Opinion
NO. 4:03-CV-0245-A
May 13, 2003
O R D E R
Came on for consideration the motion of plaintiff, Steven Day, to remand. The court, having considered the motion, the response of defendants, FedEx Ground Package System, Inc. ("FedEx"), and Don Davis ("Davis"), the reply, the record, and applicable authorities, finds that the motion should be denied.
On April 16, 2002, plaintiff filed his original petition in the 271st Judicial District Court of Wise County, Texas. On April 2, 2003, defendants filed their notice of removal, bringing the action before this court. Defendants contend that diversity jurisdiction exists because defendant Davis has been fraudulently joined.
"The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Defendants must show either that there is no possibility that plaintiff would be able to establish a cause of action against defendant Davis in state court or that there was outright fraud in plaintiff's pleadings of jurisdictional facts. Id. The court resolves all disputed questions of fact and all ambiguities in controlling state law in favor of plaintiff. Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000). The court can consider affidavits and other evidentiary material in making its ruling. B., Inc., 663 F.2d at 549. Thus, the claim of fraudulent joinder is viewed as similar to a motion for summary judgment. LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992). The court is to pierce the pleadings to determine whether, under controlling state law, the plaintiff has a valid claim against the non-diverse defendant. Id. (citing Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir. 1990)). "If there is "arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,' then there is no fraudulent joinder." Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 (5th Cir. 2000) (quoting Jernigan v. Ashland Oil Co., 989 F.2d 812, 816 (5th Cir. 1993)).
There is no allegation of outright fraud.
Defendants recognize that Davis is personally liable for tortious acts that he directed or participated in during his employment. Leyendecker Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984); Kingston v. Helm, 82 S.W.2d 755, 758-59 (Tex.App.-Corpus Christi 2002, pet. denied). They argue that the misrepresentations alleged by plaintiff concern the future profitability of a business, that is, they are future predictions and opinions, that cannot form a basis for fraud as a matter of law. Zar v. Omni Indus., Inc., 813 F.2d 689, 693 (5th Cir. 1987). Plaintiff's petition is short on facts, but in his deposition, he explained that his claim against Davis arises solely out of the oral representation that plaintiff could expect to make $45,000 to $48,000 per annum. Defs.' App. at 25. In other words, the claim arises out of an opinion or prediction. Zar, 813 F.2d at 693. The remainder of the deposition excerpts shows that plaintiff is really complaining that his territory changed after he began work for FedEx at the direction of another employee, not of any representation made by Davis. Defs.' App. at 39-42. In other words, plaintiff's original route was just what Davis said it would be. Id. at 18. Thus, plaintiff does not have, and could not establish, a cause of action against Davis in state court.
Plaintiff testified that a second allegedly false representation by Davis concerned the number of packages plaintiff could be expected to pick up and deliver. Defs.' App. at 25-26. However, he later testified that he had extrapolated that figure from Davis's representation as to anticipated earnings. Id. at 28.
The court ORDERS that plaintiff's motion to remand be, and is hereby, denied.