District Judge Angel Kelley: ELECTRONIC ORDER entered. Before the Court is Defendant Botsford's Motion to Dismiss for Fraudulent Joinder [Dkt. 3] and Plaintiff's Motion to Remand [Dkt. 11]. The issues in the two motions are identical. In fact, Plaintiff submitted one memorandum of law addressing both motions.
Diversity jurisdiction "requires complete diversity between the plaintiffs and the defendants in an action.” Rizzi v. 178 Lowell St. Operating Co., LLC, 180 F. Supp. 3d 66, 67 (D. Mass. 2016); see 28 U.S.C. § 1332(a). A plaintiff may not thwart the exercise of a defendant’s right of removal by joining a non-diverse defendant who has no real connection to the case. See Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir. 2014). Such joiner is called "fraudulent" or "improper" joinder. Mills v. Allegiance Healthcare Corp., 178 F. Supp. 2d 1, 3 (D. Mass. 2001). Joinder is improper when claims against the non-diverse party has no reasonable basis in law and fact. Id. at 4. Defendants bear the burden of demonstrating by clear and convincing evidence "that there is no possibility, based on the pleadings, that the plaintiff can state a cause of action against the non-diverse defendant in state court.” Id. at 5. When determining whether a defendant has been improperly joined, courts resolve all disputed issues of fact and ambiguities of law in favor of the non-removing party. Fabiano Shoe Co., Inc. v. Black Diamond Equip., Ltd., 41 F. Supp. 2d 70, 71-72 (D. Mass. 1999).
Plaintiff alleges that Defendant Botsford interfered with his right to not be discriminated against because of his age in violation of Mass. Gen. Laws ch. 151B, § 4(4A) (2024), aided and abetted others’ discrimination against Plaintiff because of his age in violation of Mass. Gen. Laws ch. 151B, § 4(5) (2024), breached a contact, and violated the contractual covenant of good faith and fair dealing. To establish a claim under Section 4(5), a plaintiff “must show: (1) that the defendant committed a wholly individual and distinct wrong... separate and distinct from the claim in main; (2) that the aider or abettor shared an intent to discriminate not unlike that of the alleged principal offender; and (3) that the aider or abettor knew of his or her supporting role in an enterprise designed to deprive [the plaintiff] of a right guaranteed to him or her under Mass. Gen. Laws ch. 151B.” Sheldon v. F.W. Webb Co., 801 F. Supp. 3d 59, 73 (D. Mass. 2025) (internal quotation marks omitted). To establish a violation of Section 4(4A), a plaintiff must show that the defendant “interfered with [his] rights in deliberate disregard of those rights, which requires a showing of an intent to discriminate.” Cocuzzo v. Trader Joe’s E. Inc., 121 F.4th 924, 938 (1st Cir. 2024) (internal quotation marks omitted).
Reading the Complaint in Plaintiff's favor, Plaintiff has adequately alleged that Defendant Botsford violated Sections 4(5) and 4(4A). As the head of Human Resources, it is reasonable to assume that Botsford was privy to the decision-making process behind Plaintiff's demotion and eventual firing. Plaintiff alleged that he complained to Botsford about the age discrimination he and another employee faced, and there is no indication that Botsford investigated Plaintiff's complaint. Plaintiff further alleged that Botsford informed him that his position would be "eliminated" but, less than a month later, posted on LinkedIn that the company was looking for someone to replace Plaintiff. Finally, Plaintiff alleged that, when requested, Botsford failed to provide him with updates regarding his demotion and eventual firing or provide him with his complete performance review. Taken together, these facts adequately allege that Botsford covered up and supported the other defendants' age-discrimination against Plaintiff. If the Court were to consider facts alleged in Plaintiff's memorandum, an even stronger case would be made. However, without a motion to amend, such facts are not appropriately considered at this stage of the litigation.
Additionally, it is not apparent that there would be complete diversity even if Botsford were dismissed, because neither Plaintiff nor the defendants have alleged Defendant Purvis' citizenship.
Accordingly, Plaintiff's Motion to Remand [Dkt. 11] is GRANTED, and Defendant Botsford's Motion to Dismiss [Dkt. 3] is DENIED.
(CEH)