Case: 20-60926 Document: 00516004063 Page: 1 Date Filed: 09/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 7, 2021
No. 20-60926
Lyle W. Cayce
Clerk
Aletha Louise Hicks,
Plaintiff—Appellant,
versus
Martinrea Automotive Structures
(USA), Incorporated; Lora Clark,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:19-CV-191
Before Jones, Southwick, and Costa, Circuit Judges.
Edith H. Jones, Circuit Judge:
Appellant Aletha Hicks sued her former employer Martinrea and the
company’s Human Resources (HR) manager, Lora Clark, for malicious
interference with employment and witness tampering under Mississippi law.
Because Clark and Hicks are both residents of Mississippi, and Clark was not
improperly joined, the federal courts lack diversity jurisdiction. Accordingly,
we REVERSE the judgment of the district court and REMAND with
instructions to remand to state court.
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No. 20-60926
BACKGROUND
Plaintiff Aletha Hicks worked at the Martinrea Tupelo automotive
parts manufacturing plant in Tupelo, Mississippi for approximately five years
until mid-2018. Her main job was to place raw metal parts into a machine
that then welded two nuts onto each part. Because of production errors in
the plant, her employer had started requiring production associates like
Hicks to write their personal identifier numbers (“clock numbers”) on their
finished parts after inspecting them, so problem parts could be identified and
traced back to the associate responsible. According to Martinrea, Hicks
“circumvented the quality check process by writing her individual clock
number on her parts before she ran them through the machine, before any
nuts were welded to the parts, and before she performed her quality check.”
Because of this and other previous problems, she was terminated in August
2018. Appellee Clark was responsible, along with one other executive, for
the termination decision.
Hicks avers that the real reason she was fired was an attempt to
“induce” her not to testify in her coworker’s workers’ compensation case.
She alleges that she was fired only two days before the scheduled deposition.
The Appellees disagree that she was fired to forestall the deposition and point
out that:
Plaintiff conceded, under oath, that no one ever told her not to
show up for her deposition in her coworker’s worker’s
compensation case. Plaintiff conceded that her deposition in
her former coworker’s worker’s compensation case did, in
fact, take place in February 2019. In fact, in order to effectuate
Plaintiff’s deposition, Defendant Clark provided Plaintiff’s
contact information, including her address and telephone
number, to the attorney so Plaintiff’s deposition could still take
place in the coworker’s workers compensation case. At her
deposition in this case, Plaintiff testified she was unaware
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Defendant Clark had provided her contact information to the
lawyer so her deposition could be scheduled in the coworker’s
case.
Hicks sued Martinrea and Clark in the County Court of Lee County,
Mississippi. Hicks filed an initial complaint on March 25, 2019 and an
amended complaint on June 21. She asserted a claim of malicious
interference with employment against Clark alone, and she alleged that both
Clark and Martinrea should be held liable on public policy grounds for
violating Mississippi’s witness tampering criminal statute. 1
The defendants removed the case to federal district court on
October 25, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Hicks is a resident of Mississippi and alleged more than $75,000 in damages.
Martinrea, a Michigan corporation with its principal place of business in
Ontario, Canada, is of diverse citizenship from Hicks. But Clark is also a
Mississippi resident. In their removal action, the defendants urged that
although the plaintiff and Clark are both Mississippi residents, Clark was
improperly joined for the purpose of defeating diversity jurisdiction.
The district court rejected Clark’s challenge to the timeliness of the
removal petition, agreed with Appellees that Clark was improperly joined,
and therefore sustained the removal to federal court. After dismissing Clark
from the lawsuit, the district court granted summary judgment for the
defendants. The court concluded that Hicks had not presented evidence that
created a triable issue of fact regarding whether she was fired to prevent her
from testifying in the coworker’s worker’s compensation case. Hicks timely
appealed.
1
While Hicks lodged witness tampering claims against Clark in her complaint, she
does not raise them before our court. This cause of action is waived.
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DISCUSSION
This Court reviews improper joinder determinations de novo.
Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 219 (5th Cir. 2018)
(citing Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 765 (5th Cir. 2016)).
Since Hicks and Clark are non-diverse, removal jurisdiction is proper
only if Clark was improperly joined. The federal removal statute, 28 U.S.C.
§ 1441(a), authorizes removal of “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction;” but
subsection (b) specifies that suits not arising under federal law are removable
“only if none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (en banc)
(quoting 28 U.S.C. § 1441(b)) (emphasis in original). Removal statutes,
moreover, are to be construed “strictly against removal and for remand.”
Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996). And the
“focus of the inquiry must be on the joinder, not the merits of the plaintiff’s
case.” Smallwood, 385 F.3d at 573; see also McDonal v. Abbott Labs, 408 F.3d
177, 183–84 (5th Cir. 2005).
Relevant under Smallwood, an improper joinder occurs if a plaintiff is
unable “to establish a cause of action against the non-diverse party in state
court.” Smallwood, 385 F.3d at 572 (quoting Travis v. Irby, 326 F.3d 644,
646–47 (5th Cir. 2003)). The test is whether there is “no possibility of
recovery by the plaintiff against an in-state defendant,” or put a different
way, whether there is “no reasonable basis for [predicting recovery] against
an in-state defendant.” Smallwood, 385 F.3d at 573. To resolve this inquiry,
the district court may conduct a Rule 12(b)(6)-type analysis, “looking
initially at the allegations of the complaint to determine whether the
complaint states a claim under state law against the in-state defendant.
Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no
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improper joinder.” Smallwood, 385 F.3d at 573 (footnote omitted). “To pass
muster under Rule 12(b)(6), [a] complaint must have contained ‘enough
facts to state a claim to relief that is plausible on its face.’” Int’l Energy
Ventures Mgmt., 818 F.3d 193, 200 (5th Cir. 2016) (quoting Reece v. U.S. Bank
Nat’l Ass’n, 762 F.3d 422, 424 (5th Cir. 2014)). Alternatively, Smallwood
indicated that in a relatively small number of cases, the plaintiff has “stated
a claim, but has misstated or omitted discrete facts that would determine the
propriety of joinder.
In such cases, the district court may, in its discretion, pierce the
pleadings and conduct a summary inquiry.” Smallwood, 385 F.3d at 573
(footnote omitted). But Smallwood cautions that “a summary inquiry is
appropriate only to identify the presence of discrete and undisputed facts that
would preclude plaintiff’s recovery against the in-state defendant.” Id. at
573–74 (footnote omitted).
In Mississippi, a tortious interference with contract claim requires the
plaintiff to prove four elements: (1) the defendant’s acts were intentional and
willful; (2) the acts were calculated to cause damages to the plaintiff in her
lawful business; (3) they were done with the unlawful purpose of causing
damage and loss, without right or justifiable cause on the part of the
defendant; and (4) actual loss occurred. Levens v. Campbell, 733 So. 2d 753,
760–61 (Miss. 1999). Further, a person like Clark, who “occup[ied] a
position of responsibility on behalf of another is privileged, within the scope
of that responsibility and absent bad faith, to interfere with his principal’s
contractual relationship with a third person.” Shaw v. Burchfield, 481 So. 2d
247, 255 (Miss. 1985). Therefore, to prevail on the claim of malicious
interference against Clark, Hicks must show that Clark was not privileged—
that is, she acted in bad faith and outside the scope of her responsibility in her
role as HR Manager. See id.
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Hicks’s complaint alleged prima facie evidence of bad faith—that
Clark fired her to prevent her from testifying at a worker’s compensation
deposition. The Appellees counter Hicks’s assertions with contrary
deposition testimony by Hicks herself, which suggests inter alia that Hicks
and Clark got along well personally and that Clark tried to help facilitate the
deposition even after Hicks was fired. From such evidence, the district court
made fact determinations, more akin to a summary judgment inquiry, that
the defendants would ultimately prevail. The court’s intuition may have
been correct, but its procedural approach fails. See Travis, 326 F.3d at 650 &
n.3 (explaining that unlike summary judgment, which can be granted when
there is “lack of substantive evidence” to support a plaintiff’s claim,
improper joinder requires the defendant to “put forward evidence that would
negate a possibility of liability on the part of” the in-state defendant).
In other cases where this court has found improper joinder, there was
no possibility of recovery because of a legal bar to recovery or because the
elements of the claim were plainly not satisfied. In Allen v. Walmart Stores,
L.L.C., 907 F.3d 170, 183–84 (5th Cir. 2018), for example, this court found
improper joinder because the plaintiff could not demonstrate that Walmart
employees owed a duty of care to a customer, a legal prerequisite to recovery.
In addition, because the removing party bears the burden of proof, its
“conclusory statement that a claim is false . . . is not a ‘discrete and
undisputed fact’” showing that a plaintiff has no possibility of recovery, as
would establish improper joinder of an in-state defendant. Cumpian,
910 F.3d at 221 (quoting Smallwood, 385 F.3d at 573).
Not only do these defendants rely on evidence developed during
merits discovery, which is far afield from Rule 12(b)(6), but the evidence they
cite relates to the crucial question of Clark’s motive in terminating Hicks. In
fact, the defendants, in their brief to this court, “do not dispute that
Plaintiff’s Complaint, on its face at least, states the elements of a claim for
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malicious interference with employment.” On this basis, the claim against
Hicks survives the Rule 12(b)(6)-like improper joinder inquiry, and the
evidence proffered by defendants hardly consists of “discrete and
undisputed facts” that demonstrate Hicks’s inability to prevail. Neither
alternative expressed by Smallwood for finding an improper joinder is fulfilled
here. The district court erred in concluding that Clark was improperly joined
for diversity purposes. Diversity jurisdiction was lacking, and the removal
must be reversed.
For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND with instructions to remand to state court.
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