Turkowski v. Poplar Bluff Regional Medical Center, LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
Dr. WALTER TURKOWSKI, 	)
)
Plaintiff, 	)
vs. 	) 	Case No. 1:25-cv-00140 SNLJ
)
POPLAR BLUFF REGIONAL MEDICAL 	)
CENTER, LLC, et al., 	)
)
Defendants. 	)
MEMORANDUM AND ORDER
This matter is before the Court on defendant Medical Doctor Associates, LLC
d/b/a Cross Country Locums’ (hereinafter “CCL”) motion to dismiss for lack of standing.
[Doc. 5]. 	For the reasons stated below, the motion to dismiss will be granted in part.
I. 	BACKGROUND
This lawsuit arises out of a four-count petition in the Circuit Court of Butler
County, Missouri against Poplar Bluff Regional Medical Center, LLC and Medical
Doctor Associates, LLC d/b/a Cross Country Locums for alleged age and disability
discrimination, as well as retaliatory termination under the Missouri Human Rights Act
(hereinafter “MHRA”). 	[Doc. 1-3]. 	On September 2, 2025, defendant Poplar Bluff
Regional Medical Center, LLC filed a timely notice of removal based upon diversity
jurisdiction. 	[Doc. 1]. 	At the time the action was removed from the Circuit Court of
Butler County, Missouri, defendant CCL had a pending motion to dismiss alleging that
plaintiff lacked standing to sue it because he was an independent contractor and not an
employee. 	[Docs. 1-3, 5].
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 1 of 11 PageID #:
<pageID>

2
Once removed to this Court, the motion to dismiss was docketed. 	[Doc. 5]. 	The
motion seeks to have the claims against CCL dismissed on the grounds that plaintiff was
an independent contractor and not an employee, thereby lacking standing; and,
subsequently seeking recovery of CCL’s attorney’s fees and court costs. 	Id. 	Plaintiff
opposes the motion arguing that (1) he does have standing and since the
employee/independent contractor test is fact-intensive, he needs more discovery; and, (2)
that the indemnification clause for attorney fees and court costs is unenforceable. 	[Doc.
14]. 	Defendant CCL then filed a reply in support of its motion to dismiss. 	[Doc. 17].
II. 	LEGAL STANDARD
Defendant CCL’s motion to dismiss in state court was filed under Missouri
Supreme Court Rules 55.27(a)(1) (lack of subject matter jurisdiction) or 55.27(a)(3)
(plaintiff lacks legal capacity to sue). 	Now that the matter is proceeding in this court, the
similar rule can be found under the Federal Rule of Civil Procedure 12(b)(1) (plaintiff
lacks standing to sue).1
To establish Article III standing and survive a motion to dismiss filed under
Federal Rule of Civil Procedure 12(b)(1), a plaintiff must have suffered an injury in fact
that is fairly traceable to the defendant’s challenged action, and it must be likely that the
injury will be redressed by a favorable judicial decision. 	Hawse v. Page, 7 F.4th 685,
1 Plaintiff’s response attempts to argue that the motion to dismiss was brought under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 	However, the
argument presented by defendant CCL is not based upon a failure to state a claim upon which relief may
be granted; but, rather, it is based upon a claim that plaintiff lacks standing to have even asserted its
claims against defendant CCL. 	See Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6).
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 2 of 11 PageID #:
<pageID>

3
688 (8th Cir. 2021) (citing Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560-61 (1992)). 	A
motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be
either a “facial” challenge based solely on the pleadings, or a “factual” challenge in
which the court considers matters outside the pleadings. 	Titus v. Sullivan, 4 F.3d 590,
593 (8th Cir. 1993). 	In a factual challenge, the defendant challenges the factual
truthfulness of the plaintiff’s allegations, and the Court may consider matters outside the
pleadings. 	Osborn v. United States, 918 F.2d 724, 729-30 (8th Cir. 1990). 	When a
party challenges subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1), “the party invoking federal jurisdiction, has the burden of proving the requisite
amount by a preponderance of the evidence.” 	OnePoint Solutions, LLC v. Borchert, 486
F.3d 342, 347 (8th Cir. 2007). 	However, the party invoking federal jurisdiction does not
automatically enjoy the benefit of the allegations in its pleadings being accepted as true
by the reviewing court. 	Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910, 915
(8th Cir. 2015).
III. 	DISCUSSION
A. 	Standing
Missouri courts have interpreted the MHRA’s employment discrimination
provisions to require an employer-employee relationship. 	See Williams v. Hutcheson
Enterprises, Inc., 699 S.W.3d 244, 249 (Mo. App. S.D. 2024). 	As such, dismissal of
discrimination claims under the MHRA for lack of standing and subject matter
jurisdiction is appropriate if the claimant is an independent contractor instead of an
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 3 of 11 PageID #:
<pageID>

4
employee. 	Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555, 564 (Mo. App. W.D. 1999).
The parties frame the issue as whether plaintiff had an employer-employee or an agent-
independent contractor relationship with defendant CCL. 	Defendant CCL has submitted
the Professional Services Agreement [Doc. 16] as competent extrinsic evidence for its
factual attack on plaintiff’s jurisdictional allegations against it. 	See Titus v. Sullivan, 4
F.3d 590, 593 (8th Cir. 1993) (holding that to make a factual attack on the jurisdictional
allegations of the complaint, the court may receive competent evidence in order to
determine the factual dispute). 	Plaintiff does not dispute the existence and execution of
the contract in question, the Professional Services Agreement.
Employees and independent contractors have long been distinguished primarily on
the basis of the amount of control the alleged employer has over them. 	Sloan, 1 S.W.3d
at 562 (citing Cole v. Town & Country Exteriors, 837 S.W.2d 580, 584 (Mo. App. E.D.
1992)); see also Howard v. City of Kansas City, 332 S.W.3d 772, 782 (Mo. banc. 2011)
(noting that an independent contractor is generally “one who contracts to perform work
according to his own methods without being subject to the control of his employer except
as to the result of the work”). 	Control can be determined by considering numerous
factors identified by the courts, including: 	(1) whether the work is part of the
employer’s regular business; (2) whether the employment requires special skills; (3)
whether the person is able to hire assistants; (4) whether the person’s work is done with
or without supervision; (5) whether the person must furnish his or her own supplies,
equipment, and materials; (6) whether a contract for a specific piece of work at a fixed
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 4 of 11 PageID #:
<pageID>

5
price exists; (7) how long the person is employed; (8) how the person is compensated;
and, (9) the extent to which the person may control the details of his or her work. 	Id.
(citing Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909, 916 (Mo. banc. 1934)). 	Other
indicators of independent contractor status include the existence of a contract expressly
classifying the worker as such, and the worker furnishing his own transportation and
travel expenses. 	Id. at 563.
In applying all of the above factors to plaintiff’s relationship with defendant CCL,
the balance of those factors shows an independent contractor arrangement.
1. 	Plaintiff signed a contract with defendant CCL. 	[Doc. 16]. 	That contract
clearly provides that plaintiff was an independent contractor. 	[Id. at ¶17].
2. 	Plaintiff is a doctor and licensed physician. 	[Doc. 1-3 at ¶12]. 	Defendant
CCL is a healthcare staffing company that helps medical professionals find
placement with hospitals and other medical facilities across the United
States. 	[Id. at ¶14]. 	Clearly, the work performed by plaintiff is not the
same as the business performed by defendant CCL.
3. 	Plaintiff’s work as a doctor and licensed physician is a highly specialized
field that requires extensive training and licensing. 	Defendant CCL does
not offer any of that training or licensing.
4. 	Pursuant to the terms of the contract that plaintiff signed with defendant
CCL, he was entitled to delegate duties under the contract to approved and
qualified subcontractor licensed medical providers or employees. 	[Doc. 16
at ¶12].
5. 	The contract further defined that defendant CCL would not interfere with or
attempt to influence the clinical judgment of plaintiff; and, defendant CCL
would not exercise any control of any nature over the method or means by
which plaintiff rendered services or made decisions in his practice of
medicine. 	[Id. at ¶4].
6. 	Defendant CCL was not responsible for any of plaintiff’s expenses. 	[Id. at
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 5 of 11 PageID #:
<pageID>

6
¶6]. 	Further, defendant CCL did not provide plaintiff with any
instruments, tools, clothing/uniforms, or other supplies required to perform
as a doctor and licensed physician. 	[Id. at ¶18].
7. 	Defendant CCL provided placement services for plaintiff to hospitals,
physicians, medical clinics, or other medical providers. 	Plaintiff had the
right to accept or reject any placements that defendant CCL presented to
him. 	Further, plaintiff had the right to work for any other medical facilities
even during the term of his contract with defendant CCL. 	[Id. at ¶¶2, 3,
17].
8. 	Defendant CCL was to provide short-term assignments of random but
predetermined duration at a fixed rate to be agreed upon between plaintiff
and defendant CCL. 	[Id. at ¶5].
9. 	Once plaintiff accepted an assignment from defendant CCL, he was to be
compensated as a 1099 independent contractor. 	No taxes were to be
withheld from his payments. 	Further, defendant CCL did not provide
plaintiff with any fringe benefits like pension, health insurance, sick leave,
or vacation. 	[Id. at ¶¶9, 17].
Plaintiff argues that a determination of his status as an independent contractor or
employee at the motion to dismiss phase is inappropriate; and, that he is entitled to
conduct discovery. 	If facts are undisputed, a trial court may declare as a matter of law
that one is or is not an independent contractor. 	Hougland v. Pulitzer Pub. Co., 939
S.W.2d 31, 33 (Mo. App. E.D. 1997) (citing Williamson v. Southwestern Bell Tel. Co.,
265 S.W.2d 354, 359 (Mo. 1954)). 	There is no issue of fact for the jury to decide “if the
‘facts’ alleged to be in dispute are actually differing opinions of the parties of the legal
effect of documents or actions which determine their respective rights. 	Id. (citing
Roberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 887 (Mo. App. W.D. 1988)).
Here, plaintiff has provided no evidence or affidavits as to why his status should
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 6 of 11 PageID #:
<pageID>

7
be considered that of an employee versus an independent contractor. 	He has presented
no facts as to how defendant CCL controlled his actions beyond his dispute with the legal
effect of the parties’ agreement. 	Plaintiff has presented nothing that would prevent this
Court from ruling on this issue at the motion to dismiss phase.
Second, discovery is designed to assist a party to prove a claim it reasonably
believes to be viable without discovery, not to find out if it has any basis for a claim.
Vallejo v. Amgen, Inc., 903 F.3d 733, 747 (8th Cir. 2018) citing Micro Motion, Inc. v.
Kane Steel Co., 894 F.2d 1318, 1327 (Fed. Cir. 1990). 	The fact that discovery might
uncover evidence showing that plaintiff has a legitimate claim does not justify the
discovery request. 	Micro Motion, Inc., 894 F.2d at 1327. 	“A bare allegation of
wrongdoing…is not a fair reason for requiring a defendant to undertake financial burdens
and risks to further a plaintiff’s case.” 	Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 363 (1978). 	Plaintiff here is merely speculating about something that might be
“caught on a fishing expedition” in discovery. 	See Kokocinski on behalf of Medtronic,
Inc. v. Collins, 850 F.3d 354, 368 (8th Cir. 2017). 	Further, even if the plaintiff was
allowed to conduct discovery, he has failed to identify how he could possibly upend the
factors as presented by defendant CCL. 	See Sloan, 1 S.W.3d at 563-64 (noting that even
when the purported employer “clearly retains some control of the means” in which a
contractor performs his work, independent contractor status is not precluded if the other
factors clearly weigh in its favor).
Based upon the totality of all the factors that have been examined and analyzed
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 7 of 11 PageID #:
<pageID>

8
supra, plaintiff’s relationship with defendant CCL is one of an independent contractor not
an employee. 	Accordingly, Medical Doctor Associates, LLC d/b/a Cross Country
Locums is entitled to dismissal; and, the motion to dismiss all of the claims against it
must be granted.
B. 	Indemnification of Attorney Fees and Costs
Defendant CCL next asks this Court to award it attorney fees and costs because
plaintiff’s claim is frivolous, unreasonable, and groundless as a matter of law under the
MHRA; and, it violates plaintiff’s contract with defendant CCL. 	Plaintiff contends that
an award of attorney fees and costs is not warranted because the action as filed was not
frivolous; and, the contract term providing for indemnification by plaintiff is
unenforceable. 	Because this Court finds that attorneys’ fees and costs will be awarded
under the contract, it is unnecessary to determine whether they are also available under
the MHRA.
Paragraph 15 of the contract provides:
“15. 	Indemnification
Provider shall be solely responsible for, and shall indemnify, defend, and
hold CCL and client (including their respective employees, agents, and
affiliates) free and harmless from, any and all claims, damages, fines,
penalties, losses or lawsuits (including attorneys’ fees and expenses
incurred with respect thereto) (a) arising out of or relating to any act or
omission of Provider, its employees or agents, and/or (b) based in whole or
in part on an allegation or determination (by Provider, its employees, any
governmental agency, or any third party) that Provider or Provider’s
employees are employees (or joint employees or co-employees) of CCL or
Client.”
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 8 of 11 PageID #:
<pageID>

9
[Doc. 16 at ¶15].
An indemnity clause is a “contractual provision in which one party agrees to answer for
any specified or unspecified liability or harm that the other party might incur.” 	Black’s
Law Dictionary (9th ed. 2009). 	Although indemnification suits generally arise in the
context of third-party claims, Missouri law does not require it. 	Safeway Stores, Inc. v.
City of Raytown, 633 S.W.2d 727, 729-32 (Mo. banc 1982); Lee v. Investors Title Co.,
241 S.W.3d 366, 367-68 (Mo. App. E.D. 2007) (upholding indemnity clause that granted
attorneys fees in a direct suit between a builder and a title company).
Here, it is clear from the language in the parties’ indemnification provision that
plaintiff agreed to indemnify CCL for “any and all claims, damages, fines, penalties,
losses or lawsuits (including attorneys’ fees and expenses)” which were incurred “based
in whole or in part on an allegation…that Provider [plaintiff]….[is] are employees….of
CCL.” 	[Doc. 16 at ¶15]. 	In the instant action, CCL prevailed (see supra) on every
allegation brought by or against it by plaintiff relating to alleged status of plaintiff as an
employee of CCL. 	Therefore, this Court must award CCL its attorneys’ fees and costs.
Plaintiff argues that the indemnification provision is unenforceable because it is
against public policy and is unconscionable due to inequality of bargaining power.
While plaintiff failed to present any persuasive argument or caselaw supporting these
theories, the Court will conduct its own analysis. 	First, plaintiff has failed to present any
indication that he was a weaker party, that he was unable to look elsewhere for more
attractive contracts, and that he had to accept this contract on a take-it-or-leave-it basis.
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 9 of 11 PageID #:
<pageID>

10
See generally State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 858 (Mo. banc 2006);
Whitney v. Alltel Communications, Inc., 173 S.W.3d 300, 308 (Mo. App. W.D. 2005).
Plaintiff has not indicated that he attempted to negotiate anything different with CCL and
was unable to do so because of CCL’s superior bargaining power or refusal to negotiate;
and, plaintiff has not indicated that he ever objected to the indemnification clause. 	See
e.g., Sander v. Alexander Richardson Investments, 334 F.3d 712, 720 (8th Cir. 2003).
Second, while some courts have held that indemnification claims relating to employment
discrimination liability are contrary to public policy and legislative intent, employment
discrimination laws (like the MHRA) do not apply to independent contractors. 	See e.g.,
Martin v. Gingerbread House, Inc., 997 F.2d 1405, 1407-08 (10th Cir. 1992);
McLaughlin v. Stineco, Inc., 697 F.Supp. 436, 448 (M.D. Fla. 1988); Freund v. Hi-Tech
Satellite, Inc., 185 Fed. Appx. 782, 782 (11th Cir. 2006). 	As such, CCL’s request for
indemnification is viable because CCL is not seeking indemnification for any
employment discrimination liability imposed upon it. 	In other words, because CCL has
proven that plaintiff was an independent contractor rather than an employee, the public
policy argument against indemnification does not apply. 	See Dobbins v. Scriptfleet, Inc.,
2012 WL 2282560 at *2 (M.D. Fla. 2012).
Based upon the foregoing analyses, defendant CCL’s request for attorney fees and
costs under its motion to dismiss must be granted subject to CCL filing a verified motion
with supporting affidavits and exhibits and an opportunity for plaintiff to object.
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 10 of 11 PageID #:
<pageID>

11
IV. 	CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that defendant Medical Doctor Associates, LLC
d/b/a Cross Country Locums’ Motion to Dismiss [Docs. 5, 6] is GRANTED. 	This
matter is DISMISSED without prejudice as to defendant Medical Doctor Associates,
LLC d/b/a Cross Country Locums.
IT IS FURTHER ORDERED that defendant Medical Doctor Associates, LLC
d/b/a Cross Country Locums’ shall file a verified motion for attorney fees and costs with
supporting affidavits and exhibits within fourteen (14) days of the date of this Order.
Plaintiff Dr. Walter Turkowski shall have fourteen (14) days after the filing of the
verified motion within which to file any response or objection. 	Defendant Medical
Doctor Associates, LLC d/b/a Cross Country Locums’ shall then have ten (10) days after
the filing of any response or objection by plaintiff within which to file a reply
memorandum.
SO ORDERED this 28th day of October, 2025.
STEPHEN N. LIMBAUGH, JR.
SENIOR UNITED STATES DISTRICT JUDGE
Case: 1:25-cv-00140-SNLJ Doc. #: 26 Filed: 10/28/25 Page: 11 of 11 PageID #:
<pageID>