UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Martin T. Quigley

v. Case No. 16-cv-90-PB Opinion No.

Precision Castparts Corp., et al.

MEMORANDUM AND ORDER

In January 2016, New Hampshire resident Martin Quigley

filed a lawsuit in New Hampshire state court against his former

employer, Precision Castparts Corp., an Oregon corporation.1

Along with Precision, Quigley named a host of other defendants,

including two of Precision’s subsidiaries, eight named

individuals, and ten unnamed “Doe Defendants.” Relevant here,

all of these defendants reside outside New Hampshire except one:

Joshua Durand, the Bow, NH-based Human Resources Manager of

Precision subsidiary PCC Structurals, Inc.

1 Quigley appears to have worked at various times for Precision Castparts, Wyman-Gordon Investment Castings, Inc. (Wyman), and PCC Structurals, Inc. (Structurals), all named defendants here. See Doc. No. 1-1 at 4-9. According to the complaint, Wyman and Structurals are “wholly owned subsidiar[ies]” of Precision. Id. at 4-5. For simplicity, I refer to the corporate and individual defendants as “Precision” in this order, except where specified. In March 2016, Precision removed the case to this court,

invoking the court’s diversity jurisdiction.2 See

(diversity); 1446 (removal). It noted that “all corporate

and individual defendants, with the sole exception of Durand,

are citizens of different states.” Doc. No. 1 at 2. Precision

argued that Durand’s presence in the suit did not destroy

diversity jurisdiction because there was “no reasonable

possibility that the state’s highest court would find that the

complaint states a cause of action against [Durand].”

(citing Universal Truck & Equip. Co. v. Southworth-Milton, Inc.,

(1st Cir. 2014)). The next month, Quigley

moved to remand the case to state court. Doc. No. 8.

I. BACKGROUND

A. Quigley’s Lawsuit

Quigley asserts a variety of state law claims related to

his prior employment at Precision and two of its subsidiaries,

Wyman-Gordon Investment Castings, Inc. (Wyman) and PCC

Structurals, Inc. (Structurals). He alleges that he was

2 Removal appears to have been timely, since the notice of removal was filed within 30 days of Precision’s receipt of service of the complaint. See

(b). The defendants also appear to have unanimously consented to removal. See Doc. No. 1 at 1; see also Esposito v. Home Depot U.S.A., Inc.,

(1st Cir. 2009) (discussing the requirement of defendant unanimity in removal cases). 2 subjected to a hostile environment while working as the Vice

President of Sales at Wyman’s Cleveland facility from April 2012

to March 2014. Doc. No. 1-1 at 6. Quigley eventually requested

a transfer to Wyman’s location in Millbury, MA.

Rather

than accommodate his request, however, Precision allegedly

forced Quigley to undergo “internal interviews and testing”

before reassigning him in March 2014 to Structurals’ Tilton, NH

facility under a six-month probationary agreement.3 Id. at 6-7.

Quigley claims that he was “routinely coerced into

partaking in business practices that he found unethical and

illegal” throughout his tenure at Precision. Id. at 7. For

example, Quigley alleges that Precision engaged in “extortion of

customers, sale of unqualified products, insurance fraud and

price fixing schemes.” Id. According to Quigley, Precision

executives condoned verbal and physical abuse towards Quigley as

3 The complaint does not describe in any detail the corporate structure linking Precision – ostensibly the parent company – to Wyman and Structurals, both of which are Precision’s “wholly owned subsidiar[ies].” See Doc. No. 1-1 at 4-5. Nor do the parties discuss the significance, if any, of Precision’s corporate structure to this case. Cf. United States v. Bestfoods,

(1998) (Souter, J.) (Noting that “[i]t is a general principle of corporate law . . . that a parent corporation . . . is not liable for the acts of its subsidiaries”); but see Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic & Commerce Ass'n,

(1918) (allowing piercing of the corporate veil when a subsidiary is “used as a mere agency or instrumentality of the owning company”). 3 a part of Precision’s “culture” as a “full contact company.”

Id. at 8.

Due to the hostile work environment he was forced to

endure, Quigley soon began suffering from high levels of stress

and anxiety. Id. In July 2014, his doctors recommended a six-

month leave of absence and advised him to avoid stressful

environments. Id. The next month, Quigley contacted defendant

John Erickson, a Senior Vice President at Precision, to discuss

his health issues and request a leave of absence. Id. at 9.

Erickson assured Quigley that he would only share information

about Quigley’s health issues with other senior executives and

human resources personnel, but to Quigley’s dismay, Erickson and

other unnamed defendants disclosed his health information to

“other employees, to customers, and to others in the aerospace

industry.” Id. This disclosure humiliated Quigley and impeded

his ability to find other employment at a similar level of

compensation. Id.

During this period, Quigley continued to pursue a leave of

absence. Defendant Brian Keegan, Precision’s Senior Corporate

Director of Employee Relations, told Quigley that, among other

things, he qualified for six months of disability coverage

through the health insurer Cigna. Id. Quigley began filling

out paperwork for Cigna and invested “large amounts of time and

4 money” in the process. Id. At some point, however, he was told

that the “Corporate Defendants, Defendant Durand, and Defendant

Keegan, had all misinformed [Quigley] about [his] eligibility

for coverage.” Id. Cigna then denied his coverage. Id. This

“two-month long process” caused Quigley “further emotional and

physical distress and significant out-of-pocket expenses.” Id.

In addition to misleading Quigley about his disability

coverage, the “Defendants . . . jointly decided to conduct a

sham investigation” to force him from his job. Id. at 10.

According to Quigley, this “sham investigation” served as a

“pretext for their firing” him. Id. at 11. In November 2014,

Quigley was placed on unpaid leave status pending

“investigations into suspected violations of his probationary

agreement,” and the next month, Quigley’s employment was

terminated. Id. at 10-11.

In January 2016, Quigley filed this lawsuit, bringing ten

claims under New Hampshire law. Not all claims are directed at

each defendant; some apply to various corporate defendants,

others to “All Defendants.” See id. at 11-16. Quigley asserts

only four claims against Durand: breach of fiduciary duty, civil

conspiracy, intentional infliction of emotional distress, and

negligent infliction of emotional distress. See id. at 13-16.

5 B. Facts Relevant to Durand

Durand is only briefly mentioned in the complaint. He is

listed as one of several individual defendants, along with his

Bow, NH address and role as Structurals’ Human Resource Manager.

Id. at 5. Later in the complaint, Quigley alleges that

“Defendants” – including, presumably, Durand – improperly

disclosed his confidential health information to employees,

customers, and others in the aerospace industry. Id. at 9. He

argues in a memorandum supporting his motion that Durand’s

position as Human Resource Manager gave him access to Quigley’s

health information, and Durand breached his duty to keep that

information private. See Doc. No. 8-1 at 2.

Quigley further explains that “Defendant Durand” and other

Precision administrators “misinformed” him about his eligibility

for disability coverage under Cigna’s policy. Doc. No. 1-1 at

9. This misinformation caused him to undergo an “expensive,

stressful, and ultimately futile two-month long process,” which

led to “further emotional and physical distress and significant

out-of-pocket expenses.” Id. Finally, Quigley claims that the

“Defendants” – again, presumably including, but not naming,

Durand – “jointly decided to conduct a sham investigation to

force [Quigley] from his job and prevent him from becoming a

whistleblower.” Id. at 10. Because Durand was Structurals’

6 Human Resource Manager, Quigley argues, Durand “was in a

position to participate in said civil conspiracy to accomplish

the object of unlawfully terminating [Quigley’s] employment,

either directly or indirectly.” Doc. No. 8-1 at 5. Beyond

these allegations, Quigley does not make any further reference

to Durand.

In its opposition to Quigley’s motion to remand, Precision

filed an affidavit from Durand. Doc. No. 9-2. In that

affidavit, Durand alleged that his office in Tilton did not

maintain Quigley’s medical records. Id. at 2. He noted that he

did not review Quigley’s medical records in connection with

Quigley’s leave of absence, and never disclosed anything about

Quigley’s health to anyone inside or outside the company. Id.

With respect to the company’s disability policy with Cigna,

Durand alleged that Precision executive Brian Keegan asked him

to provide Keegan with a copy of the policy. Id. Durand

complied. Id. According to Durand, he made no representations

to Quigley about his eligibility for disability benefits and was

not responsible for assisting Quigley in receiving benefits.

Id. Finally, Durand alleged that he had no discussions about

Quigley’s termination; was not aware of any investigation

conducted against Quigley; and never agreed to “act in concert”

with anyone conducting a “sham investigation.” Id. at 3.

7 II. ANALYSIS

Quigley’s motion to remand turns on whether he properly

joined Durand as a defendant when he filed his state court

complaint.

A defendant may not remove a case to federal court unless

the court has subject matter jurisdiction to consider the case.

See

; Mills v. Harmon Law Offices, P.C.,

(1st Cir. 2003). Here, jurisdiction is based on the

diversity of citizenship statute, which ordinarily requires that

“the citizenship of each plaintiff is diverse from the

citizenship of each defendant.” Caterpillar Inc. v. Lewis,

(1966) (emphasis added); see

(a).

An unflinching application of the complete diversity

requirement, however, would allow any plaintiff who wanted to

keep a case in state court to defeat the removal of an otherwise

diverse case merely by adding bogus claims against a nondiverse

defendant. To address this problem, courts developed the

doctrine of “fraudulent joinder,” which permits courts to

disregard the citizenship of a fraudulently joined defendant

when determining whether diversity of citizenship exists. See

13F Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Fed. Prac. & Proc. Juris. § 3641.1 (3d ed. 2009).

8 Although fraudulent joinder can be proved with evidence

that “there has been outright fraud in the plaintiff’s pleading

of jurisdictional facts,” Jenner v. CVS Pharmacy, Inc.,

, at *1 (D.R.I. March 22, 2011), it can also be

established by a showing that “there is no reasonable

possibility that the state’s highest court would find that the

complaint states a cause of action upon which relief may be

granted against the non-diverse defendant,”4 Universal Truck &

Equip. Co., 76 F.3d at 108. Precision does not claim that

Quigley acted with fraudulent intent in pressing his claims

against Durand. Instead, Precision asserts that Durand was

improperly joined because there is no reasonable possibility

that the New Hampshire Supreme Court would find that Quigley has

stated a viable claim against him. When evaluating this

argument, I “must necessarily look to the pleadings standards

applicable in state court, not the plausibility pleading

standards prevailing in federal court.” Stillwell v. Allstate

Ins. Co.,

(11th Cir. 2011).

4The term “fraudulent joinder” has been characterized as “something of a misnomer” because it does not necessarily require a removing defendant to “prove that the plaintiff intended to mislead or deceive.” Lawrence Builders, Inc. v. Kolodner,

(D.R.I. 2006); Grennell v. W. S. Life Ins. Co.,

(S.D.W. Va. 2004). As a result, some courts employ the term “improper joinder” instead. See, e.g., African Methodist Episcopal Church v. Lucien,

(5th Cir. 2014). 9 In determining whether a complaint states a viable claim

for relief, a New Hampshire state court must “rigorously

scrutinize the complaint to determine whether, on its face, it

asserts a cause of action.” Jay Edwards, Inc. v. Baker,

(1987). All properly pleaded allegations are

assumed to be true and all reasonable inferences that can be

drawn from the allegations are construed in the light most

favorable to the plaintiff. Snierson v. Scruton,

(2000). In the end, if the pleadings “are reasonably

susceptible of an interpretation that would permit recovery,”

the case should not be dismissed.

Quigley asserts claims against Durand for breach of

fiduciary duty, civil conspiracy, intentional infliction of

emotional distress, and negligent infliction of emotional

distress. See Doc. No. 1-1 at 13-16. All four claims are based

on Quigley’s contentions that Durand, either on his own or in

concert with others, (1) improperly disclosed Quigley’s

confidential health information to the public; (2) supplied

Quigley with misleading information about his eligibility for

disability benefits; and (3) conducted a “sham investigation”

into his work that ultimately served as a pretext for his

termination. See

The problem with all of these contentions

is that Quigley does not plead sufficient facts in support of

10 his claims to justify anything other than a purely speculative

conclusion that Durand was a culpable participant in any

wrongdoing.

Quigley alleges that Durand was “the Human Resource

Manager” of Structurals, the Precision subsidiary where Quigley

worked immediately prior to his dismissal. Id. at 5. He also

claims that “the Corporate Defendants, Defendant Durand and

Defendant Keegan, had all misinformed Plaintiff about

Plaintiff’s eligibility for coverage under the Cigna disability

policy.” Id. at 9. To the extent that Quigley otherwise

alleges wrongdoing by Durand, he does so only with conclusory

allegations that “Defendants” as a group committed the acts that

give rise to his claims. See generally id. at 3-11. In a

memorandum he filed in support of his motion to remand, Quigley

then argues that it is reasonable to conclude that Durand was a

culpable participant in the defendants’ alleged misconduct

because of his position as Structurals’ Human Resource Manager.

See Doc. No. 8-1 at 4.

I am unpersuaded by Quigley’s argument. To state a viable

claim against Durand under New Hampshire law, Quigley must do

more than merely assert that he was mistreated at his workplace

and that Durand must have been involved because he served as the

Human Resource Manager of a Precision subsidiary. Although

11 Quigley claims that Durand is liable for breach of fiduciary

duty for leaking Durand’s confidential medical information, he

fails to cite any fact other than Durand’s job title to support

his claim that Durand either leaked the information himself or

was a culpable participant in leaking by others. He similarly

claims that Durand participated in a conspiracy to use a “sham

investigation” to force his termination but supplies no

supporting facts that would justify his claim that Durand was a

culpable participant in the conspiracy. Quigley does not

identify the specific conduct that supports his intentional and

negligent infliction of emotional distress claims against

Durand, but to the extent that the claims are based on a

contention that Durand supplied misleading information to

Quigley about his eligibility for disability benefits, it does

not come close to alleging conduct by Durand that is sufficient

to support either claim. Cf. Tessier v. Rockefeller,

(2011) (requiring “extreme and outrageous conduct”

to state a claim for intentional infliction of emotional

distress and, among other things, “serious mental and emotional

harm accompanied by objective physical symptoms” to state a

claim for negligent infliction of emotional distress).

Accordingly, even under the liberal pleading standards that

prevail in New Hampshire state courts, there is no reasonable

12 possibility that the New Hampshire Supreme Court would find that

Quigley has stated a viable claim against Durand. I therefore

agree with Precision that Durand should be dismissed as a

defendant and that Quigley’s motion to remand should be denied.

III. CONCLUSION

In sum, Precision has met its burden of showing that

Quigley’s joinder of Durand was improper. Accordingly, I deny

Quigley’s motion to remand (Doc. No. 8), dismiss Durand from the

suit, and retain jurisdiction over the case. See Johnson v. Am.

Towers, LLC,

(4th Cir. 2015) (allowing

district courts to “disregard, for jurisdictional purposes, the

citizenship of certain nondiverse defendants, assume

jurisdiction over a case, dismiss the nondiverse defendants, and

thereby retain jurisdiction”).

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 14, 2016

cc: Earl Kalil, Jr., Esq. William Saturley, Esq. Joseph Russell, Esq. Debra Weiss Ford, Esq. Martha Van Oot, Esq.

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