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Soderman v. Shaw's Supermarkets, Inc.

United States District Court, D. New Hampshire

August 30, 2017

Martha Soderman
Shaw’s Supermarkets, Inc. et al. Opinion No. 2017 DNH 165

          Keith Diaz, Esq.

          K. Joshua Scott, Esq.

          Debra Weiss Ford, Esq.



         Martha 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.

         I. BACKGROUND

         Soderman 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.

         While 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.

         Following 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.

         On May 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.


         A 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 § 1332(a).

         To 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.” Id.

         While 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)). ...

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