Cramer et al v. The Logistics Company, Inc. et al

Filing 11

ORDER GRANTING 6 Motion to Remand to State Court; TERMINATING 10 Motion to Extend Scheduling Order Deadlines Signed by Judge Kathleen Cardone. (mc6)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JOHN CRAMER; JOHNNY
BENITEZ; and PABLO CORTEZ,
Plaintiffs,
v.
THE LOGISTICS COMPANY, INC.;
and RICHARD WESTMAN,
Defendants.

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EP-13-CV-333-KC

ORDER
On this day, the Court considered Plaintiffs’ Motion for Remand (the “Motion”), ECF
No. 6, in the above-captioned case (the “Case”). For the reasons set forth below, the Court
GRANTS the Motion.
I.

BACKGROUND
Plaintiffs filed their Original Petition (the “Petition”) in the County Court at Law No. 5,

El Paso County, Texas (the “State Court”), on September 25, 2013. See Pet., ECF No. 1.
Plaintiffs allege that Defendant The Logistics Company, Inc. (“Logistics”) discriminated against
them on the basis of age in violation of the Texas Commission on Human Rights Act, Texas
Labor Code Annotated Sections 21.001 et seq. (“TCHRA”). See Pet. ¶¶ 20-28. Specifically,
Plaintiffs allege that when Logistics assumed the responsibilities of Mike Garcia Merchant
Security (“MGMS”), Plaintiffs’ former employer, under a contract to provide military base
operations personnel and logistics services to the United States military at Fort Bliss, Logistics
refused to hire Plaintiffs for the positions they previously held at MGMS. See id. ¶¶ 8-28.
Plaintiffs allege that Logistics instead hired employees who are substantially younger than
1

Plaintiffs. See id. ¶ 17.
Plaintiffs also bring a tortious interference claim against Defendant Richard Westman
(“Westman”), a current employee of Logistics and former employee of MGMS. See id. ¶¶ 29-32.
Specifically, Plaintiffs allege that Westman, while acting as Plaintiffs’ supervisor at MGMS,
issued false disciplinary paperwork with the objective of making it difficult or impossible for
Plaintiffs to transfer their positions to Logistics.1 See id. ¶ 14.
Defendants removed the Case to this Court on October 22, 2013. See Notice of Removal,
ECF No. 1. Plaintiffs filed the Motion on January 13, 2014.
II.

DISCUSSION
A.

Standard

28 U.S.C. § 1441(a), with exceptions not relevant here, permits a defendant to remove a
civil action to a federal district court if the district court has original jurisdiction over the case.
See Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1483 (5th Cir. 1992). The district
court is required to remand the case to the state court if, at any time before final judgment, the
court determines that it lacks subject matter jurisdiction over the case. 28 U.S.C. § 1447(c).
When a party challenges the subject matter jurisdiction of the district court, the burden is on the
non-movant to demonstrate that jurisdiction is proper. Frank v. Bear Stearns & Co., 128 F.3d
919, 921-22 (5th Cir. 1997); Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99
F.3d 746, 751 (5th Cir. 1996). Courts construe removal statutes strictly against removal and in
favor of remand. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988); Brown v. Demco,
Inc., 792 F.2d 478, 482 (5th Cir. 1986) (“Demco”).
1

Plaintiffs also allege that Westman, while employed at Logistics, made the allegedly discriminatory decision not to
hire Plaintiffs. See Pet. ¶ 19. However, as described in greater detail below, Plaintiffs do not and cannot predicate a
tortious interference claim against Westman based on actions he took while employed at Logistics. See Mot. ¶ 16.

2

B.

Analysis

Plaintiffs argue that the Court has neither federal enclave jurisdiction nor diversity
jurisdiction over the Case, and therefore request that the Court remand the Case to the State
Court. See Mot. 9-15.2 Defendants argue that removal is proper because this Court has either
federal enclave jurisdiction or diversity jurisdiction over the Case. Notice of Removal 2-9; Resp.,
ECF No. 7, at 5-11.3
For the reasons described below, the Court agrees with Plaintiffs and concludes that it
possesses neither federal enclave jurisdiction nor diversity jurisdiction over the Case. Because
Defendant has identified no other basis for the Court to exercise subject matter jurisdiction over
the Case, the Court remands the Case to the State Court for lack of subject matter jurisdiction.
1.

Federal enclave jurisdiction

“Federal enclave jurisdiction is a subspecies of federal question jurisdiction, which is a
form of subject matter jurisdiction vested in federal district courts by 28 U.S.C. § 1331.” Lawler
v. Miratek Corp., No. EP-09-CV-252-KC, 2010 WL 743925, at *2 (W.D. Tex. Mar. 2, 2010)
(citing Blahnik v. BASF Corp., C.A. No. C-06-410, 2006 WL 2850113, at *3 (S.D. Tex. Oct. 3,
2006)). “Because Congress has exclusive legislative jurisdiction over federal enclaves – pieces
of territory carved out of states for federal use and control – courts have reasoned that federal
courts must also have subject matter jurisdiction over controversies that arise on such enclaves.”
Id. (citing U.S. Const., art. I, § 8, cl. 17; Mater v. Holley, 200 F.2d 123, 124-25 (5th Cir. 1953);
Blahnik, 2006 WL 2850113, at *3). As a result, “federal courts have at least concurrent original
2

The Court refers to the pagination assigned to the Motion by the Court’s electronic docketing system, rather than
the pagination assigned by Plaintiffs.
3

The Court refers to the pagination assigned to the Response by the Court’s electronic docketing system, rather than
the pagination assigned by Defendants.

3

jurisdiction” over “tort claims that arise on federal enclaves.”4 Id. (citing Durham v. Lockheed
Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006); Mater, 200 F.2d at 123-24). “Federal
enclave jurisdiction does not require that any party to the suit be a federal employee, officer, or
affiliate, or that substantive federal laws be at issue in the case[.]” Camargo v. Gino Morena
Enters., L.L.C., No. EP 10-CV-242-KC, 2010 WL 3516186, at *2 (W.D. Tex. Sept. 2, 2010)
(citing Mater, 200 F.2d at 124-25).
A federal court may exercise federal enclave jurisdiction over a state law claim
challenging an adverse employment action when the decision at issue was “made on federal
territory, because the locus of decision-making is where such a tort arises.” Id. (citing Lawler,
2010 WL 743925, at *3-4). “The fact that the employee’s day-to-day job site is on a federal
enclave, alone, is not sufficient for these purposes; rather, the location where management made
the illegal decision controls.” Id. (citing Lawler, 2010 WL 743925, at *3-4). The burden of
demonstrating that the challenged employment action occurred on the federal enclave lies on the
party seeking to invoke the federal court’s jurisdiction. See id. at *3.
Defendants argue that the Court has federal enclave jurisdiction over the Case because
the alleged tortious interference and allegedly discriminatory hiring decisions occurred on Fort
Bliss. Notice of Removal 3-4; Resp. 5-6. Plaintiffs argue that the challenged actions actually
occurred outside Fort Bliss. Mot. ¶¶ 7-12. Fort Bliss – or at least some subsection of it – is
indisputably a federal enclave, so Defendants may establish federal enclave jurisdiction if the
relevant events in the Case occurred on a section of Fort Bliss within the exclusive federal

4

Although federal courts have concurrent jurisdiction over such claims, it is unlikely that the federal courts have
exclusive jurisdiction over such claims. See Camargo v. Gino Morena Enters., L.L.C., No. EP 10-CV-242-KC, 2010
WL 3516186, at *2 n.3 (W.D. Tex. Sept. 2, 2010) (citing United States v. Texas, 695 F.2d 136, 141 (5th Cir. 1983);
Mater, 200 F.2d at 123-24).

4

jurisdiction of the United States. See Balderrama v. Pride Indus., Inc., No. EP-13-CV-169-KC,
2013 WL 4536091, at *7-8, *10 (W.D. Tex. Aug. 27, 2013) (citations omitted).
There is very little case law clarifying whether a court, when evaluating whether it may
exercise federal enclave jurisdiction over a case, should restrict its inquiry to the allegations in
the complaint, or if it should instead pierce the pleadings and conduct a summary inquiry that
considers all jurisdictional evidence in the record. See Sturgeon v. Jackson, No. EP-10-CV-244PRM, 2011 WL 3678472, at *5 (W.D. Tex. Feb. 9, 2011) (considering jurisdictional allegations
in the defendant’s notice of removal and response to the plaintiff’s motion to remand); Camargo,
2010 WL 3516186, at *3 (suggesting that a defendant seeking to remove a case on the grounds
of federal enclave jurisdiction must “adduce evidence for” or “aver . . . facts showing that” the
events upon which the case is based occurred on the federal enclave); Blahnik, 2006 WL
2850113, at *4 (beginning by considering only jurisdictional facts “on the face of Plaintiffs’
complaint,” but proceeding to consider interrogatories in the record). Because “[f]ederal enclave
jurisdiction is a subspecies of federal question jurisdiction[,]” Lawler, 2010 WL 743925, at *2, it
stands to reason that the court would apply the familiar well-pleaded complaint rule and consider
only whether federal enclave jurisdiction is evident from the face of the Petition. Cf. Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 12 (2003) (“This so-called ‘arising under’ or ‘federal
question’ jurisdiction has long been governed by the well-pleaded-complaint rule, which
provides that ‘federal jurisdiction exists only when a federal question is presented on the face of
the plaintiff's properly pleaded complaint.’”) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). However, in other contexts, the Fifth Circuit has held that a district court may
conduct a summary inquiry that considers material outside the pleadings when deciding whether
it may exercise subject matter jurisdiction over a case. Cf. Smallwood v. Ill Cent. R. Co., 385
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F.3d 568, 573-74 (5th Cir. 2004) (holding that a district court, in its discretion, may conduct a
summary inquiry to determine whether a plaintiff has improperly joined a non-diverse defendant
to defeat diversity jurisdiction).
The Court need not resolve the question. No matter whether the Court considers the
entire record or only the factual allegations in the Petition, Defendants have failed to meet their
burden to establish that the challenged actions occurred on Fort Bliss.
The Court first considers whether federal enclave jurisdiction appears on the face of the
Petition. See Blahnik, 2006 WL 2850113, at *4. Although the Petition makes several mentions of
Fort Bliss, at no point do Plaintiffs allege that the alleged age discrimination or tortious
interference occurred on Fort Bliss or any other federal enclave. See Pet. ¶¶ 8, 10-11, 15-16.
Thus, under the well-pleaded complaint rule, the Court lacks federal enclave jurisdiction over the
Case. See Beneficial Nat’l Bank, 539 U.S. at 12.
Even if the Court were to consider evidence in the record outside the four corners of the
Petition, Defendants would still not meet their burden of proving that the Court may exercise
federal enclave jurisdiction over the Case. To support their contention that the alleged tortious
interference and age discrimination occurred on Fort Bliss, Defendants point to an affidavit by
Westman averring that (1) Westman drafted the challenged disciplinary paperwork on Fort Bliss;
(2) Westman was physically present on Fort Bliss when he recommended that Logistics not hire
Plaintiffs; and (3) Logistics made its decision not to hire Plaintiffs on Fort Bliss. Westman Aff.,
ECF No. 7-1, ¶¶ 4-5, 7-8. Plaintiffs, by contrast, allege that Logistics decided not to hire
Plaintiffs at its primary corporate office in North Carolina, and that Logistics did not maintain an
office on Fort Bliss and was not otherwise present on Fort Bliss at the time of the challenged

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actions.5 Mot. ¶¶ 2-5, 11; Cramer Aff., ECF No. 6-2, ¶ 8; ECF No. 6-4 (indicating that Logistics
is headquartered in North Carolina); ECF No. 6-5 (indicating that Logistics’ Vice President, who
allegedly made the hiring decision, maintains his office in North Carolina). Plaintiffs further
allege that Westman prepared the challenged disciplinary paperwork at MGMS’s private office
outside of Fort Bliss. Mot. ¶ 10; Cramer Aff. ¶ 5. The disciplinary paperwork itself, which
Plaintiffs have attached to the Motion as an exhibit, is also marked with the address of MGMS’s
private office outside of Fort Bliss. See ECF No. 6-6. This would also suggest that Westman
completed the paperwork off of federal territory.
Thus, the evidence is at best equivocal whether the challenged actions occurred on Fort
Bliss.6 Because Defendants have the burden of demonstrating the existence of federal enclave
jurisdiction, see Camargo, 2010 WL 3516186, at *3, and because “doubts regarding whether

5

Defendants, citing this Court’s decision in Gardea v. Dialamerica Marketing, Inc., No. EP–12–CV–158–KC, 2013
WL 1855794, at *5 (W.D. Tex. 2013) (Cardone, J.), argue that the Court should disregard Plaintiffs’ allegations and
averments as to where the challenged employment actions occurred as pure speculation made without personal
knowledge. See Resp. 5-6. Gardea, however, stands for the proposition that a court should not consider hearsay
evidence that would be inadmissible at trial when ruling on a motion for summary judgment. 2013 WL 1855794, at
*5. Gardea has nothing to do with subject matter jurisdiction or remand and is therefore inapposite. See id. at *1-20.
Indeed, at least in some circumstances, the court may consider a wide array of evidence when ruling on a motion to
remand and exercise discretion over the types of evidence it considers. Cf. Smallwood v. Ill Cent. R. Co., 385 F.3d
568, 573-74 (5th Cir. 2004) (holding that a district court, in its discretion, may conduct a summary inquiry to
determine whether a plaintiff has improperly joined a non-diverse defendant to defeat diversity jurisdiction).
Moreover, the Court cannot conclude at this juncture that Plaintiff John Cramer (“Cramer”) lacks personal
knowledge regarding where the challenged employment actions occurred, because Cramer swore under penalty of
perjury that the statements in his affidavit are based on his personal knowledge. See Cramer Aff. 1-2. Therefore, the
Court may – and does – consider Cramer’s affidavit and Plaintiffs’ allegations when ruling on the Motion.
6

In related contexts, the Court has wide discretion to hold an evidentiary hearing or take oral testimony to resolve
jurisdictional facts where disputed. See Unified 2020 Realty Partners, L.P. v. Proxim Wireless Corp., Civil Action
No. 3:11-CV-0861-D, 2011 WL 2650199, at *1 (N.D. Tex. July 6, 2011) (citing Foret v. S. Farm Bureau Life Ins.
Co., 918 F.2d 534, 537 (5th Cir. 1990); Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181, 185 (5th Cir. 1990); Opelika
Nursing Home, Inc. v. Richardson, 448 F.2d 658, 667 (5th Cir. 1971)); Turner Bros. Crane & Rigging, LLC v.
Kingboard Chem. Holding Ltd., 2007 WL 2848154, at *2 (M.D. La. Sept. 24, 2007) (quoting Moran v. Kingdom of
Saudi Arabia, 27 F.3d 169 (5th Cir. 1994)). Assuming that the Court has similar discretion in the context of federal
enclave jurisdiction determinations, the Court exercises its discretion, in the interests of federalism and judicial
economy, to not hold such a hearing in the Case. Cf. Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)
(“[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”) (citing
Willy, 855 F.2d at 1164).

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removal jurisdiction is proper should be resolved against federal jurisdiction,” Acuna v. Brown &
Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy, 855 F.2d at 1164), the Court
concludes that it may not exercise federal enclave jurisdiction over the Case.7
2.

Diversity jurisdiction

Having concluded that the Court lacks federal enclave jurisdiction in the Case, the Court
analyzes whether it may nonetheless exercise diversity jurisdiction over the Case. The district
courts have original “diversity” jurisdiction over civil actions between citizens of different States
where the matter in controversy exceeds the sum or value of $75,000. 28 U.S.C. § 1332(a)(1).
Diversity jurisdiction requires complete diversity; that is, no plaintiff may be a citizen of the
same state as any properly joined defendant. See Strawbridge v. Curtiss, 7 U.S. 267, 267-68
(1806). See also McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (“The improper
joinder doctrine constitutes a narrow exception to the rule of complete diversity.”). A defendant
may generally remove a case that satisfies these prerequisites for diversity jurisdiction unless
“any of the parties in interest properly joined and served as defendants is a citizen of the State in
which such action is brought.” 28 U.S.C. § 1441(b)(2). When a defendant removes a case solely

7

Although the Court need not reach the issue today, the Court notes that even if the evidence established that the
alleged tortious interference and discriminatory hiring decisions did indeed occur somewhere on Fort Bliss, that
might still not be enough to permit the Court to exercise subject matter jurisdiction over the Case. “[N]ot all lands
owned and used by the federal government are subject to its exclusive jurisdiction,” because “the United States may
exercise ‘exclusive’ legislative jurisdiction over land only where the transfer of such land was approved by ‘the
Consent of the Legislature of the State in which the same shall be.’” Balderrama, 2013 WL 4536091, at *6 (quoting
U.S. Const., Art. I, § 8 cl. 17). “[D]ue to the piecemeal manner in which . . . federal installations are often acquired
by the United States, military bases may contain ‘numerous units [of land] acquired at various times, some of which
may be subject to exclusive federal jurisdiction and some of which may not be.’” Id. (quoting Paul v. United States,
371 U.S. 245, 269-70 (1963)) (internal quotation marks omitted). This Court has therefore recognized that “because
different sections of Fort Bliss were acquired in a series of different transactions over many decades, it may be that
not all of Fort Bliss is subject to the same jurisdiction under the federal enclave doctrine.” Id. at *7 (citations
omitted). Because ambiguities must be resolved in favor of remand, see Acuna, 200 F.3d at 339 (citing Willy, 855
F.2d at 1164), it may very well be that the Court must remand the Case because it is not evident that the alleged
tortious interference and discriminatory hiring decisions occurred on a section of Fort Bliss clearly subject to the
federal government’s exclusive jurisdiction.

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on the basis of diversity jurisdiction, each defendant that has “been properly joined and served
must join in or consent to the removal of the action.” Id. § 1446(b)(2)(A).
Notwithstanding the foregoing, the presence of a non-diverse or in-state defendant does
not destroy diversity jurisdiction where the plaintiff improperly joined that defendant. See
McDonal, 408 F.3d at 183; Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 572-73 (5th Cir. 2004).
A removing defendant can establish improper joinder by demonstrating the “inability of the
plaintiff to establish a cause of action against the non-diverse party in state court.”8 Travis v.
Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 698
(5th Cir. 1999)). “The burden of persuasion placed upon those who cry ‘fraudulent joinder’9 is
indeed a heavy one.” B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). Under
this standard, the court assesses whether the plaintiff has “any possibility of recovery” against
the defendant. See Travis, 326 F.3d at 648 (quoting Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). If there is more than a merely theoretical
possibility that the plaintiff could ultimately recover against the defendant, then the defendant is
a proper party, and the court should remand the case; otherwise, the case should remain in
federal court. See id. (citing Great Plains, 313 F.3d at 312).
Although this inquiry is similar to the motion to dismiss standard under Federal Rule of
Civil Procedure 12(b)(6), it is not identical. See Smallwood, 385 F.3d at 573-74; Travis, 326 F.3d
at 648 (citing Great Plains, 313 F.3d at 312-13). “For fraudulent joinder, the district court may . .
8

A removing defendant may also establish improper joinder by demonstrating “actual fraud in the pleading of
jurisdictional facts.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d
694, 698 (5th Cir. 1999)). Because the parties do not dispute that Westman is a citizen of Texas, this test is not
relevant here. See id.; see also Pet. ¶¶ 2-6; Notice of Removal ¶ 10.
9

The terms “improper joinder” and “fraudulent joinder” are interchangeable. See Smallwood, 385 F.3d at 571 n.1.
The Court, following the Fifth Circuit’s preferred convention, uses the term “improper joinder” except where
quoting an opinion that uses the term “fraudulent joinder.” See id.

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. ‘pierce the pleadings’ and consider summary judgment-type evidence in the record.” Travis,
326 F.3d at 648 (citing Griggs, 181 F.3d at 699-702; Carriere v. Sears, Roebuck & Co., 893 F.2d
98, 100 (5th Cir. 1990)). However, the court should do so only in limited circumstances and only
to a limited extent. See Smallwood, 385 F.3d at 573-74 (describing when and how a district court
should engage in a summary inquiry to resolve an improper joinder issue, while nonetheless
allowing district courts discretion to determine the scope and propriety of such an inquiry). The
court must also resolve “[a]ny contested issues of fact and any ambiguities of state law” in the
plaintiff’s favor. Travis, 326 F.3d at 648 (citing Griggs, 181 F.3d at 699).
The parties agree that Logistics is a citizen of North Carolina, and that Westman and all
Plaintiffs are citizens of Texas. See Pet. ¶¶ 2-6; Notice of Removal ¶ 10. As such, Defendants
and Plaintiffs are not completely diverse, so the Court may exercise diversity jurisdiction over
the Case only if Plaintiffs improperly joined Westman. See Strawbridge, 7 U.S. at 267-68;
McDonal, 408 F.3d at 183. The Court therefore analyzes whether Plaintiffs have any possibility
of recovery against Westman in state court, or if instead Westman is improperly joined. See
Travis, 326 F.3d at 648 (quoting Great Plains, 313 F.3d at 312). The Court applies Texas law to
determine whether Plaintiffs have any possibility of recovery on their claim against Westman.
See Akerblom v. Ezra Holdings Ltd., 509 F. App’x 340, 344 (5th Cir. 2013) (quoting MidContinent Cas. Co. v. Swift Energy Co., 206 F.3d 487, 491 (5th Cir. 2000); citing Guillory v.
PPG Indus., Inc., 434 F.3d 303, 312 (5th Cir. 2005)).
Plaintiffs allege that Westman tortiously interfered with their prospective employment
relationship with Logistics by “publish[ing] false and/or misleading information regarding
[Plaintiffs] with the intention that [Plaintiffs] would not be hired by [Logistics] when the
company took over the contract.” Pet. ¶ 30. “Texas, like most states, has long recognized a tort
10

cause of action for interference with a prospective contractual or business relation[.]”10 Wal-Mart
Stores, Inc. v. Sturges, 52 S.W. 3d 711, 712-13 (Tex. 2001).
To establish a cause of action for tortious interference with prospective business
relationships, a plaintiff must show (1) there was a reasonable probability that the
parties would have entered into a contractual relationship; (2) the defendant
committed an independently tortious or unlawful act that prevented the
relationship from occurring; (3) the defendant did such act with a conscious desire
to prevent the relationship from occurring or knew that the interference was
certain or substantially certain to occur as a result of his conduct; and (4) the
plaintiff suffered actual harm or damage as a result of the defendant's interference.
Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 381-82 (Tex. App. 2005) (“Swett &
Crawford”) (citing Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 858 (Tex. App. 2001)).
To satisfy the “independently tortious or unlawful act” element, the plaintiff need not
prove that the defendant committed an independent tort, but the plaintiff must at least “prove that
the defendant’s conduct would be actionable under a recognized tort,” such as fraud or
defamation. Sturges, 52 S.W. 3d at 726-27.
A defendant may raise justification or privilege as an affirmative defense to a tortious
interference claim as long as justification or privilege would be an affirmative defense to the
independent tort upon which the tortious interference claim is predicated. Id. at 727. Thus, where
the plaintiff alleges that the defendant committed tortious interference by uttering defamatory
statements about the plaintiff, the defendant may raise complete or qualified privilege as an
affirmative defense to the tortious interference claim. Id. (citing Prudential Ins. Co. of Am. v.
Fin. Review Servs., Inc., 29 S.W.3d 74, 82 (Tex. 2000)). The defendant has the burden of
establishing the affirmative defense. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690
(Tex. 1989).
As Defendants correctly note, and as Plaintiffs concede, Plaintiffs cannot sustain a
10

A tortious interference cause of action is available even if the prospective contract would have been a contract for
at-will employment. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688-89 (Tex. 1989).

11

tortious interference claim against Westman for the actions he took while employed by Logistics.
See Notice of Removal ¶¶ 15-17; Mot. ¶ 16. As a supervisory employee of Logistics, Westman
was Logistics’ agent, and as a matter of law an agent cannot be found liable for interfering with
its principal’s contracts because there is an identity of interests between the agent and the
principal. See Souter v. Scott & White Mem’l Hosp., 105 F.3d 656 (5th Cir. 1996) (citations
omitted); Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326-27 (Tex. App. 1995)
(citations omitted); Am. Med. Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 335-38 (Tex. App.
1991). Thus, the Court instead evaluates whether Plaintiffs have any possibility of recovery
against Westman for his actions while employed at MGMS. See Mot. ¶ 16.
For the following reasons, the Court concludes that Plaintiffs have pleaded a tortious
interference claim with at least some chance of recovery against Westman for his activities while
employed at MGMS. First, Plaintiffs sufficiently allege that there was a reasonable possibility
that, if Westman had not generated the allegedly false disciplinary paperwork, Plaintiffs and
Logistics would have entered into a contractual employment relationship. The Petition alleges
that
[d]ue to the fact that [Plaintiffs] had held their positions for a lengthy period of
time and the fact that [Logistics] was legally required to give preferential
treatment to job applicants who had held the same positions as employees of the
former contractor, MGMS, there was a reasonable probability that [Plaintiffs]
would have contracted with [Logistics] in the form of employment.
Pet. ¶ 29.
The Petition also alleges that Westman intentionally fabricated the paperwork out of a conscious
desire to prevent Plaintiffs from obtaining employment with Logistics. See id. ¶ 30. Plaintiffs
also allege that they sustained an injury as a result of Westman’s actions – namely, the inability
to gain employment with Logistics. See id. ¶ 32. Plaintiffs have sufficiently alleged the first,
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third, and fourth elements of the tortious interference claim. See Swett & Crawford of Tex., 178
S.W.3d at 381-82. Whether Plaintiffs have any reasonable possibility of success on their tortious
interference claims against Westman therefore depends on whether Westman’s actions were
independently tortious.
Plaintiffs argue that Westman’s statements in the disciplinary reports are independently
tortious because they are defamatory. See Mot. ¶ 18. Defendants argue that the alleged
statements do not amount to defamation because they did not tend to injure Plaintiffs’ reputation
or expose them to public hatred, contempt, ridicule, or financial injury. See Resp. 9. Defendants
also argue that “the fact that Plaintiffs did not assert a claim for defamation against Westman in
this lawsuit” provides further evidence “that the statements in the disciplinary paperwork are not
defamatory[.]” Id. at 9 n.6.
Written statements only constitute the tort of defamation against a living person under
Texas law if they (1) tend to injure the “person’s reputation and thereby expose the person to
public hatred, contempt or ridicule, or financial injury[];” (2) “impeach [the] person’s honesty,
integrity, virtue, or reputation;” or (3) publish the “natural defects” of the person and “thereby
expose the person to public hatred, ridicule, or financial injury.” Tex. Civ. Prac. & Rem. Code
Ann. § 73.001 (Vernon 2005).
However, the Supreme Court of Texas has clearly articulated that a plaintiff need not
“prove an independent tort” in order to sustain a tortious interference cause of action; the
plaintiff need only prove that the action on which the tortious interference claim is predicated
was tortious in character. See Sturges, 52 S.W. 3d at 726. As a result, Plaintiffs need not
necessarily establish every prerequisite of a separate defamation cause of action; Plaintiffs need
only allege that Westman made statements that were defamatory in character. See id.; accord
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Dunn v. Callahan, No. 03-05-00426-CV, 2008 WL 5264886, at *5 (Tex. App. Dec. 17, 2008).
Were the rule otherwise, the tortious interference cause of action would arguably be duplicative
and unnecessary, because the plaintiff could already recover against the defendant on some other
tort theory. See Sturges, 52 S.W. 3d at 713 (“[A]n action for interference with a prospective
contractual or business relation provides a remedy for injurious conduct that other tort actions
might not reach[.]”). Thus, even if Plaintiffs would be unable to establish a prima facie case for
defamation, that is not alone dispositive of whether Plaintiffs can ultimately recover under a
tortious interference theory.
It is not entirely clear under Texas law when conduct underlying a tortious interference
claim is defamatory in character but does not constitute an independent tort of defamation. See
id. at 713, 726; Transp. Care Servs. Corp. v. Shaw, No. 02-12-00334-CV, 2013 WL 5433991, at
*4 (Tex. App. Sept. 26, 2013); Dunn, 2008 WL 5264886, at *5; Walters v. Columbia/St. David’s
Healthcare Sys., L.P., No. 03-03-00582-CV, 2005 WL 1240968, at *13 (Tex. App. May 26,
2005). Although it appears that Plaintiffs need not establish every element of a prima facie case
for defamation, it is unclear which elements are of lesser relevance in the tortious interference
context. Cf. Sturges, 52 S.W. 3d at 726 (observing in the context of fraudulent utterances that “a
plaintiff may recover for tortious interference from a defendant who makes fraudulent statements
about the plaintiff to a third person without proving that the third person was actually
defrauded”).
The Court need not resolve this issue. Defendants have not identified any Texas case
squarely holding that a tortious interference plaintiff, as opposed to a defamation plaintiff, must
prove that the statements exposed the person to contempt or tended to impeach the plaintiff’s
honesty or integrity. See Resp. 9 (citing Means v. Abcabco, Inc., 315 S.W. 209, 215 (Tex. App.
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2010); Shaw v. Palmer, 197 S.W.3d 854, 857 (Tex. App. 2006)); Notice of Removal ¶ 19. Nor
has the Court’s own research revealed a case so holding. See Transp. Care Servs. Corp., 2013
WL 5433991, at *4; Dunn, 2008 WL 5264886, at *5; Swett & Crawford, 178 S.W.3d at 381-82;
Walters, 2005 WL 1240968, at *13. A court could conceivably find that preparing false
disciplinary paperwork with the aim of sabotaging an employee’s future employment prospects
is defamatory in nature, even if such an act might not constitute actionable defamation in itself.
See Sturges, 52 S.W. 3d at 722 (favorably discussing Brown v. Am. Freehold Land Mortg. Co.,
80 S.W. 985 (Tex. 1904) (“Am. Freehold”), in which the Supreme Court of Texas upheld a
tortious interference claim where “the defendant, a competitor, had falsely stated that the
plaintiffs were neglectful, irresponsible, and insolvent”). Cf. Wortham v. Dun & Bradstreet, Inc.,
399 F. Supp. 633, 639 n.4 (S.D. Tex. 1975) (“[F]alsely stating that a person is bankrupt or has
filed for bankruptcy is libel per se.”) (citations omitted). In light of the ambiguity of the
applicable law, Defendants have failed to conclusively prove that the disciplinary paperwork is
not defamatory in nature. See Travis, 326 F.3d at 648 (citing Griggs, 181 F.3d at 699) (holding
that a court, when ruling on a motion to remand, must resolve “any ambiguities of state law” in
the non-movant’s favor).
Even if the Court concluded that the false disciplinary paperwork was not defamatory,
Plaintiffs’ state law claims against Westman would still not necessarily fail because Westman’s
statements could be independently tortious in some other respect. For example, Plaintiffs might
be able to predicate their tortious interference claim on the underlying tort of business
disparagement. See Allied Capital Corp. v. Cravens, 67 S.W.3d 486, 492 (Tex. App. 2002). See
also Hurlbut v. Atl. Life Ins. Co., 749 S.W.2d 762, 767-68 (Tex. 1987) (“The action for
defamation is to protect the personal reputation of the injured party, whereas the action for . . .
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business disparagement is to protect the economic interests of the injured party against pecuniary
loss.”). The Court makes no decision on that issue in this order; the Court merely notes that
Defendant has failed to prove that Plaintiffs have no reasonable possibility of success on their
claim against Westman. See Travis, 326 F.3d at 648 (quoting Great Plains, 313 F.3d at 312).
Thus, because Plaintiffs have alleged that they would likely have entered into employment
contracts with Logistics in the absence of Westman’s actions, and that Westman consciously
committed an independently tortious act to interfere with those prospective contracts to
Plaintiffs’ detriment, Plaintiffs have demonstrated a possibility of recovery against Westman. See
Swett & Crawford, 178 S.W.3d at 381-82 (citing Baty, 63 S.W.3d at 858).
Defendants further argue that Plaintiffs cannot sustain their tortious interference claim
because the disciplinary paperwork is subject to a qualified privilege.11 See Resp. 10-11.
Qualified privilege is a defense to defamation, and, as such, is also a defense to a tortious
interference claim predicated on independently defamatory conduct. See Sturges, 52 S.W. 3d at
727 (“[A] statement made against the plaintiff, though defamatory, may be protected by a
complete or qualified privilege. Justification and privilege are defenses in a claim for tortious
interference with prospective relations only to the extent that they are defenses to the
independent tortiousness of the defendant’s conduct.”) (citing Prudential Ins. Co. of Am., 29
S.W.3d at 82).
“Accusations or comments about an employee by his employer, made to a person having
an interest or duty in the matter to which the communication relates, have a qualified privilege”
and therefore generally cannot serve as a basis for liability. ContiCommodity Servs., Inc. v.

11

For an analysis of the differences between absolute/complete and qualified/conditional privilege, see Hurlbut, 749
S.W.2d at 767-68.

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Ragan, 63 F.3d 438, 442 (5th Cir. 1995) (citing Schauer v. Mem’l Care Sys., 856 S.W.2d 437,
449 (Tex. App. 1993)). Accord Crouch v. Trinque, 262 S.W.3d 417, 425 (Tex. 2008) (citing
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995)). “However, the
privilege is defeated if the statement was motivated by actual malice existing at the time of the
publication. In the defamation context, a statement is made with actual malice if the statement is
made with knowledge of its falsity or with reckless disregard as to its truth.” Crouch, 262
S.W.3d at 425 (citing Randall’s Food Mkts., Inc., 891 S.W.2d at 646). Accord ContiCommodity
Servs., Inc., 63 F.3d at 442-43 (citations omitted).
The disciplinary paperwork at issue here purports to be a purely internal report prepared
in response to employee wrongdoing, and therefore could ultimately be subject to a qualified
privilege. See ECF No. 6-6. However, the Petition sufficiently alleges that Westman knowingly
fabricated false disciplinary paperwork and therefore acted with actual malice. See Pet. ¶¶ 14, 30.
At this stage of the proceeding, the Court must assume the truth of those allegations. See B., Inc.,
663 F.2d at 550. Thus, Defendants cannot establish that the doctrine of qualified privilege bars
Plaintiffs’ tortious interference claims as a matter of law. See ContiCommodity Servs., Inc., 63
F.3d at 442-43 (citations omitted); Crouch, 262 S.W.3d at 425 (citing Randall’s Food Mkts.,
Inc., 891 S.W.2d at 646).
As a result, Defendants have failed to demonstrate that Plaintiffs have no possibility of
recovery on their tortious interference claims against Westman. Consequently, Plaintiffs did not
improperly join Westman in the Case. See Travis, 326 F.3d at 648 (quoting Great Plains, 313
F.3d at 312). Because Plaintiffs are not diverse from Westman, the Court lacks diversity
jurisdiction over the Case. See Strawbridge, 7 U.S. at 267-68; 28 U.S.C. § 1332(a)(1).

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III.

CONCLUSION
Defendants have failed to carry their burden of demonstrating that the Court may exercise

federal enclave jurisdiction or diversity jurisdiction over the Case. Nor have Defendants
identified any other possible basis for subject matter jurisdiction here. It is therefore ORDERED
that the Motion, ECF No. 6, is GRANTED. The Case shall be REMANDED to the County
Court at Law No. 5, El Paso County, Texas.
SO ORDERED.
SIGNED this 19th day of February, 2014.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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