United States District Court, D. New Hampshire
Joshua Scott, Esq.
Weiss Ford, Esq.
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE.
Soderman has moved to remand her claims against Shaw’s
Supermarkets, Inc. and Christian Poulin to state court.
Soderman’s claims are based exclusively on state law.
Because she and Poulin are citizens of the same state,
Soderman argues that the case must be remanded because this
court lacks diversity of citizenship jurisdiction over her
complaint. Defendants respond by claiming that Poulin’s
citizenship is irrelevant because he was fraudulently joined.
was an employee of the Shaw’s grocery store in Derry,
New Hampshire, for more than 26 years until she was
terminated on March 7, 2014. Doc. No. 1-1 at 3. At
the time, Soderman was the manager of the Customer Service
Department. Id. at 4–5. Poulin served as the
Derry Store Director and was responsible for the
store’s operations and supervision of all managers,
including Soderman. Id. at 4.
on medical leave, Soderman appeared at the Derry store and
delivered fifty handmade Christmas gift bags to other
employees, some of which contained nips of alcohol.
Id. at 5. She and other Shaw’s employees had
been openly gifting alcohol to co-workers for years, and
Poulin was aware of the practice. Id. at
5–7. During the same visit, Soderman
handed Franco DiAgostino a bottle of wine as a token of
appreciation for covering her position while she was on
leave. Id. at 6. Poulin commented that it was a nice
bottle and they should have some during a break. Id.
Upon returning from medical leave on March 3, 2014, Soderman
was informed that she was under investigation for violating
Shaw’s’ Standards of Conduct and was being
suspended. Id. at 7. Four days later, Shaw’s
terminated her employment. Id. Shaw’s informed
Soderman that it terminated her because she violated the
company’s Standards of Conduct, which barred employees
from gifting alcohol to other employees. Id.
Soderman’s termination, Shaw’s hired DiAgostino
to fill Soderman’s position as the company’s new
Customer Service Department manager. Id. DiAgostino
was in his mid-twenties. Id. at 5. Another qualified
Shaw’s employee, who was over the age of forty, applied
for the position and did not get it. Id. at 7.
Poulin told the applicant that she was denied the position
because the company desired a younger person for the job.
Id. Soderman alleges that the stated reason for
terminating her was merely a pretext, and she was actually
terminated because of her age.
12, 2014, Soderman filed a complaint with the New Hampshire
Commission for Human Rights (“Commission”),
alleging that Shaw’s discriminated against her based on
her age. Id. at 8; Doc. No. 6-2. The
Commission did not act on her complaint between its filing in
2014 and early 2017. See Doc. Nos. 6–1 at 8,
6-2, 6-3. On January 11, 2017, Soderman
removed the action to Rockingham County Superior Court, added
a wrongful termination claim, and named Poulin as an
additional defendant. Doc. No. 1-1. On January 17,
after receiving notice of the state court action, the
Commission dismissed Soderman’s administrative
complaint without prejudice. Doc. No. 6-3. On
February 22, the defendants removed the state court action to
this court. Doc. No. 1.
STANDARD OF REVIEW
defendant may remove a case to federal court only if the
court has subject matter jurisdiction over the claims on
which the case is based. See 28 U.S.C. § 1441; see
Mills v. Harmon Law Offices, P.C., 344 F.3d 42, 45
(1st Cir. 2003). Subject matter jurisdiction exists over
Soderman’s complaint if the amount in controversy
exceeds $75,000 and there is diversity of citizenship between
the parties. See 28 U.S.C. § 1332. Diversity
jurisdiction requires that “the citizenship of each
plaintiff is diverse from the citizenship of each
defendant.” Quigley v. Precision Castparts
Corp., No. 16-cv-90-PB, 2016 WL 3906631, at *3 (D.N.H.
July 14, 2016) (quoting Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 (1966) (emphasis added)); see §
address the concern that a plaintiff might seek to avoid
removal of a case from state to federal court by
“adding bogus claims against a nondiverse defendant . .
. courts developed the doctrine of ‘fraudulent
joinder.’” Quigley, 2016 WL 3906631, at
*3. Fraudulent joinder “permits courts to disregard the
citizenship of a fraudulently joined defendant when
determining whether diversity of citizenship exists.”
fraudulent joinder can be shown through evidence of actual
fraud in the plaintiff’s pleading, see id., it can also
be proved by showing that “there is no reasonable
possibility that the state’s highest court would find
that the complaint states a cause of action upon which relief
may be granted against the non-diverse defendant.”
Universal Truck & Equip. Co., Inc. v.
Southworth-Milton, Inc.,765 F.3d 103, 108 (1st Cir.
2014). The removing party “carries the extremely heavy
burden of showing that there is no reasonable possibility of
a cause of action through clear and convincing
evidence.” Nordinv. PB&J Resorts,
LLC, No. 15-cv-509-JL, 2016 WL 2757696, at *3 (D.N.H.
May 12, 2016) (citations and internal quotation marks
omitted). In a fraudulent joinder analysis, “contested
factual issues and any doubt as to the propriety of the
removal must be resolved in favor of remand.”
Id. (quoting Renaissance Mktg., Inc. v.
Monitronics Int’l, Inc.,606 F.Supp.2d 201, 208
(D.P.R. 2009)). ...