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holding that factual allegations of removed petition for purposes of improper joinder analysis are assessed under federal civil procedure standard rather than state standard
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EP-05-CA-13-DB.
August 22, 2005
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Plaintiff Deborah Strickland's ("Strickland") "Motion To Remand," filed in the above-captioned cause on February 23, 2005. On March 9, 2005, Defendant Aaron Rents, Inc., ("Aaron Rents") filed a "Response To Plaintiff's Motion To Remand And Plaintiff's Motion To Amend." For the reasons stated below, the Court is of the opinion that Strickland's Motion to Remand should be denied.
BACKGROUND
Strickland began this action on October 29, 2004, in the 346th Judicial District in El Paso County, Texas ("state court"). In her First Amended Complaint, Strickland claims that Aaron Rents terminated her because of her gender and in retaliation for her investigating another female employee's complaints of discrimination. Therein, Strickland further alleges that Aaron Rents and Defendant Mario Valles ("Valles") defamed her, and that Aaron Rents and Valles maliciously prosecuted her for theft. Based on these allegations, Strickland brings this cause of action against Aaron Rents for violating Texas Labor Code § 21.051 and against both Aaron Rents and Valles for intentional torts.
Strickland is a resident of El Paso, Texas. Aaron Rents is a corporation organized under Georgia law which maintains its principal place of business in Georgia. Valles is believed to be a Texas resident.
Strickland's Original Petition asserts that Valles is a Texas resident and lived in El Paso, Texas. Aaron Rent's Original Answer and Strickland's First Amended Complaint both state that Valles is believed to be a Texas resident. Strickland's First Amended Complaint, as well as Aaron Rent's "Answer To Plaintiff's First Amended Complaint," state that Valles's whereabouts are currently unknown.
On January 25, 2005, Aaron Rents removed the case to this Court, pursuant to the provisions of 28 U.S.C. § 1441(b), asserting that jurisdiction is proper because this case involves a dispute for more than $75,000, and is between citizens of different states. Aaron Rents asserts that Valles was fraudulently joined and that his citizenship should therefore not be considered to determine whether diversity is complete. On February 23, 2005, Strickland filed the instant Motion, in which she contends that joinder of Valles is proper and seeks to have the case remanded to state court.
AUTHORITIES
Title 28 U.S.C. § 1441, the general removal statute, allows a defendant to remove a case to the federal district court for the district and division within which the action is pending. 28 U.S.C.A. § 1441(a) (West 1994). Title 28 U.S.C. § 1332(a) confers jurisdiction on district courts over civil actions between citizens of different states where the amount in controversy is over $75,000. For jurisdiction to exist under § 1332, diversity must be complete in that there may be no plaintiff and no defendant who are citizens of the same state. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 388, 118 S. Ct. 2047, 2052, 141 L. Ed. 2d 364 (1998). Furthermore, in a case removed based on diversity jurisdiction, no properly joined party may be a citizen of the state in which the action is brought. 28 U.S.C.A. § 1441(b) (West 1994).
To prove fraudulent joinder, a defendant "must demonstrate either 'outright fraud in the plaintiff's recitation of jurisdictional facts,' or that 'there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the in-state defendant in state court." Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997) (quoting Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995) and Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995)). "The question, then, is simply whether the defendant can show that no possibility exists that the plaintiffs have stated a claim against [the non-diverse defendant]." Id. Finally, a court must examine the plaintiff's factual contentions in a light most favorable to the plaintiff and resolve all factual disputes in the plaintiff's favor, see id., and may "pierce the pleadings" and rely on affidavits or other documents to determine whether the party was fraudulently joined. LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992).
Under Erie R. Co. v. Tompkins, a federal court must apply state law to cases not governed by federal law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Thus, a federal court exercising supplemental jurisdiction over state law claims must apply the substantive law of the state in which it sits. See Sommers Drug Stores Co. Employee Profit Sharing Trust v. Corrigan, 883 F.2d 345, 353 (5th Cir. 1989) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). The Erie doctrine, however, does not affect the application of the Federal Rules of Civil Procedure in federal court. Ayers v. Thompson, 358 F.3d 356, 376 (5th Cir. 2004) (citing Hanna v. Plumer, 380 U.S. 460, 470 (1965)).
DISCUSSION
For diversity jurisdiction purposes, Strickland is a resident and citizen of Texas, Valles is a resident and citizen of Texas, and Aaron Rents is a corporate citizen of Georgia. Through the instant Motion, Aaron Rents asks the Court to apply the fraudulent joinder doctrine, arguing that Resident Defendant Valles was named as a defendant solely for the purpose of defeating diversity jurisdiction. To ascertain whether Resident Defendant Valles was fraudulently joined, the Court must determine whether Aaron Rents can show either that Strickland's recitation of jurisdictional facts are fraudulent, or that no possibility exists that Strickland can establish a cause of action against Valles. See Rodriguez, 120 F.3d at 591. In evaluating a claim of fraudulent joinder, the Court does not determine whether Strickland will actually or even probably prevail on the merits of her claims against Valles, but looks only for a possibility that Strickland may do so. See id.Through her First Amended Complaint, Strickland alleges causes of action against Valles for defamation and for malicious prosecution. Because the Court's jurisdiction over this cause is premised on diversity, pursuant to the Erie doctrine, the Court utilizes the forum state's law to scrutinize Stickland's claims against Valles. See Sommers Drug Stores Co., 883 F.2d at 353. The Court evaluates Strickland's ability to establish each of her claims against Valles in turn. A. Defamation
To maintain a cause of action for defamation under Texas law, a plaintiff, who is a private individual, must state facts which would show that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; and (3) while acting with negligence regarding the truth of the statement. Fields v. Keith, 174 F. Supp. 2d 464 (N.D. Tex. 2001) (applying Texas law), aff'd 273 F.3d 1099 (5th Cir. 2001); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Moreover, a plaintiff must specifically plead the time and place of the publication. 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1309 (3d ed. 2004); see also, Jackson v. Dallas Indep. School Dist., No. CIV.A.398-CV-1079, 1998 WL 386158, at *5 (N.D. Tex. July 2, 1998).
Through its Response, Aaron Rents argues that Strickland will be unable to make out her defamation claim against Valles because she has failed to plead all the elements of her defemation claim in her Amended Complaint. As avered in her Amended Complaint, Strickland's claim against Valles is based on "verbal and written statements . . . regarding theft" made by Valles when he filed a civil suit against Strickland and when he made a criminal complaint to the El Paso Police Department against Strickland. In order for Strickland to maintain her cause of action against Valles, Strickland is required to specifically plead the time and place of Valles's pubications. Id. Strickland's Amended Complaint has no such averment. Because Strickland has failed to plead the time and place of these publications, the Court is the opinion that she will be unable to sustain a cause of action for defamation against Valles. B. Malicious Prosecution
Under Texas law, to establish a claim of malicious prosecution, a plaintiff must show: (1) commencement of criminal prosecution against plaintiff; (2) causation (initiation or procurement) of action by defendant; (3) termination of prosecution in plaintiff's favor; (4) plaintiff's innocence; (5) absence of probable cause for proceedings; (6) malice in filing charge; and (7) damage to plaintiff. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Aaron Rents contends that Strickland will be unable to substantiate her malicious prosecution claim against Valles because Strickalnd failed to plea that criminal charges were brought against her. Through her Motion, Strickland maintains that failing to plead all of the elements of her claim is not fatal because Texas procedure requires only "fair notice pleading." Aaron Rents counters that Texas procedure does not apply in federal court, and thus can not serve as a defense for failing to fulfil the pleading requirements. Ultimately, the Court agrees with Aaron Rents that Strickland is bound by the Federal Rules of Civil Procedure, and as such, has failed to adequately plea her malicious prosecution claim.
While the Court is bound to apply Texas law to cases not governed by federal law, see Erie, 304 U.S. at 78, the Court does not apply Texas procedural rules. See Ayers, 358 F.3d at 376. As such, the adequacy of Plaintiff's claim is measured against the standards set out by the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure Rule 8(a) requires Strickland to plead a short and plain statement of her claim showing that she is entitled to relief. FED. R. CIV. PRO 8(a). Pursuant to Rule 8(a), a complaint will be deemed inadequate if it fails to set forth sufficient information to outline the elements of the claim or permit inferences to be drawn that these elements exist. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, (5th Cir. 1999). Here, Rule 8(a) requires that Plaintiff outline all seven elements of her malicious prosecution claim. Id. Stickland's Amended Complaint alleges that "Valles . . . made a criminal complaint to the El Paso Police Department accusing Plaintiff of theft. The criminal charge was terminated in favor of Plaintiff." Without more, Strickland merely states that a criminal complaint was filed against her, and that the "charge," which the Court understands to refer to the same criminal complaint was terminated in her favor. As such, the Court is of the opinion that Strickland has failed to plead that she was criminally prosecuted, the first element of malicious prosecution. Because Strickland has not alleged all of the elements of her claim, no possibility exists that Strickland can establish a cause of action against Valles for malicious prosecution.
CONCLUSION
In light of the foregoing, the Court finds that Aaron Rents has met its burden of showing that Strickland will be unable to establish either her defamation claim or her malicious prosecution claim against Valles. Therefore, the Court finds that Valles was not properly joined and that his citizenship should not be considered in determining whether the instant case was properly removed pursuant to 28 U.S.C. § 1441(b). As a result, the Court finds that the case was properly removed and that the Court may exercise jurisdiction over it based on complete diversity. Thus, the Court is of the opinion that Strickland's Motion to Remand should be denied.
Accordingly, IT IS HEREBY ORDERED that Plaintiff Deborah Strickland's "Motion to Remand" is DENIED.