Whitman v. Ruby Tuesday, Inc. et al
Filing
20
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION TO REMAND 3 : Whitmans motion is granted and this civil action is REMANDED to the Circuit Court of Harrison County, West Virginia. The Court DIRECTS the Clerk to transmit copies of this Memorandum Opinion and Order to counsel of record and to the Circuit Court of Harrison County, West Virginia. It further DIRECTSthe Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 8/8/17. (jss)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
VALERIE WHITMAN,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:17CV58
(Judge Keeley)
RUBY TUESDAY, INC.
and JOE MONTGOMERY,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
Pending before the Court is the motion to remand filed by the
plaintiff, Valerie Whitman (“Whitman”) (dkt. no. 3). For the
reasons that follow, the Court GRANTS Whitman’s motion and REMANDS
this civil action to the Circuit Court of Harrison County, West
Virginia.
I. BACKGROUND
On August 10, 2016, the defendant Ruby Tuesday, Inc. (“Ruby
Tuesday” or “Company”) hired Whitman as an assistant manager. After
she
completed
her
training
at
Ruby
Tuesday’s
Uniontown,
Pennsylvania location, Whitman began working as the assistant
manger at Ruby Tuesday’s Clarksburg, West Virginia, restaurant on
October 3, 2016.
During her employment, Whitman performed all of her work
duties in a satisfactory or above satisfactory manner and never
committed any dischargeable offense. Nevertheless, shortly after
beginning work at the Clarksburg location, Whitman experienced
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
gender discrimination, harassment, and a hostile work environment,
largely due to the actions of the defendant, Joe Montgomery
(“Montgomery”). Montgomery, who had knowledge of Whitman’s lesbian
sexual orientation prior to her employment at the Clarksburg
location, refused to allow her to speak directly to him.1 In
addition, he made derogatory or degrading comments to Whitman
regarding her sexual acts that were frequent, severe, physically
threatening, and humiliating.2
Two weeks after she began work, Whitman reported the hostile
work environment and discrimination to Shawna, the General Manager
of Ruby Tuesday in Uniontown. Although Whitman met with Shawna,
Buddy
Beavers
(“Beavers”),3
and
Montgomery
to
address
her
complaints, no one undertook any corrective action. Instead, the
discrimination, harassment, and hostile work environment worsened.
Throughout Whitman’s employment at the Clarksburg location,
1
Montgomery required that Whitman have other employees who were
permitted to speak directly to him relay any questions or messages.
On those occasions that she could not use another employee, Whitman
had to talk to Montgomery while looking down at the ground.
2
These derogatory or degrading comments included, but were not
limited to, “your kind aren’t welcome here,” and commenting that he
would “never work with a gay person again.”
3
Neither
Tuesday.
party
identifies
Buddy
2
Beavers’s
position
at
Ruby
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
she suffered sexual harassment from several other male employees
who, like Montgomery, made inappropriate and unwelcome comments
about sexual acts or insinuating sexual contact with her. She
reported the sexual harassment to Montgomery, who laughed about the
situation and again failed to take any corrective action. Further,
when Whitman reported the sexual harassment to Beavers, he assured
her that he would schedule a meeting regarding her complaints, but
he never did so. On December 21, 2016, Beavers, on behalf of Ruby
Tuesday, terminated Whitman’s employment, stating as the basis that
she had cursed at another employee and had made that employee cry.
On March 13, 2017, Whitman filed her complaint against the
defendants in the Circuit Court of Harrison County, West Virginia,
asserting four causes of action:
•
Count I:
Gender Discrimination/Stereotyping under the
WVHRA;
•
Count II:
Hostile Work Environment - Sexual Harassment
under the WVHRA;
•
Count III:
Retaliatory Discharge under the WVHRA; and
•
Count IV:
Tort of Outrage.
The
complaint
seeks
compensatory
damages,
punitive
damages,
attorney fees, costs, interest, and any other relief the Court
deems appropriate.
3
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
On
April
18,
2017,
pursuant
to
28
U.S.C.
§
1332,
the
defendants removed the case to the this Court based on diversity
jurisdiction, arguing that Whitman, a West Virginia citizen, had
fraudulently
joined
Montgomery,
who
is
also
a
West
Virginia
citizen, for the sole purpose of destroying diversity. On April 21,
2017,
Whitman
amended
her
complaint,
adding
several
factual
allegations to the existing claims (dkt. no. 2), and also filed a
motion to remand (dkt. no. 3). The motion is fully briefed and ripe
for review.
II. STANDARD OF REVIEW
A. Removal and Remand
28 U.S.C. § 1441 permits a defendant to remove a state court
action to a federal district court if that court would have had
diversity jurisdiction over the case when it was first filed. See
KJBJ, LLC v. EnerVest Operating, LLC, 2016 WL 3566865, at *2
(N.D.W.
Va.,
jurisdiction
June
when
27,
there
2016).
is
A
district
complete
court
diversity
has
of
original
citizenship
between the parties and the amount in controversy exceeds $75,000.
See 28 U.S.C. § 1332(a)(1). If the court lacks jurisdiction or has
doubt “about the propriety of removal,” the court should remand the
case to state court. Horne v. Lightning Energy Servs., 123 F. Supp.
4
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
3d 830, 836 (N.D.W. Va., Aug. 12, 2015).
B. Fraudulent Joinder
When exercising diversity jurisdiction, federal courts can
ignore the citizenship of “certain non-diverse defendants” if the
plaintiff fraudulently joined them to defeat diversity. Id. at 218.
A plaintiff fraudulently joins a defendant when (1) “there is no
possibility that the plaintiff would be able to establish a cause
of action against the in-state defendant in state court” or (2)
“there has been outright fraud in the plaintiff’s pleadings of
jurisdictional facts.”4 Hartley v. CSX Transp., Inc., 187 F.3d 422,
424 (4th Cir. 1999). The party seeking removal bears the “heavy
burden” of showing that “the plaintiff cannot establish a claim
even after resolving all issues of law and fact in the plaintiff’s
favor.” Id.
That is, if there is a “glimmer of hope” of the
plaintiff’s right to relief, the court will find no fraudulent
joiner exists and deny the motion for removal. Id. at 426.
A court
is permitted to examine the entire record to determine whether a
defendant was fraudulently joined. See Mayes v. Rapoport, 198 F.3d
457,
461
(4th
Cir.
1999).
Nevertheless,
4
a
court
should
not
The defendants do not contend that Whitman committed any outright
fraud in her pleading of the jurisdictional facts.
5
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
“delve[e] too far into the merits” of the case to determine
jurisdiction. Hartley, 187 F.3d at 425. Moreover, when determining
whether
removal
was
proper,
a
court
must
only
examine
the
plaintiff’s pleading at the time of removal. See Pinney v. Nokia,
Inc., 402 F.3d 430, 443 (4th Cir. 2005). Following its examination
of the pleadings, a court concluding that the plaintiff has
fraudulently joined a non-diverse defendant must dismiss that
defendant. See Carden v. Wal-Mart Stores, Inc., 574 F. Supp.2d 582,
588 (S.D.W. Va. 2008).
III. DISCUSSION
Whitman contends that she did not fraudulently join Montgomery
and argues that, because he is a non-diverse defendant, the Court
lacks diversity jurisdiction. In response, the defendants assert
that the Court should dismiss Montgomery from this case because he
was fraudulently joined, and also because he was not served at the
time of removal. Neither of the defendants’ arguments has merit.
A.
Fraudulent Joinder
The
defendants
contend
that
Whitman
failed
to
allege
sufficient facts to establish a cause of action against Montgomery
that would be actionable in state court. See Hartley, 187 F.3d at
424. During the scheduling conference conducted on June 30, 2017,
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WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
the Court heard argument from the parties on this issue and noted
that Whitman had sufficiently alleged that Montgomery not only had
knowledge of the harassment, discrimination, and hostile work
environment, but also had failed to do anything about it and was
personally responsible for many of the wrongful actions directed at
Whitman.
Consequently, it concluded that there was at least a
“glimmer of hope” that Whitman could succeed on one or more of her
claims against Montgomery. See id. at 426. Therefore, it found that
Montgomery had not been fraudulently joined and it lacked subject
matter jurisdiction to hear this case.
B.
Failure to Properly Serve Montgomery at the Time of Removal
The defendants also urge the Court to deny Whitman’s motion to
remand because Montgomery had not been properly served at the time
of removal. The defendants cite 28 U.S.C. § 1441(b)(2), also known
as the “forum defendant rule,” which provides that “[a] civil
action otherwise removable solely on the basis of [diversity]
jurisdiction under section 1332(a) of this title may not be removed
if any 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).
Thus,
they
contend
that,
because
Montgomery had not yet been served, removal was proper and the
7
WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
Court may exercise jurisdiction.
18 U.S.C. § 1441(b)(2) is inapplicable here, however; it
applies only to those cases in which the parties are indeed
diverse, but one of the defendants is a citizen of the forum state
and the plaintiffs are not. “[T]he forum defendant rule, is
‘separate
and
apart
from
the
statute
conferring
diversity
jurisdiction . . . and confines removal on the basis of diversity
to instances where no defendant is a citizen of the forum state.’”
Councell v. Homer Laughlin China Co., 823 F.Supp.2d 370, 377
(N.D.W. Va. 2011) (quoting Lively v. Wild Oats Markets, Inc., 456
F.3d 933, 939 (9th Cir. 2006)).
Although the forum defendant rule confines or limits removal
in those cases with forum defendants, it does not extinguish the
requirement of 28 U.S.C. § 1332 that the parties must be diverse
from one another.5 Here, they are not. Accordingly, the fact that
Montgomery was not served prior to removal does not permit the
Court to exercise jurisdiction in this case.
5
Indeed, every case cited by the defendants on this issue involves
forum defendants and non-forum plaintiffs. See Dkt. No. 7 at 3(citing Carman v. Bayer Corp., 2009 WL 1649715, at *3 (N.D.W. Va.
2009); Bloom v. Library Corp., 112 F.Supp.3d 498, 504-06 (N.D.W.
Va. 2015); Vitatoe v. Mylan Pharmaceuticals, Inc., 2008 WL 3540462,
at *5 (N.D.W .Va. 2008); and Small v. Ramsey, 2010 WL 4394084, at
*5 (N.D.W. Va. 2010)).
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WHITMAN V. RUBY TUESDAY, INC., ET AL
1:17CV58
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO REMAND [DKT. NO. 3]
IV. CONCLUSION
For the reasons discussed, Whitman’s motion is granted and
this civil action is REMANDED to the Circuit Court of Harrison
County, West Virginia.
It is so ORDERED.
The Court
DIRECTS
the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record and to the
Circuit Court of Harrison County, West Virginia. It further DIRECTS
the Clerk to enter a separate judgment order, and to remove this
case from the Court’s active docket.
DATED: August 8, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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