Opinion
No. 02-73360
December 16, 2002
OPINION AND ORDER
Plaintiff, Vera Klink, was an employee of Defendant Metavante Corporation and was terminated over what she claims was a retaliatory discharge for her support of a fellow employee involved in controversy surrounding a claimed access to confidential information. On June 24, 2002, she filed a one-count complaint in Washtenaw County Circuit Court for retaliatory discharge in violation of the Michigan Elliott-Larsen Civil Rights Act ("MELCRA") MCLA 37.2101, et seq. She named her individual supervisors, Michael Sullivan and Kathy Flether, as well as her employer, Metavante, as Defendants. (Ms. Flether has never been served.) Plaintiff, Mr. Sullivan, and Ms. Flether are all citizens of Michigan.
On August 9, 2002, the Court of Appeals for the State of Michigan held for the first time in Jager v. Nationwide Truck Brokers, Inc., 652 N.W.2d 503 (Mich.App. 2002), that the MELCRA was not intended to allow for suits against individual supervisors for violation of civil rights. Rather, only an employer can be held liable for civil rights violations. Accordingly, on August 19, 2002 — ten days after theJager opinion — Defendant Metavante removed this case to federal court arguing diversity jurisdiction. According to Metavante, because Mr. Sullivan (and Ms. Flether should she ever be served) must be dismissed from this litigation (because there is no individual liability for supervisors under MELCRA pursuant to Jager), there is now complete diversity. While Plaintiff is a resident from Michigan, Metavante is a Wisconsin corporation. (The amount of controversy is also over $75,000.) Therefore, Defendants maintain that this action should stay in federal court based on diversity jurisdiction and that individual supervisors Mr. Sullivan and Ms. Flether were joined by Plaintiff to defeat diversity jurisdiction. Defendants have filed a motion to dismiss Mr. Sullivan (and Ms. Flether should she ever be served) from this litigation based on the recent case Jager.
Plaintiff has filed a motion to remand this case back to state court. Plaintiff correctly argues that when she initially filed the suit in June 2002, Defendants Sullivan and Fletcher were arguably proper Defendants. Indeed, in Kundrot v. Park Davis Division of Warner Lambert Company, 43 F. Supp.2d 759 (E.D. Mich. 1999), the court rejected the defendants' argument that the individual supervisors were fraudulently joined in an effort to defeat diversity jurisdiction because at that time (in 1999) individual supervisors could, in fact, be held liable under the MELCRA. However, on August 9, 2002, the Michigan appellate court clarified the law and held in Jager that individual supervisors such as Mr. Sullivan and Ms. Fletcher could not be held individually liable under MELCRA.
On September 3, 2002, Plaintiff filed her First Amended Complaint where she added a second count under state law against Mr. Sullivan and Ms. Flether for violations of public policy. Plaintiff argues that, independent of Jager which only concerns MELCRA, Mr. Sullivan and Ms. Fletcher are now proper Defendants under this second count. Defendants have filed a motion to dismiss this second count for failure to state a claim. Defendants also argue that this second count was added only to fraudulently defeat diversity jurisdiction because it is so untenable. Thus, before the Court are (1) Plaintiffs motion to remand; (2) Defendants' motion to dismiss Mr. Sullivan; and (3) Defendants' motion to dismiss count two for failure to state a claim. While this case presents an interesting jurisdictional issue, after much thought, the Court concludes that Plaintiffs motion to remand should be denied, and Defendants' motions to dismiss granted.
II. LAW AND ANALYSIS
A. Motion to Remand
Plaintiff argues that we should remand her ease to state court. She correctly explains that she did not fraudulently add her supervisors Mr. Sullivan and Ms. Fletcher as Defendants in this litigation to defeat diversity jurisdiction. When she filed her original complaint in June of 2002 (which was served on July 24, 2002), some eases had held that individual supervisors could be held liable under the MELCRA. See Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich. App. 785, 799-800 (1985); Kundrot, supra. Defendants, however, note that the law supporting this position was ill reasoned, wrong, and controversial and that "the state of the law" was really what Jager definitively held on August 9, 2002. At the hearing on December 6, 2002, defense counsel emphasized that, pursuant to 28 U.S.C. § 1446 (b), he had thirty days to remove the ease once he received the Complaint on July 24, 2002. Because Jager was decided within those thirty days and merely clarified the law, he argues that the Complaint was timely removed based on diversity jurisdiction. In other words, when Plaintiff filed her Complaint in June 2002, the correct interpretation of the law was that individual supervisors could not be held liable under MELCRA, even though there was case law stating otherwise. Because the law was clarified in August 2002 — within thirty days of being served with Plaintiff's Complaint — the Court finds that Defendants properly removed their case to federal court.
Defendants' alternative argument that the federal removal statute specifically contemplates that a lawsuit not initially removable within the first thirty days may become removable through subsequent developments is not persuasive. The removal statute states:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.28 U.S.C. § 1446(b) (emphasis added). Defendants then assert that theJager opinion constitutes "other paper" which changed the law affecting removability, thereby rendering the case removable within thirty days of the Jager opinion. Because Defendants removed the case within thirty days of the Jager opinion, they argue that, independent of the state of the law when Plaintiff initially filed her Complaint, this subsequent development has made the case properly removable under diversity jurisdiction. While at first blush this seems a convincing argument, cases have interpreted "other paper" not to be an intervening change in the law. See, e.g., Kocaj v. Chrysler Corp., 794 F. Supp. 234, 236-37 (E.D. Mich. 1992) (listing cases); Phillips v. Allstate Ins. Co., 702 F. Supp. 1466, 1468-69 (C.D. Cal. 1989) (holding that "paper" does not include intervening statutory or case law changes); Johansen v. Employee Benefit Claims, Inc., 668 F. Supp. 1294, 1296-97 (D. Minn. 1987) (stating that the phrase "or other paper" refers solely to documents generated within the state court litigation itself); Johnson v. Trans World Airlines, Inc., 660 F. Supp. 914 (C.D. Cal. 1987) (noting that Supreme Court decision allowing removal of ERISA preempted cases was not "other paper"). However, in the case sub judice, Defendants removed the Complaint within the initial thirty days of being served. Because Jager clarified the law within those initial thirty days, Defendants' removal was proper.
B. Defendants' Motions to Dismiss
Based on Jager, it is clear that Mr. Sullivan (and Ms. Fletcher should she be served) cannot be held liable under the MELCRA. Plaintiff does not really argue otherwise, except for emphasizing that the state of the law is still unclear and that the Michigan Supreme Court could reverseJager. Nonetheless, at this stage of the litigation, it is clear that the state of law in Michigan is that individual supervisors cannot be held personally liable under the MELCRA.
After the Jager decision was released and after Defendants' removal of the case, Plaintiff filed an Amended Complaint alleging that the individual supervisors are responsible for terminating Plaintiff in violation of the public policy of the State of Michigan as codified by the MELCRA. While the Michigan courts recognize a claim for termination in violation of public policy where an employee acts in accordance with a statutory right of duty, the MELCRA already encompasses a prohibition against retaliatory discharge. In fact, this MELCRA retaliatory discharge claim is Plaintiffs count one. In essence, Plaintiffs count two adds nothing new, and was, in fact, added to defeat diversity jurisdiction, because there is no way Plaintiff can prevail under this (repetitive) theory. See Dudewicz v, Norris Schmid, Inc., 443 Mich. 68, 79 (1993) (denying plaintiffs public policy claim finding that the existence of a specific prohibition against retaliatory discharge was already in the Whistleblowers' Protection Act); Vagts v. Perry Drugstores, 204 Mich. App. 481, 485 (1994) ("where a statute confers upon a victim of retaliation the right to sue, that person may not also assert a claim of discharge in violation of public policy"). In other words, as Defendants characterize it, the specific statutory provision prohibiting retaliatory discharge "preempts" a public policy theory. Thus, count two fails to state a claim for which relief can be granted.
Plaintiff articulates a novel but unsuccessful argument: If the State of Michigan would find no liability for individual supervisors under the MELCRA, then liability for termination in violation of public policy would be a viable cause of action as to the individual Defendants because there is no statutory remedy. Plaintiff, of course, cites no authority for this proposition. And, as Defendants point out, such a theory would result in absurd lawsuits. If, as held by Jager, the MELCRA disallows a statutory claim against individual supervisors who violate a Plaintiff's civil rights, then there is no "public policy" codified under MELCRA against an individual supervisor discriminating against a person. The remedy for Plaintiff for a retaliatory discharge is against her corporate employer. That is the public policy of MELCRA. Thus, Defendants' motion to dismiss count II is granted.
As Defendants explain, if Plaintiffs theory were legitimate, then a person could sue for a public policy violation of MELCRA for sexual orientation discrimination or for punitive damages, even though the MELCRA does not prohibit discrimination based on sexual orientation or allow for punitive damages. If the statute does not prescribe some act, then there cannot be a corresponding public policy violation.
ORDER
It is hereby ORDERED that Plaintiffs motion for remand is DENIED. Defendants' motions to dismiss Mr. Sullivan and dismiss count II are GRANTED.