United States District Court, D. South Carolina, Columbia Division
William D. Sibert, Plaintiff,
Raycom Media, Inc., Adam Cannavo, and Lyle Schulze, Defendants.
OPINION AND ORDER ON PLAINTIFF'S MOTION TO REMAND
AND DEFENDANTS' MOTION TO DISMISS
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
Motion to Remand
Defendants have removed based on diversity, jurisdiction in
this court depends on whether Schulze, who has the same
citizenship as Plaintiff, is fraudulently
joined. 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.
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.
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.
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).
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.
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.
South Carolina law
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. McClain v. Pactiv Corp., 602
S.E.2d 87, 89 (S.C. Ct. App. 2004).
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