Opinion
CIVIL ACTION NO. SA-03-CA-742 OG (NN)
May 21, 2004
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The matters before the court are defendant David Lopez' motion to dismiss (docket entry 6) and plaintiffs motion to remand (docket entry 40). Both these motions focus on similar issues, namely whether plaintiff has stated a claim for which relief can be granted against resident defendant David Lopez (hereafter "Lopez") and, consequently, whether this court lacks diversity jurisdiction. As such, the two motions will be evaluated in tandem.
See also Docket Entries 7 and 41, the memoranda in support of the motion to dismiss and motion to remand, respectively.
This is a case arising out of plaintiff's former employment relationship with defendant NCO Financial Systems, Inc (hereafter "NCO"). Defendant Lopez was also an employee of defendant NCO Financial Systems, Inc. Although it did not delineate specific causes of action, Plaintiffs' Original Petition seeks relief from defendant NCO for its wrongful termination of plaintiff, in violation of the constitutional due course and due process rights found in the Texas Constitution, as well as the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff's Original Petition also alleges that defendants NCO and Lopez defamed plaintiff, and are thereby liable for slander per se and slander per quod.
See Plaintiff's Original Petition (hereafter "Petition"), attached to Docket Entry 1, Defendant's Notice of Removal.
See Docket Entry 1, Petition, at 6, 8.
See Docket Entry 1, Petition, at 8, 21.
Through his motion to remand, plaintiff moves to remand the case to where it was originally filed, the 288th Judicial District of Bexar County, Texas, on the grounds that the case was improvidently removed to federal court. Plaintiff contends that the case was improvidently removed on the basis that there is incomplete diversity among all the parties to this action and, therefore, this court lacks subject matter jurisdiction over the instant action.
See Docket Entries 40, 41.
Defendants oppose the motion to remand, and, separately, move to dismiss defendant Lopez from the instant action, on the basis that defendant Lopez was fraudulently joined. For these reasons, defendants assert that this court has subject matter jurisdiction over the instant action and that all claims against defendant Lopez should be dismissed. In the alternative, defendants argue that this court has federal question jurisdiction over the instant action because plaintiff's Petition seeks relief for violations of his federal constitutional rights. Defendants further urge that plaintiff failed to file his motion to remand timely and has thereby waived any objections to removal.
Although defendant Lopez brought his motion to dismiss individually, the arguments contained therein are virtually identical to those contained in the opposition to plaintiff's motion to remand filed by all defendants. As such, this memorandum and recommendation often refers to the arguments as those made by "defendants."
While plaintiff's failure to object timely to the removal precludes plaintiff from making any procedural objections to the removal, issues of the court's subject matter jurisdiction are non-waiveable. See Callaway v. G.S.P., Inc. , 793 F. Supp. 133, 134 (S.D. Tex. 1992)(" Although there is a time limit for moving to remand a case because the removal was procedurally defective, there is no such time limit when a district court lacks subject matter jurisdiction. `If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.' 28 U.S.C. § 1447 (c).) Because plaintiff's arguments attack this court's subject matter jurisdiction, they must be considered.
After considering the motions and briefs in support thereof, the responsive briefs, and the applicable law in this case, it is my recommendation that plaintiff's motion to remand be DENIED and defendant Lopez' motion to dismiss GRANTED . This court has subject matter jurisdiction over the instant action and plaintiff has failed to plead any claim for which relief might be granted against defendant Lopez.
Docket Entries 6, 7, 40, 41.
Docket Entries 14, 15, 30, 47.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 12.
II. Federal Court Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1331, 1332.III. Issues Presented
Whether the case was improvidently removed to federal court and whether plaintiff has stated a claim for which relief can be granted against resident defendant David Lopez?
IV. Applicable Legal Standards
A. Removal and Remand StandardsThe overriding principle in matters of removal and remand is that federal courts have no inherent subject matter jurisdiction. Federal Courts are courts of limited jurisdiction by origin and design. As a result, there is an initial presumption that federal courts lack subject matter jurisdiction to resolve a particular suit. It is well established that the party removing the case has the burden to present facts showing that federal subject matter jurisdiction exists. Whether a case may be removed is a question of federal law to be decided by federal courts with the removal statute strictly construed, and doubts concerning the propriety of removal construed against removal. The removal jurisdiction of the courts is determined by examining the record as it stands at the time the notice of removal is filed without consideration of subsequent pleadings.
See Marathon Oil Co. v. Ruhrgas , 145 F.3d 211, 215 ("Federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress.") (Emphasis added), cert. granted , 525 U.S. 1039 (1998), rev'd on other grounds , 526 U.S. 574 (1999); and Oliver v. Trunkline Gas Co. , 789 F.2d 341, 343 (5th Cir. 1986).
Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375 (1994); In re Hunter , 66 F.3d 1002, 1005 (9th Cir. 1995); Celli v. Shoell , 40 F.3d 324, 327 (10th Cir. 1994).
Allen v. R H Oil Gas Co. , 63 F.3d 1326, 1335 (5th Cir. 1995).
See Willy v. Coastal Corp. , 855 F.2d 1160, 1164 (5th Cir. 1988); and Kansas Pub. Employees Retirement Sys. v. Reimer Kroger Assoc. Inc. , 4 F.3d 614, 618 (8th Cir. 1993). cert. denied , 511 U.S. 1126 (1994).
Shamrock Oil Gas Corp. v. Sheets , 313 U.S. 100, 108-109 (1941); Healy v. Ratta , 292 U.S. 263, 270 (1934).
Owens Equip. Erection Co. v. Kroger , 437 U.S. 365, 377 (1978); Diaz v. Sheppard , 85 F.3d 1502, 1505 (11th Cir. 1996). cert. denied , 520 U.S. 1162 (1997).
See Grupo Dataflux v. Atlas Global Group, L.P. , ___ U.S.___, 2004 WL 1085232 (2004); FSLIC v. Griffin , 935 F.2d 691, 695-96 (5th Cir. 1991)(`The power to remove an action is evaluated at the time of removal."), cert. denied. 502 U.S. 1092 (1992).
1. Diversity Jurisdiction: Fraudulent Joinder
Defendants NCO and Lopez removed the case to this court under 28 U.S.C. § 1441 on the grounds that diversity jurisdiction, as defined by 28 U.S.C. § 1332, exists once the court ignores non-diverse defendant, David Lopez. Defendants further argue that the non-diverse defendant (David Lopez) was fraudulently joined for the sole purpose of avoiding this court's subject matter jurisdiction. In support of their position that the resident defendant was fraudulently joined, defendants contend that plaintiff's complaint does not contain any viable causes of action against non-diverse defendant Lopez. Unless defendants prevail with these arguments, defendant Lopez, who, like plaintiff, is a citizen of Texas, destroys diversity.
See Docket Entry 1.
As the party wishing to invoke the jurisdiction of this court by alleging fraudulent joinder by the plaintiff in framing his pleading, defendants bear what the Fifth Circuit has called "the heavy burden" of establishing the plaintiff's fraudulent joinder for purposes of avoiding federal jurisdiction. In Madison v. Vintage Petroleum, Inc., the Fifth Circuit set out the requirements incumbent on a party which removes an action on the basis of fraudulent joinder. Defendants must prove: (1) that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts; or (2) that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in the previously filed state court proceeding. Since the defendants in this case do not assert fraud by plaintiff, they must prove that plaintiff has not set forth any valid cause of action against individual defendant Lopez under state law.
See Madison v. Vintage Petroleum, Inc. , 114 F.3d 514, 515 (5th Cir. 1997): Willy v. Coastal Corp. , 855 F.2d 1160, 1164 (5th Cir. 1988), aff'd , 503 U.S. 131 (1992).
Id.
See Delgado v. Shell Oil Co. , 890 F. Supp. 1324, 1341 (S.D. Tex. 1995), aff'd , 231 F.3d 165 (5th Cir. 2000), cert. denied , 532 U.S. 972 (2001).
In deciding whether defendants have met their burden, the court must "evaluate all of the factual allegations in the plaintiff's state court pleadings in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the nonremoving party." Importantly, if there is doubt as to whether a plaintiff has stated a cause of action, the joinder is not fraudulent and the case should be remanded. Because the burden is on the removing party, the Fifth Circuit instructs that the removal statutes are to be construed narrowly, with all doubts resolved in favor of remand to the state court.
Green v. Amerada Hess Corp. , 707 F.2d 201, 205 (5th Cir. 1983), cert. denied , 464 U.S. 1039 (1984).
See Parks v. New York Times Co. , 308 F.2d 474, 478 (5th Cir. 1962), cert. denied , 376 U.S. 949 (1964).
See Delgado v. Shell Oil Co. , 890 F. Supp. 1324, 1341 (S.D. Tex. 1995), aff'd , 231 F.3d 165 (5th Cir. 2000), cert. denied , 532 U.S. 972 (2001).
The Fifth Circuit recently summarized the fraudulent joinder standard as follows:
`After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.'
Travis v. Irby , 326 F.3d 644 (5th Cir. 2003), citing Great Plains Trust Co. v. Morgan Stanley Dean Witter Co. , 313 F.3d 305, 312 (5th Cir. 2002).
Thus, the issue before the court when evaluating plaintiff's motion to remand is whether plaintiff has "any possibility of recovery" on his cause(s)of action against the non-diverse defendant after resolving all ambiguities in favor of the plaintiff.
B. Dismissal Standard
Defendant Lopez moves to dismiss all claims against him contained in plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), a plaintiff's claim may be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiffs complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity, Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss under Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the non-existence of those facts.
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard, Inc. , 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied , 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency , 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey, Jr., v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999).
See Fernandez-Montes v. Allied Pilots Assoc. , 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum, Inc. , 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd. , 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Dillard Dent. Stores. Inc. , 818 F. Supp. 983 (N.D. Tex. 1993).
V. Analysis
In his motion to remand, plaintiff has asserted two primary arguments in favor of remand and moved for sanctions. Specifically, plaintiff contends that defendant NCO's minimum contacts with Texas destroy diversity jurisdiction and, similarly, that plaintiff has pled a claim for which relief can be granted against resident defendant Lopez such that this court lacks diversity jurisdiction. In opposition to plaintiff's motion to remand, and in support of the motion to dismiss, defendants argue that plaintiff has failed to state a claim for which relief can be granted against defendant Lopez and that this court has both diversity and federal question jurisdiction over the instant action.A. Plaintiff's arguments about defendant NCO's minimum contacts not only misapply the relevant jurisdictional standards, they prove that this court can properly exercise personal jurisdiction over nonresident defendant NCO.
Plaintiff's first and primary argument in support of remand confuses the differences between the requisite elements of personal and subject matter jurisdiction. Specifically, plaintiff asserts that defendant NCO has sufficient minimum contacts with the state of Texas such that complete diversity (and federal subject matter jurisdiction) is destroyed. Plaintiff's memorandum in support of the motion to remand states, in pertinent part:
Plaintiff's motion to remand and brief in support thereof further assert that defendant NCO has: purposefully availed itself of the benefits and protections of conducting business in the state of Texas; a substantial presence in the state of Texas; and purposefully directed activities at the state of Texas. See Docket Entry 40, at 3, 5-7.
At the very least, Counsel for Defendant, NCO, omitted ten (10) Offices of Defendant, NCO, operating in the State of Texas, at the time Plaintiff filed his Lawsuit herein . . . Defendant, NCO, has purposely ( sic) availed itself of the Benefits, Protections, Privileges and Laws of the State of Texas. . . . Therefore, this Case ( sic) is not properly before this Federal District Court, and NCO can be said to have MINIMUM CONTACTS IN THE STATE OF TEXAS ( sic), so this Case should be REMANDED to State District Court, from which it was removed.
Docket Entry 41, at 5. Similarly, plaintiff's motion to remand itself avers:
Plaintiff asserts that Defendant, NCO, having ten (10) Offices in the State of Texas, employing hundreds of people, in Texas, ( sic) having its South West Regional Office in Texas, and using those Offices and employees to collect outstanding debt in and outside of Texas, utilizing the Texas Unemployment Compensation Fund to provide income to employees terminated without cause, mean that Defendant, NCO, was purposely availing itself of the privilege, benefit and protections of the Law of the State of Texas, qualify it as having Minimum Contacts in Texas, as the United States Supreme Court has developed that Doctrine, properly subject NCO to defend any lawsuit brought against it, in Texas, in Texas State District Court, This Case properly belongs back at the State District Court from which it was removed, thereby mandating REMAND of this Case. Docket Entry 40, at 4.
Plaintiff's arguments obfuscate the distinctions between federal personal and subject matter jurisdiction. Personal jurisdiction is the means by which the federal court can exercise jurisdiction over a person (or entity) to an action. When the person is a nonresident, the federal court can only assert jurisdiction over that person if he has sufficient minimum contacts with the forum such that the exercise of jurisdiction over him does not offend traditional notions of substantial justice and fair play. In other words, the person must have directed actions at the forum (e.g. by purposefully availing himself of the benefits and protections of the forum or committing an intentional tort against a forum resident) or have systematic and continuous contacts with the forum so that he can reasonably foresee being haled into court in that forum. Thus, the minimum contacts test is a mechanism by which the court determines whether requiring a nonresident to appear and defend a suit in a particular forum is constitutionally permissible.
See, generally Burger King Corp. v. Rudzewicz , 471 U.S. 462 (1985); WNS, Inc. v. Farrow , 884 F.2d 200 (5th Cir. 1989); Ham v. La Cienega Music Co. , 4 F.3d 413 (5th Cir. 1993)
See Id.
See, e.g. WNS, Inc. , 884 F.2d at 203.
See Crown Sterling, Inc. v. Clark , 815 F. Supp. 199, 202 (N.D. Tex. 1993), citing Bullion v. Gillespie , 895 F.2d 213, 216 (5th Cir. 1990).
See Ham , 4 F.3d at 415.
WNS, Inc. , 884 F.2d at 204. See also Ham , 4 F.3d at 415, "Due process requires that (1) the defendant have established `minimum contacts' with the forum state; and (2) the exercise of personal jurisdiction does not offend `traditional notions of fair play and substantial justice (internal citations omitted).'"
In contrast, subject matter jurisdiction is an entirely different inquiry. When assessing its subject matter jurisdiction, the federal court evaluates its authority to adjudicate the substance (i.e. subject matter) of the controversy. Because federal courts have no inherent subject matter jurisdiction, they can only exercise jurisdiction in limited circumstances, such as when: (1) the action is between residents ("citizens") of different states and the amount in controversy exceeds $75,000; or (2) the action's main controversy involves an issue of federal law, treaties or the United States Constitution (i.e., a federal question).
See Marathon Oil Co. , 145 F.3d 211, 215; Kokkonen , 511 U.S. 375.
See 28 U.S.C. § 1332.
See 28 U.S.C. § 1331. See, generally 28 U.S.C. § 1330, et seq.
In this case, defendants have not asserted that this court lacks personal jurisdiction over them. Rather, defendants have asserted that this court can properly exercise both personal and subject matter jurisdiction over the instant action. Plaintiff's arguments in support of remand are not only a misapplication of the laws governing federal jurisdiction — both personal and subject matter — they actually establish the propriety of this court's exercise of personal jurisdiction over nonresident defendant NCO. Thus, plaintiff's minimum contacts argument in support of remand in unavailing.
Defendants have proven that plaintiff has failed to state any claim for which relief could be granted against defendant Lopez and, similarly, that defendant Lopez was fraudulently joined.
In support of the motion to dismiss and the proposition that defendant Lopez was fraudulently joined, and in opposition to plaintiff's motion to remand, defendants argue that plaintiff has failed to state any claim for which relief could be granted against defendant Lopez. As such, defendants urge the court to dismiss the complaint as to any claims brought against defendant Lopez pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, defendants aver that the defamatory statements made by defendant Lopez, as alleged in plaintiffs complaint, cannot be the basis for liability because they were made in a deposition and are covered by an absolute privilege.
In opposition to the motion to dismiss and in support of his motion to remand, plaintiff asserts that: (1) the motion to dismiss is, in fact, a motion for summary judgment which did not comply with the procedural requirements set forth in Federal Rule of Civil Procedure 56, the federal rule governing motions for summary judgment; (2) the court cannot issue a decision on the merits because it lacks subject matter jurisdiction over the instant action; and (3) plaintiff has stated a viable claim for relief against defendant Lopez because the complaint alleges that defendant Lopez published defamatory comments outside of his deposition and said comments are not privileged. The parties' arguments reveal that the primary issue at the core of the motion to dismiss is whether defendant Lopez' comments are privileged and, therefore, non-actionable.
A review of the motion to dismiss, and brief in support thereof, make it clear that the motion seeks dismissal of all claims against defendant Lopez pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that, with all allegations in the complaint taken as true, the complaint nevertheless fails to state a claim for which relief might be granted. The motion to dismiss does not argue — neither explicitly nor impliedly — that there are no genuine issues of material fact and, therefore, that defendant is entitled to judgment as a matter of law. See Docket Entries 6, 7. Therefore, plaintiff's first argument will be disregarded.
Plaintiff previously sued defendant Lopez in an action based on a car accident in which defendant Lopez was the driver and plaintiff was a passenger in defendant Lopez' vehicle. Defendant Lopez was deposed in conjunction with this earlier lawsuit and some of his deposition testimony forms the basis for plaintiff's claims against defendant Lopez in this action. See Docket Entry 1, Petition, Exhibit 12; Docket Entry 7, ¶ 5, at 2.
See Docket Entries 14, 15.
Texas law is clear that statements made in the course of a deposition or other judicial proceeding are protected by an absolute privilege. Such statements, therefore, cannot form the basis for a defamation cause of action.
`Communications in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made.' James v. Brown , 637 S.W.2d 914, 916 (Tex. 1982). This absolute privilege extends to a communication `preliminary to a proposed judicial proceeding . . . if it has some relation to the proceeding.' Id. at 917 (quoting restatement (Second) of Torts § 588 (1981)).
Bell v. Lee , 49 S.W.3d 8, 10 (Tex.App.-San Antonio 2001).
In this case, Plaintiff's Original Petition alleges that defendant Lopez published defamatory statements about plaintiff both in a deposition and to plaintiff's co-workers at other times. In alleging that defendant Lopez widely published the defamatory statements outside the context of his depositions, however, the Petition incorporates by reference certain portions of defendant Lopez' deposition testimony. The Petition avers that the passages incorporated therein by reference establish defendant Lopez' own admission that he told other co-workers about the false reasons for plaintiff's termination outside the context of his deposition, thereby defaming plaintiff. Plaintiff's Petition alleges:
Defendant, further on in pertinent sections, attached hereto as EXHIBIT NO. `12' DAVID REGINO LOPEZ, JR., states that he had other conversations with other NCO-CO-WORKERS, at different times, other than at his Deposition of June 11, 2002, which would make Defendant, DAVID REGINO LOPEZ, JR. a repeater of a Defamatory Statement, and thus he is liable to Plaintiff, for REPUBLICATION, OR ( sic) REPUBLICATIONS, all to Plaintiff's Damage in the amount of $100,000.00. Even if Defendant, DAVID REGINO LOPEZ, JR., had an absolute privilege to say what he said in a Judicial proceeding, such as his Deposition, that does not insulate Defendant NCO, and as stated previously, Defendant NCO, had a qualified privilege, which has been overcome with Plaintiff's showing that Defendant NCO acted with ACTUAL MALICE AGAINST Plaintiff, ALBERT J. LEVARIO, and Defendant, DAVID REGINO LOPEZ, JR., is liable to Plaintiff in monetary Damages for Repeating often a Defamatory, Slanderous statement, under the concept of `REPUBLICATION'. See EXHIBIT NO. `12', pages 23, 24, 28, 32, 61, 62, 63 and 64.
Docket Entry 1, Petition, at 23.
In the aforementioned portions of defendant Lopez' testimony incorporated by reference into Plaintiff's Petition, defendant Lopez discusses what other co-workers told him about the reasons for plaintiff's termination, not what he told other co-workers. These incorporated allegations contradict the other allegations in plaintiff's Petition (as well as his motion to remand and opposition to the motion to dismiss) that defendant Lopez published the statements to other co-workers outside the context of his deposition. Thus, plaintiff's argument that his Petition contains a claim for which relief could be granted against defendant Lopez is unavailing. A careful examination of the complaint reveals that the only claims alleged in plaintiff's complaint are for the purported defamation that occurred by defendant Lopez at his deposition. Since deposition testimony is unequivocally privileged, plaintiff has failed to state a claim for which relief might be granted. As such, plaintiff's motion to remand should be DENIED on the basis that defendant Lopez was fraudulently joined. For the same reason, defendant Lopez's motion to dismiss should be GRANTED pursuant to Federal Rule of Civil Procedure 12(b)(6).
See Docket Entry 1, Petition, Exhibit 12.
Importantly, the court has federal question jurisdiction as well as diversity jurisdiction because plaintiffs Petition seeks relief for violations of plaintiff's Fifth and Fourteenth Amendment due process rights. See Docket Entry 1, Petition; 28 U.S.C. § 1331.
C. Plaintiff has failed to establish entitlement to sanctions.
As a final matter, plaintiff has requested sanctions pursuant to Federal Rule of Civil Procedure Rule 11. In particular, plaintiff's motion argues:
The Attorney for Defendant, NCO, who filed a Removal Notice of this Case ( sic), on August 5, 2003( sic), from State District Court, to this Federal District Court, filed a Paper whose Averments are not `Well Grounded in Fact and Warranted by . . . Law", ( sic) Therefore, under Federal Rules of Civil Procedure, Rule 11, SANCTIONS ( sic) should be assessed against Defense Counsel for Defendant, NCO, as Authorized ( sic) under Rule 11.
Docket Entry 40, ¶ IV, at 8.
Federal Rule of Civil Procedure 11 authorizes the court to impose sanctions on a party who, inter alia, files a pleading for an improper purpose, such as to harass the opposing party, delay the proceedings, or increase the expense of the litigation. In the instant case, plaintiff is neither prevailing on his motion to remand, nor on his opposition to defendant Lopez' motion to dismiss. As such, plaintiff has failed to prove his entitlement to sanctions. Therefore, I recommend that plaintiff's request for sanctions be DENIED .
See FED.R.CIV P. 11(b), (c).
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's motion to remand (Docket Entry 40) be DENIED and defendant Lopez' motion to dismiss (Docket Entry 6) be GRANTED . This court has diversity jurisdiction over the instant action because defendant Lopez was fraudulently joined. Similarly, plaintiff has failed to state a claim for which relief could be granted against defendant Lopez. Finally, I recommend that plaintiff's request for sanctions be DENIED , as plaintiff has not established his entitlement to the same.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152(1985).
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996).