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Blackwood v. Berry Dunn, LLC

United States District Court, S.D. West Virginia

March 13, 2019



          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is plaintiff's motion to remand this matter to the Circuit Court of Kanawha County, West Virginia, filed September 11, 2018.[1]

         I. Background

         Plaintiff Julia E. Blackwood, a citizen of West Virginia, worked for defendant Berry Dunn, LLC (“Berry Dunn”), a Maine corporation with its principal place of business in Maine, as a contract employee. Compl. ECF No. 1-1, at ¶ 16. On February 25, 2016, Ms. Blackwood was offered and accepted “full-time employment with Berry Dunn as a Senior Consultant . . . with her employment to start on April 5, 2016.” Id. ¶ 20. Defendant Nicole Becnel, a resident of West Virginia, was the manager of Berry Dunn's Charleston office and was responsible for assigning projects to senior consultants such as Ms. Blackwood. Id. ¶ 9. Ms. Becnel, however, assigned the more lucrative positions only to a particular group of her “close personal friends and confidants within the office, ” excluding Ms. Blackwood. Id. ¶ 12.

         Ms. Blackwood, at some point not specified in the complaint, began to question the propriety of certain billing practices of Berry Dunn. Id. ¶¶ 22-28. Around the time she began this questioning, Ms. Blackwood noticed discussions of particularly lavish spending by Ms. Becnel on events she “privately hosted for the State employee assigned with oversight responsibility on the Berry Dunn State consulting contracts.” Id. ¶ 29. Ms. Blackwood believes that her questioning of Berry Dunn's state billing practices led Ms. Becnel to initiate “an internal campaign of discrimination, intentional harassment, invasion of privacy and defamation of Ms. Blackwood.” Id. ¶ 30.

         At the direction of Ms. Becnel, other employees secretly photographed Ms. Blackwood with her eyes closed while she was on her lunch break in the office, though Ms. Blackwood never consented to having her picture taken. Id. ¶ 35-38.

         On March 16, 2017, Ms. Becnel informed Ms. Blackwood that she had been fired because she had fallen asleep on the job on three separate occasions. Id. ¶ 31. Ms. Becnel is further alleged to have discussed Ms. Blackwood's confidential employment information with other employees. Id. ¶ 32.

         After her employment was terminated, Berry Dunn's director of human resources, Debra Genender, informed Ms. Blackwood by electronic mail that she would be paid three weeks' severance, amounting to $4, 038.46. Id. ¶¶ 42-44. Ms. Blackwood alleges that she relied on this promised payment to her detriment, though she does not identify the detriment. Id. at 9. When Berry Dunn learned of her retaining counsel in connection with her employment termination, Berry Dunn refused to pay the severance unless she released all potential claims against them and subjected herself to restrictions in seeking future employment. Id. ¶¶ 45-47.

         Ms. Blackwood became aware of the photographs taken by employees of Berry Dunn at the direction of Ms. Becnel on May 2, 2017 when she received the pictures from defendants' counsel. Id. ¶ 53.

         Ms. Blackwood initiated this action in the Circuit Court of Kanawha County on March 16, 2018. She asserts claims against Berry Dunn for violations of the West Virginia Wage Payment and Collection Act and against all defendants for wrongful termination of employment by discriminating against her on the basis of her age, unlawful invasion of privacy, breach of promise, detrimental reliance, breach of contract and breach of the related covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, and aiding and abetting. Id. at 9.

         On August 8, 2018, the defendants removed the case to federal court, asserting fraudulent joinder of Ms. Becnel and invoking this court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). Plaintiff subsequently moved to remand on the ground that the defendants failed to establish fraudulent joinder.

         II. Standard of Review

         The fraudulent joinder standard is well settled. Our court of appeals lays a “heavy burden” upon a defendant removing a case on such grounds:

In order to establish that a nondiverse defendant has been fraudulently joined, the removing party must establish either: [t]hat there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or [t]hat there has been outright fraud in the plaintiff's pleading of jurisdictional facts.

" Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) (emphasis in original) (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). The applicable standard "is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss[.]" Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999).

         As the decision in Hartley illustrates, fraudulent joinder claims are subject to a rather black-and-white analysis in this circuit. Any shades of gray are resolved in favor of remand. At bottom, a plaintiff need only demonstrate a ...

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