United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATION
V. ACOSTA, United States Magistrate Judge
Judith Potter (“Potter”) filed this lawsuit in
state court against her former employers alleging claims for
minimum-wage violations, breach of contract, and retaliation.
Defendants timely removed the lawsuit to this court asserting
diversity jurisdiction and identifying defendant Amanda Lowe
(“Lowe”) as a “sham defendant.”
Presently before the court is Potter's motion to remand,
and her request for attorney fees and costs related to her
court finds Defendants failed to meet their heavy burden to
establish Potter obviously failed to state a cause of action
against Lowe according to the settled rules of the state.
Accordingly, Lowe was not fraudulently joined, this court
lacks diversity jurisdiction, and this lawsuit should be
remanded to state court. However, Potter's request for
attorney fees and costs should be denied.
Seterus, Inc. (“Seterus”), is a fully-integrated
mortgage loan servicing company and a wholly-owned subsidiary
of defendant International Business Machine Corporation
(“IBM”). (Lowe Decl., ECF No. 19, ¶¶ 2,
4.) From December 21, 2015, to June 8, 2017, Potter worked
for Seterus as a bankruptcy asset specialist at a loan
servicing center in Beaverton, Oregon. (Am Compl., ECF No.
1-1 (“Compl.”), ¶ 7; Lowe Decl. ¶ 4;
Terbenche Decl. ECF No. 20, ¶ 4.) Initially, Potter was
hired by a third party and assigned to IBM as a contractor.
(Terbenche Decl. ¶ 4.) In October 2016, IBM hired Potter
directly. (Terbenche Decl. ¶ 5; Ex. 1.)
working at Seterus, Potter reported directly to Maggie
Parrish (“Parrish”) and Megan Snyder
(“Snyder”), both of whom worked in Seterus's
Beaverton office and served as Potter's day- to-day
managers. (Lowe Decl. ¶ 6.) Parrish and Snyder reported
to defendant Shannon Stock (“Stock”), Assistant
Vice President of the Bankruptcy group, who worked out of the
Raleigh, North Carolina office and was only infrequently at
the Beaverton office. (Lowe Decl. ¶¶ 6, 13.) Lowe
was the Assistant Vice President of Operational Controls
responsible for general operations of the foreclosure
department as well as risk and compliance, and worked out of
the Beaverton office. (Lowe Decl. ¶¶ 3, 4.) Both
Stock and Lowe reported to defendant Michael Perry
(“Perry”), Vice President of Default Management.
(Lowe Decl. ¶ 6.)
alleges she was not allowed rest breaks or meal periods,
paid overtime, and not paid timely, and IBM and Seterus did
not properly report and pay taxes, all in violation of Oregon
law. (Compl. ¶¶ 9, 10, 16, 17, 18, 19.) In late
December 2016, Potter filed complaints with Perry alleging
wage and hour violations, abusive behavior by Stock, and
denial of benefits based on complaints about management
abuse. (Compl. ¶ 11.) Potter alleges in early January
2017, “Defendants called Plaintiff into a meeting with
Michael Perry on the phone and told her they had received her
complaint.” (Compl. ¶ 12.) When nothing happened,
Potter followed up with emails. (Compl. ¶ 12.) Potter
learned Stock subsequently accused her of falsifying
information by inflating settlements. (Compl. ¶ 12.) IBM
terminated Potter on June 7 or 8, 2017. (Compl. ¶ 7;
Lowe Decl. ¶ 12.) Potter alleges she was terminated, at
least in part, because of her complaints. (Compl. ¶ 14.)
asserts claims against IBM and Seterus for minimum-wage
violations under Or. Rev. Stat 653.025; overtime violations
under Or. Rev. Stat.653.261; late wage payments under Or.
Rev. Stat. 652.140; failure to provide an itemized wage
statement under Or. Rev. Stat. 652.610; breach of contract;
and whistleblower retaliation under Or. Rev. Stat. 659A.199.
Potter's sole claim against Perry, Stock, and Lowe (the
“Individual Defendants”) is for aider and abettor
liability under Or. Rev. STAT.659A.030(1)(g).
support of her claim against Lowe, Potter alleges:
At all times material to this action, Defendant Amanda Lowe
(herein referred to as “Lowe”) is a natural
person residing in Oregon. Defendant [Lowe] was employed by
Defendant IBM and Defendant Seterus and managed the Plaintiff
subject to [her] terms of employment.
* * *
Defendant Lowe, an Assistant Vice President, holds a
management role and was aware of the work conditions
Plaintiff and other employee[s] were subject to. Defendant
Lowe did not address the issues raised by Plaintiff. A lack
of response and leadership on the part of Ms. Lowe allowed
the wage and hour abuses to continue.
* * *
Amanda Lowe aided, abetted, incited, compelled and/or coerced
the discrimination, retaliation, and harassment toward
plaintiff relating to her reports of illegal wage theft,
retaliation, and harassment, and her good ...