United States District Court, S.D. West Virginia
JULIA E. BLACKWOOD, Plaintiff,
BERRY DUNN, LLC, NICOLE Y. BECNEL, and JANE DOES, Defendants.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is plaintiff's motion to remand this matter to the
Circuit Court of Kanawha County, West Virginia, filed
September 11, 2018.
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.
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.
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. ¶
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.
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.
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.
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.
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
Standard of Review
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
" 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).
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 ...