
    Jacob GREENSPAN, Plaintiff, v. BROTHERS PROPERTY CORPORATION, Brothers Property Management Corporation, Victor Fuller, Ana Reina, Oliver Rooskens, Defendants.
    No. 2:14-cv-3875-RMG.
    United States District Court, D. South Carolina, Charleston Division.
    Signed April 29, 2015.
    Filed April 30, 2015.
    
      Jacob Greenspan, Charleston, SC, pro se.
    John Sulau, Wendy L. Furhang, Jackson Lewis PC, Greenville, SC, for Defendants.
   ORDER

RICHARD MARK GERGEL, District Judge.

This matter is before the Court on the Magistrate Judge’s Report and Recommendation (“R & R”), Dkt. No. 32, recommending that this Court deny Defendants’ Motion to Strike (Dkt. No. 24) and grant Plaintiffs Motion to Remand (Dkt. No. 21). For the reason stated below, the Court ADOPTS the R & R, DENIES the motion to strike and GRANTS the motion to remand.

I. Background

Plaintiff filed this action in state court against his former employers Brothers Property Corporation and Brothers Property Management Corporation (collectively “the Brothers Defendants” or “Defendants”), raising a number of state law causes of action. Brothers Property Management Corporation does business as Charleston Harbor Resort and Marina (“the Resort”) and is a wholly owned subsidiary of Defendant Brothers Property Corporation. {See Dkt. No. 34 at 3). Plaintiff was hired as an Accounting Manager for the Resort in 2009 and later promoted to Controller for the Resort in 2010. (Dkt. No. 14 at ¶¶ 14-15). In June of 2012, Plaintiff was terminated ostensibly for tardiness and absences at work. {Id. at ¶¶ 117-118). Plaintiff claims his termination was for unlawful reasons. {See generally Dkt. No. 14).

The Brothers Defendants properly removed this action to federal court based on diversity jurisdiction. (Dkt. No. 1). After removal, but before the defendants answered, Plaintiff filed a First Amended Complaint as a matter of course under Rule 15(a). (Dkt. No. 14). This First Amended Complaint names three additional individual defendants: Oliver Rooskens, Victor Fuller, and Ana Reina. Rooskens is the General Manager of the Resort, Fuller is the President of the parent company Brothers Property Corporation, and Reina is the Chief Financial Officer of the parent company Brothers Property Corporation. (Dkt. No. 14 at ¶¶ 7-10). Plaintiff alleges that as Controller, he reported directly to CFO Reina. (Id. at ¶ 15). However, documents attached to the Complaint show that Plaintiff reported to both Rooskens, as General Manager of the Resort, and to the corporate CFO Reina. (Dkt. No. 1-1 at 58-60). Plaintiff alleges that Fuller and Reina are residents of Florida, and Roosk-ens is a resident of South Carolina. (Id.).

The addition of Defendant Rooskens defeats diversity jurisdiction, and Plaintiff filed a motion to remand on this basis. (Dkt. No. 21). The Brothers Defendants responded with a Motion to Strike the First Amended Complaint (Dkt. No. 24), claiming Plaintiffs addition of Defendant Rooskens is a “procedural trick[ ] to defeat diversity jurisdiction.” (Dkt. No. 34 at 19). The Magistrate Judge recommended denying Defendants’ motion to strike and granting Plaintiffs motion to remand. (Dkt. No. 32). The Brothers Defendants filed timely objections. (Dkt. No. 34).

II. Legal Standard

A. Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed.R.Civ.P. 72(b).

As to portions of the R & R to which no specific objection has been made, this Court “must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’ ” Id. (quoting Fed.R.Civ.P. 72 advisory committee note). Moreover, in the absence of specific objections to the R & R, the Court need not give any explanation for adopting the Magistrate Judge’s analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.1983).

B. Joinder of a Non-diverse Party after Removal

“If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” ■ 28 U.S.C. § 1447(e). Whether to allow joinder of a non-diverse defendant is “committed to the sound discretion of the district court,” and in exercising this discretion, the district court is “entitled to consider all relevant factors, including: the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Mayes v. Rapoport, 198 F.3d 457, 462 (4th Cir.1999). In sum, “[t]he district court, with input from the parties, should balance the equities in deciding whether the plaintiff should be permitted to join a nondiverse defendant.” Id. at 463.

While the fraudulent joinder doctrine does not “directly” apply, “if the defendants can carry the heavy burden of proving fraudulent joinder, that fact should be a factor — -and perhaps the dis-positive factor — that the court considers in deciding whether a plaintiff may join a nondiverse defendant” after removal. Id. at 463. Thus, the fraudulent joinder doctrine can be instructive and a factor heavily weighed by the court.

III. Discussion

A. Legal Standard Applied by Magistrate Judge

In their objections to the R & R, the Brothers’ Defendants first argue that the Magistrate Judge erred by requiring them . to show fraudulent joinder to prevent the addition of Defendant Roosken. Defendants misread the R & R. The Magistrate Judge explicitly stated that “the doctrine of fraudulent joinder only applies to parties joined before removal,” but noted that under Mayes fraudulent joinder, if shown, “should be a factor — and perhaps the dis-positive factor.” (Dkt. No. 32 at 4 (emphasis added)). Thus, Magistrate Judge “beg[an][her] analysis there.” (Id. at 5). The Magistrate Judge went on to weigh other factors and, “[a]fter considering all relevant factors in the case,” recommended that “the joinder of Defendant Rooskens be allowed because the balance of the equities weighs in the Plaintiffs favor.” (Dkt. No. 32 at 11-12). Therefore, the Magistrate Judge applied the appropriate standard, and this objection is overruled.

B. Whether Defendants Have Shown Fraudulent Joinder

The term “fraudulent joinder” is “a bit misleading” as it does not require a showing of fraud or joinder. Mayes, 198 F.3d at 461 n. 8. To establish that a nondi-verse defendant has been fraudulently joined, the removing party must establish either: (1) that 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 (2) that there has been outright fraud in the plaintiffs pleading of jurisdictional facts. E.g., Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993). This is a heavy burden. Id. The defendant must show the plaintiff cannot establish a claim against the nondi-verse defendant “even after resolving all issues of fact and law in the plaintiffs favor.” Id. at 232-233. In determining whether a joinder is fraudulent, the court “is not bound by the allegations of the pleadings, but may instead consider the entire record, and determine the basis of joinder by any means available.” Mayes, 198 F.3d at 464.

The Magistrate Judge found that, after resolving all issues of fact and law in Plaintiffs favor, it was possible that the Plaintiff could establish a claim for wrongful termination in violation of public policy against Defendant Rooskens, and Defendants failed to show fraudulent joinder. (Dkt. No. 32 at 6-11). This Court agrees.

1. Bringing a Claim for Wrongful Termination Against Individual Defendants

Defendants first object to the Magistrate Judge’s finding that it was possible to bring a claim for wrongful termination in violation of public policy against individuals. (Dkt. No. 34 at 11). As Defendants’ note, “[t]here is no South Carolina authority that would allow Plaintiff to bring a claim for wrongful termination in violation of public policy against any individual defendant.” (Id.). There is also no authority holding such claims cannot be brought against individuals. Thus, as Defendants concede, the question is one of first impression in South Carolina. (See id. at 13). There is a split of authority in other jurisdictions. (See Dkt. No. 32 (listing cases)); see also VanBuren v. Grubb, 471 Fed.Appx. 228, 235 (4th Cir.2012) (discussing this split of authority). Where there is a question of first impression and split of authority in other jurisdictions, “it is reasonably possible that a claim could proceed.” Savino Del Bene, U.S.A., Inc. v. Hartford Fin. Servs. Grp., Inc., No. 11 C 6103, 2012 WL 3961224, at *2 (N.D.Ill. Sept. 7, 2012). This is all that is required to defeat a claim of fraudulent joinder. See Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir.2015) (Defendant must show “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.”) (emphasis in original); Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (Plaintiff “need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.”) (emphasis in original); 6 James Wm. Moore et. al., Moore’s Federal Practice ¶ lQ2.21[5][a] (“The court must determine whether there is ‘arguably a reasonable basis’ for predicting that the state law might impose liability on the facts involved. If that possibility exists, an assertion of the expectancy is not a sham, and is not fraudulent ... ”) (emphasis added).

Contrary to Defendants’ assertions, the Magistrate Judge did not expand the tort of wrongful termination in South Carolina. She held that “there is a possibility that a South Carolina state court would rule the Plaintiffs claim is viable as a tort,” and “[a]ll issues of law must be resolved in favor of the Plaintiff.” (Dkt. No. 32 at 11) (emphasis added). Thus, resolving this issue of law in favor of Plaintiff, the Brothers Defendants have not established that Defendant Rooskens was fraudulently joined.

The Magistrate Judge also did not give “dispositive effect” to the Virginia Supreme Court case VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919 (2012), as Defendants claim. (Dkt. Ño. 34 at 12). She gave weight to the fact that, when the Fourth Circuit faced this very question-whether a wrongful discharge in violation of public policy claim could lie against an individual defendant-under Virginia law, the Fourth Circuit found itself “unable to predict with confidence how the Supreme Court of Virginia would rule” and certified the question, rather than affirm the district court’s dismissal. VanBuren v. Grubb, 471 Fed.Appx. 228, 235-36 (4th Cir.2012). The Virginia Supreme Court’s answer proved the district court was incorrect to assume such a claim did not exist.

2. Bringing a Claim for Wrongful Termination Against Defendant Roosk-ens

Next, Defendants argue that even if a claim of wrongful discharge in violation of public policy could lie against individuals, it could not lie against Defendant Roosk-ens who is a “co-wqrker” and not Plaintiffs direct supervisor or an officer of the corporation. (Dkt. No. 34 at 12-14). As South Carolina courts have not addressed whether this tort can be brought against individuals at. all, they have not addressed the type of individual against whom such a tort can be brought.

Other jurisdictions have varied, though they have largely left the question to develop in future cases. In Jasper v. H. Nizam, Inc., the Iowa Supreme Court held that liability can extend to officers of the corporation who “authorized or directed the discharge” but left for another, day “how deep the tort could reach in the corporate chain of management in a particular situation.” 764 N.W.2d 751, 776 (Iowa 2009), as amended on denial of reh’g (Mar. 5, 2009). The New Jersey Supreme Court held that “an individual who personally participates in the tort of wrongful discharge may be held individually liable,” without expanding on what constitutes participation. Ballinger v. Delaware River Port Auth., 172 N.J. 586, 800 A.2d 97, 110 (2002). The Virginia Supreme held that the tort could lie against “employees in a position of power.” VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919, 923 (2012). While the individual at issue in VanBuren was the plaintiffs supervisor and owner of the company, the court did not limit its holding to such individuals. Indeed, it noted that it had allowed such claims to proceed against “individual defendants who both committed the acts in violation of public policy and effected the termination.” M. at 922 (emphasis added).

Here, Defendants make much of the fact that Plaintiff alleges that he and Rooskens both reported to corporate-level management and neither was “authorized to terminate the employment of the other at their own discretion.” (Dkt. No. 14 at ¶23). However, documents attached to the Complaint show that Plaintiff reported to both Rooskens and the corporate Chief Financial Officer. (Dkt. No. 1-1 at 58-60). Both supervisors signed the “Final Notice” issued to Plaintiff before termination. (Id. at 60). Plaintiff also alleges that Defendant Rooskens had sole control over setting Plaintiffs salary and determining Plaintiffs annual bonus, disciplined Plaintiff, provided (or failed to provide) equipment for Plaintiff to use in his job, and was responsible for Plaintiffs workplace conditions. (See, e.g., Dkt. No. 14 at ¶¶ 26, 31, 43, 52, 55, 56, 65, 69, 90). Plaintiff also alleges that his termination was the culmination of disciplinary events that Rooskens took in retaliation for Plaintiffs complaints against him and “his engagement in the various fraudulent and oppressive pay practices and other improprieties.” (See, e.g., id. at ¶¶ 69, 97, 116). Plaintiff also alleges that while Rooskens lacked the authority to terminate Plaintiff at his own discretion, he “effectuate[ed] the termination of Plaintiffs employment” and received authorization to terminate Plaintiff “by making false and pretextual accusations” about Plaintiff “in bad faith.” (Id. at ¶¶ 110-113). Under these facts, it is possible that South Carolina courts would hold that Defendant Rooskens was in a “position of power” and/or “participated in the wrongful discharge” such as to be held liable under the tort. South Carolina courts may also hold to the contrary, but the possibility is sufficient to overcome a claim of fraudulent joinder.

S. Whether Plaintiff Can State a Claim for Wrongful Termination in Violation of Public Policy

Plaintiff alleges, among a number of other things, that he was terminated in retaliation for complaining “about the employer’s pay practices, including the employer’s failure to pay wages due, and for complaints about the employer’s alleged violations of the S.C.Code Ann. § 41-10-10 et seq.,” known as the Payment of Wages Act. (Dkt. No. 14 at ¶ 253). The Magistrate Judge, relying on Barron v. Labor Finders of S. Carolina, 393 S.C. 609, 713 S.E.2d 634 (2011), found that whether an employee could bring a claim for wrongful termination in violation of public policy when he is terminated in retaliation for filing or threatening to file a claim under the Payment of Wages Act is a question South Carolina courts have not yet answered. (Dkt. No. 32 at 7-8).

Defendants do not appear to dispute this particular finding, and they could not. The Court in Barron stated that: 713 S.E.2d at 638-39. Instead, Defendants argue that there are no allegations in the First Amended Complaint “that support the position that [Plaintiff] instituted (or even threatened to institute) a claim with an external government agency.” (Dkt. No. 34 at 16-17). Thus, Defendants claim, “Barron is dispositive,” and Plaintiff cannot state a claim for wrongful discharge in violation of public policy. (Id. at 17).

We do not foreclose the possibility that a claim for wrongful termination in violation of public policy may exist when an employee is terminated in retaliation for instituting a claim under the Act. We simply decline to address the issue at this time because there is no evidence petitioner was terminated in retaliatioii for filing or threatening to file such a claim.

The Court agrees with the Magistrate Judge that while Plaintiff alleges some specific internal complaints, he does not state whether, as part of these complaints, he threatened to file a complaint under the Payment of Wages Act or whether the other “complaints” referenced in the pleading include an external complaint. Proceeding pro se, Plaintiff is “entitled to a liberal construction of his pleadings.” E.g., In re Jenkins, 784 F.3d 230, 235 (4th Cir.2015). Furthermore, the question is not whether Plaintiff has stated a claim for relief but whether there is a possibility that he could state a claim for relief. See Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir.2015) (Plaintiff must “show only a ‘glimmer of hope’ of succeeding against the non-diverse defendants.”); Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999) (“This standard is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).”). The Court finds that Plaintiff has at least a “glimmer of hope” of succeeding on his claim.

Additionally, the South Carolina Supreme Court has held that the public policy exception “clearly applies” where “the employer requires the employee to violate the law.” E.g., Barron, 713 S.E.2d at 637. In addition to his claim that he was terminated in retaliation for his complaints about violations of the Wages Payment Act, Plaintiff alleges that he was terminated in retaliation for his “complaints of, opposition to, and efforts to prevent Rooskens’ repeated disregard for Plaintiffs duties and obligations as Controller for Defendant CHRM with the intentions of engaging in fraudulent and oppressive pay practices, and other improprieties.” (Dkt. No. 14 at ¶254). While it is not clear what this paragraph refers to, earlier in the Amended Complaint, Plaintiff alleges that Defendant Rooskens required Plaintiffs subordinates to make fraudulent accounting entries in order to justify Rooskens’ disallowance of employee bonuses that had been promised. (Dkt. No. 143 at ¶¶ 83-91). Plaintiff alleges that when he raised the issue, he was immediately given a “Final Notice.” (Id. at ¶ 92). It is not clear whether Plaintiff is alleging that Rooskens required him, as Controller, to violate the law by signing off on fraudulent accounting entries. However, Defendants have not shown that there is no possibility of such a claim.

The South Carolina Court of Common Pleas may very well dismiss Plaintiffs claims against Defendant Rooskens, but the Court cannot say that “there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Johnson, 781 F.3d at 704. Therefore, a finding of fraudulent joinder is not warranted.

C. Balancing of the Equities

Whether Defendants can show fraudulent joinder is only one factor for the Court to consider. See Mayes, 198 F.3d at 462-63. The Court may also consider “the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Id. at 462.

The Court finds Plaintiffs amendment is not solely for the purpose of defeating jurisdiction. This Court is mindful of the Mayes court’s warning that when “a plaintiff seeks to add a nondiverse defendant immediately after removal but before any additional discovery has taken place, district courts should be wary that the amendment sought is for the specific purpose of avoiding federal jurisdiction.” Mayes, 198 F.3d at 463. However, Plaintiff is proceeding pro se and claims that when he filed his initial complaint, “he lacked a full understanding of the importance in naming the three individuals as Defendants for the purpose of asserting all valid theories of recovery potentially available to him.” (Dkt. No. 29 at 6). He concedes that he “had full knowledge of the roles played by all three named individual defendants at the time he filed his initial Complaint,” but claims that he added the defendants to “assert additional meritorious theories of recovery” based on the facts already pled. (Id.). Pro se litigants, unversed in the law and theories of recovery, may very well realize, after they have filed their initial complaint, that they have causes of actions against additional defendants based on the same facts.

The substance of Plaintiffs Complaint and First Amended Complaint and the addition of Defendants Fuller and Reina, who do are diverse defendant's, support Plaintiffs claims that his amendment was not simply to avoid federal jurisdiction. Rooskens is mentioned 369 times in Plaintiffs original Complaint. (Dkt. No. 1-1). The thrust of Plaintiffs allegations is that Rooskens effected his termination in retaliation for various actions by Plaintiff. (See generally, Dkt. No. 14). Clearly, plaintiff is not attempting to “squeeze” Rooskens into the lawsuit. See McCaulley v. Purdue Pharma, L.P., 172 F.Supp.2d 803, 810 (W.D.Va.2001). Rooskens is at the center of it. Furthermore, if Plaintiff wanted to simply avoid federal jurisdiction, he could have added Rooskens only. However, Plaintiff added two additional diverse individual defendants. The addition of these defendants is consistent with Plaintiffs claim that he originally named only organizational defendants and later added individual defendants once he realized he may have theories of liability against them as well. Thus, the Court finds that Plaintiffs amendment is not a “blatant tactical maneuver,” as Defendants claim. (Dkt. No. 34 at 2).

The Court also finds that Plaintiff was not dilatory. He amended his complaint during the time allowed to amend as a matter of course under Fed.R.Civ.P. 15(a). Defendants argue that the fact that Plaintiffs amendment was timely “has no bearing on the Court’s analysis under Section 1447(e).” (Dkt. No. 34 at 11 n. 7). This statement is contrary to Mayes’ holding that a district court can consider “whether the plaintiff has been dilatory in asking for amendment.” 198 F.3d at 462; see also Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759 (7th Cir.2009) (describing this factor as “the timeliness of the request to amend”). As Defendants note, the timeliness of Plaintiffs amendment is not dispositive. See id. at 462 n. 11. However, it is a factor.

Another factor for the Court’s consideration is “danger of parallel lawsuits in federal and state court, which may spawn inconsistent results and inefficient use of judicial resources.” Mayes, 198 F.3d at 463. If Plaintiff were forced to sue Roosk-ens in a separate state court action for his role in Plaintiffs termination, this danger is present.

The Court also considers the fact that the claim against Rooskens raises issues of first impression under state law. Especially given the split of authority on whether claims for wrongful discharge in violation of public policy can be brought against individuals, South Carolina has a strong interest in resolving this issue of first impression. The Fourth Circuit found this very question to be “one best decided” by state courts. See VanBuren, 471 Fed.Appx. at 234.

In sum, the Court agrees with the Magistrate Judge that the balance of the equities weighs in favor of allowing the amendment. Therefore, the Court allows the amendment and remands the action to state court in accordance with Section 1447(e).

TV. Conclusion

For the reason stated above, the Court ADOPTS the R & R (Dkt. No. 32) as an Order of this Court. Accordingly, the Brothers Defendants’ Motion to Strike the First Amended Complaint (Dkt. No. 24) is DENIED, and Plaintiff’s Motion to Remand (Dkt. No. 21) is GRANTED.

AND IT IS SO ORDERED.

REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, United States Magistrate Judge.

This is a civil action filed by a pro se litigant. Under Local Civil Rule 73.02(B)(2) of the United States District Court for the District of South Carolina, pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.

The Plaintiff filed this Complaint on July 18, 2014, in state court. (Dkt. No. 1.) The original Defendants removed this case from the Circuit Court of South Carolina on October 3, 2014, on the basis of diversity between the parties. (Id.) On October 28, 2014, the Plaintiff filed a First Amended Complaint in federal court. (Dkt. No. 14.) The First Amended Complaint was filed before any responsive pleading had been filed by the Defendants. Victor Fuller, Ana Reina, and Oliver Rooskens were joined as .defendants in the First Amended Complaint and have not yet been served. (Id.) On November 4, 2014, the Plaintiff filed Plaintiffs Motion for Remand. (Dkt. No. 21.) Defendants Brothers Property Corporation and Brothers Property Management Corporation (collectively “Brothers”) responded on November 17, 2014, by filing Brothers’ Motion to Strike Plaintiff’s First Amended Complaint (Dkt. No. 24) and Brothers’ Motion to Dismiss Plaintiffs First Amended Complaint (Dkt. No. 25). On November 21, 2014, Brothers filed Defendants’ Response in Opposition to Plaintiffs Motion to Remand. (Dkt. No. 28.) Plaintiff replied to Brother’s response on December 5, 2014. (Dkt. No. 29.)

Factual Overview

Defendant Property Brothers Management Corporation dba Charleston Harbor Resort and Marina (“CHRM”) hired the Plaintiff on November 30, 2009 as an Accounting Manager. (Dkt. No. 14 ¶ 14.) On or around February 19, 2010, the Plaintiff began serving as Controller for CHRM and reported directly to Defendant Ana Reina until his employment was terminated on June 18, 2012. (Id. at ¶ 15.) Defendant Oliver Rooskens was the General Manager of CHRM throughout the Plaintiffs employment. (Id. at ¶ 13.) Neither the Plaintiff nor Defendant Rooskens controlled the other’s performance or continued employment at CHRM. (Id. at ¶ 23.) Defendant Rooskens is the only defendant alleged to be a South Carolina resident:

Brothers’ Motion to Strike Plaintiffs First Amended Complaint (Dkt., No. 2V)

Rule 15(a)of the Federal Rules of Civil Procedure states, in part,

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

Fed.R.Civ.P. 15. “A plaintiff may amend his complaint one time as a matter of course before the defendant files a responsive pleading.” Hall v. Burney, 454 Fed.Appx. 149, 151 (4th Cir.2011) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006)) (citing Fed.R.Civ.P. 15(a)). Brothers’ Motion to Strike Plaintiffs First Amended Complaint (Dkt. No. 24) argues that the Plaintiffs First Amended Complaint (Dkt. No. 14) was untimely because it was filed more than 21 days after the initial complaint, and the Plaintiff failed to acquire written consent of the opposing party or leave of the court. Brothers’ argument ignores Fed.R.Civ.P. 15(a)(1)(B). A complaint is a pleading that requires a responsive pleading. Fed.R.Civ.P. 12(a)(1)(A). The Plaintiff may amend his pleadings as a matter of course up until “21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15. Brothers did not file a responsive pleading until November 17, 2014, 19 days after the Plaintiffs amended complaint. (Dkt. No. 25.) Under Fed.R.Civ.P. 15, the Plaintiffs First Amended Complaint is timely and allowed as a matter of course. The court recommends that Brothers’ Motion to Strike Plaintiffs First Amended Complaint (Dkt. No. 24) be denied.

Plaintiffs Motion for Remand (Dkt. No. 21.)

This court has subject matter jurisdiction in this case because of diversity between the parties. The Plaintiffs First Amended Complaint seeks to join Defendant Rooskens, a South Carolina resident. “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447.

The Fourth Circuit addressed the issue of joinder of a non-diverse party after removal in Mayes v. Rapoport, 198 F.3d 457 (4th Cir.1999). In determining whether to allow a plaintiff to join a non-diverse defendant, the court must balance the equities by “considering] all relevant factors, including: the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Id. at 462 (internal quotations omitted). Although the doctrine of fraudulent joinder only applies to parties joined before removal, “if the defendants can carry the heavy burden of proving fraudulent join-der, that fact should be a factor — and perhaps the dispositive factor — that the court considers in deciding whether a plaintiff may join a non-diverse defendant” after removal to federal court. Id. at 463.

In order to establish that a nondiverse defendant has been fraudulently joined, the removing party must establish either: [tjhat 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 plaintiffs pleading of jurisdictional facts.

Id. at 464 (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993) (emphasis in original; internal quotation omitted in original)). The Fourth Circuit “noted that ‘[t]his standard is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6).’ ” Id. at 457 (quoting Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999)). The joinder of Defendant Rooskens will destroy diversity in this case and require the court to remand the case back to state court. In balancing the equities as required in Mayes, this court recommends the joinder of Defendant Rooskens be allowed because the removing parties have not met their burden of showing fraudulent joinder and, when balancing the equities, other factors weigh in the Plaintiffs favor as well.

As fraudulent joinder is “perhaps the dispositive factor” in determining whether to allow the Plaintiff to join Defendant Rooskens, the court begins its analysis there. Mayes, 198 F.3d at 463. Brothers do not dispute that Defendant Rooskens is a South Carolina resident and his joinder would destroy diversity. (Dkt. No. 28 at 1-2 of 18.) Therefore to show fraudulent joinder, Brothers “must establish ... [t]hat there is no possibility that the plaintiff would be able to establish a cause of action against the instate defendant in state court.” Id. at 464 (quoting Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993) (emphasis in original; internal quotation omitted in original)).

The First Amended Complaint contains nineteen causes of action. (Dkt. No. 14.) Defendant Rooskens’ name is contained in allegations throughout the Complaint. The causes of action all relate to the Plaintiffs former employment at the Charleston Harbor Resort and Marina. The First Amended Complaint contains causes of action ranging from negligence and breach of contract to fraudulent concealment and defamation.

To show fraudulent joinder, Brothers must establish that none of these nineteen causes of action can possibly be established against Defendant Rooskens. The Plaintiffs seventeenth cause of action alleges “Wrongful Discharge for Violation of Public Policy.” (Dkt. No. 14 at ¶252.) The Plaintiff alleges Defendant Rooskens and “Defendant CHRM” retaliated against and eventually terminated the Plaintiff for his complaints regarding “pay practices, including ... failure to pay wages due, and for complaints about the employer’s alleged violations of S.C.Code Ann § 41-10-10 etseq.” (Dkt. No. 14 ¶253.) S.C.Code Ann § 41-10-10 et seq. is known as the Payment of Wages Act (“the Act”). Additionally, the Plaintiff alleges that a unilateral employment contract issued to him violated the form requirements of the Act found in S.C.Code Ann. § 41-1-110 by not containing a disclaimer in underlined capital letters on the first page. (Dkt. No. 14 ¶ 256.) The Plaintiff alleges that between June 13-17, 2012, Defendant Rooskens “procured the authorization to terminate Plaintiffs employment ... in retaliation for Plaintiffs continued complaints of ... fraudulent and oppressive pay practices.” (Dkt. No. 14 ¶ 257.) The Defendants terminated the Plaintiffs employment on June 18, 2012. (Dkt. No. 14 ¶ 258.)

In Defendants’ Response in Opposition to Plaintiffs Motion to Remand, Brothers argue that the Plaintiff alleges that at all times he was an employee of Charleston Harbor Resort and Marina and never was an employee of Defendant Rooskens. (Dkt. no. 28.) Brothers note that the Plaintiff alleges Defendant Rooskens was an agent of his employer and had no power to fire the Plaintiff. (Id.) Brothers argue there is no precedent that allows a wrongful discharge claim against an employer’s agents such as coworkers or supervisors and cite several cases holding-the same. (Id.)

The issue before the court is whether there is a possibility the Plaintiff can establish Defendant Rooskens, a co-employee, is liable for wrongful discharge in violation of public policy. The burden of showing there is no possibility of establishing a claim against Defendant Rooskens is on Brothers. Mayes, 198 F.3d at 464 (“[T]he defendant must show that the plaintiff cannot establish a claim against the nondiverse defendant even after resolving all issues of fact and law in the plaintiffs favor.”). Whether or not an action for wrongful discharge for violation of public policy can be brought for retaliation and termination following a complaint over wages is a matter of first impression in South Carolina.

Absent a. specific contract, employment in South Carolina is at-will. Mathis v. Brown & Brown of S. Carolina, Inc., 389 S.C. 299, 309, 698 S.E.2d 773, 778 (2010). “An at-will employee may be terminated at any time for any reason or for no reason, with or without cause.” Id. at 310, 698 S.E.2d 773. “Under the ‘public policy exception’ to the at-will employment doctrine, however, an at-will employee has a cause of action in tort for wrongful termination where there is a retaliatory termination of the at-will employee in violation of a clear mandate of public policy.” Barron v. Labor Finders of S. Carolina, 393 S.C. 609, 614, 713 S.E.2d 634, 636-37 (2011). The public policy exception does not apply in cases where there is an existing statutory remedy. Id. at 615, 713 S.E.2d at 637.

In Barron v. Labor Finders of South Carolina, 393 S.C. 609, 713 S.E.2d 634 (2011), the Supreme Court of South Carolina addressed a plaintiffs ability to establish a claim for wrongful discharge based on violations of public policy similar to the claims in the case at bar. Glenda Barron was fired after approaching her supervisor regarding commissions she was due but was not receiving. Id. at 612, 713 S.E.2d 634. The next day she was fired, but she did receive her missing commissions eight or nine days later. Id. at 613, 713 S.E.2d 634. She never “filed a written complaint with the Department of Labor, Licensing, and Regulation as outlined by the Payment of Wages Act.” Id. In ruling on Labor Finders’ motion for summary judgment, the Barron court held “that there is no existing statutory remedy for wrongful termination within the Act that would prohibit an employee from maintaining a claim based upon a violation of public policy.” Id. at 617, 713 S.E.2d 634. The Barron court declined to rule on “the possibility that a claim for wrongful termination in violation of public policy may exist when an employee is terminated in retaliation for instituting a claim under the Act.” Id. at 618, 713 S.E.2d 634. The Barron court upheld the circuit court’s grant of summary judgment for Labor Finders because “there is no evidence petitioner was terminated in retaliation for filing or threatening to file ... a claim” under the Act. Id.

In the case at bar, the court must resolve “all issues of fact and law in the plaintiffs favor.” Mayes at 464. The Plaintiff does not address in his complaint whether or not he filed or threatened to file a complaint under the Act. The Plaintiff does, however, cite the Act as the basis for his public policy claim and repeatedly' alleges he made complaints regarding pay and compensation. (Dkt. No. 14 ¶ 253.) His First Amended Complaint does not state whether or not his complaints were solely internal or made in compliance with the Act. Whether or not the Plaintiff threatened to file or filed a complaint under that Act, as contemplated by the Barron court, must be viewed in the Plaintiffs favor by this court. As this is a matter of first impression in South Carolina, this court cannot predict how a state court may rule on allowing the Plaintiffs claim. Therefore the court finds there is a possibility the Plaintiffs claim of Wrongful Discharge for Violation of Public Policy could be established.

The court now turns‘to whether there is a possibility that the Plaintiff may establish this cause of action against Defendant Rooskens. Whether or not such a claim may be brought against only the employer or against a co-employee as well is a matter of first impression in South Carolina. Other states that have addressed whether or not a co-employee who played a role in the termination can be held liable in a wrongful discharge for violations of public policy are split. VanBuren v. Grubb, 471 Fed.Appx. 228, 229 (4th Cir.) certified question answered, 284 Va. 584, 733 S.E.2d 919 (2012) (citing Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 775 (Iowa 2009)); Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 888-89 (Tex.App.2010); Physio GP, 306 S.W.3d at 891 & n. 2 (Hudson, J., dissenting) (collecting cases).

States that allow individual co-employees to be liable view wrongful discharge for violation of public policy as any other tort that imposes liability on the individual that committed the tortious conduct. VanBuren, 471 Fed.Appx. at 235. These states favor this approach because it imposes liability on the “active wrongdoer” and founds “liability on the wrong reasons

for the discharge, not the discharge itself.” VanBuren, 471 Fed.Appx. at 235 (internal quotations omitted). States that restrict liability solely to the actual employer in claims for wrongful discharge for violation of public policy conclude that “the employment relationship exists between the employee and the employer, meaning only the employer possesses the power to fire an employee.” VanBuren, 471 Fed.Appx. at 235. Only the employer has the power to terminate an employee, therefore only the employer may be held liable. VanBuren, 471 Fed.Appx. at 235.

In VanBuren the Fourth Circuit questioned the district court’s dismissal of a claim for wrongful discharge for violations of public policy against an individual defendant who “played a role in wrongfully terminating the employee.” VanBuren, 471 Fed.Appx. at 235. The Fourth Circuit found that the issue of the individual’s liability was an issue of first impression in Virginia, and the district court’s ruling on the issue was improper. VanBuren, 471 Fed.Appx. at 235. The Fourth Circuit remedied the district court’s ruling by certifying a question to the Supreme Court of Virginia. VanBuren, 471 Fed.Appx. at 230. Following the Supreme Court of Virginia’s ruling that the case could proceed against the individual defendant, the district court was reversed. VanBuren v. Grubb, 514 Fed.Appx. 364 (4th Cir.2013).

The court must determine whether Brothers has met its heavy burden of showing there is no possibility the Plaintiff may establish a claim of wrongful discharge in violation of public policy against Defendant Rooskens. In Savino Del Bene, U.S.A., Inc. v. Hartford Fin. Servs. Grp., Inc., No. 11-C-6103, 2012 WL 3961224 (N.D.Ill. Sept. 7, 2012), the United States District Court for the Northern District of Illinois addressed the issue of when a claim asserted by a plaintiff against the non-diverse party in a fraudulent joinder case is a matter of first impression under state law, whether or not the claim is “possible.” The issue before the Savino court was whether a common law bad faith claim may be brought against the non-diverse party after removal. Id. The Savino court held that it was “reasonably possible that a claim could proceed” and remanded the case to state court. Id. at *2. The court based its ruling on the fact that the issue had not been decided by Illinois state courts and other jurisdictions were ^plit on the issue. Id. The Savino court noted that state court would be “particularly appropriate” because the issue was a matter of first impression. Id. at *2.

The issues in Savino mirror the issues in the ease at bar. The viability of the Plaintiffs claim and who he may assert it against are matters of first impression in South Carolina. Other jurisdictions are split as to who may be liable under the Plaintiffs claim. Brothers has not met their burden because there is a possibility that a South Carolina state court would rule the Plaintiffs claim is viable as a tort and may be asserted against Defendant Rooskens. All issues of law must be resolved in favor of the Plaintiff. Brothers cannot overcome that both the Plaintiffs claim and raising it against a co-employee are matters of first impression in South Carolina. Brothers cannot establish Defendant Rooskens was fraudulently joined.

In weighing whether to allow a plaintiff to join a non-diverse defendant after a case has been removed, the court must consider several other factors as part of balancing the equities. Mayes, 198 F.3d at 462. The joinder of Defendant Rooskens as a non-diverse party does concern the court because it was done immediately after the case was removed without any discovery taking place. The timing of the Plaintiffs joinder of Defendant Rooskens gives the appearance he was joined for the sole purpose of destroying diversity. However, as discussed supra, this court cannot preclude the possibility that the Plaintiff has a viable claim against Defendant Rooskens. While the Plaintiff could have named Defendant Rooskens in his original complaint, his First Amended Complaint was allowed as a matter of course because Brothers had yet to file any responsive pleadings. His joinder of Defendant Rooskens is timely under the rules. Additionally, the Plaintiff is a pro se litigant, and courts give pro se litigants leeway in reading their filings to ensure justice is achieved. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).

After considering all relevant factors in this case, this court recommends that the joinder of Defendant Rooskens be allowed because the balance of the equities weighs in the Plaintiffs favor. Brothers have not met their burden of showing the Plaintiff cannot possibly establish a claim against Defendant Rooskens to demonstrate fraudulent joinder. Defendant Rooskens’ joinder as part of the Plaintiffs First Amended Complaint was timely under Fed.R.Civ.P. 15. The Plaintiff would be significantly injured if possibly valid claims are not allowed by the court in order to preserve its own jurisdiction because Brothers removed this case. The recommended joinder of Defendant Rooskens destroys diversity in this case. This court recommends this case be remanded to state court as this court no longer has jurisdiction. If the district court is inclined to follow this recommendation, this court recommends the remaining pending motions cannot be ruled on as this court has no jurisdiction.

Conclusion

Wherefore, it is RECOMMENDED that Brothers’ Motion to Strike Plaintiffs First Amended Complaint (Dkt. No. 24) be DENIED. It is RECOMMENDED that Plaintiffs Motion For Remand (Dkt. No. 21) be GRANTED.

IT IS SO RECOMMENDED.

April 6, 2015. 
      
      . Facts are taken from the First Amended Complaint, and the Court assumes these facts are true for the purposes of the motions at issue.
     
      
      . The Brothers Defendants do no object to the Magistrate Judge’s finding that Plaintiff’s First Amended Complaint was timely under Rule 15. (Dkt. No. 34 at 11 n. 7). The Court agrees with the Magistrate Judge and adopts this portion of the R & R.
     
      
      . The standard for summary judgement is less stringent than the standard in the case at bar. Additionally, summary judgment is ruled on after discovery. The standard in the case at bar requires Brothers to show that there is no possibility the Plaintiff would be able to establish a claim.
     
      
      . See VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919 (2012) (concluding that Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff).
     
      
      . The court does not address the Plaintiffs other causes of action as it has found this cause of action to be viable.
     
      
      . There are two additional pending motions in this case, the'Plaintiff's Application To Proceed Without Prepayment Of Fees And Affidavit (Dkt. No. 17) and Brothers' Motion To Dismiss Plaintiff's First Amended Complaint (Dkt. No. 25).
     