United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER.
A. FITZWATER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
court turns first to Hill's motion to strike.
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.
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
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,  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
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).
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.
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