Opinion
No. 1:00CV146-D-A
August 7, 2000
OPINION
Presently before the court is the Plaintiffs' motion to remand this action to the Circuit Court of Lowndes County, Mississippi. Upon due consideration, the court finds that the motion should be granted and this cause remanded to state court for ultimate resolution.
A. Factual Background
The Plaintiff, Danny Holocher, was employed by the Defendant Baptist Memorial Health Services, Inc. (Baptist) as a respiratory therapy technician/respiratory care practitioner. Sometime in 1999, Holocher reported to Baptist, and to the Mississippi State Board of Health, that Valerie Colbert, Baptist's Technical Director and Holocher's direct supervisor, was committing unlawful acts. Specifically, Holocher complained that Colbert, who is neither a medical doctor nor a certified respiratory therapist, was:
(1) directing Holocher, as well as other employees, to deliver and set up respiratory medical equipment without obtaining the required physician's written prescription or oral order;
(2) providing instructions to patients regarding clinical use of home respiratory medical equipment distributed by Baptist; and
(3) monitoring, assessing or evaluating the effectiveness of treatments on patients.
Holocher asserts that Colbert's actions violated the Mississippi Respiratory Care Practice Act, codified at sections 73-57-1 through 73-75-39 of the Mississippi Code. Holocher further asserts that Colbert's actions constituted criminal acts prohibited by section 73-57-39 of the Mississippi Code. Holocher was suspended from his job on May 5, 1999, and was ultimately fired on May 17, 1999, pursuant to a letter he received from Valerie Colbert.
On March 27, 2000, Holocher filed suit in the Circuit Court of Lowndes County, Mississippi, contending that, as a result of his complaints regarding Colbert, he was unlawfully terminated from his employment at Baptist. He further claims that Colbert's and Baptist's conduct towards him constituted the intentional infliction of emotional distress. The Defendants removed the case to this court on April 25, 2000, asserting that diversity of citizenship exists because Valerie Colbert is not a proper party and has been fraudulently joined in order to defeat diversity. On May 26, 2000, the Plaintiff motioned the court to remand this matter to the Circuit Court of Lowndes County.
B. Standard for Remand
The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Original federal jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . . citizens of different states . . ." 28 U.S.C. § 1332 (a). The phrase "citizens of different states" requires complete diversity; should any plaintiff be a Mississippi resident, no defendant can be a Mississippi resident. Sid Richardson Carbon Gasoline Co. v. Interenergy Resources, Ltd., 99 F.3d 746, 751 (5th Cir. 1996).
In the case sub judice, the Plaintiff and one Defendant, Valerie Colbert, are Mississippi residents. This fact, however, will not destroy federal diversity jurisdiction if the Plaintiff fraudulently joined Colbert in order to defeat diversity. Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997).
The party alleging fraudulent joinder bears the burden of persuasion and that burden is quite stringent. See Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000) ("The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one."). In order to prove that a non-diverse party has been fraudulently joined by a plaintiff hoping to defeat diversity, the removing party 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." Hart, 199 F.3d at 246.
The Defendants here do not allege outright fraud, so the court must determine whether 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. In making this determination, the court evaluates all of the factual allegations in the plaintiff's state court pleadings in the light most favorable to the plaintiff, and the court must examine relevant state law and resolve all uncertainties in favor of the plaintiff. Hart, 199 F.3d at 246. Further, in evaluating a claim of fraudulent joinder, the court does not focus on whether the plaintiff will prevail on the merits of the claim. Instead, the court determines whether there is a possibility that the plaintiff will be able to state a claim against the allegedly fraudulently joined defendant. Rodriguez, 120 F.3d at 591.
C. Discussion 1. Possibility of Recovery Against Valerie Colbert
Whether a case states a cognizable claim against a defendant is determined by reference to the allegations made in the original pleadings. Wheeler v. Frito Lay, Inc., 743 F. Supp. 483, 485 (S.D.Miss. 1990). In the case at bar, the Plaintiff alleges that Colbert committed the torts of intentional infliction of emotional distress and unlawful discharge.
Under Mississippi law, an agent for a disclosed principal can be held personally liable for her own tortious acts committed within the scope of her employment, and a tort claim can be maintained against that agent. Hart, 199 F.3d at 247. The agent is subject to personal liability when she "directly participates in or authorizes the commission of a tort." Hart, 199 F.3d at 247 (quoting Mississippi Printing Co., Inc. v. Maris, West Baker, Inc., 492 So.2d 977, 978 (Miss. 1986)).
The Plaintiff has alleged that Colbert, an agent of Baptist, directly participated in the commission of one or more torts while within the scope of her employment. See Complaint pp. 3-4. And, the court finds that the scenario set forth in the Plaintiff's pleadings, if true, could result in liability being imposed on Colbert for her alleged tortious acts. See, e.g., Burroughs v. FFP Operating Partners, L.P., 28 F.3d 543, 546 (5th Cir. 1994) (setting forth elements of intentional infliction of emotional distress under Mississippi law). In other words, the Plaintiff has sufficiently set forth allegations, when taken as true, demonstrating that Colbert participated in the commission of at least one tort. As such, Colbert faces potential tort liability for her actions and the court finds that the Defendants have not demonstrated that there is absolutely no possibility that the Plaintiff will be able to establish a cause of action against Colbert in state court.
In sum, the Plaintiff's complaint, taking all allegations set forth as true, at least raises the possibility that he could succeed in establishing a tort claim against Colbert under Mississippi law. Accordingly, Colbert's citizenship cannot be ignored for the purposes of determining subject matter jurisdiction. Her presence in this civil action means that the complete diversity of citizenship necessary to maintain federal jurisdiction over this case is absent. As such, this cause shall be remanded to the Circuit Court of Lowndes County for ultimate resolution.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Plaintiff's motion to remand (docket entry 14) is GRANTED; and
(2) this cause is hereby REMANDED to the Circuit Court of Lowndes County, Mississippi.