Konikowski v. Wheeling Island Gaming, Inc. et al
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF' S MOTION 8 TO REMANDAND DENYING WITHOUT PREJUDICE DEFENDANT ARIGONIS MOTION 12 TO DISMISS. Clerk is DIRECTED to enter judgment. Remanded to Circuit Court of Ohio County. Signed by Senior Judge Frederick P. Stamp, Jr on 10/31/12. (c to Circuit Court of Ohio Co.)(mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:12CV94
WHEELING ISLAND GAMING, INC.,
DIANA ARIGONI and
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND
AND DENYING WITHOUT PREJUDICE
DEFENDANT ARIGONI’S MOTION TO DISMISS
I. Procedural History
The plaintiff, Mary Konikowski (“Konikowski”), filed this
civil action in the Circuit Court of Ohio County, West Virginia
discrimination and retaliatory discharge. Specifically, Konikowski
asserts claims against the defendant Wheeling Island Gaming, Inc.
for discrimination based on a real or perceived disability in
retaliatory discharge in violation of both the WVHRA and the public
policy of West Virginia, and for a violation of the West Virginia
Wage Payment and Collection Act for failing to pay her within 72
Kimberly Puskarich (“Puskarich”), are liable for her disability
discrimination and retaliatory discharge as they aided and abetted,
incited, and compelled others to engage in these acts against
federal court on June 22, 2012, alleging that defendant Arigoni was
plaintiff filed a motion to remand this case arguing first that
defendant Arigoni was not fraudulently joined.
Even if the
defendant was fraudulently joined, however, the plaintiff argues
that defendant Puskarich is a West Virginia resident and therefore
the case should not have been removed from West Virginia state
Subsequently, the defendants filed a response contesting
the plaintiff’s allegations and the plaintiff then filed a reply to
Defendant Arigoni also filed a motion to dismiss
the plaintiff’s complaint at the same time the response to the
motion to remand was filed.
The plaintiff filed a response to the
motion to dismiss and defendant Arigoni filed a timely reply.
Having reviewed the parties’ pleadings and the relevant law,
defendant Arigoni was not fraudulently joined.
Defendants Arigoni and Puskarich were not served with the
plaintiff’s complaint at the time of this removal. See ECF No. 7
Thus, they need not join in the notice of removal. Shaffer v.
Northwestern Mut. Life Ins. Co., 394 F. Supp. 2d 814, 819 (N.D. W.
Va. 2005) (citations omitted).
Arigoni’s motion to dismiss will be denied without prejudice to
being raised in state court, if appropriate.
Konikowski began working as a cashier at the Wheeling Island
Casino, a facility owned and operated by defendant Wheeling Island
Gaming, on October 23, 2007.
Thereafter, she was employed in an
accounts payable position in the accounting department. During her
violations by other employees to the management. In February 2011,
a month prior to her termination, Konikowski reported that she was
the only one of her colleagues in finance who was not able to draw
Konikowski has had several health issues during her employment
with Wheeling Island, which she claims defendant Puskarich was
The health issues include a lower colon issue in
September 2010 and more recently, a heart anomaly.
In March 2011,
prior to her termination, Konikowski also had a breast biopsy,
which resulted in her doctor scheduling a surgery.
the plaintiff, defendant Puskarich showed a change of attitude
toward Konikowski when she informed her of the various medical
For the purposes of this opinion, this Court adopts, for the
most part, the facts as set forth by the plaintiffs in their
A day after Konikowski informed Puskarich of the biopsy
results and the scheduled surgery, defendant Arigoni asked the
plaintiff about defendant Arigoni’s most recent raise.
Konikowski responded, defendant Arigoni reported the plaintiff to
management for divulging confidential information.
On March 7,
2011, Konikowski was suspended and then terminated on March 11,
Konikowski alleges that another employee had divulged
confidential information regarding pay raises, but only Konikowski
was suspended and then terminated.
Konikowski also alleges that
plaintiff’s termination, to trade jobs with her.
It is believed
that defendant Arigoni held Konikowski’s position in accounts
Furthermore, upon her termination, Konikowski purportedly did not
receive her final wages within a 72-hour period.
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
28 U.S.C. § 1441.
federal district court has original jurisdiction over cases between
citizens of different states where the amount in controversy
exceeds $75,000.00, exclusive of interests and costs.
Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
jurisdiction is doubtful, the federal court must remand.
The doctrine of fraudulent joinder creates an exception to the
requirement of complete diversity. See Mayes v. Rapoport, 198 F.3d
permitted even if a non-diverse party has been named as a defendant
at the time the case is removed if the non-diverse defendant has
been fraudulently joined.
“This doctrine effectively permits
a district court to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume jurisdiction
over a case, dismiss the nondiverse defendants, and thereby retain
jurisdiction.” Id. When fraudulent joinder is alleged, a court is
permitted to examine the entire record by any means available in
order to determine the propriety of such joinder.
See Rinehart v.
Consolidation Coal Co., 660 F. Supp. 1140, 1141 (N.D. W. Va. 1987).
In support of her motion to remand, Konikowski argues: (1)
there is no diversity of citizenship because plaintiff did not
fraudulently join defendant Arigoni; and (2) due to defendant
Puskarich’s West Virginia residency, removal was improper.
fraudulently joined in this action and the case was properly
removed to federal court prior to service on defendant Puskarich.
This Court addresses each of these issues in turn.
To establish fraudulent joinder, “the removing party must
demonstrate either ‘outright fraud in the plaintiff’s pleading of
jurisdictional facts’ or that ‘there is no possibility that the
plaintiff would be able to establish a cause of action against the
in-state defendant in state court.’” Hartley v. CSX Transp., Inc.,
187 F.3d 422, 424 (4th Cir. 1999) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
A claim of
Marshall, 6 F.3d at 232.
“[T]he defendant must show that the
plaintiff cannot establish a claim against the nondiverse defendant
even after resolving all issues of fact and law in the plaintiff’s
favor. A claim need not ultimately succeed to defeat removal; only
a possibility of right to relief need be asserted.”
(internal citations omitted).
Id. at 232-33
“Once the court identifies this
glimmer of hope for the plaintiff, the jurisdictional inquiry
Hartley, 187 F.3d at 426.
Further, the burden is on the
defendants to establish fraudulent joinder by clear and convincing
See Rinehart, 660 F. Supp. at 1141.
Here, the defendants do not allege outright fraud in the
Konikowski simply did not assert a claim against defendant Arigoni.
defendants must establish by clear and convincing evidence that,
even resolving all issues of fact and law in the plaintiff’s favor,
Konikowski has not alleged any possible claim against defendant
The WVHRA provides a cause of action against individuals who
“aid, abet, incite, compel or coerce any person to engage in
unlawful discriminatory practices” as defined by the Act.
Code § 5-11-9(7)(A).
The defendants argue that the plaintiff’s
complaint alleges no facts to implicate Arigoni in any unlawful
This Court disagrees.
employment or termination.
allegations Konikowski alleges in her complaint provide a “glimmer
Konikowski is alleged to have been terminated as a result of
information provided to the management by defendant Arigoni.
information was a result of an inquiry made by defendant Arigoni a
day after Konikowski informed defendant Puskarich of her biopsy
results and scheduled surgery.
Furthermore, Konikowski alleged
that defendant Arigoni asked her to switch jobs with her prior to
her termination and is alleged to have held Konikowski’s position
for a time after the plaintiff’s termination.
This Court believes
possibility of a right to relief. Therefore, this Court finds that
complete diversity does not exist between the parties because the
plaintiff did not fraudulently join defendant Arigoni.
Defendant Puskarich’s Residency
Although this Court has determined that it does not have
original jurisdiction pursuant to 28 U.S.C. §1332(a) due to a lack
of diversity amongst the parties, the Court will address the
plaintiff’s argument concerning defendant Puskarich’s residency
According to 28 U.S.C. §1441(b)(2), a diversity action
“shall be removable only if none of the parties in interest
properly joined and served as defendants is a citizen of the State
in which such action is brought.” (emphasis added).
jurisdiction based on diversity of citizenship by requiring that
defendants who have been joined and served cannot reside in the
See 28 U.S.C. §1441(b)(2).
This rule only applies
when a local defendant is named and served before the action is
removed to federal court.
See Vitatoe v. Mylan Pharm., Inc., 2008
WL 3540462 at *5 (N.D. W. Va. Aug. 13, 2008) (If a forum defendant
is joined and served after the action is already removed to federal
court, removal jurisdiction is not affected.).
The plaintiff argued in her motion to remand that even if it
was determined that there was complete diversity, removal of the
action was still improper, as defendant Puskarich is a resident of
West Virginia, the state in which the action was originally
The defendants, however, state that because defendant
Puskarich was not served at the time of removal, § 1441(b)(2) does
This Court agrees that defendant Puskarich was not
served until after the removal of this case.
See ECF No. 7.
result, removal would have been proper regardless of defendant
Puskarich’s residency, because although she was a defendant of the
forum state, she was not properly served at the time of removal.
Therefore, if this Court had found complete diversity amongst the
parties, § 1441(b)(2) would not have prevented removal of this
As it stands, however, this finding does not affect the
determination that this Court does not have original jurisdiction
over this action and must grant the plaintiff’s motion to remand.
For the reasons stated above, the plaintiff’s motion to remand
is GRANTED and defendant Arigoni’s motion to dismiss is DENIED
WITHOUT PREJUDICE to being raised in state court, if appropriate.
Accordingly, it is ORDERED that this case be REMANDED to the
Circuit Court of Ohio County, West Virginia. It is further ORDERED
that this case be DISMISSED and STRICKEN from the active docket of
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Ohio County.
Pursuant to Federal Rule of
Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this
October 31, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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