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Brune v. Takeda Pharmaceuticals U.S.A., Inc.

United States District Court, S.D. Mississippi, Southern Division

July 24, 2019

JANA BRUNE PLAINTIFF
v.
TAKEDA PHARMACEUTICALS U.S.A., INC.; TAKEDA PHARMACEUTICALS AMERICA, INC.; RAYF CLARK; and JOHN & JANE DOES 1-5 DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the [36] Motion to Dismiss Plaintiff Jana Brune's Amended Complaint filed by Defendants Takeda Pharmaceuticals U.S.A., Inc. (“Takeda USA”); Takeda Pharmaceuticals America, Inc. (“Takeda America”); and Rayf Clark. The Motion argues that Brune's Amended Complaint should be dismissed because (1) she failed to serve process in the time allotted by the Court in the [28] Order Granting Motion to Set Aside Default Judgment and (2) she fails to state a claim for which relief may be granted. Having considered the submissions of the parties, the record, and relevant law, the Court finds that Defendants' Motion to Dismiss should be granted because Brune has failed to state a claim.

         I. BACKGROUND

         The Plaintiff filed this lawsuit in state court on January 12, 2017, Defendant Takeda USA removed the case to federal district court on September 12, 2018, and the Court entered an Order on April 3, 2019 that (1) set aside the default judgment entered against Takeda USA in the state court and (2) granted Plaintiff thirty days “within which to file an amended complaint and complete service of process.” (Order Granting Mot. to Set Aside Default & Default J. 5, ECF No. 28.) Plaintiff thereafter filed her Amended Complaint on April 30, 2019, which added two new defendants - Takeda America and Rayf Clark - and included some additional factual allegations.

         In the Amended Complaint, Brune alleges she was employed by Takeda USA and Takeda America as a sales representative in Mississippi from 2002 through April 2016. She says that she was a high-performing sales representative and often earned various performance-based awards and statuses in her performance reviews. However, says Brune, her work experience took a turn-for-the-worse when Rayf Clark became her district manager. Clark “constantly berated, verbally abused, cyber-bullied and badgered Plaintiff to the point she could no longer physically and mentally continue to work for Defendants, causing her severe anxiety and emotional distress with his antics, emails, and lies he spread to Plaintiff's employer and fellow employees.” (Am. Compl. 5, ECF No. 29.)

         Brune recounts several specific episodes. On February 9, 2016, Clark called her on the phone and proceeded to yell at and verbally abuse her, which reduced Clark to tears. Clark apparently apologized to Brune on February 22, 2016 for making her cry. On April 1, 2016, Clark sent Brune an email stating, “Per our discussion, if improvement is not observed during our next two-day field ride on April 14 and April 18 you will be placed on a Performance Improvement Plan. Moving forward it is important that you have an increased level of personal ownership around your professional skills growth and business results.” (Id. at 5-6.) This is despite the fact that, according to Brune, she was in the top 2% for a national contest and finished in the top 15% of the region in sales in 2016.

         On May 28, 2016, Clark “forced Plaintiff, upon threat of termination, to meet him at Residence Inn in Gulfport . . . where he forced her to sign a '60 Day Plan' of improvement or she would be immediately fired from her job.” (Id. at 6.) Plaintiff says that she repeatedly complained about Clark's treatment of Plaintiff to the human resources department and to “Takeda's Cultural Liaison, ” Max James (who reported Plaintiff's concerns to Quin Hatfield, the regional manager), but nothing was done to change Clark's conduct. (Id.) Plaintiff asserts that she was constructively terminated from her employment on or about April 15, 2016, presumably amidst the two-day field ride which would determine whether she was placed on a Performance Improvement Plan.

         Brune accordingly asserts claims for constructive termination, defamation, and cyber harassment. She says Defendants' conduct - which did not follow established company policies - created a hostile work environment that forced her to leave her job. She contends that Clark and other of Defendants' employees “slandered and libeled Plaintiff's name and work ethic to other individuals and employees through their multiple communications and lies, both verbally and via email and other written communications.”[1] (Id. at 8.) And she maintains that employees of Takeda America and Takeda USA “harassed, bullied, cyber-bullied and abused Plaintiff to the point she no longer felt safe working for Defendants.” (Id.)

         Defendants filed the instant Motion to Dismiss on June 10, 2019. Defendants argue that Brune's Amended Complaint should be dismissed because she failed to file the Amended Complaint and serve the defendants within the thirty-day period prescribed by the Court's [28] Order. And Brune's addition of Rayf Clark is improper, say Defendants, because he is a non-diverse party and was known to Brune before she filed suit. Alternatively, Defendants contend that Brune has failed to state a claim for relief because she cannot state a claim for wrongful termination, defamation, or harassment/bullying/cyber-bullying.

         II. DISCUSSION

         a. Rayf Clark Will Be Dismissed as a Defendant

         The addition of Clark as a defendant must be first addressed because it raises the issue of this Court's jurisdiction over the proceedings. Although a motion to dismiss may not be the proper procedural vehicle for addressing the addition of a diversity-defeating party here, [2] the Court is nonetheless required to police its own subject-matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Jurisdiction in this case is premised upon the diversity of the parties under 28 U.S.C. § 1332. (See Order Granting Mot. Set Aside Default & Default J. 2 & n.1, ECF No. 28.) Brune is a citizen of Mississippi. Takeda USA and Takeda America are not citizens of Mississippi, but Clark is. Clark's addition as a defendant therefore destroys the complete diversity of the parties.[3]

         As a general rule, “jurisdictional facts are determined at the time of removal, and . . . post-removal events do not affect that properly established jurisdiction.” Louisiana v. Am. Nat'l Prop. & Cas. Co., 746 F.3d 633, 636 (5th Cir. 2014) (citations omitted). However, 28 U.S.C. § 1447(e) imbues the Court with the post-removal discretion to either permit joinder of non-diverse defendants and remand the action to state court or deny joinder. Plaintiff contends that the Court's Order Granting Motion Set Aside Default and Default Judgment generally granted her leave to amend her pleadings as she saw fit. But this is not so. The Order did not grant Plaintiff leave to add non-diverse parties and cannot be reasonably read to do so. (See Order Granting Mot. Set Aside Default & Default J. 5, ECF No. 28 (“The information and documentation provided by Takeda USA in its briefing indicates that Takeda USA may not be the party Plaintiff intended to sue. The Court will accordingly grant Plaintiff leave to amend her complaint to substitute parties should she wish to do so.”).) Rather, the Order clearly contemplated the possibility that Plaintiff had named the wrong corporate entity and afforded Plaintiff the opportunity to correct this potential mistake.

         “When a plaintiff files an amended pleading that would destroy the court's jurisdiction, ‘§ 1447(e) requires the court to scrutinize the attempted amendment.'” Parker v. CitiMortgage, Inc., No. 2:14CV173-KS-MTP, 2015 WL 2405168, at *2 (S.D.Miss. May 20, 2015) (quoting Albritton v. W .S. Badcock Corp., No. 1:02cv378, 2003 WL 21018636, at *2 (N.D. Miss. Apr. 7, 2003)); see also Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (“The district court should scrutinize an amended pleading naming a new nondiverse defendant in a removed case ‘more closely than an ordinary amendment.'”). “In this situation, justice requires that the district court consider a number of factors to balance the defendant's interests in maintaining the federal forum with the competing interests of not having parallel lawsuits.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). “The court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether plaintiff has been dilatory in asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Id.

         “In analyzing the first Hensgens factor, district courts often consider whether the plaintiff knew or should have known of the identity of the non-diverse defendant when the original complaint was filed.” Parker, 2015 WL 2405168, at *3 (citing Shelley v. Colo. State Univ., No. A-14-CA-516, 2015 WL 1004292, at *7 (W.D. Tex. Mar. 6, 2015); Anzures v. Prologis Tex. I LLC, 886 F.Supp.2d 555, 562 (W.D. Tex. 2012); Weathersby v. Gen. Motors Corp., No. 4:04 cv 298, 2006 WL 1487025, at *3 (N.D. Miss. May 24, 2006)). If the plaintiff knew about the non-diverse party when he filed suit but omitted “that party as an original defendant, ‘courts have viewed any later attempt to add the nondiverse party as a defendant as nothing more than an attempt to destroy diversity.'” Wein v. Liberty Lloyds of Tex. Ins. Co., No. A-15-CA-19-SS, 2015 WL 1275915, at *5 (W.D. Tex. Mar. 19, 2015) (quoting In re Norplant Contraceptive Prods. Liab. Litig., 898 F.Supp. 433, 435 (E.D. Tex. 1995)). It is clear that Brune knew about Clark when she filed her original complaint in state court on January 12, 2017. Clark is specifically identified as her district manager, and nearly every factual allegation in the original complaint concerns Clark's conduct. (See State Ct. R. 5-7, ECF No. 1-4.) In fact, there is no material difference between the factual allegations contained in the original Complaint and the Amended Complaint. It appears, therefore, that Brune's addition of Clark is primarily an attempt to destroy diversity.

         “Several courts have also considered the viability of plaintiffs' claims against proposed defendants under the first Hensgens factor.” Parker, 2015 WL 2405168, at *3 (citing Anzures, 886 F.Supp.2d at 564; McKnight v. Orkin, Inc., No. 5:09CV17- DCB-JMR, 2009 WL 2367499, at *3 (S.D.Miss. July 30, 2009)). As will be explained infra, Brune fails to state a claim for relief (and the analysis is equally applicable to claims made against Clark). But even assuming that Brune has stated viable claims against Clark, the Court's assessment of the first Hensgens factor remains unchanged. See Anzures, 886 F.Supp.2d at 564. Clark could have been named in the original Complaint, yet Brune only sought to make him a party after Takeda USA removed the proceeding to federal court (and after Brune had obtained a default judgment against Takeda USA in state court). The Court thus finds that the first factor weighs against allowing Clark's addition as a defendant.

         Turning to the second Hensgens factor - whether Plaintiff has been dilatory in asking for amendment - the Court notes that the particularly long period of time between the filing of the Amended Complaint and the filing of the original Complaint is largely due to the fact that Plaintiff obtained a default judgment against Takeda USA in state court, which Takeda USA only learned about in August of 2018. Takeda USA promptly removed the case to federal court, after which Plaintiff unsuccessfully sought to have the case remanded, and Takeda USA successfully had the default judgment set aside. However, rather than concede that Takeda USA had not been properly served and seek to amend her allegations, Plaintiff spent seven months fighting to sustain her void default judgment. Courts have found considerably shorter delays to be dilatory. See Id. at 565. But this case has yet to proceed to discovery. See Parker, 2015 WL 2405168, at *4 (citing Martinez v. Holzknecht, 701 F.Supp.2d 886, 891 (S.D. Tex. 2010)). The Court finds this second factor to be neutral.

         Finally, the third factor - whether plaintiff will be significantly injured if amendment is not allowed - does not weigh in Plaintiff's favor. Plaintiff's allegations put Clark as primarily acting within the course and scope of his employment for Takeda USA or Takeda America. Brune would therefore be entitled to recover against Takeda USA or Takeda America under a theory of respondeat superior (which she alleges) for Clark's tortious conduct. She will not be meaningfully limited in her ability to satisfy a judgment in this case.[4] This factor does not tip the scales in Brune's favor. See Id. (citing Wein, 2015 WL 1275915, at *6; Albritton, 2003 WL 21018636, at *2).

         Because the Court cannot discern any other equitable considerations bearing upon the joinder of Clark, the Court finds that the balance of the Hensgrens factors weighs against allowing his addition to this lawsuit. Clark will be dismissed as a defendant pursuant to 28 U.S.C. § 1447(e).

         b. Motion to Dismiss Standard

         To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         In deciding a Rule 12(b)(6) motion to dismiss, the Court accepts all well pleaded facts as true and views them in the light most favorable to Plaintiff. New Orleans City v. Ambac Assur. Corp., 815 F.3d 196, 199 (5th Cir. 2016). But “the complaint must allege more than labels and conclusions, a formulaic recitation of the elements of a cause of action will not do, and factual allegations must be enough to raise a right to relief above the speculative level.” Jabaco, Inc. v. Harrah's Operating Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009). “While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.

         c. Plaintiff's Delay in Amending her Pleadings and Serving Process Does Not Warrant ...


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