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Hill v. Optum

United States District Court, N.D. Texas, Dallas Division

June 1, 2017

TIFFANY HILL, Plaintiff,
OPTUM d/b/a CONNEXTIONS, INC., et al., Defendants.



         In this removed employment discrimination dispute, plaintiff Tiffany Hill (“Hill”) moves to remand based on the lack of complete diversity, and, alternatively, requests leave to amend her original state-court petition. Defendants Optum d/b/a Connextions, Inc. (“Optum”), PeopleShare, Inc. (“PeopleShare”), and Jonathan Diaz (“Diaz”) oppose the motion, contending that Diaz has been improperly joined to defeat diversity and that his Texas citizenship may be disregarded. Hill moves to strike defendants' responses as untimely under N.D. Tex. Civ. R. 7.1, and defendants request that the court extend the filing deadline. For the reasons explained, the court denies Hill's motion to strike, denies her motion to remand, and grants her request for leave to amend.


         In 2015 Hill became employed with Optum via the temporary agency PeopleShare. Hill worked with a team that scheduled medical exams and supervised employees doing similar work. At an unspecified time after Hill began working for Optum, her supervisor, Diaz, became aware that Hill was pregnant. Diaz later terminated Hill's employment, citing her “approach with a subordinate agent” weeks before. P. Pet. 3. Hill asserts that the termination was, in fact, due to her pregnancy.

         Hill filed this lawsuit in state court against Optum, PeopleShare, and Diaz, alleging claims for sexual discrimination, in violation of the Texas Commission on Human Rights Act, defamation, and defamation per se by Diaz. Defendants removed the case to this court based on diversity of citizenship. Optum is a Minnesota corporation with its principal place of business in Minnesota, and PeopleShare is a Delaware corporation with its principal place of business in Pennsylvania. Although Diaz, like Hill, is a Texas citizen, defendants maintained that he had been improperly joined and that his in-state citizenship may be disregarded. Hill now moves to remand, contending that Diaz was not improperly joined and that the case should be remanded. To the extent the court determines that the facts asserted against Diaz are not sufficient, Hill requests leave to amend to add additional necessary facts. Defendants oppose Hill's motion to remand and her request for leave to amend. Hill moves to strike defendants' responses as untimely under Rule 7.1. Hill filed her motion to remand on April 13, 2017. PeopleShare filed its response on May 8, 2017, and Optum and Diaz filed their response on May 22, 2017. PeopleShare contends that its response was timely, or, alternatively, requests that the court extend the deadline under Fed.R.Civ.P. 6(b)(1)(B). In a separate response to Hill's motion to strike, Optum and Diaz also move to extend the deadline and request that the court accept their response adopting PeopleShare's arguments opposing the motion to remand as timely.


         The court turns first to Hill's motion to strike.

         Rule 7.1(e) provides that “[a] response and brief to an opposed motion must be filed within 21 days from the date the motion is filed.” Accordingly, defendants' responses to Hill's motion were due no later than May 4, 2017. PeopleShare filed its response on May 8, 2017, four days late. Optum and Diaz filed their joint response adopting PeopleShare's arguments on May 22, 2017, 18 days late.

         PeopleShare's contention that its response was timely under Fed.R.Civ.P. 6(d) is mistaken. Rule 6(d) provides that “[w]hen a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).” Id. (emphasis added). But Rule 7.1(e) does not specify a deadline based on when a motion is served. It imposes a deadline based on when a motion is filed. Therefore, neither the response deadline in Rule 7.1(e) nor in its predecessor, N.D. Tex. Civ. R. 5.1(e) (repealed Apr. 15, 1997), has ever been subject to extension based on the date when a motion was served.

         Although defendants' responses were untimely, the timing of the filings has neither interfered with the decisional process of the court nor caused Hill any prejudice greater than being faced with a response (an undifferentiated type of prejudice that would arise in every case in which the court considers a tardy response to a motion). Because Hill has had full opportunity to state her argument in her motion to remand and to reply to defendants' responses, [1] Hill has not been unduly prejudiced, and the delay has not interfered with the court's decisional process, the motion to strike is denied. See, e.g., Friedman & Feiger, L.L.P. v. ULofts Lubbock, LLC, 2009 WL 3378401, at *2 (N.D. Tex. Oct. 19, 2009) (Fitzwater, J.) (denying motion to strike where no showing of prejudice was made regarding timing of filing).


         The court now turns to Hill's motion to remand. For a case to be removed based on diversity jurisdiction, “all persons on one side of the controversy [must] be citizens of different states than all persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (quoting McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004)) (internal quotation marks omitted). “The jurisdictional facts that support removal must be judged at the time of the removal.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (citations omitted). Moreover, under 28 U.S.C. § 1441(b)(2), a case cannot be removed based on diversity jurisdiction if any properly joined defendant is a citizen of the state in which the action is brought (here, Texas).

         The doctrine of improper joinder is a narrow exception to the rule of complete diversity, and it “entitle[s] a defendant to remove to a federal forum unless an in-state defendant has been ‘properly joined.'” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc); see also Meritt Buffalo Events Ctr. LLC v. Cent. Mut. Ins. Co., 2016 WL 931217, at *2 (N.D. Tex. Mar. 11, 2016) (Fitzwater, J.). The doctrine allows federal courts to defend against attempts to manipulate their jurisdiction, such as by joining nondiverse parties solely to deprive federal courts of diversity jurisdiction. See Smallwood, 385 F.3d at 576. Because “the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns.” Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995)). Thus the removal statute is strictly construed, with “any doubt about the propriety of removal [being] resolved in favor of remand.” Id. at 281-82. The party seeking removal bears a heavy burden to prove improper joinder. Smallwood, 385 F.3d at 574.

         “Improper joinder is established by showing that there was either actual fraud in the pleading of jurisdictional facts or that the plaintiff is unable to establish a cause of action against the non-diverse defendant in state court.” Parsons v. Baylor Health Care Sys., 2012 WL 5844188, at *2 (N.D. Tex. Nov. 19. 2012) (Fitzwater, C.J.) (citing Smallwood, 385 F.3d at 573). Under the second alternative-the one at issue in this case-the test for improper joinder is “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Smallwood, 385 F.3d at 573; see also Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003) (explaining that ...

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