Civil Procedure – Non-diverse suit remanded to circuit court

Where a party removed a Bowman suit to federal court, it was remanded to the circuit court. Although a non-diverse party argued he was fraudulently joined, he failed to show that this was the case. Because his presence destroyed diversity, the case was remanded.

Background

Plaintiff Jeremy James Skidmore, a Virginia resident, brought a single Bowman claim in Virginia state court against defendants Michael Schinke and Gail Saul, alleging both were Virginia citizens. Defendants removed the action to this court on the basis of diversity jurisdiction, alleging that Saul was a resident of Kentucky and that plaintiff fraudulently joined Schinke as a non-diverse defendant.

The court previously denied the motion to remand, concluding that Schinke had been fraudulently joined, and dismissed the complaint for failure to state a claim. It concluded that the Virginia wage information protection statute does not support a Bowman claim. The Fourth Circuit found that because this is an undecided question of law, there was some possibility that the Virginia courts could find that Schinke had a Bowman claim under the statute.

The remaining grounds on which Schinke contends that plaintiff has no possibility of establishing a claim against him are as follows: (1) there are no allegations that Schinke was involved in terminating plaintiff and (2) plaintiff did not engage in conduct protected by § 40.1-28.7:9.

Participation

Schinke argues plaintiff cannot possibly state a claim against him because the complaint contains no allegation that he participated in Skidmore’s suspension or termination. The complaint alleges only that “Defendants” suspended and terminated Skidmore without identifying Schinke specifically. Additionally, Skidmore alleges that Senior Director of Regional Operations Richey—not Schinke—was responsible for conducting the investigation that preceded his termination.
Although the complaint does not expressly allege that Schinke personally suspended or terminated plaintiff, it alleges that Schinke was the sole supervisory authority and member of management at the Virginia facility, that plaintiff reported wage-related violations to Schinke and that Schinke took adverse action by removing plaintiff’s supervisory duties. These allegations, taken together, create at least a possibility that a Virginia court could infer Schinke’s involvement in the termination decision or find that he participated in retaliatory conduct actionable under Bowman.

The fact that the complaint does not specifically allege that Schinke terminated plaintiff is not determinative; the state court may nonetheless find that Skidmore established a cause of action. Because the fraudulent-joinder standard requires only a “glimmer of hope,” I cannot conclude that there is no possibility of recovery against Schinke on this basis.

Protected activity

Schinke also argues plaintiff failed to allege that he engaged in conduct protected by § 40.1-28.7:9 because the complaint does not allege that plaintiff discussed the amount of wages or compensation with another employee.

The complaint alleges that plaintiff reported “violations regarding overtime compensation” affecting his and other employees’ pay, that he “inquired and/or discussed his own compensation and the compensation of other employees,” and that he disclosed these issues during the investigation. Plaintiff engaged in these discussions with various Sonoco employees, including defendants, HR staff and other corporate managers.

These allegations, construed liberally, could support a finding that plaintiff “inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation” within the meaning of § 40.1-28.7:9.

The statute does not explicitly require discussion of a specific “amount” of wages, and further, whether plaintiff’s discussions of overtime compensation necessarily concerned the amount of wages and therefore satisfy any such requirement is a question of state law that remain unsettled. Under the fraudulent-joinder standard, such ambiguities must be resolved in plaintiff’s favor. Accordingly, I cannot conclude that plaintiff has no possibility of establishing that he engaged in protected activity under the statute.

Conclusion

Because Schinke has not demonstrated that plaintiff has no possibility of establishing a claim against him under Virginia law, Schinke was not fraudulently joined. There is no complete diversity, and this court lacks subject matter jurisdiction.
Plaintiff’s motion to remand granted.

Skidmore v. Schinke, Case No. 7:24-cv-00445, July 16, 2026. WDVA at Roanoke (Ballou). VLW 026-3-292. 6 pp.

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