Opinion
CIVIL ACTION NO. 03-488 SECTION "C"
April 4, 2003
ORDER AND REASONS
This matter comes before the Court on plaintiff's motion to remand. Having considered the record, the memoranda of counsel and the law, the Court has determined that remand is appropriate for the following reasons.
The plaintiff filed this suit in state court for negligence, breach of contract and defamation pertaining to his former employment with defendant AstraZeneca, L.P. ("AstraZeneca"). Along with his former employer, the plaintiff named a nondiverse former co-worker as defendant pertaining to the defamation claim. Specifically, he claims that he and this nondiverse defendant engaged in a consensual sexual relationship, but that she falsely and maliciously claimed to have been sexually harassed by the plaintiff, which resulted in his termination from AstraZeneca on January 10, 2002. The defendants removed on the basis of diversity, claiming that the nondiverse individual was fraudulently joined.
In this motion, the plaintiff argues that he does have a viable claim against the nondiverse defendant for defamation because the alleged defamatory statements were not made in good faith, citing Motton v. Lockheed Martin Corp., 1996 WL 267989 (E.D.La.) (J. Clement). The defendants argue that the plaintiff can not maintain a claim of defamation against the nondiverse defendant for two reasons.
First, the defendants argue that any claim for defamation is prescribed because the plaintiff did not file within one year of the date on which the first allegedly defamatory statement was made. Without making a final determination of this issue, the Court notes that the petition indicates that the plaintiff did file within one year of being terminated for the alleged sexual harassment. A cause of action for defamation requires defamatory words, publication to a third party, falsity of the statement and injury; the cause of action accrues upon occurrence of all four elements. See Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So.2d 725, 730 (La.App. 5th Cir. 2001)
Next, the defendants argue that the plaintiff's claim for defamation is untenable because he can not establish publication to a third party. In so arguing, the defendants acknowledge that Motton, supra, is on point in support of the plaintiff's claim, and rely upon defamation cases not involving removal or fraudulent joinder.
"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). The removing party must establish the existence of federal jurisdiction. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th cir. 1992). The removing party must demonstrate that there is no possibility that the plaintiffs would be able to establish a cause of action against the non-diverse defendants in state court. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994).
A claim of fraudulent joinder is akin to a motion for summary judgment. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir.), op. after certified question declined, 236 F.2d 282 (5th Cir. 2000). Disputed questions of fact are resolved in favor of the nonremoving party; if no proof of contradictory facts is submitted, the court does not assume that the nonmoving party could or would prove the necessary facts. Id. All disputed questions of fact and all ambiguities in controlling state law are resolved in favor of the nonremoving plaintiffs. Ford, supra. The Court should not pre-try the case, but can pierce the pleadings and consider summary judgment-type evidence to determine fraudulent joinder.Carriere v. Sears, Roebuck Co., 893 F.2d 98 (5th Cir. 1990), cert. denied, 498 U.S. 817 (1990).
The court determines whether there is any possibility of recovery against the non-diverse party. Id. If the court determines that recovery is possible, "then a good faith assertion of such an expectancy in state court is not a sham and is not fraudulent in fact or in law." Dodson, 951 F.2d at 43. "There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged." Parks v. New York Times Co., 308 F.2d 474, 478 (5th Cir. 1962), cert. denied, 376 U.S. 949 (1964).
Here, as in Motton, supra, there is a bona fide issue whether the nondiverse defendant acted in good faith and is entitled to the defense of non-publication. The plaintiff alleges in his petition that nondiverse defendant repeated the allegedly malicious statements for a few months preceding the termination. While the petition alleges that the termination was caused by the statements to the employer's manager, it also indicates that the statements adversely affected himself and his family in other respects.
In so ruling, the Court is mindful that removal jurisdiction is strictly construed. See: Shamrock Oil Gas Corr. v. Sheets, 313 U.S. 100 (1941); Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979); C. Wright, A. Miller E. Cooper, 14B Federal Practice Procedure: Civil, § 3721. When subject matter jurisdiction is doubtful, remand is appropriate. C. Wright, A. Miller E. Cooper, 14C Federal Practice Procedure: Civil, § 3739.
Accordingly,
IT IS ORDERED that plaintiff's motion to remand is GRANTED. This matter be and hereby is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana, due to a lack of subject matter jurisdiction under 28 U.S.C. § 1447 (c).