United States District Court, W.D. Washington, Seattle
ORDER REMANDING ACTION TO KING COUNTY SUPERIOR
Honorable Richard A. Jones, United States District Judge.
matter comes before the Court on Defendant's Motion to
Dismiss (Dkt. # 14). For the reasons stated below, the Court
concludes that it does not have subject matter jurisdiction
over this matter. Defendant's Motion to Dismiss (Dkt. #
14) is therefore terminated and this matter is remanded to
King County Superior Court.
following is taken from Plaintiff's First Amended
Complaint (Dkt. # 13), which is assumed to be true for the
purposes of this motion to dismiss. Sanders v.
Brown, 504 F.3d 903, 910 (9th Cir. 2007). Plaintiff
Patrick Kelley (“Mr. Kelley” or
“Plaintiff”) was employed by Defendant the Boeing
Company (“Boeing”) for 32 years, until August
2018, when he was terminated. Dkt. # 13 at ¶ 2.2.
According to Mr. Kelley, he was terminated in retaliation for
statements he gave as a witness in an internal ethics
investigation into wage complaints filed by two former Boeing
employees. Id. at ¶¶ 3.11-3.12.
November 2017, Mr. Kelley was employed as Boeing's
Director of Supplier performance. Id. at ¶
2.35. Part of his responsibilities included assigning
individual performance scores (“performance
scores”) for the employees reporting to him.
Id. These performance scores heavily impacted
employee annual compensation packages and long-term incentive
payouts. Id. Mr. Kelley reported to Defendant Brian
Baird (“Defendant Baird”) who was responsible for
reviewing and approving all of the performance scores Mr.
Kelley assigned. Dkt. # 13 at ¶ 2.36.
2017, Mr. Kelley reviewed two Boeing employees, Robert
Thornton and Daniel Tulcan (the “employees”).
Dkt. # 13 at ¶ 2.37. Mr. Kelley assigned the employees
high performance scores, but upon review, Defendant Baird
lowered the scores for both employees, resulting in a
“significantly reduced” annual compensation
package for both men. Dkt. # 13 at ¶ 2.40. After
learning of the changes to the employees' performance
scores, Mr. Kelley confronted Defendant Baird and asked why
he lowered the scores. Id. at ¶ 2.43. Defendant
Baird indicated that he lowered the scores because he
believed the employees were “surplus” and he
intended to terminate them. Id. Mr. Kelley told
Defendant Baird that he thought his decision was unethical.
Id. According to Mr. Kelley, Defendant Baird
“responded heatedly.” Dkt. # 13 at ¶ 2.43.
early 2018, the employees filed an internal ethics complaint
against Defendant Baird, alleging that the reduction in their
performance scores was improper. Dkt. # 13 at ¶¶
2.44-2.45. Boeing initiated an ethics investigation into both
complaints and interviewed Mr. Kelley regarding Mr.
Thornton's complaint. Id. at ¶ 2.48. Mr.
Kelley told the investigator that he believed Defendant Baird
acted unethically when he lowered Mr. Thornton's
performance score. Id. Boeing closed the
investigation in May/June of 2018 and two months later, Mr.
Kelley was terminated. Id. at ¶¶
cited several old Human Resources allegations as the basis
for Mr. Kelley's termination. Dkt. # 13 at ¶ 2.54.
Mr. Kelley contends that these complaints were never
communicated to him and they are a pretext for the real
retaliatory basis for his termination - the concerns he
raised regarding Defendant Baird's misconduct. Dkt. # 13
at ¶ 3.15.
Kelley initially brought this suit in King County Superior
Court, alleging wrongful termination against Boeing and
Defendant Baird (collectively the “Defendants”)
and breach of implied contract, estoppel, and wrongful
withholding of wages against Boeing. Dkt. # 1, Ex. A.
Defendants later removed the case to federal court. Dkt. # 1.
In the Notice of Removal, Defendants allege that removal is
proper under 28 U.S.C. § 1332 even though Defendant
Baird is a resident of Washington, because Defendant Baird
was fraudulently joined. Id. Mr. Kelley filed an
amended complaint, including additional allegations against
Defendant Baird. Dkt. # 13. Defendants now move to dismiss
the entirety of Mr. Kelley's amended complaint for
failure to state a claim. Dkt. # 14.
Court may raise the issue of subject matter jurisdiction
sua sponte at any time during an action.
Allstate Indem. Co. v. Pacheco, No. 3:14-cv-05366-KLS,
2014 U.S. Dist. LEXIS 150069, *11 (W.D. Wash. 2014); Fed. R.
Civ. Proc. 12(h)(3) (“If the court determines at any
time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). Absent jurisdiction, any
determination on the merits would be void. Watts v.
Pickney, 752 F.2d 406, 409 (9th Cir. 1985).
it appears that Mr. Kelley and Defendant Baird are both
residents of Washington. Diversity jurisdiction typically
requires complete diversity, but “one exception to the
requirement for complete diversity is where a non-diverse
defendant has been fraudulently joined.” Morris v.
Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001). Defendants argue that the Court has subject matter
jurisdiction over this matter because Defendant Baird is a
fraudulently joined “sham defendant” and any
claims against Defendant Baird should be dismissed. Dkt. # 1
“sham defendant” or “fraudulent
joinder” doctrine is an exception to the requirement of
complete diversity that permits removal where a non-diverse
defendant has been “fraudulently joined.”
See, e.g., Morris v. Princess Cruises, Inc., 236
F.3d 1061, 1067 (9th Cir. 2001). “Fraudulent joinder is
a term of art and does not require an ill motive.”
Arden v. Property and Cas. Ins. Co. of Hartford, No.
C13-5296 BHS, 2013 WL 3421986 at *2 (W.D. Wash. July 8,
2013). Rather, joinder is deemed fraudulent where a plaintiff
fails to state a cause of action against the resident
defendant can establish fraudulent joinder by demonstrating
the “inability of the plaintiff to establish a cause of
action against the non-diverse party in state court.”
Hunter v. Philip Morris USA, 582 F.3d 1039, 1044
(9th Cir. 2009) (quotingSmallwood v. Illinois
Central R.R. Co., 385 F.3d 568 (5th Cir. 2004) (en
banc)). “A merely defective statement of the
plaintiff's action does not warrant removal[.]”
Albi v. St. & Smith Publications, 140 F.2d 310,
312 (9th Cir. 1944). “In borderline situations, where
it is doubtful whether the complaint states ...