ROBERT J. JONKER, District Judge.
Plaintiff Joseph Casias used to work as an at-will employee for a Wal-Mart store in Battle Creek, Michigan. The company fired him under its drug use policy after he tested positive for marijuana. Mr. Casias sued Wal-Mart Stores East, L.P.
Joseph Casias, a resident of Battle Creek, Michigan, worked in a variety of positions at a Wal-Mart store in Battle Creek from 2004 until 2009. (Def. Notice of Removal, Docket # 1, Ex. A2, Complaint ¶¶ 14, 22-23.) Troy Estill, also a citizen of Michigan, managed the store during the period in question. (Docket # 1, Ex. B, Estill Decl. ¶ 5.) Mr. Casias was by all accounts a good employee. Wal-Mart promoted him to inventory control manager after three and a half years and named him "associate of the year" in 2008. (Compl., ¶¶ 2, 23.) The relationship between Wal-Mart and Mr. Casias was that of a normal employer and employee in Michigan. Nothing in the record indicates that Mr. Casias entered into a particular employment contract with Wal-Mart that guaranteed additional protections beyond those provided under Michigan law.
During Mr. Casias's employment, Wal-Mart had a drug use policy for employees. The policy required testing in some situations. Wal-Mart required Mr. Casias to take a drug test when it hired him in 2004, and Mr. Casias passed. (Compl., ¶ 22.) In accordance with its policy, Wal-Mart tested Mr. Casias again in November 2009 after Mr. Casias was injured while at work. (Id., ¶ 37.) The record indicates that drug testing after a workplace injury was mandatory and not left to the discretion of a particular store manager or supervisor. Consistent with its policy, Wal-Mart tested Mr. Casias for numerous drugs, including but not limited to marijuana. (Id., ¶¶ 37-38.) Mr. Casias tested positive for marijuana. (Id., ¶ 40.) One week after Mr. Casias was notified that he tested positive, Mr. Estill informed him that Wal-Mart had terminated his employment. (Id., ¶ 41.) Wal-Mart's corporate office in Arkansas, not Mr. Estill, made the decision to terminate Mr. Casias. (Estill Decl., ¶ 10.) In fact, Wal-Mart employed a specific drug screening department at its corporate headquarters for precisely this type of situation. (Id.) Neither Mr. Estill nor any other individual store manager had the authority or the discretion to vary from the decisions made by Wal-Mart's Drug Screening department in Arkansas. (Id.)
Mr. Casias admits that he used marijuana for medical purposes beginning in 2009. (Compl., ¶ 34.) Under a state law passed in 2008, the Michigan Medical Marihuana Act ("MMMA" or "the Act"), Mr. Casias qualified for a registry card, which would protect his use of marijuana from certain adverse state actions against conduct that would be illegal in Michigan but for the registry card. (Id., ¶ 33.) Mr. Casias received his registry card on June 15, 2009, and he began to use marijuana after work. (Id., ¶¶ 33, 35.) When he was drug tested after the accident, he showed the card to the drug-testing staff and his shift manager at Wal-Mart. (Id., ¶¶ 37-40.) He also told Mr. Estill about it when Mr. Estill informed him of Wal-Mart's termination decision, but Mr. Estill informed Mr. Casias that Wal-Mart's drug use policy has no exception for the MMMA. (Id., ¶ 41.)
Mr. Casias filed a complaint in Calhoun County Circuit Court on June 29, 2010, alleging wrongful discharge in violation of public policy and a violation of the MMMA against Wal-Mart and Mr. Estill. The
Defendants removed this action from state court based on diversity jurisdiction under 28 U.S.C. §§ 1332, 1441(a). Yet Defendant Estill, like Plaintiff, is a Michigan citizen. This would normally defeat subject matter jurisdiction and also preclude removal under the forum defendant rule. See 28 U.S.C. § 1332(a)(1) (the action must be between citizens of different states); 28 U.S.C. § 1441(b) (actions based on diversity jurisdiction may be removed only if none of the properly joined and served defendants is a citizen of the state in which the action was brought). To overcome these hurdles, Defendants rely on the theory that Plaintiff fraudulently joined Mr. Estill to defeat the Court's jurisdiction. "Fraudulent joinder" is a term of art in federal jurisdictional analysis and does not require any sort of intentional wrongdoing or deceitful intentions. It is simply legal shorthand for deciding whether a particular party's citizenship should be disregarded in assessing subject matter jurisdiction.
As the removing party, the defendants bear the burden of proving the Court's subject matter jurisdiction. See Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 948-49 (6th Cir.1994); 14B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice and Procedure § 3721 (4th ed. 2009). The Court has diversity jurisdiction over the matter only when all opposing parties are completely diverse and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a). Here, the parties agree that the amount in controversy prong is satisfied, that Mr. Casias and Wal-Mart are diverse, and that Wal-Mart is not a Michigan citizen. Accordingly, removal was proper and this Court has subject matter jurisdiction if the only proper parties are Mr. Casias and Wal-Mart. Defendant Estill, however, is a Michigan citizen, and if he is a proper defendant, then this Court does not have subject matter jurisdiction, and removal was improper. The question, then, is whether Defendant Estill is fraudulently joined to destroy the Court's diversity jurisdiction.
"The removing party bears the burden of demonstrating fraudulent joinder." Alexander, 13 F.3d at 949. The defendants' burden is heavy, since the fraudulent joinder standard is "even more favorable to plaintiffs than the standard for ruling on a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6)." Wolf v. Bankers Life & Cas. Co., 519 F.Supp.2d 674, 683 (W.D.Mich. 2007) (quoting Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.1999)). "To prove fraudulent joinder, the removing party must present sufficient evidence that a plaintiff could not have established a cause of action against non-diverse defendants under state law." Coyne v. American Tobacco Co., 183 F.3d 488, 493 (1999). Unless it is clear that "there can be no recovery under the law of the state on the cause alleged or on the facts in view of the
When the district court's subject matter jurisdiction is in dispute on a Rule 12 motion, the court may consider evidence outside of the complaint. See Bennett v. MIS Corp., 607 F.3d 1076, 1087, n. 11 (6th Cir.2010) ("When a district court's subject matter jurisdiction is in question, it is empowered to review extra-complaint evidence and resolve factual disputes."); see also Wright, Miller, Cooper & Steinman, supra, § 3723. When a party makes an allegation of fraudulent joinder, the court may be required to "pierce the pleadings" and consider summary-judgment type evidence, including affidavits and declarations. Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964); Miller v. PPG Indus., Inc., 237 F.Supp.2d 756, 759, n. 5 (W.D.Ky.2002). All parties have had the opportunity to submit evidence under this rule, and Defendants submitted a declaration from Defendant Estill. The declaration states that Mr. Estill did not make or recommend the decision to terminate Mr. Casias but was instead directed by Wal-Mart's corporate office to do so. (Estill Decl., ¶ 10.) Mr. Casias has not challenged or rebutted the affidavit.
The standard for demonstrating fraudulent joinder is demanding, but Defendants have satisfied it here.
The MMMA prohibits denial "of any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau" for marijuana use in compliance with the act. M.C.L. § 333.26424(a). Mr. Casias claims this provision creates a new public policy in the State of Michigan that prohibits a private employer from taking disciplinary action against an employee based on conduct protected—or at least arguably protected
Under Michigan law, "corporate officials may be held personally liable for their individual tortious acts done in the course of business, regardless of whether they were acting for their personal benefit or for the corporation's benefit." Dep't of Agric. v. Appletree Marketing, LLC, 485 Mich. 1, 17, 779 N.W.2d 237 (2010). This principle has been applied to a variety of tortious behavior. See, e.g., Elezovic v.
But this is not all, and what is left is enough to establish fraudulent joinder. Even assuming that personal liability for a corporate official could theoretically attach under the MMMA-wrongful termination context, the law would still require some level of involvement in the wrongful activity for individual liability to apply in Michigan. See, e.g., Freeman v. Unisys Corp., 870 F.Supp. 169, 173 (E.D.Mich.1994) ("merely informational input by an employee or supervisor does not make them an agent of an employer that qualifies them for liability"); Yanakeff v. Signature XV, 822 F.Supp. 1264, 1266 (E.D.Mich. 1993) (defendant "had no control over the decision to terminate plaintiff"; rather, "her input was merely informational"); Champion v. Nationwide Security, Inc., 205 Mich.App. 263, 266, 517 N.W.2d 777 (1994), rev'd on other grounds, 450 Mich. 702, 545 N.W.2d 596 (1996) (noting that defendant must have "significant control" over "hiring, firing, promoting, or disciplining to be considered an agent") (citing Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir.1992)); Urbanski v. Sears Roebuck & Co., 2000 WL 33421411, *3 (Mich.App.2000) ("Although a supervisor need not have complete authority over hiring, firing, promoting or disciplining to be considered an agent, the supervisor must have `significant control' of those duties."). Michigan courts have rejected the idea that any participation, however slight, is
Here, Mr. Casias's challenge is to Wal-Mart's corporate policy, not to any decision applying the policy by Defendant Estill. All Mr. Estill did is communicate the corporation's policy decision to Mr. Casias. Defendant Estill was simply an information conduit. The decision to fire Mr. Casias was actually made by Wal-Mart's corporate office, specifically the drug screening department, under a corporate-wide policy leaving no room for managerial discretion. Mr. Estill did not have any control, much less significant control, over the employment status of those employees, like Mr. Casias, who used marijuana, or any other prohibited drug under the company policy. Contrary to Mr. Casias's contention, acting, solely as a messenger cannot impose liability on a corporate employee. Such a holding would be unprecedented under Michigan law. It would effectively expose the receptionist or secretary who typed the termination letter or delivered the termination message to the theoretical risk of personal liability.
Mr. Casias's complaint is with the corporate-wide policy that mandated his termination in this case. There is no legally colorable basis for a claim against Defendant Estill personally, or against any other individual who served in some capacity as simple messengers of a foreordained company decision under a company-wide policy applicable to the use of prohibited drugs on or off the job. Accordingly, the Court finds that Defendant Estill's citizenship must be disregarded in assessing diversity. The Court has subject matter jurisdiction, and Plaintiff's motion to remand must be denied.
Defendants move to dismiss the matter under Rule 12(b)(6) for failure to state a claim. The defendants argue first that the MMMA is preempted by the federal Controlled Substances Act and the federal Americans with Disabilities Act. Defendants also argue that the MMMA does not create a private right of action in this circumstance and does not confer any employment protections on medical marijuana users. Because the text of the MMMA does not bestow the employment protections Mr. Casias seeks, and because this is dispositive of Mr. Casias's claim, the Court does not reach the issue of the MMMA's preemption by federal statutes. See Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1267 n. 7 (10th Cir.2004) ("Because federal preemption of a state or local law is premised on the Supremacy Clause of the United States Constitution and because of the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided," the Court must determine whether the matter can be decided without turning to federal preemption.); BellSouth Telecommunications, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir.2001).
To survive the defendants' motion to dismiss under Rule 12(b)(6), Mr. Casias "must allege facts that, if accepted as true, are sufficient `to raise a right to relief above the speculative level,' and to `state a claim to relief that is plausible on its face.' " Hensley Mfg. v. ProPride, Inc.,
Mr. Casias bases his claim for relief on two different theories. First, Plaintiff argues the MMMA provides him with an implied right of action. Even Mr. Casias acknowledges his chances on this theory are remote, given the strictness of the current test in Michigan case law. See Lash v. City of Traverse City, 479 Mich. 180, 192-93, 735 N.W.2d 628 (2007) (a private right of action cannot be inferred without evidence of legislative intent). Under his second theory, Mr. Casias's cause of action stems from the defendant's alleged violation of the public policy of Michigan, as found in the MMMA. See Suchodolski v. Michigan Consol. Gas Co., 412 Mich. 692, 695, 316 N.W.2d 710 (1982) ("some grounds for discharging an employee are so contrary to public policy as to be actionable"). One may reasonably ask whether this theory is anything but an end run on the stringent private cause of action test. After all, if the alleged public policy at issue is created by statute, and if the statute does not itself create a private cause of action to enforce the policy, where does a court receive the power to create a remedy anyway? This would seem to do under the rubric of "public policy" exactly what the Michigan Supreme Court prohibits in Lash: namely, implying a private cause of action in the absence of legislative intent. But under either theory—even assuming the Suchodolski public policy theory survives—Plaintiff would have to show that the statutory policy at issue applies to this case. Plaintiff cannot possibly do so here, because the MMMA addresses potential adverse action by the state; it does not regulate private employment. Accordingly, his claims must be dismissed.
The foremost goal in statutory interpretation is to give effect to the lawmakers' intent. See Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Because the MMMA was an initiated state statute, the Court must analyze the intent of Michigan voters who actually passed the legislation and interpret the statute consistent with that intent. Potter v. McLeary, 484 Mich. 397, 410-11, 774 N.W.2d 1 (2009). To do this, a court turns to the language of the statute, Briggs Tax Service, L.L.C. v. Detroit Public Schools, 485 Mich. 69, 76, 780 N.W.2d 753 (2010), and "consider[s] both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme." Sun Valley, 460 Mich. at 237, 596 N.W.2d 119 (quoting Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (internal quotation marks omitted)). "[T]he entire act must be read, and the interpretation to be given to a particular word in one section arrived at after due consideration of every other section so as to produce, if possible, a harmonious and consistent enactment as a whole." Pi-Con, Inc. v. A.J. Anderson Const. Co., 435 Mich. 375, 403-04, 458 N.W.2d 639 (1990) (quoting Grand Rapids v. Crocker, 219 Mich. 178, 182-83, 189 N.W. 221 (1922)).
The fundamental problem with Plaintiff's case is that the MMMA does not
In contrast to what the MMMA does address—potential state prosecution or other potential adverse state action—the MMMA says nothing about private employment rights. Nowhere does the MMMA state that the statute regulates private employment, that private employees are protected from disciplinary action should they use medical marijuana, or that private employers must accommodate the use of medical marijuana outside of the workplace. Under Plaintiff's theory, no private employer in Michigan could take any action against an employee based on an employee's use of medical marijuana. This would create a new protected employee class in Michigan and mark a radical departure from the general rule of at-will employment in Michigan. See Lytle v. Malady, 458 Mich. 153, 163, 579 N.W.2d 906 (1998) ("Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party."). Moreover, the MMMA would also regulate, under the logical conclusion of Plaintiff's theory, tenants in private housing, students at private educational institutions, and other private business actors. Yet the MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses. The protections that the Act does provide apply to actions by the state: "a person shall not be denied custody or visitation," M.C.L. § 333.26424(c), "a patient . . . may assert the medical purpose for using marihuana as a defense to any prosecution involving
The textual hinge for Plaintiff's expansive reading of the statute does not bear the weight of Plaintiff's argument. Section 26424(a), the MMMA states:
M.C.L. § 333.26424(a). According to Plaintiff, the simple word "business" expands the reach of the MMMA to all private activity taken by a "business," including employment decisions. The word "business" is not defined in the MMMA. See M.C.L. § 333.26423 (list of definitions), but it recurs throughout the statute as part of the phrase "business or occupational or professional licensing board or bureau." Mr. Casias relies on the single word "business" in subsection 26424(a) as the only positive textual support for his position that the MMMA shields him from termination. This one word, torn from its overall context, does not do what Mr. Casias wants it to do. The language, structure, and purpose of the MMMA all signify that the statute was not meant to govern private employment decisions like the one at issue here.
A consistent reading of the phrase throughout the MMMA demonstrates that "business" is not meant to stand alone, but instead modifies "licensing board or bureau." Wherever the undefined word "business" appears in the statute, it is as part of the phrase: "civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau." See, e.g., M.C.L. § 333.26424(a). This is thoroughly consistent with the overall structure and purpose of the Act to address potential criminal prosecution or other adverse action by the state. Moreover, the statute itself supports this contextual construction. In subsection 26424(f), the recurring phrase includes a critical clue to the intended meaning of the term:
M.C.L. § 333.26424(f) (emphasis added). Because "words grouped in a list must be given related meaning," Griffith v. State Farm Mut. Auto. Ins. Co., 472 Mich. 521, 533, 697 N.W.2d 895 (2005), "business" in subsection 26424(f) must have a related meaning to other words in the list, namely Michigan board of medicine, Michigan board of osteopathic medicine and surgery, and occupational or professional licensing board or bureau. The added term "other business or occupational or professional licensing board or bureau" underscores the point. It is clear from the examples put forth that the statute contemplated discipline from boards and bureaus of the state—whether described as business boards, occupational boards or professional licensing boards—not the entire realm of private employment. In that list, "business" must act as a modifier of "board or bureau," not as an independent entity, for
That the drafters of the MMMA chose to separate the list of modifiers of "licensing board or bureau" by disjunctives rather than a comma does not defeat this common-sense reading of the statute. Using commas and one disjunctive may be the more common method of listing a series, but the drafters were not required to do so. See The Chicago Manual of Style ¶ 6.18 (16th ed. 2010) ("In a series whose elements are all joined by conjunctions, no commas are needed unless the elements are long and delimiters would be helpful."). Moreover, limiting "business" to act as a modifier and not a stand-alone term still gives "business" meaning. See Stevens v. Employer-Teamsters Joint Council No. 84 Pension Fund, 979 F.2d 444, 452 (6th Cir. 1992) (phrases joined by a disjunctive should be given separate meanings). Local governments in Michigan issue business licenses, which are distinguishable from professional or occupational licenses.
Mr. Casias points to subsection 26427(c)(2) as additional evidence of employment regulation. That section states that nothing in the MMMA requires "[a]n employer to accommodate the ingestion of marihuana in any workplace or any employee working while under the influence of marihuana." M.C.L. § 333.26427(c)(2). This sole mention of employment does not operate as a negative inference, prohibiting private employers from disciplining an employee who uses medical marijuana away from the workplace. "[A] negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute." Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). The language excluded from subsection 26427(c) is not included anywhere else in the statute, since the MMMA never mentions private employers or employees other than in this section. The Court cannot then draw a negative inference about employment protections when the remainder of the statute is silent on the rights of employees. Moreover, Michigan voters could not have intended to enact private employment regulation implicitly, through a negative inference, when the rights of employees are never mentioned anywhere else in the statute.
The purpose of the MMMA only confirms that it was not meant to regulate
Further, the MMMA does not indicate a general policy on behalf of the State of Michigan to create a special class of civil protections for medical marijuana users. The MMMA contains no "explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty," because the MMMA does not confer any statutory rights. Suchodolski, 412 Mich. at 695, 316 N.W.2d 710; see Redden, 2010 WL 3611716 (O'Connor, P.J., concurring) ("the MMMA does not create any sort of affirmative right under state law to use or possess marijuana") (emphasis in original). Under Mr. Casias's reading of the MMMA, medical marijuana users would enjoy the kind of employment safeguards offered to only a very few groups under Michigan law. See, e.g., M.C.L. § 37.2202(1) ("religion, race, color, national origin, age, sex, height, weight, or marital status"); M.C.L. § 37.1102(1) (disability); M.C.L. § 15.362 (whistle-blowers). The MMMA's reference to "business" does not elevate medical marijuana users to the same status as those groups that receive explicit protection from other Michigan statutes.
Mr. Casias cannot establish that the MMMA contains either a statutory right without a remedy or an implied private cause of action. The text, structure, and purpose of the MMMA belie Plaintiff's claim that the Act regulates private employment.
The MMMA meant to provide some limited protection for medical marijuana users from state actions, primarily arrest and prosecution. Even the scope of that protection is unclear and limited. See Redden, 2010 WL 3611716 (O'Connell, P.J., concurring). Nothing in the language or the purpose of the MMMA indicates an intent of the Michigan voters to regulate private employment, and the MMMA does not address private employment directly. Whatever protection the MMMA does provide users of medical marijuana, it does not reach to private employment. Accordingly, Plaintiff's motion to remand (docket # 9) is
TeleTech, 152 Wash.App. at 398-99, 216 P.3d 1055.
