Asplund v. Ipcs Wireless, Inc.

• Decision Date: 14 August 2008
• Docket Number: No. 08-CV-2041-LRR.,08-CV-2041-LRR.
• Citation: 602 F.Supp.2d 1005
• Parties: Gerald ASPLUND, Plaintiff, v. iPCS WIRELESS, INC., Brian Cochuyt, Russ McCombes and Jackie Quillinan, Defendants.
• Court: U.S. District Court — Northern District of Iowa

602 F.Supp.2d 1005

Gerald ASPLUND, Plaintiff, v. iPCS WIRELESS, INC., Brian Cochuyt, Russ McCombes and Jackie Quillinan, Defendants.

No. 08-CV-2041-LRR.

United States District Court, N.D. Iowa, Eastern Division.

August 14, 2008.

Karen L. Thalacker, Gallagher, Langlas & Gallagher, Waverly, IA, Roxanne Barton Conlin, Roxanne Conlin & Associates, Des Moines, IA, for Plaintiff.

Lori A. Zahalka, Marcia E. Goodman, Mayer Brown, LLP, Chicago, IL, Mark A. Zaiger, Shuttleworth & Ingersoll, Cedar Rapids, IA, for Defendants.

ORDER

LINDA R. READE, Chief Judge.

I. INTRODUCTION

The matter before the court is Plaintiff Gerald Asplund's Motion to Remand (docket no. 12).

II. PRIOR PROCEEDINGS

On April 24, 2008, Plaintiff filed a one-count Petition and Jury Demand ("Petition") in the Iowa District Court in and for Black Hawk County against Defendants iPCS Wireless, Inc. ("iPCS"), Brian Cochuyt, Russ McCombes¹ and Jackie Quillinan. Count 1 of the Petition alleges Retaliation, in violation of the Iowa Civil Rights Act ("ICRA"), Iowa Code chapter 216 (2005).²

According to the Petition, Plaintiff is a citizen of Bremer County, Iowa. Defendant iPCS is a Delaware corporation with its principal place of business in Illinois. Defendant Cochuyt is a citizen of Rock Island County, Illinois. Defendant McCombes is a citizen of Scott County, Iowa. Defendant Quillinan is a citizen of Cook County, Illinois.

On June 5, 2008, Defendants removed the lawsuit to this court, pursuant to 28 U.S.C. §§ 1441 and 1446.³ Defendants invoked this court's diversity jurisdiction, 28 U.S.C. § 1332.

On July 3, 2008, Plaintiff filed the Motion, pursuant to 28 U.S.C. § 1447. On July 21, 2008, Defendants filed a Resistance (docket no. 13). On July 28, 2008, Plaintiff filed a Reply (docket no. 14).

The parties do not request a hearing on the Motion, and the court finds that a hearing is not necessary. The Motion is fully submitted and ready for decision.

III. SUBJECT-MATTER JURISDICTION

A. Summary of Argument

In the Motion and Reply, Plaintiff requests that the court remand this lawsuit to the Iowa District Court in and for Black Hawk County. Plaintiff contends this court lacks subject-matter jurisdiction, because there is not complete diversity between Plaintiff and Defendants. Plaintiff and Defendant McCombes are citizens of the same state.

In the Resistance, Defendants concede that, on its face, the Petition does not reflect complete diversity between Plaintiff and Defendants. Defendants argue that the court should ignore Defendant McCombes's citizenship, because Plaintiff fraudulently joined him to the lawsuit.

B. Subject-Matter Jurisdiction

1. Diversity subject-matter jurisdiction

"Federal courts are courts of limited jurisdiction^]" and the threshold requirement in every federal case is jurisdiction. Godfrey v. Pulitzer Publ'g Co., 161 F.3d 1137, 1141 (8th Cir.1998). "Congress has constantly authorized the federal courts to exercise jurisdiction based on the diverse citizenship of parties." Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). In relevant part, 28 U.S.C. § 1332 provides:

The district courts shall have original jurisdiction of all civil actions 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). "Since Strawbridge v. Curtiss, [7 U.S. 267, 3 Cranch 267, 2 L.Ed. 435 (1806)], [the Supreme] Court has read the statutory formulation `between ... citizens of different States,' 28 U.S.C. § 1332(a)(1), to require complete diversity between all plaintiffs and all defendants." Lincoln Prop. Co. v. Roche, 546 U.S. 81, 82, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005). "There is no federal diversity jurisdiction if the plaintiff and any defendant are citizens of the same state." Simpson v. Thomure, 484 F.3d 1081, 1083 (8th Cir.2007).

2. Fraudulent joinder

"Joinder designed solely to deprive federal courts of jurisdiction is fraudulent and will not prevent removal." Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir.1983) (citing Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979)). That is, "the right of an out-of-state defendant to remove a diversity suit to federal court `cannot be defeated by a fraudulent joinder of a resident defendant.'" Simpson, 484 F.3d at 1083 (quoting Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). "Fraudulent joinder exists if, on the face of plaintiffs state court pleadings, no cause of action lies against the resident defendant." Anderson, 724 F.2d at 84. "A joinder is fraudulent only "when there exists no reasonable basis in fact and law supporting a claim against the resident defendants.'" Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th Cir.2007) (citation omitted).

"The relevant inquiry in analyzing fraudulent joinder ... focuses only on whether a plaintiff `might' have a `colorable' claim under state law against a fellow resident, not on the artfulness of the pleadings." Id. "[P]laintiffs motive for suing the non-diverse defendant is irrelevant." Probus v. Charter Commc'ns, LLC, 234 Fed.Appx. 404, 406 (6th Cir.2007); see Morris v. E.I. Du Pont De Nemours & Co., 68 F.2d 788, 793 (8th Cir.1934) ("The motives of the plaintiff in making his claim of joint liability are not important, because the motives of a party in bringing a lawsuit do not deprive the courts of jurisdiction to try it").

The removing party bears the burden to prove fraudulent joinder. Altimore v. Mt. Mercy Coll., 420 F.3d 763, 768 (8th Cir.2005); Polito v. Molasky, 123 F.2d 258, 260 (8th Cir.1941); Leonard v. St. Joseph Lead Co., 75 F.2d 390, 395 (8th Cir.1935). Further, the court must "resolve all doubts about federal jurisdiction in favor of remand." In re Bus. Men's Asssurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993) (per curiam).

[I]n situations where the sufficiency of the complaint against the non-diverse defendant is questionable, "the better practice is for the federal court not to decide the doubtful question in connection with a motion to remand but simply to remand the case and leave the question for the state courts to decide."

Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th Cir.2003) (quoting Ia. Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 406 (8th Cir.1977)).

C. Analysis

The parties agree that the amount in controversy, exclusive of interest and costs, exceeds $75,000. They also agree that, on its face, the Petition does not disclose complete diversity between Plaintiff and Defendants. The fighting issue is whether Plaintiff fraudulently joined Defendant McCombes. Therefore, the court must examine the factual allegations in the Petition in conjunction with state law and determine whether Plaintiff might have a colorable claim against Defendant McCombes. Wilkinson, 478 F.3d at 964.

1. Factual allegations

Plaintiff alleges the following facts in his Petition:

On May 5, 2005, iPCS hired Plaintiff to manage its store in Cedar Falls, Iowa. Defendant Cochuyt, iPCS's Iowa Sales Manager, was Plaintiffs immediate supervisor. Defendant McCombes, iPCS's Regional Market Manager, was Defendant Cochuyt's immediate supervisor. Defendant Quillinan was iPCS's Director of Human Resources.

In November of 2006, Plaintiff learned that Defendant Cochuyt had an unwelcome sexual relationship with one of his subordinates, and the subordinate was upset. Plaintiff immediately reported the relationship to Defendant Quillinan, in accordance with iPCS's Employee Handbook.

"Defendant Quillinan treated Plaintiff and his complaint in a hostile fashion." Petition at. ¶ 14. Defendant McCombes learned of Plaintiffs complaint and "made an unannounced visit to Plaintiff at the Cedar Falls store location in December of 2006." Id. at ¶ 15. Defendant McCombes "questioned [Plaintiff] in a hostile fashion regarding why he had made this report about Defendant Cochuyt." Id. Further, Defendant McCombes knew that Defendant Cochuyt had engaged in sexual relationships with other subordinates and "failed to take proper remedial action." Id. at ¶ 22.

In January of 2007, "Defendants took adverse employment action against Plaintiff because he reported Defendant Cochuyt's unwelcome sexual relationship with a subordinate employee." Id. at ¶ 20. On January 18, 2007, Defendant Cochuyt met Plaintiff at the store and fired him without explanation. iPCS sent Plaintiff an official termination letter ("Letter") that alleged that Plaintiff was fired for "Dissatisfactory Managerial Skills; Attitude; Insubordination." Exhibit A (docket no. 12-3), at l.⁴ The Letter is unsigned but contains blank signature lines for Defendants Cochuyt and McCombes.

Defendant Cochuyt later told Plaintiff that he fired him for "nonperformance." Id. at ¶ 17. During unemployment proceedings, Defendants Cochuyt and Quillinan testified that "Plaintiff was terminated as a result of his overall performance but specifically his failure to inform Defendant Cochuyt that he had switched the work hours of one of his store employees." Id. at ¶ 19. Switching hours, however, was a common practice.

2. ICRA

ICRA creates a cause of action for persons claiming to be aggrieved by "an unfair or discriminatory practice." Iowa Code § 216.16(1). The retaliation provision of ICRA makes it "an unfair or discriminatory practice" for "[a]ny person to ... retaliate against another person in any of the rights protected against discrimination by [ICRA] because such person has lawfully opposed any practice forbidden under [ICRA]...." Iowa Code § 216.11(2) (emphasis added). ICRA forbids a person from discriminating against any person because of her sex, and sexual harassment in the form of a hostile work environment constitutes unlawful sex discrimination. Reed v. Cedar County, 474 F.Supp.2d 1045, 1061 (N.D.Iowa 2007) (citing Iowa Code § 216.6(1)(a) and Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct....