Schrepfer v. Framatome CV-98-89-JD 01/07/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Judith A. Schrepfer

v. Civil No. 98-89-JD

Framatome Connectors USA, Inc.

O R D E R

Plaintiff Judith A. Schrepfer brought an action in state

court alleging claims against her former employer, Framatome

Connectors USA, Inc., for wrongful discharge and intentional

infliction of emotional distress. Framatome removed the action

to this court pursuant to

. Framatome now

moves to dismiss Schrepfer's claims (document no. 13). Schrepfe

moves to join two additional defendants (document no. 24.1), to

amend her complaint to add allegations and claims pertaining to

the two additional defendants (document no. 32), and to certify

guestion to the New Hampshire Supreme Court (document no. 37).

The parties' motions are resolved as follows. Background1

Judith Schrepfer began working for Framatome Connectors USA,

Inc., which was doing business as Burndy Electrical, in October

of 1988 as a collections analyst. She was an "at will" employee.

In March of 1996, Schrepfer noticed discrepancies in customers'

credit accounts and other new credit practices that Schrepfer

believed indicated that the company was defrauding its customers

of their credit accounts. When Schrepfer asked her supervisor,

James Vancor, the company's controller, about the company's new

credit practices, he told her either that the customer's account

was being taken care of or to mind her own business. In January

of 1997, Schrepfer reported the company's activities to the New

Hampshire Attorney General's office. In March, Schrepfer wrote

to the personnel director about the company's practices, which

she had reported to the Attorney General's office, and about

discrimination she perceived was directed against her. The

personnel director responded in a letter telling her that the

company would not retaliate against her.

Schrepfer was the senior credit analyst in the credit

department and the analyst with the most experience. She

believed that her repeated guestions about the company's credit

1The background information is taken from plaintiff's complaint and the parties' pleadings.

2 practices were seen as an impediment to implementing the new

credit policies. Schrepfer also felt that her supervisor,

Vancor, had tried for a long time to force her to guit her job by

excluding her from meetings, making nasty comments about

attorneys (Schrepfer's husband is an attorney), and by ignoring

her in the hallways.

Vancor hired a personal friend as supervisor of the credit

department without posting the position and then "schemed" with

the new supervisor to force Schrepfer from her job. The new

supervisor wrote on Schrepfer's evaluation that she was not

promotable, and when guestioned about the comment, the supervisor

said that Vancor told her to write it. The comment was later

removed.

The Attorney General began an investigation into

Schrepfer's complaint in March of 1997. As a result, Schrepfer

and other employees were guestioned about the company's credit

practices, and Schrepfer was ostracized by her fellow employees.

At the end of August of 1997, Schrepfer attended a meeting about

"dunning letters" that were to be sent to customers. Schrepfer

criticized the letters as "less than honest" versions of the

customers' accounts, and the meeting became heated as the others

at the meeting "ganged up" against her. When Schrepfer returned

to work after the Labor Day holiday, she was summoned to Vancor's

3 office where she was met by Vancor and the personnel director and

told that she was fired.

Schrepfer filed suit against Framatome in Hillsborough

County Superior Court by a writ dated January 20, 1998,

returnable in March of 1998, alleging claims for wrongful

discharge and intentional infliction of emotional distress.

Framatome removed the action to this court in February of 1998.

Schrepfer's subseguent motion to remand to state court was

denied. Thereafter, Framatome filed its answer with a

counterclaim against Schrepfer for breach of her duty of loyalty.

Discussion

Framatome moves to dismiss Schrepfer's wrongful discharge

and intentional infliction of emotional distress claims on the

merits, and alternatively, to dismiss her claims for personal

injury as barred by New Hampshire's workers' compensation

statute. Schrepfer moves to join as defendants, James Vancor and

John Mayo, controller and president of Framatome respectively,

and to amend her complaint to add allegations and claims against

each of them. She also moves to certify a guestion to the New

Hampshire Supreme Court to determine whether personal injury

damages are barred by the exclusivity provision of New

Hampshire's workers' compensation statute.

4 A. Plaintiff's Motions to Join and Amend

Plaintiff moves to join James Vancor and John Mayo as

defendants and to amend her complaint to add allegations and

claims against them for intentional infliction of emotional

distress, tortious interference with contractual relations, and

defamation. Defendant objects asserting that the motion to amend

is untimely.2 Defendant also argues that plaintiff's proposed

amendment and joinder should be denied because Vancor and Mayo

are, like plaintiff, citizens of New Hampshire so that their

joinder would destroy diversity subject matter jurisdiction in

this case which is predicated on

Complete diversity between adverse parties is necessary to

maintain subject matter jurisdiction in cases without a federal

guestion. See Caterpillar Inc. v. Lewis, 117 S. C t . 467, 472 n.l

(1996), Casas Office Machines, Inc. v. Mita Copvstar America,

2While defendant is correct that plaintiff failed to file a motion to amend that complied with the reguirements of the local rules within the time allowed by the scheduling order, in this case it would not be appropriate to deny plaintiff's motion due to her counsel's apparent lack of familiarity with federal court practice.

3Although plaintiff did not include a jurisdictional statement in her amended complaint, defendant states that both Vancor and Mayo reside in and are citizens of New Hampshire for jurisdictional purposes. Def. Obj. to Amended Motion to Amend at 3. As a result, the record includes sufficient information about citizenship to address the issue. C f . Gilberq v. Stepan Co.,

(D.N.J. 1998).

5 Inc.,

(1st Cir. 1994) . "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."

(e). Whether to allow joinder is a discretionary

decision guided by equitable factors that depend upon the

circumstances. See Hensqens v. Deere & Co,

, 1182

(5th Cir. 1987) (cited with approval in Casas Office Machines, 42

F .3d at 67 5 n .8).

The court's decision under section 1447(e) does not depend

on whether the additional party is dispensable or indispensable

as defined by Federal Rule of Civil Procedure 19 although the

options for disposition of the case are affected by the party's

status. See Casas Office Machines,

. When, as

here, parties subject to joinder are dispensable, "the district

court has the options, pursuant to § 1447(e), of denying joinder

and continuing its jurisdiction over the case, or permitting

joinder and remanding the case to state court." Id. at 675; see

also ARE Sikeston Ltd. Partnership v. Weslock Nat'l, Inc.,

(8th Cir. 1997). The court does not, however, have

an option to allow joinder of a nondiverse adverse party and

retain jurisdiction over the case. Id.; see also Ingram v. CSX

Transp., Inc.,

, 862 (11th Cir. 1998).

6 When a plaintiff seeks to name a new party by amending the

complaint after removal, the court "should scrutinize that

amendment more closely than an ordinary amendment" by considering

several factors "to balance the defendant's interests in

maintaining the federal forum with the competing interests in not

having parallel lawsuits." Hensqens, 833 F.2d at 1182; see also

Newcombe v. Adolf Coors Co.,

(9th Cir. 1998);

Gilberq v. Stepan Co,

(D.N.J. 1998);

Irizarry v. Marine Powers Int'l,

(D.P.R. 1994).

The factors to be considered in balancing the eguities for and

against permitting joinder are: "the extent to which the purpose

of the amendment is to defeat federal jurisdiction, whether

plaintiff has been dilatory in asking for amendment, whether

plaintiff will be significantly injured if amendment is not

allowed, and any other factors bearing on the eguities."

Hensqens, 833 F.2d at 1182.

Here, plaintiff moved unsuccessfully to have her case

remanded to state court for lack of diversity alleging that

Framatome's principal place of business was in New Hampshire.

Before the hearing on her motion to remand, plaintiff filed

motions to join Vancor and Mayo as defendants and then moved to

amend her complaint. Plaintiff argues in her motion to amend her

complaint that "recovery for emotional distress against the

7 employer depends on whether the suit is brought in the state

court or the federal court." PI. Am. Mot. Mem. at 3. She

explains that her claims against Vancor and Mayo should be

allowed in order to permit her to claim damages that would be

allowed in some state trial courts.

Plaintiff did not address the subject matter jurisdiction

issue presented by her motions to join Vancor and Mayo and to

amend her complaint although defendant discussed the issues in

objecting to plaintiff's motions. Plaintiff's intent appears to

be to destroy subject matter jurisdiction in this court in order

to return to state court. Plaintiff's motions to add Vancor and

Mayo are not so late in the proceedings as to be prejudicial, but

the timing strengthens an inference that the motions were merely

another effort to avoid federal court and the legal precedent

followed here.

With respect to the effect denying joinder would have on

plaintiff's claims, plaintiff may bring actions against the

individual defendants in state court, if she chooses to do so.

While parallel state and federal actions are not favored, the

circumstances here do not suggest significant prejudice to

plaintiff. As plaintiff has an opportunity to bring her claims

against the individual defendants in state court, denying her

motion to join them in this action would not cause her significant injury.

In addition, another consideration counsels against joinder.

Defendant contends that plaintiff's proposed amendment of her

complaint and joinder of Vancor and Mayo are futile as plaintiff

has failed to state viable claims against either. On the face of

plaintiff's proposed amended complaint, plaintiff's claims of

interference with contract, intentional infliction of emotional

distress, and defamation appear to be at least weak and very

likely susceptible to dispositive motions. Under these

circumstances, in fairness to defendant, it would not be prudent

to allow joinder and remand the case to state court.

Having considered and balanced the eguities of allowing

plaintiff's motions to join defendants and to amend her

complaint, the court denies the motions. As complete diversity

of the parties' citizenship continues, subject matter

jurisdiction remains in this court.

B. Plaintiff's Motion to Certify a Question

Plaintiff moves to certify a guestion to the New Hampshire

Supreme Court as to whether the exclusivity provision of the New

Hampshire workers' compensation statute, N.H. Rev. Stat. Ann.

("RSA") 281-A:8, bars recovery from an employer for emotional

distress damages caused by a wrongful discharge. Certification of a legal question to a state's highest court is a discretionary

decision. Lehman Bros, v. Shein,

(1974);

Nieves on behalf of Nieves v. University of Puerto Rico,

(1st Cir. 1993). "Certification is generally

appropriate when the legal question is novel and the state's law

on the question is unsettled." Hungerford v. Jones,

(D.N.H. 1997). When, however, state law is sufficiently

clear to guide the federal court's prediction of its course,

certification is an inappropriate burden on the state's highest

court. Armacost v. Arnica Mut. Ins. Co.,

(1st

Cir. 1993).

This court and other courts in this district have repeatedly

interpreted the exclusivity provision of New Hampshire's workers'

compensation statute, in light of New Hampshire Supreme Court

decisions, to bar claims against an employer seeking damages for

emotional distress. See, e.g., Censullo v. Brenka Video,

(1st Cir. 1993); Frechette v. Wal-Mart Stores,

(D.N.H. 1995); Bourgue v. Bow,

(D.N.H. 1990); Brewer v. K. W. Thompson Tool Co.,

(D.N.H. 1986). Given the well-established legal

precedent in this district, and no contrary intervening decisions

by the New Hampshire Supreme Court, the court declines to

exercise its discretion to certify plaintiff's proposed question

to the New Hampshire Supreme Court.

10 C. Defendant's Motion to Dismiss

Defendant moves to dismiss plaintiff's claims for wrongful

discharge and intentional infliction of emotional distress.

Because defendant has filed an answer, the motion to dismiss is

more properly considered as a motion for judgment on the

pleadings. See Fed. R. Civ. P. 7(a) and 12(c); see also Cooper

v. Thomson Newspapers, Inc.,

(D.N.H.

1998). The standard for motions pursuant to Federal Rules of

Civil Procedure 12(b)(6) and 12(c) are essentially the same.

Collier v. Chicopee,

(1st Cir. 1998) (citing

Lanigan v. Village of East Hazel Crest,

, 470 n.2

(7th Cir. 1997)). In both cases, the court affords "a generous

standard of appraisal," accepting all factual allegations in the

complaint as true and drawing all reasonable inferences in

plaintiff's favor. Collier,

; Santiago de Castro

v. Morales Medina,

(1st Cir. 1991). Therefore,

judgment will not be granted "unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson,

(1957); accord Feliciano v. Rhode Island,

(1st Cir. 1998) .

11 1. Wrongful Discharge Claim

Defendant argues that plaintiff's wrongful discharge claim

should be dismissed because it is based on a claimed violation of

New Hampshire's Whistleblowers' Protection Act, New Hampshire

Revised Statutes Annotated ("RSA") Chapter 275:E. Defendant

contends that the statutory rights preclude plaintiff's common

law cause of action. Defendant also argues that because

plaintiff did not exhaust administrative remedies provided by the

statute she is barred from maintaining her wrongful discharge

claim here. In addition, defendant moves to dismiss plaintiff's

claims for personal injuries including emotional distress.

As plaintiff points out, the statute explicitly preserves

common law causes of action. Section 275-E:5 provides: "No

Effect on Bargaining or Common Law Rights. This chapter shall

not be construed to diminish or impair either the rights of a

person under any collective bargaining agreement or any common

law rights." RSA 275-E:5 (Supp. 1997). Plaintiff alleges in

support of her wrongful discharge claim that defendant's decision

to fire her violated the policy of the Whistleblower's Act.

Plaintiff does not bring a claim under the Whistleblowers' Act.

C f . Soltani v. Smith,

(D.N.H. 1993)

(plaintiff's claim under the act barred for failure to exhaust

administrative remedies). Therefore, plaintiff's wrongful

discharge claim is not barred either by the Whistleblowers'

12 Protection Act or by her failure to exhaust administrative

remedies under the Act. See Bonczar v. Suburban Propane Gas

Corp., No. 94-68-B, slip op. at 13 (D.N.H. Sept. 30, 1996).

Plaintiff's claims for personal injury caused by wrongful

discharge are barred by RSA 281-A:8. See, e.g., Frechette,

. Accordingly, her claims against defendant for

personal injury are dismissed.

2. Intentional Infliction of Emotional Distress

Because RSA 281-A:8 bars actions against a plaintiff's

employer for personal injuries, including emotional distress,

defendant is entitled to judgment in its favor on plaintiff's

intentional infliction of emotional distress claim.

13 Conclusion

For the foregoing reasons, plaintiff's motions to join

(document no. 24.1), to amend (document no. 32), and to certify a

guestion (document no. 37) are denied. Defendant's motion to

dismiss (document no. 13) is granted as to plaintiff's claim for

intentional infliction of emotional distress and for personal

injuries due to wrongful discharge, but is otherwise denied as to

plaintiff's claim for wrongful discharge.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

January 7, 1999

cc: Paul A. Rinden, Esguire John J. A. Schrepfer, Esguire Lawrence M. Edelman, Esguire

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