Aguilar v. Asbury Automotive Group, Inc. et al
Filing
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MEMORANDUM OPINION and ORDER GRANTING 6 MOTION to Remand.. This case is REMANDED to the 125th Judicial District Court of Harris County, Texas. (Signed by Judge Gray H Miller) parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANYULL AGUILAR,
Plaintiff,
v.
ASBURY AUTOMOTIVE GROUP, INC.
and RAFAEL CHAVEZ,
Defendants.
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CIVIL ACTION H-16-467
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff Anyull Aguilar’s (“Aguilar”) motion to remand. Dkt. 6.
Having reviewed the motion, response, and applicable law, the court is of the opinion that the motion
should be GRANTED, and the case should be REMANDED to the 125th Judicial District Court of
Harris County, Texas.
I. BACKGROUND
In February 2014, Aguilar was hired to work in internet sales for Asbury Automotive Group
d/b/a David McDavid Nissan (“Asbury”) in Houston. Dkt. 1, Ex. A at 9. Her supervisor was
defendant Rafael Chavez (“Chavez”). Id. Around April 2015, Aguilar discovered she was pregnant.
Id.
In May, she informed Chavez and Human Resources.
Id.
She began to experience
complications with her pregnancy and received approval from Human Resources to miss certain days
of work. Id. Chavez allegedly began to make negative comments and became hostile as Aguilar
missed work. Id. Aguilar suffered a miscarriage on June 7, 2015, and returned to work the next
day. Id. She made subsequent follow up visits to the doctor. Id. On June 23, 2015, Chavez fired
Aguilar. Id. She then filed a charge of discrimination with the EEOC on August 7, 2015, alleging
pregnancy and disability discrimination. Id. at 10. After her termination from Asbury, Aguilar
found a new job with Streater-Smith Nissan in Conroe, Texas. Id. Subsequently, Chavez allegedly
called other dealerships to let them know about Aguilar’s claims against Asbury. Id. Streater-Smith
Nissan then terminated Aguilar’s employment. Id.
On January 15, 2016, Aguilar filed this lawsuit in the 125th Judicial District Court of Harris
County, Texas. Dkt. 1, Ex. A at 3. Aguilar’s petition asserts that Asbury violated Chapter 21 of the
Texas Labor Code by discriminating against her and later retaliating against her for filing a charge
of discrimination. Id. at 10. The petition also names Chavez as a defendant. Id. at 8. The petition
asserts a cause of action for tortious interference with contract against Asbury and Chavez for their
role in Aguilar’s termination from Streater-Smith Nissan. Id. at 11. On February 22, 2016, Asbury
removed the case to this court based on diversity of citizenship pursuant to 28 U.S.C. §§ 1332(a)(1)
and 1441(a). Dkt. 1 at 2. Aguilar is a citizen of Texas and, for purposes of jurisdiction, Asbury is
a citizen of Delaware and Georgia. Dkt. 1, Ex. A at 8; see 28 U.S.C. § 1332(c)(1) (2012).
Therefore, it is undisputed that complete diversity exists between Aguilar and Asbury. However,
Chavez is a citizen of Texas and therefore non-diverse. Dkt. 1, Ex. A at 8. Asbury asserts that
federal jurisdiction is nonetheless proper because Chavez was improperly joined by Aguilar. Dkt. 9
at 1.
On March 6, 2015, Aguilar filed a motion to remand, asserting that Chavez was properly
joined and, therefore, the court lacks subject matter jurisdiction over this action. Dkt. 6. On March
28, 2016, Asbury filed a response to the motion to remand. Dkt. 9.
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II. LEGAL STANDARD
A. Removal Jurisdiction and Improper Joinder
A defendant may remove an action to federal court if that court would have original
jurisdiction over the case. 28 U.S.C. § 1441 (2012). To establish subject-matter jurisdiction based
on diversity, complete diversity of citizenship must exist among the parties, and the amount in
controversy must exceed $75,000. 28 U.S.C. § 1332.
A case may be removed despite the presence of a non-diverse defendant if that defendant was
joined improperly, i.e., without a legal basis to do so. Hornbuckle v. State Farm Lloyds, 385 F.3d
538, 542 (5th Cir. 2004). As the removing party, the defendant bears the heavy burden of
demonstrating improper joinder. Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003). A defendant
generally establishes improper joinder in one of two ways: “(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiffs to establish a cause of action against the nondiverse party in state court.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)
(quoting Travis, 326 F.3d at 646–47). Asbury argues the second basis for improper joinder,
which focuses on whether the plaintiff has asserted a valid state law cause of action against a
nondiverse defendant. Id. To prevent remand, a defendant must demonstrate that “there is no
reasonable basis for the district court to predict that the plaintiff might be able to recover against the
in-state defendant.” McDonald v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (citations
omitted). The court need not “determine whether plaintiff will actually or even probably prevail on
the
merits
of
the
claim,
but
look
only
for
a
possibility that
the
plaintiff
might do so.” Guillory v. PPG Indus., Inc., 434 F.3d 303, 308–09 (5th Cir. 2005). A mere
theoretical possibility of recovery, however, is insufficient. Travis, 326 F.3d at 648. Further, though
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factual controversies are resolved in favor of the nonmoving party, in the absence of proof, courts
do not “assume that the nonmoving party could or would prove the necessary facts.” Badon
v. R J R Nabisco, Inc., 224 F.3d 382, 393–94 (5th Cir. 2000).
In determining whether there is a reasonable basis to predict that the plaintiff might recover
against a non-diverse defendant under state law, a court conducts “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.” Smallwood, 385 F.3d at 573. “[I]f the plaintiff can
survive a Rule 12(b)(6) challenge, there [generally] is no improper joinder.” Id. In some cases, a
further summary inquiry is appropriate to “identify the presence of discrete and undisputed facts that
would preclude plaintiff’s recovery against the in-state defendant.” Edwea, Inc. v. Allstate
Ins. Co., No. CIV.A. H-10-2970, 2010 WL 5099607, at *2 (S.D. Tex. Dec. 8, 2010) (Rosenthal, J.)
(quoting Smallwood, 385 F.3d at 573–74). However, no party in this case has asked for this
type of inquiry. Instead, the parties focus on whether Aguilar’s state-court petition provides a
reasonable
basis
to
predict
that
Aguilar
might
recover
against
Chavez
under
Texas law. If the pleading reveals a reasonable basis for recovery on one cause of action against one
in-state defendant, the court must remand the entire suit to state court. Rubin v. Daimlerchrysler
Corp., No. CIV.A. H044021, 2005 WL 1214605, at *2 (S.D. Tex. May 20, 2005) (Rosenthal, J.)
(citing Rainwater v. Lamar Life Ins. Co., 391 F.3d 636, 638 (5th Cir. 2004)).
B. Federal Pleading Standard Applies
The Fifth Circuit has recently held that the sufficiency of a plaintiff’s state-court petition for
purposes of a removal and improper joinder analysis is measured under federal court pleading
standards. Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th
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Cir. 2016). Under the federal pleading standard, a plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face.” Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937 (2009). “Factual allegations must be enough to raise a right to relief
above the speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555. As part of the Twombly-Iqbal analysis, the
court proceeds in two steps. First, the court separates legal conclusions from well-pled facts. Iqbal,
556 U.S. at 678–79. Second, the court reviews the well-pled factual allegations, assumes they are
true, and then determines whether they “plausibly give rise to an entitlement of relief.” Id. at 679.
III. ANALYSIS
Aguilar asserts that Chavez was properly joined and therefore diversity of citizenship is
absent. Dkt. 6 at 2. Asbury argues that even if Aguilar’s claim against Chavez meets the federal
pleading standard, there is no reasonable basis for the court to predict that Aguilar might be able to
recover against Chavez because Aguilar’s tortious interference claims are preempted by her Chapter
21 claims. Dkt. 9 at 1.
At Texas common law, the elements of a tortious interference claim are (1) the existence of
a contract subject to interference; (2) willful and intentional interference; (3) interference that
proximately caused damage; and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d
455, 456–57 (Tex. 1998); Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). In its notice
of removal, Asbury initially asserted that Chavez could not be held liable for tortious interference
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because he was acting as an employee of Asbury. Dkt. 1 at 4–5. Asbury based this argument on
cases in which an employee sued a supervisor for tortious interference, claiming that the supervisor
got him or her fired from the company at which both were employed. Id. In those cases, courts
rejected tortious interference claims because the supervisor was not considered a third party to the
contract. Powell Indus., Inc., 985 S.W.2d at 457. Courts reasoned that the supervisor cannot be
distinguished from the company, and a company cannot interfere with its own contract. Id.
However, in Aguilar’s motion to remand, she correctly distinguishes between those cases and cases,
such as this one, which involve a third party contract. Dkt. 6 at 3. In the latter situation, the plaintiff
may bring a claim against her former supervisor because the supervisor’s employer is not a party to
the contract. Khan v. GBAK Props., 371 S.W.3d 347, 359 (Tex. App.—Houston [1st Dist.] 2012,
no pet.). The supervisor’s interest can be clearly distinguished from that of the company whose
contract is interfered with. Aguilar’s complaint meets the required elements for tortious interference
because Asbury and Chavez were third parties to the contract between Aguilar and Streater-Smith
Nissan. Dkt. 1, Ex. A at 10. The claim meets all of the required elements and states a plausible
claim to relief. Therefore, Aguilar’s tortious interference claim against Chavez satisfies the federal
pleading standard.
In its response to Aguilar’s motion to remand, Asbury no longer asserts that Aguilar’s claim
against Chavez does not meet the federal pleading standard. Rather, Asbury argues that Aguilar’s
claim against Chavez is preempted by her claims under Chapter 21 of the Texas Labor Code. Dkt. 9
at 1. Intentional torts may not be brought for conduct already covered by Chapter 21. Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010). Statutory causes of action abrogate common law
claims if there is a “clear repugnance” between them. Id. There is a clear repugnance between the
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claims if they are “entwined.” Id. at 799. Claims are entwined if they are rooted in the same
inseparable facts. Id.
In this case, Asbury is correct that Aguilar’s Chapter 21 claims against Asbury preempt her
tortious interference claim against Asbury. However, Aguilar’s Chapter 21 claims do not preempt
her tortious interference claim against Chavez because Aguilar has not brought Chapter 21 claims
against Chavez. Rather, the Chapter 21 claims can only be brought against Asbury.
In Garcia v. Shell Oil Co., 355 S.W.3d 768, 776 (Tex. App.—Houston [1st Dist.] 2011, no
pet.), the court considered whether Title VII and Texas employment discrimination statutes were
meant to preclude common law causes of action against individuals. The court held that because
these statutory claims are limited to claims against employers and cannot be brought against
individuals, the statutory claims do not preempt common law claims against individual employees.
Id. at 778; see also Patton v. Adesa Tex., Inc., 985 F. Supp. 2d 818, 822 (N.D. Tex. 2013) (holding
that assertion of statutory claims against employers does not bar plaintiff from also asserting
intentional torts against individual employees); Waffle House, Inc., 313 S.W.3d at 799 (holding that
statutory claim against company did not bar tort claim against harasser individually). In keeping
with Garcia, Aguilar’s tortious interference claim against Asbury is preempted by her Chapter 21
claims, while her tortious interference claim against Chavez stands.
The cases cited by Asbury are not to the contrary. Asbury cites three cases in which common
law claims brought in conjunction with statutory claims were dismissed. Asbury refers to Waffle
House in support of the proposition that intentional torts are dismissed when they apply to conduct
already covered by Chapter 21. Dkt. 9 at 1. However, Waffle House is inapposite because that case
addressed whether a plaintiff could bring both a common law tort claim and a statutory claim for the
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same conduct against a defendant employer. Waffle House, Inc., 313 S.W.3d at 800. By contrast,
the issue here is whether Aguilar may bring a common law tort claim against her former supervisor
individually. Asbury also cites Garcia. Garcia stands for the proposition that a plaintiff may not
bring a claim for intentional infliction of emotional distress based on conduct covered by Chapter
21, even if the plaintiff does not assert or does not prevail on the statutory claim. Garcia, 355
S.W.3d at 775–76. Intentional infliction of emotional distress is a tort of last resort judicially created
for limited purposes when no other theory of redress can be found. Id. at 775. Such torts are
disfavored and generally unavailable when other claims can be brought for the same conduct. Id.
at 775-76. Traditional common law torts, such as tortious interference with contract, are not subject
to such restrictions. See Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex.
1998). Finally, Asbury cites Hernandez v. Wal-Mart, No. EP-06-CA-233-FM, 2006 WL 2883030
(W.D. Tex. 2010), in which an employee brought Chapter 21 and common law claims against
another employee, and the court dismissed both claims. However, the common law claim was
dismissed not because the Chapter 21 claim had been dismissed but because the common law claim
failed to state a claim. Id. at *5. In this case, the court has found that Aguilar’s tortious interference
claim states a claim against Chavez. Therefore, Hernandez is inapposite.
The court finds that Aguilar’s tortious interference claim against Chavez is not preempted
by Aguilar’s Chapter 21 claims against Asbury. Therefore, Chavez was properly joined to this
lawsuit, diversity of citizenship is absent, and the court lacks subject matter jurisdiction.
Accordingly, Aguilar’s motion to remand is GRANTED.
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IV. CONCLUSION
Aguilar’s motion to remand (Dkt. 6) is GRANTED. This case is REMANDED to the
125th Judicial District Court of Harris County, Texas.
Signed at Houston, Texas on June 20, 2016.
___________________________________
Gray H. Miller
United States District Judge
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