United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
The plaintiff, Rhonda Meisner, a self-represented litigant, filed a Complaint in the Court of Common Pleas in Richland County asserting state law claims. The defendants removed the case to federal district court pursuant to 28 U.S.C. § 1446, asserting jurisdiction based upon 28 U.S.C. § 1332 and § 1441. Although Meisner and Defendants Jackson Lewis LLP; Jackson Lewis, PC; and Stephanie Lewis are citizens of South Carolina, the defendants contend that these defendants were fraudulently joined, enabling the district court to retain jurisdiction and disregard the non-diverse defendants. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Meisner's motion to remand (ECF No. 11), to which the defendants responded (ECF No. 13) and Meisner replied (ECF No. 15). Having reviewed the parties' submissions, the court finds that Meisner's motion to remand should be denied.
This action stems from the 2010 termination of Meisner's employment with ZymoGenetics and Meisner's prior lawsuit in this court, C/A No. 3:12-00684-CMC (hereinafter referred to as "Meisner I"). Specifically, in the case at bar, Meisner raises the following causes of action: (1) breach of contract against ZymoGenetics; (2) tortious interference with a contract against Defendant Tracey Caldarazzo; (3) negligent retention of Caldarazzo presumably against ZymoGenetics; and (4) civil conspiracy against Defendants Jeff Fortino, Stephanie Lewis, Jackson Lewis, PC, and Bristol Myers Squibb, Inc. As part of her request for damages, Meisner seeks monetary damages consisting of back pay, front pay, compensation for lost benefits, 401k matches, buyouts, trips, and bonuses together with liquidated damages in an equal amount, as well as pre-judgment and postjudgment interest and actual damages, punitive damages, and attorney's fees against the defendants for the conspiracy.
The party seeking removal has the burden of establishing federal subject matter jurisdiction. Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). State court defendants may remove to federal district court a civil action over which the district courts have original subject matter jurisdiction. 28 U.S.C. § 1441(a). "Removal must be strictly construed, and if federal jurisdiction is doubtful, a remand to state court is necessary.'" Hughes v. Wells Fargo Bank, N.A., 617 F.Appx. 261, 264-65 (4th Cir. 2015) (quoting Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) ( per curiam )). Pursuant to 28 U.S.C. § 1332(a)(1), federal subject matter jurisdiction exists if the amount in controversy exceeds $75, 000 and the suit is between citizens of different states. 28 U.S.C. § 1332(a)(1). Diversity jurisdiction requires that the parties be completely diverse, meaning the plaintiff cannot be a citizen of the same state as any defendant. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). However, the fraudulent joinder 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." Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015) (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)).
"The party alleging fraudulent joinder bears a heavy burden-it must show that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff's favor." Johnson, 781 F.3d at 704 (quoting Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999)). 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." Id . (emphasis in original). "This standard is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6)." Hartley, 187 F.3d at 424. "To defeat an allegation of fraudulent joinder, the plaintiff need establish only a slight possibility of a right to relief.'" Hughes v. Wells Fargo Bank, N.A., 617 F.Appx. 261, 264-65 (4th Cir. 2015) (quoting Mayes, 198 F.3d at 464); see also Mayes, 198 F.3d at 466 (stating that a plaintiff must show only a "glimmer of hope" of succeeding against the non-diverse defendants). "Further, 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 quotation marks and citations omitted).
Meisner seeks remand of this case and argues that the defendants cannot meet the burden of demonstrating fraudulent joinder of the non-diverse defendants. As indicated above, Meisner and Defendants Jackson Lewis LLP; Jackson Lewis, PC; and Stephanie Lewis (the "non-diverse defendants") are citizens of South Carolina. The defendants allege that the non-diverse defendants were fraudulently joined, enabling the district court to retain jurisdiction and disregard the nondiverse defendants. The only claim that includes the non-diverse defendants is Meisner's claim for civil conspiracy, which arises out of alleged actions taken by individuals involved in the litigation of Meisner I.
In Meisner I, Meisner alleged unlawful discrimination, harassment, and retaliation associated with her employment with, and ultimately her termination from, ZymoGenetics; she also raised a claim of slander against Defendant Caldarazzo and a claim under the South Carolina Payment of Wages Act. Stephanie Lewis, Esquire, an attorney with Jackson Lewis, served as the lead defense attorney in Meisner I, appearing on behalf of Defendants ZymoGenetics and Caldarazzo. In the instant action, Meisner alleges a civil conspiracy claim based on allegations that Lewis submitted false declarations by Jeff Fortino (a former employee of ZymoGenetics and Meisner's former supervisor) in Meisner I. The court notes that in Meisner I, Meisner similarly argued that the defendants' motion for summary judgment should be denied based on her allegations that Fortino's declaration consisted of perjured statements and that defendants' counsel aided and suborned it. In ruling on the defendants' motion for summary judgment, the Honorable Cameron McGowan Currie, Senior United States District Judge, specifically noted as follows:
Meisner's subornation argument rests primarily if not solely on Fortino's assertion in his first declaration that he had not "communicated with anyone about this lawsuit other than the attorneys handling the case for Defendants." Meisner suggests this statement is false and the falsity was known to counsel because, prior to execution of his first declaration, Fortino received a call from Amy Maxwell[, another employee with ZymoGenetics], who stated that she was willing to give a deposition on behalf of Defendants. Fortino responded that he would pass that information on to counsel and he apparently did so. Thus, Fortino's statement that he had not "communicated with anyone about this lawsuit" is not literally true-he did pass on a message from a potential witness that she was willing to give a deposition. While the phrasing of the declaration is careless, this does not suffice to raise an inference of perjury, much less subornation of perjury, because Fortino (and his counsel) may have intended the term "communication" to refer to substantive discussions.
(Meisner I, ECF No. 303 at 4 n.4.) Meisner's allegations of civil conspiracy in the instant action appear to rest on these same assertions.
The defendants argue that there is no possibility that Meisner can establish a civil conspiracy claim against the non-diverse defendants because these defendants are immune from liability where they were acting within the scope of their representation of a client. In South Carolina,
"Generally, an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client." Pye v. Estate of Fox, 633 S.E.2d 505, 509 (S.C. 2006) (quoting Gaar v. N. Myrtle Beach Realty Co., Inc., 339 S.E.2d 887, 889 (S.C. Ct. App. 1986)). Further, an attorney owes no duty to a non-client unless he "breaches some independent duty to a third person or acts in his own ...