ORDER DENYING PLAINTIFF’S MOTION TO REMAND AND GRANTING DEFENDANT PRENDER-GAST’S MOTION TO DISMISS
Plаintiff alleges that Defendants discriminated against him on the basis of both age and disability. Plaintiffs claims are brought exclusively under the Texas Commission on Human Rights Act, Tex.Lab. Code Ann. § 21.001 et seq. (“TCHRA”). Plaintiff originally brought suit in the 56th Judicial District Court of Galveston County. Defendants timely removеd the action to this Court on November 10,1999. Now before the Court is Defendant Al Prender-gast’s Motion To Dismiss And All Defendants’ Response To Plaintiffs Motion to Remand and Plaintiffs Amended Motion To Remand, filed February 28, 2000. For reasons set forth more fully below, Plaintiffs Motion to Remand is DENIED, and Defendant Prendergast’s Motion to Dismiss is GRANTED.
I. Motion to Remand
An examination of the face of Plaintiffs Complaint reveals there is no basis for federal question jurisdiction pursuant to 28 U.S.C. § 1331. Consequently, for this Court to enjoy subject matter jurisdiction over this removed action, there must be complete diversity of citizenship between the properly joined Plaintiffs and Defendants, 28 U.S.C. § 1332, and no properly joined Defendant may be a resident of the state of Texas, 28 U.S.C. § 1441(b).
The other requirement for diversity jurisdiction is satisfied becausе neither party disputes that the amount in controversy exceeds $75,000. The parties also agree that Defendant Autonation USA Corp. is a resident of the state of Florida, while both Plaintiff Marabella and Defendant Pren-dergast are residents of Texas.
Whether Prendergast has properly been joined as a defendant is the key to resolving the Motion before the Court. Defendants contend that Prendergast was fraudulently joined and should be dismissed. If Prendergast is dismissed as a party to this suit, then removal is сlearly warranted because there is complete diversity of citizenship between Plaintiff and the remaining Defendant. Plaintiff, on the other hand, contends that Prendergast is a proper defendant in this action. If Plaintiff is correct, removal would bе improper for two reasons: there would not be complete diversity between the Plaintiff and the Defendants as requirеd by 28 U.S.C. § 1332, and one Defendant would be a resident of the state in which the removal court sits, contrary to the provisions of 28 U.S.C. § 1441(b).
The Cоurt begins by noting that “the burden of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a heavy one.”
B., Inc. v. Miller Brewing Co.,
Sincе the parties agree that Plaintiff Marabella and Prendergast are both residents of Texas, Defendants are not allеging any fraud in Plaintiffs pleading of jurisdictional facts. Hence for Defendants to defeat Plaintiffs Motion for Remand, Defendants must еstablish that Plaintiff has no possibility of recovering against Prendergast under Texas law.
In assessing a “no possibility of recovery” fraudulent joinder claim, the Court must evaluate all of the contested factual allegations in the light most favorable to thе plaintiff. In addition, the Court must resolve any uncertainties concerning the current status of controlling state substantive law in favоr of the plaintiff.
See Sid Richardson,
Although Defendants’ burden is a heavy one, the court finds that Defendants here have carried it. Defendant Prendergast worked as the general manager of Autonation, and was the employee responsible for carrying out the demotion of which Plaintiff complains. To prove that Plaintiff cannot possibly recover against Prendergast, Defendants рoint out that Texas state and federal courts have uniformly held that supervisory personnel are not liable in their individual capacity under the TCHRA.
See City of Austin v. Gifford,
Because Plaintiff brings claims exclusively under the TCHRA, the Court concludes there is no possibility of recovery against Defendant Prendergast, and thus his citizenship may be disregarded in assessing the existence of removal jurisdiction. Consequently, Plaintiffs Motion to Remand is DENIED.
II. Dismissal of Claims Against Prendergast
Defendant Prendergast also contends that the claims against him should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). A motion to dismiss should be granted only when it appеars without a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief.
See Conley v. Gibson,
The standard used to determine whether a party has been fraudulently joined — no possibility of recovery under state law against the in-state defendant — is quite similar to the standard used to determine whether tо grant a Rule 12(b)(6) motion— apparent certainty that plaintiff can prove no set of facts which would entitle him to reliеf.
See Whitworth,
Since the Court has already established that Plaintiff cannot possibly reсover against Prendergast under the only state law theory advanced by Plaintiff, the Court concludes that Plaintiff can prove no set of facts which would entitle him to relief against Prendergast. Consequently, Prendergast’s Motion To Dismiss is GRANTED.
III. Conclusion
Plaintiffs Motion to Remand is DENIED. Defendant Prendergast’s Motion to Dismiss is GRANTED, and this Defendant is hereby DISMISSED as a party to this action. The parties are ORDERED to file no further pleadings on these issues in this Court, including motions to reconsider or the like. In due course the Court will enter a final judgement on the dismissed claim.
IT IS SO ORDERED.