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Sibert v. Raycom Media, Inc.

United States District Court, D. South Carolina, Columbia Division

August 29, 2017

William D. Sibert, Plaintiff,
Raycom Media, Inc., Adam Cannavo, and Lyle Schulze, Defendants.



         Plaintiff William D. Sibert (“Plaintiff”) brings this action seeking recovery from his employer, Raycom Media, Inc. (“Raycom”) and two co-employees, Adam Cannavo (“Cannavo”) and Lyle Schulze (“Schulze”), for intentional infliction of emotional distress (“IIED”). This matter is before the court on two motions: Plaintiff's motion to remand (ECF No. 7) and Defendants' motion to dismiss for failure to state a claim (ECF No. 5). Both motions turn on whether Plaintiff has a viable claim for intentional infliction of emotional distress against the various Defendants, as explained further below, and both will be addressed in this Order.

         Defendants Raycom, Cannavo, and Schulze removed the action to this court based on diversity jurisdiction. Plaintiff asserts this case lacks complete diversity, as he and Schulze are both citizens of South Carolina. Whether removal is proper depends on whether Schulze was fraudulently joined in this action.

         For the reasons below, the court finds Schulze was fraudulently joined and therefore is dismissed for lack of subject matter jurisdiction. In addition, Plaintiff has failed to state a claim against Cannavo and Raycom, and Defendants' motion to dismiss is granted as to those defendants.


         Plaintiff was employed by WIS-TV as a Senior Editor when WIS-TV was bought by Raycom. ECF No. 1-1, Compl. ¶¶ 1, 2. In 1998, well before this purchase, Plaintiff was diagnosed with multiple sclerosis (“MS”). Id. at ¶ 7. Although Plaintiff “had to adapt his lifestyle to less strenuous activities, ” this disease did not interfere with his work performance, and Plaintiff's supervisors “worked with him with his illness and have minimally been required to reasonably accommodate him on occasions.” Id. at ¶¶ 7, 8. In November 2016, Plaintiff “was summoned by his superiors to a meeting with Raycom representatives” to discuss the differences in station operation and his job position after the sale. Id. at ¶ 11. Because this meeting was scheduled at a meeting room over 100 yards from Plaintiff's work station, walking to this location would cause him physical difficulty and pain. Id. Plaintiff requested the meeting be moved to a location nearer to his work station, but this request was denied. Id. at ¶ 12. Plaintiff was therefore unable to attend the meeting, suffered substantial stress and anxiety, and consequently missed an entire day of work. Id.

         Plaintiff alleges he was thereafter harassed by Schulze, the manager and Vice President of WIS-TV, and Cannavo, a human resources specialist for Raycom in Charlotte, as well as other employees of Raycom. Id. at ¶ 13. Plaintiff was notified verbally his job description was changing, and he would be required to carry cameras and other equipment and would no longer be able to rely on cameramen and other employees for this function. Id. However, his duties and title were not changed until on or about March 15, 2017, when Plaintiff was notified by his supervisor he would not be able to fulfill the new requirements of his job because of his disability, and would therefore need to contact human resources to apply for an accommodation. Id. at ¶ 15. Although Plaintiff did so, Cannavo responded Raycom would not be able to accommodate Plaintiff and therefore Plaintiff suffered loss, including having to use leave to make up for a reduction in pay. Id. at ¶ 16.

         1. Motion to Remand

         As Defendants have removed based on diversity, jurisdiction in this court depends on whether Schulze, who has the same citizenship as Plaintiff, is fraudulently joined.[2] In response to Plaintiff's motion to remand, Defendants argue the court should ignore the citizenship of Schulze as Plaintiff cannot establish a claim for IIED against him because Plaintiff's claim falls exclusively within the scope of the South Carolina Workers' Compensation Act. See S.C. Code Ann. §42-1-540 (2009). Without Schulze as a defendant, this court would have diversity jurisdiction over this matter.

         For the reasons set forth below, the court finds Defendants have met their burden of demonstrating Schulze was fraudulently joined. Accordingly, the court denies the motion to remand (ECF No. 7) and Schulze is dismissed without prejudice.

         a. Standard

         The party removing an action bears the burden of demonstrating jurisdiction properly rests with the court at the time the petition for removal is filed. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed. Mulcahey, 29 F.3d at 151. If federal jurisdiction is doubtful, remand is necessary. Id.

         To be removable to federal court, a state action must be within the original jurisdiction of the district court. See 28 U.S.C. § 1441. District courts have original jurisdiction “where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different states.” 28 U.S.C. § 1332(a)(1).

         When a plaintiff has fraudulently joined a non-diverse defendant, a district court may retain jurisdiction and disregard the non-diverse party. See Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). To show fraudulent joinder of a party, a 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 Transportation, Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). “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.” Hartley, 187 F.3d at 424.

         The Fourth Circuit has described this standard as “even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).” Id. (citations omitted). All the plaintiff needs to show is that there is a “glimmer of hope, ” Mayes, 198 F.3d at 466, or a “slight possibility of a right to relief” in state court. Hartley, 187 F.3d at 426.

         b. South Carolina law

         In determining whether Plaintiff can establish a cause of action for IIED against a defendant, this court looks to South Carolina law. Bettius & Sanderson, P.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 839 F.2d 1009, 1019 (4th Cir. 1988) (“When hearing a case pursuant to diversity jurisdiction, a federal court must determine issues of state law as it believes the highest court of the state would determine them.”). The Workers' Compensation Act provides “rights and remedies” that “shall exclude all other rights and remedies of such employee . . .as against his employer, at common law or otherwise, on account of such injury, loss of service, or death.” S.C. Code Ann. §42-1-540 (2009). The South Carolina Supreme Court has held “an employee's action against a company for intentional infliction of emotional distress . . . caused by the action[s] of another employee are [sic] within the scope of the Act since these actions arise from personal injury.” Dickert v. Metro. Life Ins. Co., 428 S.E.2d 700, 701 (S.C. 1993), as modified on reh'g (Apr. 7, 1993) (citing Loges v. Mack Trucks, 417 S.E.2d 538 (S.C. 1992)). When the tortfeasor/co-employee is the alter ego of the employer, the employer's liability may fall outside the exclusivity of the Act. Id. However, the alter ego exception applies only to dominant corporate owners and officers.[3] McClain v. Pactiv Corp., 602 S.E.2d 87, 89 (S.C. Ct. App. 2004).

         South Carolina courts have limited the intentional tort exception to the Act's exclusivity to “injuries inflicted by an employer who acts with a deliberate or specific intent to injure.” Peay v. U.S. Silica Co., 437 S.E.2d 64, 65-66 (S.C. 1993). “The same standard also would apply to injuries intentionally inflicted by a co-employee.” Id.; see also Dickert, 428 S.E.2d at 702 (“[I]t is against public policy to extend this immunity to the co-employee who commits an intentional tortious act upon another employee. The Workers' Compensation Act may not be used as a shield for a co-employee's intentional injurious conduct.”). “This exception is applicable to the intentional infliction of emotional distress, ” and “would also apply to injuries intentionally inflicted by a co-employee.” Edens v. Bellini, 597 S.E.2d 863, 870 (S.C. Ct. App. 2004). Therefore, while an employer may not be sued in civil court for IIED based on a non-alter ego ...

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