Johnson et al v. State Board of Embalmers and Funeral Directors et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GERALD T. JOHNSON, et al., 	)
)
Plaintiffs, 	)
)
v. 	)
) 	No. 4:25-CV-704 HEA
STATE BOARD OF EMBALMERS 	)
AND FUNERAL DIRECTORS, et al., 	)
)
Defendants. 	)
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants State Board of Embalmers and
Funeral Directors, Nick McBroom, and Patty Faenger’s Motion to Dismiss for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 15). Plaintiffs oppose the motion, which is fully briefed and
ripe for review. For the reasons that follow, the Court grants in part and denies in
part Defendants’ Motion to Dismiss.
I. Background
Plaintiffs Gerald T. Johnson and Serenity Memorial Funeral and Cremation
Service, LLC (“Serenity”) (collectively “Plaintiffs”) bring the above-captioned
cause of action against the State Board of Embalmers and Funeral Directors (the
“Board”), Patty Faenger, the Executive Director of the Board, and Nick McBroom,
a senior investigator for the State of Missouri’s Department of Commerce and
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Insurance, Division of Professional Registration (collectively “Defendants”). 	The
Complaint alleges that Plaintiff Johnson is a licensed embalmer and funeral director
and the owner and operator of Serenity, a funeral service business that holds a funeral
establishment license issued by the Board.
According to the Complaint, on March 7, 2023, the Board provided Plaintiffs
with written notice that Serenity had passed its Annual Inspection and was in
compliance with Missouri law. 	Shortly after providing this notice, Defendant
McBroom conducted two unannounced inspections of Serenity on March 14 and
April 20, 2023. 	Defendant McBroom prepared Inspection Reports immediately
following each of the unannounced inspections. 	Defendant McBroom refused to
provide Plaintiff Johnson with copies of the Inspection Reports, despite Plaintiff
Johnson’s requests.
On April 20, 2023, Defendant Faenger filed a complaint against Serenity with
the Board. Plaintiff Johnson requested a copy of this complaint, which he contends
Defendants refused to provide. 	Defendant McBroom also refused to share details
with Plaintiff Johnson regarding any alleged violations that were discovered during
the unannounced inspections. On April 26, 2023, Defendant McBroom conducted
a third unannounced inspection of Serenity.
On May 22, 2023, Defendant Faenger caused a complaint and motion for a
temporary restraining order to be filed against Serenity in the Circuit Court for Cole
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County Missouri. The complaint and motion for temporary restraining order alleged
that Serenity “(1) failed to properly care for human dead bodies by not timely nor
properly embalming; (2) had insufficient capacity in its cooling unit; (3) had dead
bodies in a transport van parked outside the funeral home; and (4) had clogged
embalming sinks,” which presented “a substantial probability of serious danger to
the health, safety and welfare of any resident of [Missouri] or any client or customer
of [Serenity].” (Id. at 8). Plaintiffs contend that the facts alleged in the complaint
and motion for temporary restraining order, which they characterize as salacious,
were false. 	And according to Plaintiffs, the lawsuit received significant press
coverage, including a front-page article in the St. Louis Post Dispatch. As a result
of the lawsuit and the ensuing publicity, Plaintiffs allege that they lost business, and
their reputation was severely damaged.
On June 9, 2023, the state court held a hearing on the motion for temporary
restraining order, which the court took under advisement. 	On June 21, 2023, the
state court issued an order denying the motion for temporary restraining order. The
state court found there was no evidence or not enough evidence for the court to
conclude that: bodies at Serenity were not embalmed in a timely manner; bodies
were improperly embalmed; Serenity’s cooling unit lacked capacity; bodies were
improperly stored; or bodies were improperly stored in a transport van. (ECF No.
1-5 at 2-7). 	The state court concluded that there was not enough evidence in the
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record that Serenity presented “a substantial probability of serious danger to the
health, safety and welfare of any resident of [Missouri] or any client or customer of
[Serenity].” 	(ECF No. 1-5 at 8). 	On September 16, 2024, the Board voluntarily
dismissed its suit, which sought to enjoin Serenity from operating as a funeral home.
In the case at bar, Plaintiffs bring the following two claims against the Board
and Defendants Faenger and McBroom: violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, which is brought pursuant
to 42 U.S.C. § 1983 (Count I); and Violation of the Due Process Clause of the
Missouri Constitution (Count II). 	Plaintiffs also bring a claim for Malicious
Prosecution against Defendant Faenger (Count III). 	In their Complaint, Plaintiffs
allege Defendant McBroom is liable in his official capacity only, however, Plaintiffs
allege that Defendant Faenger is liable in both her official capacity and her individual
capacity. Plaintiffs seek actual damages, attorneys’ fees, and costs against all three
defendants, as well as punitive damages against Defendant Faenger.
In response to the Complaint, Defendants filed a motion to dismiss, which is
presently before the Court. Defendants argue that the Complaint must be dismissed
in its entirety, because the Board and the two state employees are immune from suit
under both the Eleventh Amendment and Missouri’s sovereign immunity.
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II. Legal Standard
To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “where the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Blomker v. Jewell, 831 F.3d 1051, 1055 (8th Cir. 2016) (quotation
omitted). The facts alleged must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. 	A complaint must offer more than “‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” to state
a plausible claim for relief. 	Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555).
On a motion to dismiss, the Court accepts as true all of the factual allegations
contained in the complaint, even if it appears that “actual proof of those facts is
improbable,” Twombly, 550 U.S. at 556, and reviews the complaint to determine
whether its allegations show that the pleader is entitled to relief. Id. at 555–56; Fed.
R. Civ. P. 8 (a)(2). The principle that a court must accept the allegations contained
in a complaint as true is inapplicable to legal conclusions, however. Iqbal, 556 U.S.
at 678 (stating “[t]hreadbare recitals of the elements of a cause of action, supported
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by mere conclusory statements, do not suffice”). 	Although legal conclusions can
provide the framework 	for a complaint, they 	must be supported 	by 	factual
allegations. Id.
IV. Discussion
Defendants move to dismiss Count I on the basis that is barred by the Eleventh
Amendment. Defendants also contend that Counts I and II are barred by the doctrine
of sovereign immunity. Finally, Defendants argue that under 28 U.S.C. § 1367, the
Court lacks supplemental subject matter jurisdiction over the remaining state law
claim in Count III, because Plaintiffs have failed to assert a viable federal claim.
A. 	Eleventh Amendment
In Count I of the Complaint, Plaintiffs seek damages for alleged violations of
the due process clause in the Fourteenth Amendment to the U.S. Constitution under
42 U.S.C. § 1983 against all three defendants. The Eleventh Amendment of the U.S.
Constitution bars § 1983 claims against the State of Missouri and its agencies. Whole
Woman's Health v. Jackson, 595 U.S. 30, 39 (2021) (“States are immune from suit
under the terms of the Eleventh Amendment[.]”). Further, an official capacity claim
against an individual is actually “against the governmental entity itself.” White v.
Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017) (internal citation omitted). Thus, a
“suit against a public employee in his or her official capacity is merely a suit against
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the public employer” and, therefore, the State. Johnson v. Outboard Marine Corp.,
172 F.3d 531, 535 (8th Cir. 1999).
The Court agrees with Defendants that Plaintiffs’ § 1983 claims in Count I
against the Board and Defendants McBroom and Faenger in their official capacities
are barred by the Eleventh Amendment. 	However, in Count I, Plaintiffs bring a
claim against Defendant Faenger in her individual capacity. 	(ECF No. 1 at 12). The
Eleventh Amendment does not bar claims brought against state officials in their
individual capacity. 	Lewis v. Clarke, 581 U.S. 155, 166 (2017) (“we [have never]
held that a civil rights suit under 42 U.S.C. § 1983 against a state officer in his
individual capacity implicates the Eleventh Amendment and a State’s sovereign
immunity from suit.”). The Court will deny Defendants’ motion to dismiss Count I
as to Defendant Faenger in her individual capacity.
B. 	Sovereign Immunity
Defendants also argue that they are entitled to state sovereign immunity as to
Counts I and II. 	Missouri law provides that government entities have sovereign
immunity from suit. 	Mo. Rev. Stat. § 537.600. 	Section 537.600 contains two
exceptions to sovereign immunity – for automobile cases and cases involving injury
caused by a dangerous condition of public property – but neither exception is at issue
here. See Hammer v. City of Osage Beach, MO, 318 F.3d 832, 841 (8th Cir. 2003);
Ozark Silver Exch., Inc. v. City of Rolla, 664 S.W.2d 50, 51 (Mo. Ct. App. 1984).
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The Court agrees with Defendants that the Board and Defendants McBroom
and Faenger, in their official capacities, are entitled to sovereign immunity as to
Counts I and II. 	However, as in Count I, Plaintiffs are bringing a claim against
Defendant Faenger in her individual capacity in Count II. (ECF No. 1 at 13). The
Court will deny Defendants’ motion to dismiss Count I and II on the basis of
sovereign immunity against Defendant Faenger in her individual capacity.
Finally, Defendants’ motion to dismiss Count III for lack of supplemental
jurisdiction under 28 U.S.C. § 1367 will be denied, as a federal claim remains in this
suit. For clarification of the record, the only claims that remain in this case are
Counts I, II and III of the Complaint against Defendant Faenger in her individual
capacity.
Accordingly,
IT IS HEREBY ORDERED that Defendants State Board of Embalmers and
Funeral Directors, Nick McBroom, and Patty Faenger’s Motion to Dismiss is
GRANTED in part and DENIED in part. 	Consistent with the terms of this
Opinion, Memorandum, and Order, the motion is GRANTED to the extent that
Plaintiffs’ claims in Count I and II against the State Board of Embalmers and Funeral
Directors and against Nick McBroom and Patty Faenger in their official capacities
are dismissed. In all other respects, the motion is DENIED. [ECF No. 15]
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The Court will issue a separate Order of Partial Dismissal.
Dated this 27 th day of October, 2025.
_________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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