United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3676
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Joseph Hamilton, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Gregory Palm; Toni Palm, *
*
Defendants - Appellees. *
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Submitted: May 18, 2010
Filed: September 20, 2010
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Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
Joseph Hamilton filed this diversity negligence action, alleging that he fell and
was seriously injured doing roofing work and constructing an addition on property
owned by Gregory and Toni Palm in Chesterfield, Missouri. The Palms moved to
dismiss, arguing that Hamilton may not recover on his claim as an independent
contractor based on the inherently-dangerous-activity theory of landowner liability.
Hamilton responded that he was not suing as an independent contractor; the complaint
alleged he was “employed” by the Palms and set forth facts showing he was entitled
to recover for his employers’ failure to provide a safe workplace. The Palms replied
that Hamilton did not adequately plead a master-servant relationship necessary to
establish employer liability. The district court agreed and dismissed the complaint
because Hamilton “merely alleges generally that he was Defendants’ employee and
has not alleged facts to plausibly support such a conclusion.” Concluding this was an
unwarranted extension of the pleading standards of Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), we reverse.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Twombly and
Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2). Rather, those
decisions confirmed that Rule 8(a)(2) is satisfied “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949; see Erickson v. Pardus,
551 U.S. 89, 93 (2007). However, “to survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.” Iqbal, 129 S. Ct. at 1949, quoting Twombly, 550 U.S. at 570.
A pleading that merely pleads “labels and conclusions,” or a “formulaic recitation”
of the elements of a cause of action, or “naked assertions” devoid of factual
enhancement will not suffice. Id., quoting Twombly. Determining whether a claim
is plausible is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950.
Under Missouri law, to establish a common law claim of employer liability,
Hamilton must prove that the Palms negligently breached the employer’s duty to
maintain a safe workplace, and that this negligence was the direct and proximate cause
of Hamilton’s injuries. Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 724 (Mo. banc
1982). The only element of this claim here at issue is whether Hamilton’s complaint
sufficiently alleged that the Palms were his employers. Thus, we must consider how
the general principles of Twombly and Iqbal apply to the pleading of a recurring
common law issue -- whether a party was an employee or an independent contractor
at the time in question.
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We conclude that, to answer this question, we need look no further than Rule
84 of the Federal Rules of Civil Procedure, which provides, “The forms in the
Appendix [to the Rules] suffice under these rules . . . .” The rules referred to
obviously include Rule 8(a)(2). The Appendix includes Forms 11-13, which set forth
prototypes of various negligence complaints. Form 13, entitled “Complaint for
Negligence Under the Federal Employers’ Liability Act,” includes the following
allegation: “4. During this work, the defendant, as the employer, negligently put the
plaintiff to work . . . .” (Emphasis added.) The district court considered Form 13
irrelevant because it applies to F.E.L.A. claims by railroad workers. But that
overlooks Form 13’s broader significance. As incorporated by Rule 84, Form 13
makes clear that an allegation in any negligence claim that the defendant acted as
plaintiff’s “employer” satisfies Rule 8(a)(2)’s notice pleading requirement for this
element. Here, consistent with Form 13, Hamilton alleged that he was “employed”
by the Palms. Rule 84 and Form 13 may only be amended “by the process of
amending the Federal Rules, and not by judicial interpretation.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002) (quotation omitted), distinguished in
Twombly, 550 U.S. at 569-70. Therefore, the district court erred in concluding that
Hamilton’s allegation of employee status, however facially conclusory it might appear
to be in the abstract, failed to satisfy Rule 8(a)(2).
Even if this issue were not governed by Rule 84 and Form 13, we would
conclude that Hamilton’s complaint plausibly alleged a claim of employee status.
Whether a party was an employee or an independent contractor is a legal issue
frequently litigated in a variety of contexts. The Restatement (Second) of Agency
§ 2(2) defines a “servant” as an agent “whose physical conduct in the performance of
the service is controlled or is subject to the right to control by the master.” In
determining whether a person is an employee or an independent contractor, § 220
repeats this control standard and then lists ten non-inclusive “matters of fact” to be
considered. Restatement (Second) of Agency § 220(2). The Missouri appellate courts
apply these standards. See, e.g., Skidmore v. Haggard, 110 S.W.2d 726, 729-30 (Mo.
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1937); Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo. App. 2001).
Thus, under Missouri law, the critical right-to-control issue is affected by many
factors “none of which is in itself controlling.” Howard v. Winebrenner, 499 S.W.2d
389, 395 (Mo. 1973).1 Common sense and judicial experience counsel that pleading
this issue does not require great detail or recitation of all potentially relevant facts in
order to put the defendant on notice of a plausible claim.
Here, in addition to alleging that he was “employed,” Hamilton alleged that the
Palms provided unsafe tools and equipment and failed to provide “appropriate tools
and safety equipment . . . for the work [they] hired [him] to perform,” and that he
“perform[ed] the aforementioned inherently dangerous work as directed by [the
Palms].” Though far from comprehensive or conclusive, these allegations were
sufficient to raise a plausible inference that Hamilton was the Palms’ employee under
the multi-factor test set forth in Restatement § 220(2) as applied by the Missouri
courts. The Palms argue that “the few facts [Hamilton] alleged -- that he, a Colorado
resident, was hired for a specific construction project at [their] residence in Missouri --
indicate an independent contractor relationship.” But even if true, that does not make
the pleading insufficient under Rule 8(a)(2). A plaintiff need only allege facts that
permit the reasonable inference that the defendant is liable, even if the complaint
“strikes a savvy judge that actual proof of the facts alleged is improbable” and
recovery “very remote and unlikely.” Braden v. Wal-Mart Stores, 588 F.3d 585, 594
(8th Cir. 2009) (quotation omitted). Here, as with many claims that ultimately turn
on this issue, Hamilton’s complaint raised plausible inferences of both employee and
independent contractor status. Which inference will prove to be correct is not an issue
to be determined by a motion to dismiss.
1
In applying federal statutes that do not prescribe a different standard, the
Supreme Court has likewise adopted a multi-factor common law test derived primarily
from § 220(2) of the Restatement. See Ernster v. Luxco, Inc., 596 F.3d 1000, 1003-04
(8th Cir. 2010), and cases cited.
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Our ruling that Hamilton has adequately alleged employee status is in no way
intended to signal that he will ultimately recover on his claim of employer negligence.
To prevail, he must prove every element of that claim, including employee status, and
he will no doubt need to defeat an affirmative defense that the Missouri workers’
compensation statute provides the exclusive remedy for his injuries. See Mo. Rev.
Stat. § 287.120(2); McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 479
(Mo. banc 2009) (workers’ compensation exclusivity is an affirmative defense that
may not be raised in a motion to dismiss) .
The judgment of the district court is reversed and the case is remanded for
further proceedings not inconsistent with this opinion.
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