summary judgment. We are reviewing

the grant of a voluntary dismissal under Rule 41(a)(2). Although Calahan analogized

to Rule 41(a)(2) precedent to address whether the district court's sua sponte dismissal

without prejudice was proper, see id. at 818 (citing Bodecker v. Local Union No. P46, 640 F.2d 182, 185 n.5 (8th Cir. 1981) and Hamm, 187 F.3d at 950), we believe the

analogies were made primarily for the purpose of determining what standard of review

to apply to the district court's sua sponte decision. As a result, the unique

circumstances involved in Calahan indicate we should not give its holding a broad

application. More significantly, although the district court chose not to address the

merits of Calahan's claims before granting the dismissal without prejudice, its decision

did not turn on whether Calahan's receipt of benefits under New Jersey law would

constitute an affirmative defense to his alternate claim under Minnesota law. Thus,

even if we were to give Calahan a broader reading than its unique facts justify, we do

not see how it supports Donner's claim that the district court here had no obligation

to address the application of Missouri's election of remedies doctrine on the grounds

that the doctrine is an affirmative defense.

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Instead, we read our Rule 41(a)(2) precedent as requiring a district court to

make an inquiry into whether a "party has presented a proper explanation for its desire

to dismiss." Thatcher, 659 F.3d at 1213 (quoting Hamm, 187 F.3d at 950). 

Sometimes, such an inquiry will necessarily require the district court to examine the

merits of a plaintiff's proposed claims against a diversity-destroying defendant,

because an attempt to advance a nonviable claim strongly suggests a party's motive

in requesting a voluntary dismissal is merely to seek a more favorable forum.

The overall circumstances here strongly suggest Donner was merely seeking a

more favorable forum, and thus the district court should have considered whether

Donner's proposed claims against Western Forms had any merit. By the time Donner

filed his motion for voluntary dismissal, the district court had already granted

judgment on the pleadings with respect to some of Donner's claims, leaving only the

failure-to-warn claims pending.3

 Moreover, the deadline for disclosing medical

experts expired on the same day Donner filed his motion for a voluntary dismissal,

and he had failed to disclose any medical experts to support his claim. Finally, Alcoa

brought the election of remedies doctrine to the district court's attention, and it is clear

to us the doctrine applies. As a result, in the context of inquiring into Donner's motive

and purpose for filing the motion for a voluntary dismissal, we believe the district

court had an obligation to address whether the doctrine would bar Donner's proposed

claims against Western Forms, and abused its discretion when it failed to do so.

3

Alcoa also appealed the district court's denial of Alcoa's motion for judgment

on the pleadings with respect to Donner's failure-to-warn claims. Vacating the

dismissal order leaves this case pending in federal court and renders the partial denial

of Alcoa's motion interlocutory in nature. We therefore decline to address Alcoa's

appeal of the partial denial of its motion.

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III

We reverse the order granting Donner's motion for voluntary dismissal and

remand this case to the district court for further proceedings.

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