The opinion of the court was delivered by: GARNETT EISELE, Senior District Judge
Presently before the Court is the Plaintiffs' Motion to Remand.
This case was removed to the Eastern District on the basis of
federal diversity jurisdiction. Plaintiffs argue that the parties
lack complete diversity of citizenship and that remand to the
Circuit Court of Pulaski County, Arkansas is proper here.
Defendants counter that the resident Defendant, Keith Mossman,
was fraudulently joined in this action for the sole purpose of
defeating federal diversity jurisdiction.
"Joinder is fraudulent and removal is proper when there exists
no reasonable basis in fact and law supporting a claim against
the resident defendants." Wiles v. Capitol Indemnity Corp.,
280 F.3d 868, 871 (8th Cir. 2002). "But there need only be a
possibility that a right to relief exists under the law to avoid
this conclusion, and all ambiguities in state law are to be
resolved in favor of plaintiff." Kohl v. American Home Products
Corp., 78 F.Supp.2d 885, 889 (W.D. Ark. 1999) (citing Barnes v.
Southwestern Bell Telephone Co., 596 F.Supp. 1046 (W.D. Ark.
Plaintiff filed the Complaint in this case on October 10, 2005
in the Circuit Court of Pulaski County, Arkansas, seeking relief
under the Arkansas Civil Rights Act of 1993, and alleging, inter
alia, "Defendants discriminated against Plaintiff on the basis
of her gender and in retaliation for opposing unlawful employment
actions based on gender" (Dkt. #2, ¶ 19). On November 2, 2005, Defendants removed this case to this Court on the ground that
"all properly joined parties are citizens of different states."
(Dkt. #1, ¶ 3).
Defendants oppose remand on the ground that Defendant Mossman
cannot be held liable under the Arkansas Civil Rights Act and
therefore cannot be a Defendant in Plaintiff's discrimination
claim. The Court disagrees.
The relevant portion of the Arkansas Civil Rights Act is Ark.
Code Ann. § 16-123-108(a), which provides:
No person shall discriminate against any individual
because such individual in good faith has opposed any
act or practice made unlawful by this subchapter or
because such individual in good faith made a charge,
testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
There appears to be some conflict in the interpretation of this
statute, as some courts limit the meaning of "person" to the
claimant's "employer", while other courts read it more broadly
and allow "person" to include any individual who engages in
discriminatory retaliation. See, e.g., Vineyard v. EWI, Inc.,
4:02-CV-609-GTE (E.D. Ark. Dec. 16, 2002) (Eisele, J.); Sparr v.
Ward, 4:00-CV-717-WRW (E.D. Ark. Oct. 7, 2003) (Wilson, J.). The
question at the heart of this dispute is whether the prohibition
against retaliation under § 16-123-108 overlaps with the general
prohibition against discrimination outlined in § 16-123-107. Put
simply, is § 16-123-108(a) simply a reiteration of §
16-123-107(a)(1)? If so, then § 16-123-107(c)(1)(a) applies to §
16-123-108(a), and a claimant may only bring an action for
retaliation against her employer. However, such an interpretation
appears to nullify the language of § 16-123-108(c), which states
"[t]he remedies and procedures available in § 16-123-107(b) shall
be available to aggrieved persons for violations of subsections
(a) and (b) of this section." This language seems to support the
position that the Arkansas Civil Rights Act provides separate
causes of action and separate relief for retaliation claims and
for discrimination claims, in which case, "person" may be read more broadly than
The Court need not resolve this question here because the
standard requires only that the Court determine whether there is
"a possibility that a right to relief exists under the law". As
it appears that such a possibility does exist, the Court must
find that the joinder here of Defendant Mossman was not
IT IS THEREFORE ORDERED that the Plaintiff's Motion to Remand
(Dkt. #5) be, and it is hereby, GRANTED. This case is hereby
remanded to the Circuit Court of Pulaski County, Arkansas.
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