Kinder v. Novo Nordisk, Inc. et al

Filing 23

MEMORANDUM OPINION AND ORDER granting plaintiff's 5 MOTION to Remand to Circuit Court; directing that this action is remanded for all further proceedings to the Circuit Court of Kanawha County. Signed by Judge John T. Copenhaver, Jr. on 8/11/2011. (cc: attys; any unrepresented parties; Clerk, Circuit Court of Kanawha County) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CHRISTOPHER W. KINDER,
Plaintiff,
v.

Civil Action No. 2:11-0254

NOVO NORDISK, INC.,
a foreign corporation,
and STEFANIE HENRICH,
individually,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending is plaintiff’s motion to remand, filed April
22, 2011.

I.

Background

This action arises out of the termination of
plaintiff’s employment with defendant Novo Nordisk, Inc.
(“Novo”).

Plaintiff is a resident of Putnam County, West

Virginia.

Novo is a foreign corporation with a principal place

of business in New Jersey.

Henrich is a resident of Kanawha

County, West Virginia.

The following factual allegations are taken from the
amended complaint.

Plaintiff was employed by Novo as a

pharmaceutical sales representative for more than six years,

spanning approximately from 2004 to 2010.

(Am. Compl. ¶¶ 7, 22).

During this period, Novo launched novomedlink.com, a website that
allowed physicians to obtain the company’s pharmaceutical drug
samples through the internet.

(Id. ¶ 10).

After the site

launched, plaintiff complained to his regional director about
Novo’s seemingly improper use of the internet to supply
controlled substances.

(Id. ¶ 13).

He also complained to his

supervisor that Novo and Henrich, a diabetes care specialist for
Novo, appeared to be illegally distributing pharmaceutical drug
samples through a pattern of sample diversion.

(Id. ¶¶ 4, 14).

In response to plaintiff’s complaints about illegal
drug distribution and diversion of drug samples, Novo opened an
internal investigation.

(Id. ¶ 17).

Henrich thereafter

participated in interviews, emails, and “direct communication”
with Novo concerning plaintiff’s complaints, during which she
allegedly falsely stated that plaintiff had violated company
policy.

(Id.).

According to plaintiff, Henrich spread false

information about him in order to cover up her own misconduct and
to secure her employment with Novo.

(Id.).

Following the investigation, plaintiff alleges that
both defendants generated and distributed false information about
plaintiff that would later serve as a pretext for his
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termination.
13, 2010.

(See id. ¶ 19).

(Id. ¶ 22).

Novo then fired plaintiff on July

Plaintiff asserts that Novo terminated

his employment in retaliation for his complaints about the
company’s pharmaceutical distribution practices.

(Id. ¶ 24).

On March 10, 2011, plaintiff instituted this action in
the Circuit Court of Kanawha County.

Defendants removed on April

15, 2011, invoking the court’s diversity jurisdiction.
thereafter amended his complaint on May 18, 2011.1
complaint contains four counts.
against both defendants.

Plaintiff

The amended

Counts I and IV are asserted

Count I is a claim for retaliatory

discharge in violation of a substantial public policy.

Count IV

asserts a claim for outrage and intentional infliction of
emotional distress.

Counts II and III assert claims, against

Novo only, for violations of the West Virginia Human Rights Act
and the West Virginia Wage Payment and Collection Act.

Plaintiff moved to remand April 22, 2011, contending
that Henrich, a non-diverse defendant, defeats complete diversity
and the court therefore lacks subject matter jurisdiction.

In

opposition to remand, defendants maintain that Henrich was

1

The amended complaint does not add any new counts to
the original complaint, though it does provide additional factual
allegations concerning Henrich’s involvement in plaintiff’s
discharge.
3

fraudulently joined solely for the purpose of defeating diversity
jurisdiction.

On related grounds, Henrich moved to dismiss the

amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on June 1, 2011, asserting that plaintiff has pled
insufficient facts to state a claim against her.

II.

A.

Motion to Remand

Fraudulent Joinder Standard

“A defendant may remove any action from a state court
to a federal court if the case could have originally been brought
in federal court.”

Yarnevic v. Brink's, Inc., 102 F.3d 753, 754

(4th Cir. 1996) (citing 28 U.S.C. § 1441).

Federal district

courts have original jurisdiction over actions between citizens
of different states in which the matter in controversy exceeds
$75,000, exclusive of interest and costs.

28 U.S.C. § 1332(a).

The doctrine of fraudulent joinder 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.”
1999).

Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir.

Our court of appeals lays a “heavy burden” upon a

4

defendant claiming fraudulent joinder:
“In order to establish that a nondiverse defendant has
been fraudulently joined, the removing party must
establish either: [t]hat 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 [t]hat
there has been outright fraud in the plaintiff's pleading
of jurisdictional facts.”
Id. at 464 (emphasis in original) (quoting Marshall v. Manville
Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

The applicable

standard “is even more favorable to the plaintiff than the
standard for ruling on a motion to dismiss.”

Hartley v. CSX

Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999).

Indeed, “‘the

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.’”

Mayes, 198 F.3d at

464 (quoting Marshall, 6 F.3d at 232–33)).

As Hartley illustrates, fraudulent joinder claims are
subject to a rather black-and-white analysis in this circuit.
Any shades of gray are resolved in favor of remand.
187 F.3d at 425.

See Hartley,

At bottom, a plaintiff need only demonstrate a

“glimmer of hope” in order to have his claims remanded:
In all events, a jurisdictional inquiry is not the
appropriate stage of litigation to resolve . . . various
uncertain questions of law and fact . . . Jurisdictional
rules direct judicial traffic. They function to steer
litigation to the proper forum with a minimum of
preliminary fuss. The best way to advance this objective
5

is to accept the parties joined on the face of the
complaint unless joinder is clearly improper. To permit
extensive litigation of the merits of a case while
determining
jurisdiction
thwarts
the
purpose
of
jurisdictional rules.
* * * *
We cannot predict with certainty how a state court
and state jury would resolve the legal issues and weigh
the factual evidence in this case. [Plaintiff’s] claims
may not succeed ultimately, but ultimate success is not
required . . . . Rather, there need be only a slight
possibility of a right to relief.
Once the court
identifies this glimmer of hope for the plaintiff, the
jurisdictional inquiry ends.
Id. at 425-26 (citations omitted).

In determining “whether an

attempted joinder is fraudulent, the court is not bound by the
allegations of the pleadings, but may instead consider the entire
record, and determine the basis of joinder by any means
available.”

Mayes, 198 F.3d at 464 (internal quotations

omitted).

Inasmuch as defendants do not allege any fraud in the
pleading, the only question is whether plaintiff has any
possibility of recovery against Henrich in state court.

B.

Retaliatory Discharge Claim

Henrich argues that plaintiff’s attempt to hold her
individually liable for retaliatory discharge fails as a matter
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of law.

She notes that plaintiff has not alleged that Henrich

had supervisory authority over plaintiff or that Henrich had any
power to terminate his employment.

Henrich further contends that

she did not, in fact, have any involvement in the termination
decision.

Plaintiff concedes that Henrich was a coworker who did

not have supervisory authority over him while he worked at Novo.
Nevertheless, he asserts that West Virginia law permits
retaliatory discharge claims against even non-supervisory
coworkers who were actively involved in the matters about which
the employee had complained.

The West Virginia Supreme Court of Appeals first
recognized a cause of action for retaliatory discharge in Harless
v. First National Bank, 246 S.E.2d 270 (W. Va. 1978) (“Harless
I”), where it held as follows:
The rule that an employer has an absolute right to
discharge an at will employee must be tempered by the
principle that where the employer's motivation for the
discharge is to contravene some substantial public policy
principle, then the employer may be liable to the
employee for damages occasioned by this discharge.
Id.

The court further recognized that a retaliatory discharge

claim may, under some circumstances, be asserted not only against
the employer itself but individual employees as well.

The

plaintiff in Harless I complained to two of his employer’s vice
presidents, defendants Wilson and Schulte, about the employer’s
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potential violations of consumer protection laws.

In response to

these complaints, the plaintiff alleged, defendant Wilson
terminated his employment in June 1975, though he was reinstated
a week later.

After the plaintiff again complained about the

employer’s potentially illegal practices, he was demoted in
October 1975 and subjected to threats and harassment by defendant
Wilson.

Then, following the plaintiff’s cooperation with an

internal investigation conducted by the employer in December
1976, defendant Schulte fired the plaintiff.

The plaintiff

thereafter brought suit against the employer, Wilson, and Schulte
for retaliatory discharge.

Wilson and Schulte argued that the

claims against them failed as a matter of a law because the
employer was solely responsible for violating the consumer
protection laws.

In rejecting this contention, the court

reasoned as follows:
We do not read the complaint that narrowly, since it
fairly implies that both of the individual defendants, as
well as the bank, were actively involved in the matters
complained about. All the defendants are charged jointly
with the allegation that the two individuals were acting
within the scope of their employment. While the proof
may exculpate one or all of the defendants, from a pure
pleading standpoint the complaint was sufficient to
withstand a motion to dismiss by the individual
defendants.
Id. at 276-77.

Harless I was followed some four years later by
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Harless v. First National Bank, 289 S.E.2d 692 (W. Va. 1982)
(“Harless II”), where the court further defined the extent of
individual liability for retaliatory discharge claims.

In

Harless II, the trial judge found that defendant Wilson could not
be held liable for retaliatory discharge because, despite
plaintiff’s allegation that Wilson had fired him, the evidence
showed that Wilson had only suspended his employment.

The

supreme court of appeals disagreed:
Whether Wilson actually fired the plaintiff, Harless, is
not the critical point. In a retaliatory discharge case
the person who does the actual firing has little to do
with the underlying controversy. [footnote omitted] The
discharge serves to fix responsibility on the employer
but this does not mean that another employee who has been
the principal protagonist in obtaining the employee's
discharge would not also be liable. Here, Wilson who was
the plaintiff's immediate superior and directly involved
on behalf of the Bank in the unlawful consumer practices,
was hostile to the plaintiff’s efforts to rectify the
improper practices.
The evidence shows that Wilson’s
views carried considerable weight with the Bank's
management and contributed to the ultimate discharge of
the plaintiff.
* * * *
[W]e believe the trial court erred in holding that Wilson
could not be found liable for the retaliatory discharge.
His supervisory position over the plaintiff coupled with
the evidence that directly linked him as an adversary in
the central controversy in which the plaintiff was
involved at the Bank was sufficient to support the jury's
finding of liability.
Id. at 698-99.

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Although the court in Harless II found that defendant
Wilson’s supervisory position (coupled with his involvement in
the alleged retaliatory practices) was a “sufficient” condition
for imposing liability, it did not suggest that this was a
necessary condition.

In other words, the court did not foreclose

the possibility of holding a non-supervisory employee liable for
retaliatory discharge where that employee was, in the words of
the Harless I court, “actively involved in the matters complained
about.”

Turning to plaintiff’s claims, paragraphs 17 and 19 of
the amended complaint allege as follows:
17. Defendant Henrich supplied information known, or
reasonably should have been known, to be false to
Defendant Novo as part of their investigation in response
to Plaintiff Kinder's prior complaints. Upon information
and belief, Defendant Henrich participated in the
investigation into Plaintiff Kinder’s complaints in the
form of interview[s], emails and direct communication,
and therefore was actively involved with the decision to
terminate Plaintiff Kinder’s employment in order to quash
his prior whistle-blower complaints. Moreover, Defendant
Henrich[] chose to provide known false information
against Plaintiff Kinder in an effort to secure her
employment with Defendant Novo by ensuring Plaintiff
Kinder’s employment was terminated.
* * * *
19. Defendant Henrich and Defendant Novo engaged in acts
intended and designed to cover their own wrongful acts as
brought
to
light
by
Plaintiff
Kinder’s
prior
whistle-blower complaints. As part of the acts to cover
their wrongful acts, the defendants generated, relied
10

upon and distributed false information about Plaintiff
Kinder and subsequently decided to terminate Plaintiff
Kinder’s employment in order to quash his prior
whistle-blower complaints.
(Am. Compl. ¶¶ 17, 19).

Construed in the light most favorable to the plaintiff,
the foregoing allegations suggest that Novo and Henrich engaged
in an allegedly illicit pharmaceutical distribution scheme and
that, after plaintiff complained about the scheme, the defendants
acted in concert to terminate his employment.

While it is

undisputed that Henrich was not plaintiff’s supervisor, Henrich
has cited no authority indicating that a retaliatory discharge
claim may not be asserted against a coworker who played an active
role both in the matters about which the plaintiff complained and
in the plaintiff’s eventual termination.

As discussed above,

neither Harless I nor Harless II explicitly foreclose such a
claim.

Insofar as there is any legal uncertainty as to this

question, the court must resolve all doubts in favor of remand.
See Hartley, 187 F.3d at 425.

Nor is the court persuaded by Henrich’s bare assertion
that she had no involvement in the decision to terminate
plaintiff.

Such a factual argument carries no weight in the

fraudulent joinder context, where the plaintiff’s version of

11

facts are accepted as true and where remand is required so long
as there exists a “slight possibility of a right to relief.”
id. at 426.

See

The court thus concludes that Henrich has failed to

carry her heavy burden of showing that plaintiff has not even a
“glimmer of hope” in state court.

C.

See id.2

Attorneys’ Fees and Costs Attendant to Motion to Remand

Plaintiff asks the court to award fees and costs
attendant to their motion to remand pursuant to 28 U.S.C. §
1447(c).

The statute provides that a court remanding a case may

“require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.”
1447(c).

28 U.S.C. §

“[A]n award of fees under § 1447(c) is left to the

district court's discretion, with no heavy congressional thumb on
either side of the scales.”
546 U.S. 132, 139 (2005).

Martin v. Franklin Capital Corp.,
“The appropriate test for awarding

fees under § 1447(c) should recognize the desire to deter

2

Henrich also attacks the complaint’s inclusion of
allegations based “upon information and belief,” contending that
such allegations are conclusory in nature and should be ignored
by the court. In support of this proposition Henrich relies upon
several cases concerning Rule 12(b)(6) motions to dismiss. As
the court of appeals explained in Hartley, however, the standard
for fraudulent joinder is “more favorable to the plaintiff” than
the Rule 12(b)(6) standard. Hartley, 187 F.3d at 424. The cases
cited by Henrich are inapposite here.
12

removals sought for the purpose of prolonging litigation and
imposing costs on the opposing party, while not undermining
Congress’ basic decision to afford defendants a right to remove
as a general matter, when the statutory criteria are satisfied.”
Id. at 140.

Ultimately, reasonableness is the standard by which

the request must be evaluated.

Id.

“Absent unusual

circumstances, courts may award attorneys’ fees under § 1447(c)
only where the removing party lacked an objectively reasonable
basis for seeking removal.

Conversely, when an objectively

reasonable basis exists, fees should be denied.”

Id. (citations

omitted).

Having found that Henrich had an objectively reasonable
basis for removal that warranted development, analysis, and
resolution of the removal issues in this case, the court declines
to award plaintiff’s costs and fees in bringing this motion.

III.

Conclusion

For the foregoing reasons, the court concludes that it
lacks subject matter jurisdiction.

It is accordingly ORDERED as

follows:
1.

That plaintiff’s motion to remand be, and it hereby is,
granted.

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2.

That this action be, and it hereby is, remanded
for all further proceedings to the Circuit Court of
Kanawha County.

The Clerk is directed to forward a copy of this written
opinion and order to counsel of record and any unrepresented
parties and a certified copy to the clerk of court for the
Circuit Court of Kanawha County.
DATED: August 11, 2011
John T. Copenhaver, Jr.
United States District Judge

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