Rollins et al v. Blatnick et al

Filing 17

OPINION AND ORDER by Judge John E Dowdell ; remanding case (terminates case) ; denying 8 Motion to Dismiss Party; granting 10 Motion to Remand (Re: State Court Petition/Complaint ) (Documents Terminated: 15 MOTION to Substitute Party ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
FRANCIS ROLLINS and
DONNA BROWN,
Plaintiffs,
v.
ANITA BLATNICK et al.,
Defendants.

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Case No. 14-CV-46-JED-PJC

OPINION AND ORDER
Two related motions are before the Court in this employment action removed from Tulsa
County District Court. Defendant Anita Blatnick has filed a motion to dismiss (Doc. 8), arguing
that she was fraudulently joined as a defendant to defeat removal, as plaintiffs have no valid
claims against her. Plaintiffs, Francis Rollins and Donna Brown, have filed a motion to remand
(Doc. 10), arguing that Blatnick, who is the non-diverse defendant domiciled in Oklahoma, is
properly joined as a party-defendant and that this case should be remanded for lack of subject
matter jurisdiction.
BACKGROUND
Plaintiffs brought this lawsuit in Tulsa County based upon their prior employment
relationship with defendant Legend Retirement Corporation (“Legend”). They claim that they
were both wrongfully discharged in separate but factually related incidences, which they say
were the result of a personal vendetta on the part of Blatnick. Plaintiffs allege that Blatnick
instructed them not to report a resident’s fall and resulting injuries to the corporate office or they
would be terminated. Weeks later, during the visit of a corporate officer, Rollins inadvertently
revealed information about the fall to the corporate officer. Shortly thereafter, she alleges that

she was fired by Blatnick in retaliation. After Rollins’ firing, Brown alleges that she began to be
harassed by Blatnick, who was aware of Brown’s friendship to Rollins. Brown asserts that
Blatnick falsified documents stating that Ms. Brown was not competent to complete her job
without help. When Brown disputed this information, she was terminated by Blatnick.
Plaintiffs’ petition alleges claims for retaliatory discharge, wrongful discharge, public
policy tort, and malicious wrong. Plaintiff seeks to hold Blatnick personally liable and asserts
that Legend is vicariously liable under respondeat superior and directly liable. Blatnick now
urges the Court to find that she was fraudulently joined in order to destroy diversity on the basis
that the plaintiffs have not stated a viable claim against her.
STANDARDS
The doctrine of fraudulent joinder is generally applied where, as here, a defendant asserts
that a non-diverse party has been joined only to thwart removal based on diversity. Blatnick can
prove fraudulent joinder by showing that either: (1) plaintiffs' jurisdictional allegations are
fraudulent and made in bad faith; or (2) plaintiffs have no possibility of recovery against her as
the non-diverse defendant. Slover v. Equitable Variable Life Ins. Co., 443 F. Supp. 2d 1272,
1279 (N.D. Okla. 2006). Blatnick, the party asserting fraudulent joinder, bears the burden of
proof. See Montano v. Allstate Indemnity Co., 211 F.3d 1278, 2000 WL 525592, at *1 (10th Cir.
2000) (unpublished opinion) (“The case law places a heavy burden on the party asserting
fraudulent joinder.”).
DISCUSSION
The Court finds that Blatnick has failed to meet her burden of demonstrating that
plaintiffs have no possible cause of action against her. Specifically, plaintiffs have alleged a
claim against Blatnick for malicious wrong, an antiquated cause of action under Oklahoma law,

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which the Court does not agree lacks any shred of viability. Blatnick largely relies upon two
cases in support of her proposition that malicious wrong is not a viable cause of action under
Oklahoma law.
First, in Merrick v. N. Natural Gas Co., Div. of Enron Corp., 911 F.2d 426 (10th Cir.
1990), the Tenth Circuit casts doubt on whether Oklahoma would extend the tort of malicious
wrong—referred to throughout the opinion as “prima facie tort”—to sex or religious
discrimination cases. Id. at 433. In doing so, the court noted that the tort had traditionally been
limited to situations involving “malicious injury to business or property interests.” Id.
Second, in Myers v. Knight Protective Serv., Inc., CIV-10-866-C, 2011 WL 39039 (W.D.
Okla. Jan. 5, 2011), the court relied upon Merrick in dismissing a claim for malicious wrong.
The Myers court cited Merrick for the proposition that “Oklahoma does not recognize the tort of
malicious wrong in an employment context.” Id. at *2.
In contrast to Merrick and Myers, plaintiff relies upon Fulton v. People Lease Corp., 241
P.3d 255 (Okla. Civ. App. 2010). In Fulton, the Oklahoma Court of Civil Appeals discussed the
history of the tort of malicious wrong and contrasted it with the more commonly pled tort of
intentional interference with contract or property, describing the torts as “distinct and
independent.” Id. at 267. Because the Fulton court found that the plaintiff had stated a claim for
the “more specific tort of interference with economic relations”, the district court’s decision to
dismiss the malicious wrong claim was affirmed. Id. Thus, the Fulton court appears to have
affirmed the viability of the tort of malicious wrong unless a more specific claim for intentional
interference with economic relations has been pled. See id.; see also Myers, supra, at *2. (“the
Court of Civil Appeals held, in Fulton, that the tort of malicious wrong was unavailable where
the more specific tort of interference with economic relations had been pled.”).

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Here, plaintiffs have not pled the more specific tort of intentional interference with
economic relations and Fulton therefore does not require dismissal of their malicious wrong
claim. Fulton also undermines the Tenth Circuit’s statement in Merrick—relied upon by the
Myers court—that Oklahoma would likely not recognize the tort in an employment context, as
Fulton, decided subsequent to Merrick, was indeed an employment case. See Fulton, 241 P.3d at
258; see also Cardtoons, L.C. v. Major League Baseball Players Ass'n, 335 F.3d 1161, 1167
(10th Cir. 2003) (“Our cases are not binding on the Oklahoma courts with respect to Oklahoma
law.”). At a minimum, there is uncertainty regarding the continued viability of the tort of
malicious wrong under Oklahoma law. Accordingly, the Court cannot say, as Blatnick asks the
Court to do, that plaintiffs have no possibility of recovery against her. An Oklahoma court is
more properly suited to decide unsettled issues of Oklahoma law. Because the Court finds that
Blatnick is not fraudulently joined as a defendant in this action, there is not complete diversity
and the Court lacks subject matter jurisdiction over this dispute.
Attorney Fees
Plaintiffs ask that the Court award them reasonable fees and costs incurred as a result of
improper removal. In its discretion, a court can require payment of costs and expenses, including
attorney fees, incurred as a result of an improper removal. 28 U.S.C. § 1447; Martin v. Franklin
Capital Corp., 393 F.3d 1143, 1146 (10th Cir. 2004) aff'd, 546 U.S. 132 (2005). The Court finds
that defendants’ removal was based upon objectively reasonable grounds and not pursued in bad
faith. As such, an award of fees and costs is not warranted and plaintiffs’ request in this regard is
denied.

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CONCLUSION
IT IS THEREFORE ORDERED that Blatnick’s Motion to Dismiss and Brief in
Support (Doc. 8) is denied. Plaintiffs’ Motion to Remand (Doc. 10) is granted. This case is
remanded to the Tulsa County District Court. 1
ORDERED this 15th day of April, 2014.

1

Plaintiff Rollins has filed a Motion to Substitute Parties (Doc. 15), which notes that plaintiff
Donna Brown is now deceased. Because the Court lacks jurisdiction to rule on this motion, the
relief sought therein must be determined by the Tulsa County District Court upon remand.
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