Opinion
EP-00-CA-002-DB.
April 3, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Plaintiff Julie Goosens's Motion to Remand, filed in the above-captioned cause on January 21, 2000. Defendants filed a Response to Plaintiff's Motion to Remand on February 24, 2000.
After due consideration, the Court is of the opinion that Plaintiff's Motion to Remand should be denied for the reasons that follow.
BACKGROUND
Plaintiff, a Texas citizen, worked for Defendant ATT Corp. ("ATT") from 1975 until 1997. On October 24, 1997, Defendants Celso Rodriguez ("Rodriguez") and Pier Moreno ("Moreno") (collectively, the "individual defendants"), both ATT employees, went to Plaintiff's home to inform Plaintiff, who is blind since birth, that ATT soon would terminate her employment because she allegedly no longer could perform the essential functions of her then current position. Rodriguez and Moreno also informed Plaintiff that, although ATT would look for a new position with ATT for her for the subsequent thirty days, ATT would terminate her if no appropriate position could be found. After thirty days, no such position was found and ATT terminated Plaintiff's employment on November 25, 1997.
At that time, Plaintiff had been off work for medical treatment since December 1996.
As a result, Plaintiff commenced this employment discrimination lawsuit on November 18, 1999, in the 327th Judicial District Court of El Paso County, Texas (the "state court"). Through her Original Petition filed therein, Plaintiff alleges discrimination in violation of the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. § 21.001 et seq., against ATT and intentional infliction of emotional distress ("IIED") against Rodriguez and Moreno.
Defendants removed on January 4, 2000, asserting removal jurisdiction on the basis of diversity. In their Notice of Removal, Defendants assert that ATT is a New York corporation with its principal place of business in New Jersey and that, although Rodriguez and Moreno are Texas citizens, the Court should ignore their citizenship for diversity purposes because they were fraudulently joined.
The instant Motion to Remand followed.
DISCUSSION
The general requirements for removal jurisdiction based on diversity are well-established. "[A]ny civil action brought in a State court of which the district courts have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the place where such action is pending." 28 U.S.C. § 1441(a). Diversity jurisdiction under 28 U.S.C. § 1332 requires that the action be between citizens of different states and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332. Finally, when removal is based on diversity, "none of the parties in interest properly joined and served as defendants [may be] a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b); see also Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258 (5th Cir. 1988).
Through the instant Motion, Plaintiff contends that removal was improper because the amount in controversy requirement is not met and Rodriguez and Moreno, Texas citizens, are non-diverse. In response, Defendants contend that the amount in controversy is met and that the citizenship of Rodriguez and Moreno should be ignored in the diversity calculation because those defendants were fraudulently joined. The Court agrees with Defendants.
A. Amount in Controversy
Plaintiff contends that the amount in controversy requirement is not met simply because "Plaintiff has not alleged that her damages [are] greater than $75,000."
"When the plaintiff's complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $[75],000." Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (quoting De Aguilar v. Boeing, 11 F.3d 55, 58 (5th Cir. 1993)). In this respect, a court must determine whether "it is facially apparent that the claims are likely above $[75],000. If not, a removing attorney may support federal jurisdiction by setting forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Allen, 63 F.3d at 1335 (internal citation removed).
Here, although Plaintiff did not allege a specific amount in her Original Petition, Defendants aptly contend that the amount in controversy requirement is met based upon the multiple elements of damages Plaintiff claims: compensatory damages for past and future pecuniary losses and mental anguish, back pay, front pay, past and future medical payments, punitive damages and attorney's fees. Notably, Defendants illustrate how, based upon Plaintiff's annual salary at the time she was terminated, $30,380, Plaintiff's claim for back pay alone will meet the requirement. Indeed, a crude calculation demonstrates that back pay accruing at that rate will surpass $75,000 roughly in May 2000 (without accounting for any pay increases Plaintiff likely will contend she would have received during that period). Front pay for a reasonable time period inflates that rough figure even more. Plaintiff also seeks damages for the "severe emotional distress," and "overwhelming feelings of indignation, wounded pride, shame, despair and public humiliation" she has suffered and "will continue to suffer . . . for a long time into the future." No authority is needed for the Court to conclude that such alleged damages are likely to be substantial. Plaintiff also seeks punitive damages which, in all likelihood, would be at least equal to the amount of compensatory damages Plaintiff claims, which the Court already noted above are likely to meet the amount in controversy alone. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 n. 7 (5th Cir. 1998) (noting that punitive damages are properly included as part of the calculation). Finally, because Plaintiff so stated in her Original Petition, her counsel likely will seek attorney's fees, which are properly added to the calculation. See id. (attorney's fees properly included). In sum, despite Plaintiff's insistence that she does not seek more than $75,000 in total recovery, the Court finds that the amount in controversy requirement is met. Accordingly, the Court finds Defendants have set forth facts sufficient to show by a preponderance of the evidence that the amount in controversy exceeds $75,000.
B. Fraudulent Joinder
Next, Plaintiff contends that there is no diversity of citizenship because Rodriguez and Moreno are both citizens of Texas. Defendants, on the other hand, ask the Court to apply the fraudulent joinder doctrine.
Notwithstanding its moniker, the fraudulent joinder doctrine applies to the misguided joinder as well as to the truly fraudulent. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992) ("When speaking of jurisdiction, 'fraudulent' is a term of art. Although false allegations of jurisdictional fact may make joinder fraudulent, in most cases fraudulent joinder involves a claim against an in-state defendant that simply has no chance of success, whatever the plaintiff's motives.").
In order to prove fraudulent joinder, Defendants "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) (citation omitted) (quoting Burden v. General Dynamics Corp. 60 F.3d 213, 217 (5th Cir. 1995); 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. In so doing, 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. See LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992).
Under Texas law, a claim for IIED must be filed within two years after the cause of action accrues. See Muckelroy v. Richardson Sch. Dist., 884 S.W.2d 825, 829 (Tex.App.-Dallas 1994, writ denied) (citing Tex. Civ. Prac. Rem. Code § 16.003(a) (Vernon 1986)). "A cause of action accrues whenever facts come into existence that authorize a claimant to seek a judicial remedy," id., or when the "plaintiff discovers or, through the exercise of reasonable care and diligence, should discover the nature of her injury." Id. "To prevail in a suit for intentional infliction of emotional distress, the plaintiff must show: (1) intentional or reckless conduct; (2) that is extreme or outrageous; (3) that caused emotional distress; (4) that was severe in nature." Bhalli v. Methodist Hosp., 896 S.W.2d 207, 211 (Tex.App. — Houston [1st Dist.] 1995, writ denied) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Here, Defendants contend that Plaintiff's IIED claim is barred by the applicable statute of limitations, and, moreover, Plaintiff cannot state facts sufficient to state a claim for IIED.
Plaintiff commenced this cause on November 19, 1999. Hence, in order to come within the two year statute of limitations, the IIED cause of action must have accrued not earlier than November 19, 1997. With respect to her IIED claim, Plaintiff alleges in her Original Petition that "[o]n or about October 24, 1997, Defendants Rodriguez and Moreno intentionally or recklessly harassed and humiliated Plaintiff by confronting Plaintiff in her home . . ., falsely suggested that Plaintiff was incompetent . . . and falsely charged that Plaintiff was unable to perform the essential functions of her position." Plaintiff further alleges that "[i]n particular, their conduct was the direct and proximate cause of [her emotional distress] in that Plaintiff was notified that she was placed on leave without pay and relieved of all duties while Defendant ATT allegedly looked for another job for Plaintiff."
Taking these allegations as true, there is no way to interpret Plaintiff's allegations with respect to her IIED claim other than to find that the relevant conduct alleged against the individual defendants occurred on October 24, 1999, when Rodriguez and Moreno went to Plaintiff's home and informed her of ATT's employment decision. Thus, the Court finds that Plaintiff's cause of action for IIED accrued on that date. Because November 19, 1999, is not a date within two years after October 24, 1997, the Court also finds that Plaintiff's IIED claim is barred by the two year statute of limitations applicable to such claims under Texas law.
Attempting to side-step that unavoidable conclusion, however, Plaintiff contends in her Response to the instant Motion that her injury continued until November 25, 1997, the date she actually was terminated because it is in the nature of a "continuing violation" and because she will continue to suffer injury from the distress caused by the allegedly injurious damage. This argument simply has no merit.
In general, "a continuing violation tolls a statute of limitations because statutes of limitations are meant only to prevent stale claims. 'Where the challenged violation is a continuing one, the staleness concern disappears.'" McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 867 (5th Cir. 1993) (internal citations omitted) (quoting Havens Realty Corp., v. Coleman, 455 U.S. 363, 380, 102 S.Ct. 1114, 1125, 71 L.Ed.2d 214 (1981)). However, the fact that Plaintiff will continue to accrue damages is inapposite. Accrual of facts authorizing suit, not damages delimits the date on which the limitations period begins to run. See Murray v. San Jacinto Agency, Inc., d/b/a SJA Brokerage, Inc., 800 S.W.2d 826, 828 (Tex. 1990) ("The fact that damage may continue to occur for an extended period . . . does not prevent limitations from starting to run. Limitations commences when the wrongful act occurs resulting in some damage to the plaintiff.").
Even framing Plaintiff's allegations in a light most favorable to her as required, Plaintiff does not allege that any conduct amounting to IIED took place after October 24, 1997, other than to conclude summarily that "Rodriguez and Moreno continued to exact severe emotional distress upon Plaintiff . . . until Plaintiff was removed from the employer's payroll on November 25, 1997." At the very least, Plaintiff must state some facts which show that some act continued the violation. See Bhalli, 896 S.W.2d at 212 (noting that, under Texas law, continuing tort doctrine "only applies if the last tortious act falls within the limitations period"). In this regard, Plaintiff does not point out any act after November 19, 1997. The only conduct Plaintiff possibly can point to is the fact that ATT removed Plaintiff from the payroll — i.e. terminated her. However, simply terminating an employee, without more, cannot amount to IIED. See Southwestern Bell Mobile Sys. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998) ("[T]he mere fact of termination of employment, even if the termination is wrongful, is not legally sufficient evidence that the employer's conduct was extreme and outrageous under the rigorous standard . . . established in Twyman.").
Finally, even if not barred by the statute of limitations, Defendants further contend that Plaintiff cannot state a claim for IIED. The Court agrees. As set forth above, an element of Plaintiff's IIEE cause of action against Rodriguez and Moreno, is that those defendants' conduct was extreme and outrageous. Those terms require conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999).
Here, Rodriguez and Moreno, through separate affidavits appended to Defendants' Response to the instant Motion, aver that when they met with Plaintiff in her home to deliver the news of her impending termination, they did not raise their voices or otherwise make Plaintiff feel uncomfortable; that they obliged Plaintiff's requests that a friend be allowed to attend the meeting and to tape-record the conversation; that all conversations within the thirty days after their meeting took place via telephone and were social and pleasant. Plaintiff does not contest these averments. Thus, even assuming Plaintiff actually suffered emotional distress that was severe in nature from the only alleged relevant conduct — informing Plaintiff of her impending termination — the Court finds as a matter of law that Plaintiff's allegations do not amount to IIED.
Plaintiff suggests that "Texas courts must consider the totality of conduct when deciding whether conduct is extreme and outrageous and shall recognize that liability arises when persons in authoritative positions repeatedly engage in on going [sic] harassment of an employee," citing GTE Southwest, Inc., v. Bruce, 998 S.W.2d 605, 615 (Tex. 1999), and to allow her to develop facts through discovery. Plaintiff does not allege any facts just conclusions. Because this Court must examine the jurisdictional facts as they exist at the time of removal, see Allen, 63 F.3d at 1335, the Court cannot see how discovery will turn up additional facts relating to Plaintiff's IIEE claim against the individual defendants which Plaintiff should not already know. Discovery is not the answer.
Having found that Plaintiff cannot establish a claim for IIED against Rodriguez and Moreno, the Court further finds that those individual defendants were fraudulently joined. Accordingly, the individual defendants' citizenships are ignored for diversity purposes, see Burden, 60 F.3d at 217-18, leaving complete diversity between Plaintiff, a Texas citizen, and ATT. More importantly, in compliance with 28 U.S.C. § 1441(b), no Defendant herein is a citizen of the state in which the suit was brought. Consequently, the Court is of the opinion that Plaintiff's Motion to Remand should be denied.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand is DENIED.