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June 9, 2005.


The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge



This action was referred to the undersigned by Honorable Richard J. Arcara on May 25, 2004 for all pretrial matters. The matter is presently before the court on Plaintiff's motion, filed November 26, 2004, to remand the action to New York Supreme Court. (Doc. No. 12).*fn1


  Plaintiff Vincent DePalma ("Plaintiff"), a New York resident, commenced this employment action against Defendants Home Depot U.S.A., Inc. ("Home Depot"), a Delaware corporation with its principal place of business in Georgia, and Victoria Juda ("Juda"), a New York resident, on April 21, 2004, in New York Supreme Court, Erie County. Specifically, Plaintiff alleges that his employment as the plumbing department manager at Defendant Home Depot's store located at 2065 Niagara Falls Boulevard in Amherst, New York ("Home Depot's Amherst store"), was wrongfully terminated based on allegations made by his former supervisor, Defendant Juda, that Plaintiff had violated company policy in disregarding Home Depot's markdown policy. Plaintiff asserts three claims for relief including (1) breach of implied employment contract; (2) defamation of character per se; and (3) detrimental reliance.

  On May 17, 2004, Defendants removed the action to this court, asserting complete diversity of the parties as the basis for federal jurisdiction. Notice of Removal ("Removal Notice") (Doc. No. 1), ¶¶ 8-12. According to Defendants, although Juda, like Plaintiff, is a New York resident, none of the asserted claims for relief can be maintained against Juda who was fraudulently joined as a defendant to defeat diversity jurisdiction. Removal Notice ¶¶ 13-17.

  On November 16, 2004, Plaintiff filed a motion to remand the matter to New York Supreme Court, Erie County. (Doc. NO. 12).*fn2 The motion is supported by the attached Affirmation of Howard A. Chetkof, Esq. ("Chetkof Affirmation"), and the accompanying Memorandum of Law in Support of Plaintiff's Motion for Removal [sic] (Doc. No. 13) ("Plaintiff's Memorandum"). On December 9, 2004, Defendants filed in opposition to Plaintiff's motion Defendants' Opposition to Plaintiff's Motion to Remand (Doc. No. 15) ("Defendants' Memorandum"), and the Affidavit of Natalie Sherman in Support of Defendants' Opposition to Plaintiff's Motion to Remand (Doc. No. 16) ("Sherman Affidavit"). Plaintiff did not file anything in further support of the remand motion. Oral argument was deemed unnecessary.

  Based on the following, Plaintiff's motion to remand is DENIED.


  Plaintiff commenced employment with Defendant Home Depot on September 10, 1994, and worked at various Home Depot stores in New York, including stores located in Ozone Park, West Seneca, Lockport and, most recently, Amherst, where Plaintiff worked from March 2002 until January 21, 2003 when he was terminated for violating store policy and insubordination. In particular, On December 27, 2002, Plaintiff disposed of "WATTS" packages*fn4 at Home Depot Store # 1233, allegedly in accordance with Home Depot's policy. Complaint ¶ 20. Thereafter, on January 21, 2003, Defendant Juda confronted Plaintiff regarding the disposal of "WATTS" packages, alleging such disposal was contrary to Home Depot's policy requiring the return of such "WATTS" packages to the appropriate vendor for store credit. Complaint ¶ 21. Plaintiff initially denied, but later admitted, disposing of the WATTS packages. Plaintiff insisted that in his position as a department manager, he was authorized to decide what to do with such packages. Juda considered such statements as insubordination and demonstrated a lack of "integrity." Because such conduct was inappropriate for a department supervisor, Juda discharged Plaintiff on January 21, 2003.

  Following termination of his employment, Plaintiff encountered difficulty attempting to secure other employment. Plaintiff attributes his difficulty in obtaining other employment to the fact that, upon interviewing for another employment position, the prospective employers would contact Home Depot to inquire as to Plaintiff's suitability for employment, at which time the person contacted at Home Depot would advise the prospective employer that Plaintiff had been terminated for "insubordination" and "lack of integrity." Complaint ¶ 31.


  Removal of a state court proceeding to federal court is provided for under 28 U.S.C. § 1441(a) which states in pertinent part:
any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Because federal courts are courts of limited jurisdiction, and as removal of a case raises issues of federalism, removal statutes are narrowly construed and doubts are resolved against removal. Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991). The removal statute is construed according to federal law. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941); Somlyo, supra, at 1047. Whether an action is removable based on diversity jurisdiction is determined upon the pleadings as originally filed. Crucible Materials Corporation v. Coltec Industries, Inc., 986 F.Supp. 130 131-32 (N.D.N.Y. 1997). Accordingly, 28 U.S.C. § 1441(a) permits removal of only those actions which originally could have been filed in federal district court. Id. Further, it is the removing party's burden to demonstrate the existence of federal jurisdiction. United Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) ("Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper. . . ."). "A case is removable when the initial pleading `enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short and plain statement of the grounds for removal as required by 28 U.S.C. § 1446(a).'" Whitacker v. American Telecasting, Inc., 261 F.3d 196, 205-06 (2d Cir. 2001) (quoting Richstone v. Chubb Colonial Life Ins., 988 F.Supp. 401, 403 (S.D.N.Y. 1997)) (internal citation and bracketed text omitted). Nevertheless, "a plaintiff may not defeat a federal court's diversity jurisdiction and a defendant's right of removal by merely joining as defendants parties with no real connection with the controversy." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998) (citations omitted). To show that a non-diverse defendant was improperly joined to defeat diversity, "a defendant must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff's pleadings, or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court." Pampillonia, supra, at 461. "The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of the plaintiff." Id.

  In the instant case, Defendants removed the matter to this court on the basis of complete diversity, asserting that other than asserting that Juda is a New York resident, all three of Plaintiff's causes of action are asserted against both Defendants collectively, that no particular allegations in the Complaint are relevant to Juda, that Plaintiff does not allege that Juda participated in any purported improper acts and fails to allege any activity by Juda on which any independent cause of action against Juda is based, and, thus, Juda has been named in the Complaint solely for the purpose of defeating diversity jurisdiction. Removal Notice ¶¶ 11-17.*fn5 Plaintiff argues in support of remand that Juda is not a nominal party to this action but, rather, played a "vital role" in terminating Plaintiff's employment with Home Depot. Plaintiff's Memorandum at 2. As such, Plaintiff maintains that "there are legitimate and serious direct causes of action against Victoria Juda individually and she has a direct interest in the controversy." Plaintiff's Memorandum at 2. Plaintiff further maintains that Juda initiated Plaintiff's formal reprimand and subsequent firing to satisfy a personal vendetta against Plaintiff and, further, defamed Plaintiff allegedly by making numerous false, slanderous and disparaging statements about Plaintiff to other Home Depot employees as well as ...

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