Hart v. Bayer Corporation

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60496
consolidated with
No. 98-60811
Summary Calendar

RODALTON HART, ET AL.,

Plaintiffs,

RODALTON HART; JOSEPH BURRELL; EDWARD MURTAGH; CARL PEPPER;
RICHARD PERRY; GEORGE T. WYNNE; WALTER L. UPCHURCH; TOM SLACK;
SHARPE PLANTING COMPANY II, a Partnership; L&L PLANTING CO., a
Partnership,

Plaintiffs-Appellants,

VERSUS

BAYER CORPORATION; FMC CORPORATION; ZENECA INC.; AMERICAN
CYANAMID COMPANY; RHONE-POULENC INCORPORATED; E.I. DUPONT DE
NEMOURS AND COMPANY; VALENT U.S.A. CORPORATION; CIBA-GEIGY
CORPORATION; AND LARRY MAKAMSON,

Defendants-Appellees.

Appeals from the United States District Court
For the Southern District of Mississippi
January 6, 2000

Before DAVIS, DUHÉ, and PARKER, Circuit Judges:

ROBERT M. PARKER, Circuit Judge:

Plaintiffs brought state-law claims alleging that various

pesticides manufactured and marketed by the corporate defendants,

and one pesticide promoted by individual defendant, corporate agent

Larry Makamson, failed to control or prevent tobacco budworm

infestation of their crops ultimately resulting in substantial
damage to their crops. Plaintiffs appeal dismissal of their case

by the United States District Court for the Southern District of

Mississippi, Jackson Division. Specifically, plaintiffs appeal

from the grant of judgment on the pleadings in favor of defendants.

While this order constituted the final adjudication of the case,

the order incorporated earlier district court rulings on preemption

and fraudulent joinder. Since, these rulings formed the legal

basis for the district court’s dismissal, they are the substantive

decisions we must review on appeal. We REVERSE and REMAND to the

district court with instructions to remand the case to state court.

I. FACTS AND PROCEDURAL HISTORY

A. Background

Rodalton Hart (“Hart”); Joseph Burrell; Edward Murtagh; Carl

Pepper; Richard Perry; George T. Wynne; Walter L. Upchurch;1 Tom

Slack; Sharpe Planting Company II, a Partnership; and L&L Planting

Company, a Partnership, brought suit against pesticide

manufacturers Bayer Corp., FMC Corp., Zeneca Incorporated, American

Cyanamid, Rhone-Poulenc Incorporated, E.I. Dupont De Nemours and

Company, Valent U.S.A. Corp., Ciba-Geigy Corporation, and agent

Larry Makamson. Plaintiffs are cotton farmers who applied

defendants’ chemicals to enhance production by controlling crop

diseases and infestations. During the 1995 cotton season, despite

application of defendants’ chemicals, Plaintiffs were unable to

1
By joint stipulation of the parties, that portion of the appeal
brought by Plaintiff-Appellant Walter L. Upchurch against
Defendant-Appellee American Cyanamid Company was dismissed as of
February 16, 1999.

2
successfully control or prevent budworm infestation of their crops.

Nevertheless, the corporate defendants and their agents, such as

Makamson, allegedly continued touting the effectiveness of their

chemicals. The alleged failure of the chemicals to perform, the

alleged misrepresentations by defendants concerning the

effectiveness of the chemicals, and the resulting losses suffered

by plaintiffs prompted this lawsuit.

B. Procedural History

Plaintiffs filed their complaint in Mississippi state court

asserting four state common-law causes of action: breach of the

implied warranty of merchantability (actually a breach of implied

warranty of fitness for a particular purpose claim), breach of good

faith and fair dealing, intentional infliction of emotional

distress, and negligence. Plaintiffs did not assert any federal

causes of action. On June 3, 1996, defendants removed to federal

district court claiming that there was both federal question and

diversity jurisdiction. Defendants claimed federal question

jurisdiction existed based on the Federal Insecticide, Fungicide,

and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., which

defendants raised as a defense to plaintiffs’ claims. Diversity

jurisdiction purportedly was proper because plaintiffs were

Mississippi citizens, all corporate Defendants were citizens of

other jurisdictions, and the sole in-state defendant, Larry

Makamson, was fraudulently joined. The district court denied

plaintiffs’ motion to remand on the grounds that it had subject

matter jurisdiction upon the dual theories advanced by Defendants.

3
 After addressing jurisdiction, the parties turned to the

question of whether FIFRA preempted Plaintiffs’ state-law claims.

Ultimately, the district court agreed with defendants’ arguments

that FIFRA completely precluded all of plaintiffs’ state-law

claims. Nevertheless, defendants did not immediately seek

dismissal of the case. Shortly thereafter, the district court

entered an order staying discovery. Some four months later, the

parties agreed that the case was ripe for dismissal based upon the

court’s earlier rulings on preemption and fraudulent joinder.

Defendants then moved for judgment on the pleadings and the

district court dismissed plaintiffs’ claims but only as to

defendant Makamson. Plaintiffs appealed that ruling and sought

permission to ask the district court for an order dismissing the

case as to the remaining defendants. We granted permission, and on

November, 23, 1998, the district court issued the requested order.

Plaintiffs then filed a notice of appeal on December 2, 1998, and

they are now before us appealing the district court’s rulings.

II. DISCUSSION

Plaintiffs raise three issues on appeal. First, plaintiffs

maintain that FIFRA does not provide a basis for federal

jurisdiction in this case because it is not a complete preemption

statute. Second, plaintiffs contend that the lower court erred in

finding that the in-state defendant was fraudulently joined since

plaintiffs have properly asserted claims against Makamson for which

he could be found independently liable. Third, plaintiffs argue

that while FIFRA may preempt some state-law damage actions, it does

4
not bar state common-law claims that are not based upon

inadequacies in labeling or packaging. Since we hold that the

district court erred in concluding that (1) a “FIFRA defense” is

sufficient to establish federal question jurisdiction, and (2)

corporate agent Makamson was fraudulently joined, neither we nor

the district court have jurisdiction to reach the issue of whether

FIFRA bars plaintiffs’ state-law claims.

A. Standard of Review

We begin by establishing the appropriate standard of review.

This court reviews de novo a district court's conclusions on

questions of law. Voest-Alpine Trading USA Corp. v. Bank of China,

142 F.3d 887, 891 (5th Cir. 1998). The district court’s fraudulent

joinder analysis turned solely upon such a question, namely the

proper interpretation of Mississippi tort law. Judgment for

defendants also was premised upon the district court’s ruling on

federal preemption. The district court’s preemption ruling is a

determination of original jurisdiction, and therefore, is also

subject to de novo review. See Hook v. Morrison Milling Co., 38

F.3d 776, 780 (5th Cir. 1994).

B. Absence of Federal Question Jurisdiction

Federal question jurisdiction arises when a plaintiffs’ set

forth allegations “founded on a claim or right arising under the

Constitution, treaties or laws of the United States.” See 28

U.S.C. § 1441(b), § 1331. In general, questions concerning federal

question jurisdiction are resolved by application of the

“well-pleaded complaint” rule. Louisville & Nashville R.R. v.

5
Mottley, 211 U.S. 149, 152-53 (1908). The rule provides that the

plaintiff's properly pleaded complaint governs the jurisdictional

inquiry. If, on its face, the plaintiff’s complaint raises no

issue of federal law, federal question jurisdiction is lacking.

See Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 10

(1983).

Since, on its face, plaintiffs' complaint sets forth only

state-law claims, defendants relied upon the “complete preemption”

exception to the well-pleaded-complaint rule in their efforts to

establish jurisdiction. Under this exception, if a federal law is

found to "completely preempt" a field of state law, the state-law

claims in the plaintiff's complaint will be “recharacterized” as

stating a federal cause of action. See Caterpillar, Inc. v.

Williams, 482 U.S. 386, 393 (1987)(“Once an area of state law has

been completely pre-empted, any claim purportedly based on that

pre-empted state law is considered, from its inception, a federal

claim, and therefore arises under federal law.”). The

recharacterization of a plaintiff’s state-law claim will also make

removal proper on the basis of federal question jurisdiction. See

Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499

(5th Cir. 1999).

Yet the mere fact that a given federal law might "apply" or

even provide a federal defense to a state-law cause of action, is

insufficient alone to establish federal question jurisdiction. To

give rise to federal question jurisdiction, a court must find

complete preemption. See Franchise Tax Bd., 463 U.S. at 23-24.

6
"In complete preemption a federal court finds that Congress desired

to control the adjudication of the federal cause of action to such

an extent that it did not just provide a federal defense to the

application of state law; rather, it replaced the state law with

federal law and made it clear that the defendant has the ability to

seek adjudication of the federal claim in a federal forum." 14B

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3722.1 (3d ed.

1998). In sum, to establish federal question jurisdiction through

the invocation of a federal preemption defense, the defendant must

demonstrate that Congress intended not just to “preempt a state law

to some degree," but to altogether substitute "a federal cause of

action for a state cause of action." Schmeling v. NORDAM, 97 F.3d

1336, 1341 (10th Cir. 1996).

Here, defendants argue that all of plaintiffs’ state common

law claims asserted against them are, in reality, federal claims.

Defendants contend that FIFRA,2 by its express prohibition on

state-imposed labeling or packaging requirements, so throughly

preempts all state common law claims in the field of pesticide

regulation that federal question jurisdiction is created. This is

a fundamental misreading of the statute and relevant case law.

We know that FIFRA does not completely preempt all state or

local regulation of pesticides. In fact, the Supreme Court has

2
FIFRA’s preemption language is found in 7 U.S.C. § 136v(b)
(1994), which provides:
(b) Uniformity
[The States] shall not impose or continue in effect any
requirements for labeling or packaging in addition to or
different from those required under this subchapter.

7
expressly held that FIFRA does not preempt local pesticide

ordinances:

FIFRA ... leaves substantial portions of the field
vacant.... Whatever else FIFRA may supplant, it does not
occupy the field of pesticide regulation in general....
Rather, it acts to ensure that the States could continue
to regulate use and sales even where, such as with regard
to the banning of mislabeled products, a narrow
pre-emptive overlap might occur.

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 613-14

(1991). “Tellingly, it is precisely this expression, 'occupy the

field,’ that courts have repeatedly used to describe complete

preemption, and it is exactly this 'occupying of the field’ which

the Supreme Court tells us does not exist in FIFRA.” Ell v. S.E.T.

Landscape Design, Inc., 34 F. Supp. 2d 188, 193 (S.D.N.Y. 1999).

Furthermore, we have determined that FIFRA preemption does not

extend to non-labeling state common-law causes of action. See

MacDonald v. Monsanto, 27 F.3d 1021, 1024 (5th Cir. 1994) (“This is

not to say, however, that [] all common law is preempted by FIFRA

-- § 136v(b) does not preempt common law that is unconcerned with

herbicide labeling, nor does it preempt those state laws concerned

with herbicide labeling that do not impose any requirement 'in

addition to or different from’ the FIFRA requirements.”).3

3
In MacDonald, we were not confronted with the issue of whether
federal question jurisdiction is created by a FIFRA defense because
the defendants removed the case to federal court based upon
diversity of citizenship. See 27 F.3d at 1023. Nevertheless, it
is worth noting that our holding in MacDonald -- that FIFRA’s
preemptive power reaches both positive enactments and common law
actions, but not all common law actions – is inconsistent with a
finding that FIFRA represents a complete preemption statute. Here,
plaintiffs asset a variety of state common law causes of action
none of which directly relate to product labeling. Defendants

8
 The text of the statute itself belies any claim that Congress

intended it to operate as a complete preemption statute. FIFRA

begins with an anti-preemption provision:

Authority of the States
(a) In general
A state may regulate the sale or use of any federally
registered pesticide or device in the State, but only if
and to the extent the regulation does not permit any sale
or use prohibited by this subchapter

7 U.S.C. § 136v(a) (1994) (emphasis added). Rather than disarm the

states in the area of pesticide regulation, Congress chose to

expressly confirm the states’ “historic police powers” to regulate

products that may affect the health and safety of their citizens.

See MacDonald, 27 F.3d at 1023. As the Supreme Court explained in

Mortier, the legislative history only reenforces this conclusion:

We agree that neither the language of the statute nor its
legislative history, standing alone, would suffice to
pre-empt local regulation. But it is also our view that,
even when considered together, the language and the
legislative materials relied on below are insufficient to
demonstrate the necessary Congressional intent to
pre-empt. As for the statutory language, it is wholly
inadequate to convey an express preemptive intent on its
own. Section 136v plainly authorizes the "States" to
regulate pesticides . . .

501 U.S. at 607. In short, the Supreme Court not only failed to

find the requisite expression of congressional intent to occupy the

contend that all of these claims are really disguised labeling
claims which fall within the preemptive (read preclusive) scope of
FIFRA. This is the question that we cannot reach, because even if
all of plaintiffs’ claims are in fact barred because FIFRA provides
a federal defense to each of these state law claims, the fact that
many state law causes of action survive means that the statute does
not establish federal question jurisdiction over the case.
Therefore, defendants are not deprived of their FIFRA defenses,
they are only deprived of a federal forum in which to utilize their
defenses.

9
field of pesticide regulation, it instead found an explicit grant

of authority to the states. The inexorable conclusion to be drawn

is that FIFRA is not a complete preemption statute, and therefore,

federal question jurisdiction is not established.

Many courts have reached this same conclusion through the

application of our analysis in Aaron v. National Union Fire Ins.

Co., 876 F.2d 1157 (5th Cir. 1989), where we held that the

Longshore and Harbor Workers' Compensation Act did not so

completely preempt state law as to authorize removal on the basis

of federal question jurisdiction. See, e.g., Rodriguez v. Shell

Oil Co., 818 F. Supp. 1013 (S.D. Tex. 1993). Our decision was

motivated by our findings that the statute: (1) did not contain a

civil enforcement provision, (2) did not include a specific grant

of federal subject matter jurisdiction, and (3) did not reflect a

clear manifestation of congressional intent to make preempted

state-law claims removable to federal court. See Aaron, 876 F.2d

at 1163-66. Applying the Aaron analysis to the instant case, we

find that FIFRA fails all three prongs of the test.

If we err in this determination, we enjoy plentiful company.

The vast majority of district courts that have faced this

jurisdictional question have concluded that FIFRA does not

completely preempt state law and thus a "FIFRA defense" does not

establish federal question jurisdiction. See Ell v. S.E.T.

Landscape Design, Inc., 34 F. Supp. 2d 188, 193 (S.D.N.Y. 1999);

Thigpen v. Cheminova, 992 F. Supp. 864, 869 (S.D. Miss. 1997);

Murray v. Commonwealth Edison, 905 F. Supp. 512, 514 (N.D .Ill.

10
1995); Rodriguez, 818 F. Supp. at 1016-18. Additionally, the only

circuit court to squarely address the issue also determined that

FIFRA does not completely preempt state law. See Hurt v. Dow

Chemical Co., 963 F.2d 1142 (8th Cir. 1992).4

Since there is no federal question jurisdiction in the instant

case, the district court’s ability to hear the case should have

turned exclusively upon the existence of diversity jurisdiction.

In turn, the existence of diversity jurisdiction rests upon a

finding that joinder of Makamson was fraudulent.

C. Absence of Diversity Jurisdiction

The second possible basis for federal subject matter

jurisdiction is diversity of citizenship. Plaintiffs in this case

are Mississippi citizens whereas all of the corporate defendants

are non-residents. It is the presence of diversity-destroying in-

state defendant Makamson that, if properly included in the action,

prevents federal jurisdiction. The district court concluded that

Makamson had been fraudulently joined as a defendant in order to

defeat diversity jurisdiction. Plaintiffs contend that the

4
Defendants point to two aberrant, unpublished district court
opinions to support their argument, both cases from within the
Fifth Circuit. See LaCoste v. Stamps, 1995 WL 442070 (E.D. La.
July 25, 1995); Burge v. Jones, 1992 WL 415263 (S.D. Tex. Nov. 18,
1992). The reasoning in neither case is persuasive. Both courts
erred by (1) failing to distinguish between ordinary preemption and
complete preemption, and (2) mistakenly relying upon FIFRA cases
removed based on diversity jurisdiction, not complete preemption
federal question jurisdiction. Subsequent to these decisions, both
courts have applied the Aaron test and reached the conclusion that
FIFRA does not confer federal question jurisdiction. See Martinez
v. Dow Chemical Co., Nos. 95-3212, 95-3214, 1996 WL 502461 (E.D.
La. Sept. 4, 1996); Rodriguez, 818 F. Supp. 1013 (S.D. Tex. 1993).

11
district court erred in this finding.

"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). In Dodson v.

Spiliada Maritime Corp., 951 F.2d 40 (5th Cir.1992), the standard

for evaluating such a claim were summarized as follows:

Where charges of fraudulent joinder are used to establish
[federal] jurisdiction, the removing party has the burden
of proving the claimed fraud.... To prove their
allegation of fraudulent joinder [removing parties] must
demonstrate that there is no possibility that [plaintiff]
would be able to establish a cause of action against them
in state court. In evaluating fraudulent joinder claims,
we must initially resolve all disputed questions of fact
and all ambiguities in the controlling state law in favor
of the non-removing party. We are then to determine
whether that party has any possibility of recovery
against the party whose joinder is questioned.

Dodson, 951 F.2d at 42 (citations omitted) (emphasis added). In

many instances, we have cautioned against “pretrying a case to

determine removal jurisdiction,” stating that fraudulent joinder

claims can be resolved by "piercing the pleadings" and considering

summary judgment-type evidence such as affidavits and deposition

testimony. Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100

(5th Cir. 1990). The district court failed to follow this

procedure. Consequently, we are limited to a review of the

allegations in the complaint in determining whether Makamson could

be subject to individual liability.

The question of whether plaintiffs could possibly establish a

claim against Makamson in state court is resolved by reference to

Mississippi law. In circumstances where a defendant acts as an

12
agent for a known principal, the general rule in Mississippi law is

that the defendant-agent incurs no liability for a principal’s

breach of duty. See Moore v. Interstate Fire Insurance Company,

717 F. Supp. 1193 (S.D. Miss. 1989); Schoonover v. West American

Ins. Co., 665 F. Supp. 511 (S.D. Miss. 1987) (interpreting

Mississippi law). On the other hand, an agent for a disclosed

principal can be held personally liable for his own tortious acts

committed within the scope of his employment. Wheeler v. Frito-

Lay, Inc., 743 F. Supp. 483, 487 (S.D. Miss. 1990)(holding that

plaintiff had stated a possible claim against employee-driver for

negligent driving within the scope of employment). The agent is

subject to personal liability when he "directly participates in or

authorizes the commission of a tort," Id. (quoting Mississippi

Printing Co., Inc. v. Maris, West & Baker, Inc., 492 So. 2d 977,

978 (Miss. 1986)), but individual liability may not be predicated

merely on his connection to the corporation but must have as its

foundation "individual wrongdoing." Turner v. Wilson, 620 So. 2d

545, 548 (Miss. 1993). “The thrust of the general rule is that the

officer [or agent] to be held personally liable must have some

direct, personal participation in the tort, as where the defendant

was the 'guiding spirit' behind the wrongful conduct ... or the

'central figure' in the challenged corporate activity." Mozingo v.

Correct Mfg. Corp., 752 F.2d 168, 173 (5th Cir. 1985) (quotations

omitted).

Based on our review of the pleadings, we conclude that

appellees failed to demonstrate that there is no possibility that

13
plaintiffs could establish a cause of action against Makamson. The

district court in its order denying remand based its decision

entirely upon Makamson’s status as a agent working within the

course and scope of his employment. Appellees use a similar

analysis on appeal. They state that all information conveyed to

plaintiffs by Makamson originated with the manufacturers;

therefore, he could not be anything more than a conduit for

information from his principal. Accordingly, defendants conclude

that he could not be liable for dissemination of information he

received from the manufacturer, “unless he knew it to be untrue.”

Of course, that is exactly what plaintiffs allege in their

complaint: “Mr. Makamson breached his duty by continuing to

represent that Defendant FMC’s products would effectively control

budworms when he knew or should have known that the chemicals were

failing to control the budworms as represented.” (Emphasis added).

The scenario set forth in plaintiffs’ pleadings, if true, could

result in liability being imposed on Makamson for his alleged

continuing misrepresentations.5 The fact that Makamson was acting

within the course and scope of his employment is not dispositive on

5
Defendants attempt to re-characterize plaintiffs’ allegations
of misrepresentation as “promises of future conduct which did not
concern a past or present fact.” This interpretation misreads
plaintiffs’ allegations which complain of “continuing”
misrepresentations when “the chemicals were failing to control the
budworms . . .” This is not the type of “future promise” fraud
claim that the Mississippi Supreme Court has rejected as
inadequate. See Spragins v. Sunburst Bank, 605 So.2d 777, 781
(Miss. 1992).

14
this point.6 The district court stated that “the conduct of

Makamson must rise to the level of an independent tort, committed

on his own, to remove him from the agency relationship such that he

will have to answer personally for his conduct.” This misreads

the proper standard. Plaintiffs need only set forth allegations

6
Defendants also contend that the claim against Makamson is
deficient because plaintiffs have failed to plead it with
sufficient particularity in accordance with FED. R. CIV. P. 9(b).
While the Court agrees that plaintiffs’ allegations of deceitful or
deceptive behavior by Makamson are somewhat conclusory, we do not
believe that the penalty should be dismissal with prejudice to re-
filing.
Typically, a plaintiff's complaint must contain a "short and
plain statement of the claim showing that the pleader is entitled
to relief." FED. R. CIV. P. 8(a)(2). To prevail on a motion to
dismiss an ordinary claim under FED. R. CIV. P. 12(b) or (c), a
defendant must show that "the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). However, FED. R. CIV. P. 9(b)
imposes a heightened level of pleading for fraud claims: "In all
averments of fraud or mistake, the circumstances constituting fraud
or mistake shall be stated with particularity." Tuchman v. DSC
Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). Although
the particularity demanded by Rule 9(b) differs with the facts of
each case, see Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th
Cir. 1992), a plaintiff pleading fraud must set forth “the who,
what, when, and where . . . before access to the discovery process
is granted.” Williams v. WMX Technologies, Inc., 112 F.3d 175, 178
(5th Cir. 1997). Anything less fails to provide defendants with
adequate notice of the nature and grounds of the claim. See
Tuchman, 14 F.3d at 1067.
But a plaintiff’s failure to meet the specific pleading
requirements should not automatically or inflexibility result in
dismissal of the complaint with prejudice to re-filing. See Cates
v. International Telephone and Telegraph Corp., 756 F.2d 1161, 1180
(5th Cir. 1985) (“But such deficiencies do not normally justify
dismissal of the suit on the merits and without leave to amend, at
least not in the absence of special circumstances.”). Although a
court may dismiss the claim, it should not do so without granting
leave to amend, unless the defect is simply incurable or the
plaintiff has failed to plead with particularity after being
afforded repeated opportunities to do so. See O’Brien v. National
Property Analysts Partners, 936 F.2d 674, 675-76 (2d Cir. 1991).

15
demonstrating that Makamson directly participated in the commission

of a tort; there is no requirement that such allegations remove him

from the agency relationship. This heightened test fails to

recognize those situations in which an agent and his principal

could be found to be jointly and severally liable for tortious

conduct committed jointly by them.7

Plaintiffs’ complaint, taking all allegations set forth as

true and taking all inferences in a light most favorable to

plaintiffs, at least raises the possibility that they could succeed

in establishing a claim against Makamson under Mississippi law.

Accordingly, Makamson’s citizenship cannot be ignored for the

purposes of determining subject matter jurisdiction. His presence

in this civil action means that there is not the complete diversity

of citizenship necessary to maintain federal jurisdiction over this

case.

III. CONCLUSION

For the reasons set forth above, we hold that the district

court had no jurisdiction to hear this case. Removal of this case

7
It is interesting to note that Plaintiffs’ allegations against
Makamson pass even the test articulated by the district court:

In accordance with these principles, an agent or other
employee, merely because of his relationship as an agent
or employee, or because of the additional fact that he
has acted at the direction or command of his employer,
cannot escape or exempt himself from liability to a third
person for his own negligence or his own positive wrongs,
such as a trespass, an assault, the conversion of
property, fraud or misrepresentation, defamation or other
form of tortious conduct.

3 AM. JUR. 2d Agency § 300 (1962) (Emphasis added).

16
to federal court was improper. Accordingly, we REVERSE the Rule

12(c) judgment in favor of defendants and REMAND the case to the

district court with instructions to remand the case to the state

court from whence it came.

It is so ordered.

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