Samland v. Turner Enters., Inc., 4:12CV3080

• Decision Date: 30 July 2012
• Docket Number: 4:12CV3080
• Parties: RONALD SAMLAND, Plaintiff, v. TURNER ENTERPRISES, INC., a Delaware corporation, and TERRY PURDUM, an individual, Defendants.
• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska

RONALD SAMLAND, Plaintiff,

v.TURNER ENTERPRISES, INC., a Delaware corporation,and TERRY PURDUM, an individual, Defendants.

4:12CV3080

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated July 30, 2012

MEMORANDUM AND ORDER ON THE

DEFENDANTS' OBJECTIONS TO THE

MAGISTRATE JUDGE'S FINDINGS,

RECOMMENDATION, AND ORDER

On March 16, 2012, Plaintiff Ronald Samland filed a complaint against Defendants Turner Enterprises, Inc. and Terry Purdum in the District Court of Cherry County, Nebraska. (Notice of Removal, Ex. A, Compl., ECF No. 1.) On April 20, 2012, the defendants removed the action to this court, (see generally Notice of Removal, ECF No. 1), and filed a motion to dismiss Purdum from the case pursuant to Federal Rule of Civil Procedure 12(b)(6), (see Defs.' Mot. to Dismiss, ECF No. 6). Thereafter, Samland filed a "Motion to Remand and Motion for Reasonable Attorney's Fees," (see ECF No. 9), a "Cross-Motion to Stay Consideration of Defendants' Motion to Dismiss and Motion to Enlarge Time," (see ECF No. 12), and a "Motion for Setting Place of Trial and Demand for Jury Trial," (see ECF No. 15). On June 18, 2012, United States Magistrate Judge Cheryl R. Zwart recommended that the parties' motions be resolved as follows: Samland's motion to stay should be granted; Samland's motion to remand should be granted; Samland's motion for attorney's fees should be denied; and the defendants' motion to dismiss should be denied as moot. (See generally Findings, Recommendation, & Order, ECF No. 22.) The magistrate judge also denied as moot Samland's motion to change the place of trial. (See id. at 12.)

The defendants have objected to the magistrate judge's recommendations that I grant Samland's motion to remand and deny the defendants' motion to dismiss. (See Defs.' Objections, ECF No. 23.) See also Fed. R. Civ. P. 72(b)(2). I have conducted a de novo review of the portions of the magistrate judge's recommendations that are subject to defendants' objections, see 28 U.S.C.§ 636(b)(1), Fed. R. Civ. P. 72(b)(3), and I find that the defendants' objections must be overruled. The magistrate judge's Findings, Recommendation, and Order will be adopted with one modification.

I. BACKGROUND

The complaint alleges as follows. Samland is a resident of Cherry County, Nebraska. (Notice of Removal, Ex. A, Compl. ¶ 1, ECF No. 1.) Turner Enterprises is a Delaware corporation, and it owns and operates the Spike Box Ranch in Cherry County, Nebraska. (Id. ¶ 2.) Purdum is a resident of Cherry County, Nebraska, and a manager at Spike Box Ranch. (Id. ¶ 3.)

On May 13, 2010, Samland used an ATV to herd bison on the Spike Box Ranch. (Id. ¶¶ 3-4.) As Samland attempted to avoid a charging bison cow, his ATV rolled, landed on his chest, and knocked him unconscious. (See id. ¶¶ 6-8.) He was taken to the hospital and treated for a bruised rib and a swollen knee, but he returned to work on the following day, and he did not miss any additional work due to his injuries. (Id. ¶¶ 9, 11.) Samland did have "continuing pain" and work restrictions following his accident, however, and he made a worker's compensation claim. (Id. ¶¶ 10, 17.)

Despite his injuries, work restrictions, and "prescription pain killers," Samland "was required to continue herding bison while riding an ATV." (Id. ¶¶ 16-17.) Purdum and other Turner Enterprises employees directed insults toward Samland, but otherwise refused to communicate with him. (Id. ¶ 12.)

On June 21, 2010, Samland "hit an unmarked washout and was thrown from his ATV." (Id. ¶ 19.) As a result of this accident, Samland "was hospitalized for a broken collar bone, . . . which required [him] to get a metal plate, six screws and three lag bolts inserted into his shoulder." (Id. ¶ 20.) It appears that he also made a claim for worker's compensation benefits. (See id. ¶ 25.) "Four days later, on June 25, 2010, [the defendants] directed [Samland] to sign a 'Separation Agreement and Release' and gave [him] three days to sign it." (Id. ¶ 21.) Samland refused to sign the separation agreement, and he was fired. (Id. ¶ 22.)

Samland alleges that there is a causal link between his termination and both of his claims for worker's compensation benefits, and therefore his termination was wrongful and "in violation of Nebraska public policy." (Id. ¶ 27. See also id. ¶¶ 25-26.)

Although the complaint indicates on its face that complete diversity is lacking, the defendants removed the action to this court pursuant to 28 U.S.C. §§ 1332 and 1441. (See Notice of Removal ¶ 6, ECF No. 1.) The defendants allege that removal is appropriate because "there is complete diversity of citizenship among the proper parties[,] and the amount in controversy exceeds $75,000, exclusive of interest and costs." (Id. (emphasis added).) They add,

Plaintiff's joinder of Terry Purdum . . ., a citizen of Nebraska, is fraudulent because Plaintiff has no colorable claim against Purdum. 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." Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921). . . .

. . . Plaintiff cannot establish the claim he has brought against Purdum. In his one-count Complaint, Plaintiff alleges that [Turner Enterprises] and Purdum retaliated against him for filing worker's compensation claims. (Plaintiff's Complaint, ¶¶ 24-27.) No Nebraska case has recognized an extension of a workers' compensation retaliation claim against individual supervisors. To do so would run contrary to Nebraska's definition of "employer" in its workers' compensation statute.

(Id. ¶¶ 8-9 (emphasis in original).)

The defendants' notice of removal is accompanied by a motion to dismiss Samland's claim against Purdum. (See Defs.' Mot. to Dismiss, ECF No. 6.) In support of their motion, the defendants argue that the complaint fails to state a claim upon which relief may be granted against Purdum "[b]ecause Nebraska does not recognize a workers' compensation retaliation claim brought against a co-worker or supervisor." (Id. at 1. See also Defs.' Br. at 1, 3-5, ECF No. 7.) The defendants add that "[w]hile Nebraska courts have not squarely addressed the issue of whether a workers' compensation retaliation claim may be brought against an individual, sister courts have [not allowed such claims]." (Id. at 3 (citations omitted).) Essentially, the defendants' motion to dismissre-casts their "fraudulent joinder" claim in a Rule 12(b)(6) framework. (Compare Notice of Removal ¶¶ 6-9, ECF No. 1, with Defs.' Br. at 2-5, ECF No. 7.)¹

On April 26, 2012, Samland filed a motion to remand the case to the District Court of Cherry County, Nebraska, (ECF No. 9), and a motion to stay consideration of the defendants' motion to dismiss until after Samland's motion to remand has been resolved, (ECF No. 12). In support of his motion to remand, Samland argues that the defendants lacked a reasonable basis for removal because Purdum was not fraudulently joined. (See Pl.'s Br. at 2, ECF No. 11.) Samland notes that "joinder is fraudulent when there exists no reasonable basis in fact and law supporting a claim against the resident defendants," and conversely, there is no fraudulent joinder "if there is a 'colorable cause of action-that is, if the state law might impose liability on the resident defendant under the facts alleged." (Id. (quoting Filla v. Norfolk Southern Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003) (emphasis omitted)).) According to Samland, the defendants cannot satisfy this standard because "Nebraska [appellate courts have] not ruled squarely on the issue of whether an individual supervisor can be found liable for wrongful termination, and it is clear that there is not a consensus among other jurisdictions." (Id. at 5.) He adds that the defendants' reliance upon the definitions appearing in the workers' compensation statute is misplaced because "[t]he public policy exception to the at-will employment doctrine . . . is a product of common law." (Id. at 3.) In addition, he argues that attorney's fees should be awarded against the defendants because they "lacked an objectively reasonable basis for seeking removal." (Id. at 6 (quoting Martin v. Franklin Corp., 546 U.S. 132, 141 (2005)).)

In his motion to stay, Samland argues that his motion to remand and the defendants' motion to dismiss "raise similar questions of Nebraska state law, [but] under different standards of analysis." (Pl.'s Mot. to Stay at 1, ECF No. 12.) More specifically, he states,

Defendants' justifications for removal and for their Motion to Dismiss are both based on their belief that Defendant Purdum was fraudulently joined to the action, which would make jurisdiction proper. However, Defendants' burden for proving fraudulent joinder under the applicable standard or review for removal and remand differs from their burden under Fed. R. Civ. P. 12(b)(6). Therefore, Plaintiffbelieves that this Court's analysis of whether it should dismiss Defendant Purdum from the action, and Plaintiff's obligation to respond to Defendant's motion, should be postponed until the Court has determined whether Defendants have met their burden for establishing subject matter jurisdiction.

(Pl.'s Br. at 1-2, ECF No. 13.) He adds that the defendants' motion to dismiss would be rendered moot if Samland's motion to remand were granted. (Pl.'s Mot. to Stay at 1, ECF No. 12.)

As noted above, on June 18, 2012, the magistrate judge recommended that Samland's motion to remand and motion to stay be granted and that the defendants' motion to dismiss be denied as moot. (See generally Findings, Recommendation, and Order, ECF No. 22.) The magistrate judge found initially that the question of subject matter jurisdiction must be resolved before the defendants' motion to dismiss may be considered. (See id. at 5-6.) She then proceeded to analyze the issue of "'whether there is arguably a reasonable basis for predicting that the state's law might impose liability' against...