United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. Johnston, Chief Judge.
before the Court is Plaintiff's motion to
remand. (ECF No. 3.) For the reasons discussed
herein, the Court GRANTS IN PART and
DENIES IN PART the motion. (ECF No. 3.)
Sherry Reynolds (“Reynolds”) filed the present
action in the Circuit Court of Wood County, West Virginia,
against her former employer, HealthSouth, which was absorbed
by Defendant Encompass Health Corporation
(“Encompass”), alleging a claim for retaliation
in violation of the West Virginia Patient Safety Act
(“WVPSA”). (See ECF No. 1-2.) Reynolds
also named her former job trainers, Freda McVay
(“McVay”) and Pam Douglas
(“Douglas”), as defendants. (See id.)
January 11, 2019, Encompass removed the present action to
this Court invoking the Court's diversity jurisdiction.
(ECF No. 1.) Reynolds is a resident of West Virginia and
Encompass is a Delaware corporation with its principal place
of business in Alabama. (Id. at 2, ¶ 7.)
Although McVay and Douglas are both West Virginia residents,
Encompass asserted in their Notice of Removal that they were
fraudulently joined and, thus, federal jurisdiction is
proper. (Id. ¶ 8.)
filed the present motion to remand on January 16, 2019. (ECF
No. 3.) Encompass timely responded to the motion, (ECF No.
11), and Reynolds timely replied, (ECF No. 12). As such, the
motion is fully briefed and ripe for adjudication.
has provided a right of removal from state to federal court
if a case could have originally been brought in federal
court. 28 U.S.C. § 1441(a). Generally, this right exists
in suits that involve a federal question or citizens of
different states and where the amount in controversy exceeds
$75, 000, exclusive of interest and costs. See 28
U.S.C. § 1332(a)(2). However, because removal of civil
cases from state to federal court infringes upon state
sovereignty, federal courts strictly construe the removal
statute and resolve all doubts in favor of remanding cases to
state court. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941); see also Mulcahey
v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir. 1994) (“Because removal jurisdiction raises
significant federalism concerns, we must strictly construe
removal jurisdiction.” (citation omitted)). The party
asserting federal jurisdiction bears the burden of proof.
See Landmark Corp. v. Apogee Coal Co., 945 F.Supp. 932,
935 (S.D. W.Va. 1996). In evaluating a party's claim to
federal jurisdiction, a court should look toward the
circumstances as they existed at the time the notice of
removal was filed. See Dennison v. Carolina Payday Loans,
Inc., 549 F.3d 941, 943 (4th Cir. 2008).
Supreme Court has long “read the statutory formulation
‘between . . . citizens of different States'”
in § 1332(a)(1) “to require complete diversity
between all plaintiffs and all defendants.” Lincoln
Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (citing
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
Thus, under this “complete diversity” rule,
jurisdiction is permitted “only when no party shares
common citizenship with any party on the other side.”
Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)
(citation omitted). “This . . . rule . . . makes it
difficult for a defendant to remove a case if a nondiverse
defendant has been party to the suit prior to removal.”
the doctrine of fraudulent joinder permits a district court
to “disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume
jurisdiction over a case, dismiss the nondiverse defendants,
and thereby retain jurisdiction.” Mayes, 198
F.3d at 461. The Fourth Circuit lays a “heavy
burden” upon a defendant claiming fraudulent
joinder. Johnson v. Am. Towers, LLC, 781 F.3d 693,
704 (4th Cir. 2015) (quoting Hartley v. CSX Transp.,
Inc., 187 F.3d 422, 424 (4th Cir. 1999)). 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, 198 F.3d at 464 (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)).
Thus, a plaintiff need only demonstrate a “glimmer of
hope” of success in order to have the case remanded.
Hartley, 187 F.3d at 425.
this rigorous standard, “fraudulent joinder is
typically only found in cases of legal impossibility.”
Flores v. Ethicon, Inc., 563 Fed.Appx. 266, 269 (4th
Cir. 2014). However, a complaint may be “so inadequate
and the record so entirely lacking in factual support that [a
court] can only reasonably conclude that the non-diverse
defendants were added to defeat jurisdiction.”
Id. In such cases, a finding of fraudulent joinder
is also appropriate where the plaintiff fails to make any
allegations in which a court can reasonably infer a cause of
action. Id. at 70.
jurisdictional facts in this case are not in dispute. Rather,
Encompass asserts that McVay and Douglas were fraudulently
joined as there is no possibility that Reynolds can establish
a cause of action against either of them under the WVPSA.
(See ECF No. 11 at 1.) Encompass specifically argues
that Reynolds has not alleged any actual or inferred
retaliatory conduct by Douglas or McVay. (See Id. at