ADAMS v. FIRST HORIZON BANK et al

Filing 30

MEMORANDUM OPINION AND ORDER, signed by JUDGE WILLIAM L. OSTEEN, JR on 9/9/21, that Plaintiff's Motion to Remand to State Court, (Doc. 12), is GRANTED and that this case is hereby REMANDED for further proceedings in the Superior Court of Forsyth County, North Carolina. FURTHER ORDERED that the Clerk of Court is directed to send a certified copy of this Memorandum Opinion and Order to the Clerk of Superior Court in Forsyth County. FURTHER ORDERED that Defendants' Partial Motion to Dismiss, (Doc. 18 ), is DENIED AS MOOT. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DONNA ADAMS,
Plaintiff,
v.
FIRST HORIZON BANK, formerly
d/b/a FIRST TENNESSEE BANK,
and ANNA LONG,
Defendants.

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1:20CV992

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter comes before the court on a Motion to Remand to
State Court, (Doc. 12), filed by Plaintiff Donna Adams and a
Partial Motion to Dismiss, (Doc. 18), for failure to state a
claim filed by Defendants First Horizon Bank and Anna Long.

For

the reasons described herein, this court finds that Plaintiff ’s
motion to remand should be granted and that Defendants’ motion
to dismiss should be denied as moot.
I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

Factual Background

The facts taken in the light most favorable to Plaintiff
are as follows. Plaintiff Donna Adams is a North Carolina
citizen. (Amended Complaint (“Am. Compl.”) (Doc. 11) ¶ I.)

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Plaintiff was employed at Defendant First Horizon Bank, (“the
Bank”), formerly known as First Tennessee Bank, (id. ¶ IV), with
its regional office located in Winston-Salem, North Carolina.
(Id. ¶ II.) Defendant Anna Long (“Long”) is an employee of the
Bank who resides in Buncombe County, North Carolina. (Id.
¶ III.) She worked as the Bank’s Regional Sales Manager. ( Id.
¶ VI.)
Plaintiff “brought a large amount of business” into the
Bank, and the Bank responded by giving “credit to a young
manager who had nothing to do with bringing in that business.”
(Id. ¶ VIII.) Plaintiff was “excluded” from making presentations
at meetings and conference calls, while her employer allowed
younger and less experienced employees to make the
presentations. (Id.) Plaintiff was also not chosen for a trip to
corporate headquarters, while younger managers with less
experience were chosen instead. (Id.) Finally, Defendant Long
“frequently made comments referring to Donna Adams’ age; and
Long frequently asked [Adams] when she planned to retire from
the Bank.” (Id.)
Plaintiff also alleges that in May or June of 2019, “upper
management changed a bank form, and requested Donna Adams to
re-do the original document using the new format.” (Id. ¶ XI.)
Adams dealt with this as “a clerical matter.” (Id.) Plaintiff
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does not elaborate on how this incident related to her
termination or any age discrimination against her.
On September 20, 2019, Defendant Long “falsely accused
Donna Adams in writing of falsifying a bank record.” (Id. ¶ IX.)
Long made this writing “on the premises of First Tennessee Bank
in North Carolina” and published the statement to other people
“including but not limited to managers and employees” of the
Bank. (Id. ¶ XVIII.)
This led to Adams’ termination by the Bank that same day.
(Id. ¶ X.) The Bank terminated at least six other bank employees
“older than 40 years of age,” mostly in their 50s and 60s, in
spite of their excellent performance records. (Id. ¶¶ VII,
XXIX.) These employees were replaced by younger managers. (Id.
¶ XII.) Plaintiff alleges that Long “instigated” these
terminations. (Id. ¶ XXIX.)
B.

Procedural Background

Though Plaintiff filed her Complaint in state court, the
case was removed to federal court on November 2, 2020. (Doc. 1.)
The Complaint was amended on November 18, 2020. (Am. Compl.
(Doc. 11).) Plaintiff alleges wrongful discharge - the “reason
given for her termination was false and bogus” and “was a
pretext for the Bank’s age discrimination.” (Id. ¶ X.) She also
alleges Long committed libel, (id. ¶ XVIII), slander, (id.
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¶ XXIII, and tortious interference with Plaintiff’s employment
contract, (id. ¶ XXIX). Plaintiff seeks both punitive and
compensatory damages. (Id. at 11.)
Plaintiff filed a Motion to Remand on November 20, 2020,
(Doc. 12), along with an accompanying Memorandum, (Doc. 13).
Defendants responded, (Doc. 17), and Plaintiff replied, (Doc.
24). Defendants filed a Partial Motion to Dismiss on
December 16, 2020, (Doc. 18), along with an accompanying
Memorandum, (Doc. 19). Plaintiff responded, (Doc. 28), and
Defendants replied, (Doc. 29).
II

STANDARD OF REVIEW
Courts “should dismiss a complaint for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) if the complaint
fails to allege facts upon which subject matter jurisdiction can
be based or if the jurisdictional allegations in the complaint
are not true.” McLaughlin v. Safway Servs., LLC, 429 F. App’x
347, 348 (4th Cir. 2011) (per curiam) (citation omitted); Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Subject matter
jurisdiction and removal to federal court are governed by 28
U.S.C. § 1441. Under 28 U.S.C. § 1441(b)(2), the inclusion of a
defendant in the action who is a citizen of the same state as a
plaintiff prevents removal. See Sharpe v. FCFS NC, Inc.,
No. 19cv985, 2020 WL 4016055, at *2 (M.D.N.C. July 16, 2020).
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Here, it is undisputed that Defendant Long is a citizen of the
same state as Plaintiff Adams. (See Am. Compl. (Doc. 11) ¶¶ I,
III.)
“The burden of proof on a motion to remand falls on the
party seeking to preserve the removal, not the party moving for
remand.” Artesian Enters., Inc. v. Shelton Brothers, Inc.,
No. 1:14-CV-894, 2014 WL 12672643, at *2 (M.D.N.C. Nov. 24,
2014) (internal citation omitted). Ultimately, “[a]ny doubts
about removal must be resolved in favor of remand.” UMLIC
Consol., Inc. v. Spectrum Fin. Servs. Corp., 665 F. Supp. 2d
528, 532 (W.D.N.C. 2009); see also Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941); Turner v. CTS Con-Way
Transp. Servs., No. 1:98CV00624, 1999 WL 1939243, at *1
(M.D.N.C. Apr. 28, 1999).
III. ANALYSIS
This court will grant Plaintiff’s Motion to Remand. Both
Plaintiff Adams and Defendant Long are North Carolina citizens.
(Am. Compl. (Doc. 11) ¶¶ I, III.) Ordinarily, this would
preclude this court from exercising diversity jurisdiction over
this case. See 28 U.S.C. § 1441(b)(2). However, Defendants
allege that Long was fraudulently joined, and therefore should
not be considered for jurisdictional purposes. (Defs.’ Resp. to

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Pl.’s Mot. to Remand to State Ct. (“Defs.’ Resp.”) (Doc. 17) at
2.)
The fraudulent joinder doctrine “effectively permits a
district court to disregard, for jurisdictional purposes, the
citizenship of certain nondiverse defendants, assume
jurisdiction over a case, dismiss the nondiverse defendants, and
thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457,
461 (4th Cir. 1999). To establish that fraudulent joinder has
occurred, “Defendants must demonstrate either that there is ‘no
possibility’ that [the plaintiff] would be able to establish a
cause of action . . . in state court; or that there has been
‘outright fraud’ in [the plaintiff’s] pleading of jurisdictional
facts.” Sharpe, 2020 WL 4016055, at *2 (quoting Marshall v.
Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). There is
no allegation of outright fraud in the pleading of the facts.
Therefore, this court will assess whether there is “no
possibility” Plaintiff could recover from Defendant Long, id.,
even if the factual allegations in the Complaint are accepted as
true.
In analyzing whether any possibility of recovery e xists,1
this court is “to accept the parties joined on the face of the

The court is permitted to examine the entire record in its
inquiry. John S. Clark Co. v. Travelers Indem. Co., 359 F. Supp.
2d 429, 436 (M.D.N.C. 2004).
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complaint unless joinder is clearly improper[,]” as “[t]o permit
extensive litigation of the merits of a case while determining
jurisdiction thwarts the purpose of jurisdictional rules.”
Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).
The burden is on Defendants to “negate all possibility of
recovery.” Id. Fraudulent joinder is rare and “typically only
found in cases of legal impossibility[.]” Flores v. Ethicon,
Inc., 563 F. App'x 266, 269 (4th Cir. 2014). Ultimately, this
high standard is “even more favorable to the plaintiff than the
standard for ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6).” Hartley, 187 F.3d at 424.
Plaintiff has brought three state law claims against Long:
libel, slander, and tortious interference with contract.
Regardless of whether Plaintiff’s claims may be viable, there
remains at least a “glimmer of hope” on the claims of libel and
tortious interference, with all questions of law and fact
resolved in Plaintiff’s favor. Id. at 426.
A.

Libel

Plaintiff alleges that Long’s written statement “tended to
impeach the Plaintiff in her profession, and tended to subject
the Plaintiff to ridicule, contempt and disgrace.” (Am. Compl.
(Doc. 11) ¶ XVIII.) Plaintiff provides a vague accounting of the
facts, which includes the place, time, and general recipients of
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the statement. (Id.) Defendants take issue with Plaintiff’s lack
of particularity about the logistics and content of the
allegedly libelous statement. (Defs.’ Resp. (Doc. 17) at 3-4.)
However, Plaintiff’s level of factual information about these
elements is not so vague that it completely eliminates any
possibility of recovery. Plaintiff alleges the statement was
made “on the premises of First Tennessee Bank in North
Carolina[.]” (Am. Compl. (Doc. 11) ¶ XVIII); see Stutts v. Duke
Power Co., 47 N.C. App. 76, 83-84, 266 S.E.2d 861, 866 (1980)
(finding complaint was well-pled where location was only
identified by name of employer and business). Plaintiff
adequately alleges the recipients and time of the statement by
claiming the “statement was published to third parties,
including but not limited to managers and employees of First
Tennessee Bank” on September 20, 2019. (Am. Compl. (Doc. 11)
¶ XVIII); see Moore v. Cox, 341 F. Supp. 2d 570, 575 (M.D.N.C.
2004) (Complaint sufficed where it alleged the defendant
“communicated false information . . . to third persons . . . and
the time frame in which the alleged misconduct took place.”);
Terry v. Swift Transp., No. 1:16cv256, 2017 WL 1013074, at *9
(M.D.N.C. Mar. 14, 2017), report and recommendation adopted, No.
1:16CV256, 2017 WL 2881141 (M.D.N.C. July 6, 2017) (Complaint
“state[d] a plausible North Carolina defamation claim” where it
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alleged the time frame of the false statements that were
“reported to third parties”). Under federal procedural law, see
Terry, 2017 WL 1013074, at *9 (“In evaluating Plaintiff's
defamation claim, the Court applies state substantive law and
federal procedural law.”), the facts provided by Plaintiff,
though sparse, are not vague enough to leave no possibility of
recovery for the state law claim of libel. See Guider v. Hertz
Corp., Rent-A-Car Div., No. 1:04CV00126, 2004 WL 1497611, at *5
(M.D.N.C. June 28, 2004) (finding that even where “[i]t is
unclear from the Complaint who heard the statements, the context
in which the statements were made, and the exact wording used[,]
. . . it cannot be said that there would be no possibility of
success against [the defendant] and that he was therefore
fraudulently joined”).
A legal question remains open regarding the libel claim. As
the parties have noted, North Carolina courts are split on
whether intra-office communications are “published” for purposes
of libel actions.2 In a Rule 12(b)(6) motion, this court might

2

In White v. Trew, the North Carolina Court of Appeals held
that “intra-office communications can be published in terms of
defamation if the individual who reads the communications is
independent of the process by which the communications were
produced.” 217 N.C. App. 574, 581, 720 S.E.2d 713, 720
(2011), rev’d on other grounds, 366 N.C. 360, 736 S.E.2d 166
(2013). In other words, the court in White found that the
sharing of statements between employees of the same company
(Footnote continued)
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analyze this legal question regarding intra-office
communications. However, at this stage, where this legal
question must be assumed resolved in favor of Plaintiff, there
remains a “glimmer of hope” for Plaintiff’s libel claim.
Hartley, 187 F.3d at 426. This alone is adequate to require
remand.
B.

Slander

Plaintiff’s slander claim is not adequate to justify
joinder on its own. “Libel encompasses any false, written
publication while slander encompasses a false oral
communication.” Diagnostic Devices, Inc. v. Pharma Supply, Inc.,

could constitute publication. However, after the holding in
White was reversed on other grounds, almost every North Carolina
court that took up the issue began interpreting intra -office
communications differently. In 2013, the Western District of
North Carolina held that “[i]n the employment context, agents
and employees of a single employer are not considered third
persons to the employer or to each other.” Reikowski v. Int'l
Innovation Co. USA, No. 3:12CV854-GCM, 2013 WL 526489, at *3
(W.D.N.C. Feb. 11, 2013). The Reikowski court viewed intraoffice communications differently from the White court, finding
“no publication occurs when statements are only communicated
between officers, employees and agents of a single employer.”
Id.; see also Dale v. Red Hat, Inc., No. 5:18-CV-262-BO, 2018 WL
6172516, at *3 (E.D.N.C. Nov. 26, 2018) (“[W]here, as here, the
communication of allegedly libelous statements is between only
employees of a single employer, no publication of the libelous
statement has occurred[.]”); Hall v. Charter Commc'ns, LLC,
Civil Action No. 3:17-CV-00497-GCM, 2018 WL 651345, at *3
(W.D.N.C. Jan. 31, 2018) (requiring publication “to a third
party outside of the employment relationship”); Lee v. AT & T
Mobility Servs. LLC, No. 5:11-CV-294-FL, 2013 WL 1246747, at *8
(E.D.N.C. Mar. 27, 2013) (same).
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No. 3:08-CV-149-RJC-DSC, 2009 WL 2998004, at *3 (W.D.N.C.
Sept. 15, 2009). Plaintiff alleges, in one instance, that the
statement at issue “was made in writing,” (Am. Compl. (Doc. 11)
¶ XVIII), while alleging elsewhere that the statement “was made
orally.” (Id. ¶ XXIII.) In laying out the facts at the beginning
of her Complaint, however, Plaintiff merely states that “Mandy
Long falsely accused Donna Adams in writing of falsifying a bank
record.” (Id. ¶ IX (emphasis added).) No facts are provided
regarding any oral statement. It is referenced only in the cause
of action for slander and no information is provided as to when
it was made, where it was made, or who it was made to. There is
no possibility of relief on the slander claim.
C.

Tortious Interference

In order to state a claim for tortious interference,
Plaintiff must allege:
(1) a valid contract between the plaintiff and a third
person which confers upon the plaintiff a contractual
right against a third person; (2) defendant knows of
the contract; (3) the defendant intentionally induces
the third person not to perform the contract; (4) and
in doing so acts without justification; (5) resulting
in actual damage to the plaintiff.
Mkt. Choice, Inc. v. New England Coffee Co., No. 5:08-CV-90,
2009 WL 2590651, at *6–7 (W.D.N.C. Aug. 18, 2009) (quoting
Embree Constr. Grp., Inc. v. RAFCOR, Inc., 330 N.C. 487, 498,
411 S.E.2d 916, 924 (1992)). Plaintiff claims Defendant Long
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“knew of the valid oral contract of employment between Plaintiff
and First Tennessee Bank,” and “intentionally induced First
Tennessee Bank to terminate Plaintiff’s employment for improper
motives . . . involv[ing] age discrimination . . . with actual
malice and legal malice and without legal justification . . . .”
(Am. Compl. (Doc. 11) ¶ XXIX.) This court finds Plaintiff has a
possibility of relief based on these allegations.
Defendants’ primary answer to Plaintiff’s tortious
interference claim is legal in nature. Defendant Long is a
non-outsider to the contract, and therefore has certain
immunities with respect to interference with the contract. See,
e.g., Benjamin v. Sparks, 173 F. Supp. 3d 272, 290 (E.D.N.C.
2016), aff'd, 986 F.3d 332 (4th Cir. 2021). Plaintiff’s claim
may ultimately fail if Long had a legitimate business
justification for telling management that Plaintiff had
falsified a document. However, at the pleading stage, Plaintiff
need not preemptively provide facts to refute a plaintiff’s
privilege. See Embree Constr. Grp., 330 N.C. at 500 (“[I]nsofar
as questions regarding the scope of defendants' privilege are
evoked by the allegation that defendants acted ‘without
justification,’ plaintiff's complaint need not address such
questions in order to withstand a motion to dismiss for failure
to state a claim.”); Barker v. Kimberly-Clark Corp., 136 N.C.
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App. 455, 462, 524 S.E.2d 821, 826 (2000) (“[N]on-outsider
status is pertinent only to the question of whether the
defendant's action was justified[.]”). Thus, Plaintiff need not
refute Long’s claim to non-outsider status at this stage.
Plaintiff has alleged the elements of tortious interference, and
the possibility of recovery on this claim cannot be completely
excluded by the court.
IV.

CONCLUSION
Because this court cannot completely eliminate the

possibility of relief on Plaintiff’s claims of libel and
tortious interference with contract, Plaintiff’s Motion to
Remand will be granted. Defendants’ Partial Motion to Dismiss
will be denied as moot.
For the aforementioned reasons,
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand
to State Court, (Doc. 12), is GRANTED and that this case is
hereby REMANDED for further proceedings in the Superior Court of
Forsyth County, North Carolina.
IT IS FURTHER ORDERED that the Clerk of Court is directed
to send a certified copy of this Memorandum Opinion and Order to
the Clerk of Superior Court in Forsyth County.
IT IS FURTHER ORDERED that Defendants’ Partial Motion to
Dismiss, (Doc. 18), is DENIED AS MOOT.
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This the 9th day of September, 2021.

_______________________________________
United States District Judge

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