Orphey v. Conocophillips Co.

• Decision Date: 01 April 2015
• Docket Number: No. CIV 14-886 RB/KK,CIV 14-886 RB/KK
• Parties: GREG ORPHEY, Plaintiff, v. CONOCOPHILLIPS COMPANY and GABRIEL APARICIO, Defendants.
• Court: U.S. District Court — District of New Mexico

GREG ORPHEY, Plaintiff, v. CONOCOPHILLIPS COMPANY and GABRIEL APARICIO, Defendants.

No. CIV 14-886 RB/KK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 1, 2015

MEMORANDUM OPINION AND ORDER

Plaintiff Grey Orphey sued his former employer, Defendant ConocoPhillips, stating various state law causes of action. After removing the action to this Court, Defendants moved to dismiss on the basis of preemption. (Doc. 3.) Three months later, Plaintiff filed a motion to remand the case for improper removal (Doc. 13) and to amend his Complaint by adding non-diverse defendants (Doc. 14). By filing three motions challenging the Court's subject matter jurisdiction, the parties created a veritable jurisdictional thicket. Having reviewed the parties' submissions and arguments, the Court denies Defendants' Motion to Dismiss (Doc. 3), denies Plaintiff's Motion to Remand (Doc. 13), and grants Plaintiff's Motion to Amend (Doc. 14). Although the Court denies remand on the ground Plaintiff argued, granting the complaint amendment changes the relevant jurisdictional facts. Based on the amended complaint, the Court remands the case to state court.

I. BACKGROUND

Plaintiff worked at Defendant ConocoPhillips' Wingate Fractionator in New Mexico for six and a half years. (Compl. ¶ 5, Doc. 1-1.) Allegedly, he started receiving retaliatory reprimands after he complained about his supervisors' unethical practices. (Compl. ¶¶ 6-7.) Plaintiff encountered additional pushback from his supervisors when he took short-term disability leave in order to donate a kidney to his brother. (Compl. ¶¶ 13-15.) In reaction to his poor treatment, Plaintiff began speaking with union organizers. (Compl. ¶ 16.) Plaintiff's job was not unionized while he was employed with Defendant ConocoPhillips.

Plaintiff was eventually fired after complaining about a safety issue at work. (Compl. ¶ 29.) On March 7, 2013, Plaintiff questioned his superior, Mr. Frank Barton, when Supervisor Barton ordered another employee, Mr. Rubin Valdespino, to begin a work procedure. (Compl. ¶¶ 17-21.) Asking Supervisor Barton to reconsider his directives, Plaintiff argued that there were too many operations already underway and there was insufficient light for Mr. Valdespino to work. (Compl. ¶¶ 19-20.) Supervisor Barton dismissed Plaintiff's warnings and ordered Mr. Valdespino to begin the operation. (Compl. ¶ 21.) After five minutes, Mr. Valdespino aborted the operation, stating that it was too dark for him to see. (Compl. ¶ 25.) Because abandoning the operation was against procedure, Defendant ConocoPhillips fired both Mr. Valdespino and Plaintiff. (Compl. ¶ 29.)

Plaintiff and Mr. Valdespino initially brought their claim to the National Labor Relations Board. (Compl. ¶ 28.) At the Labor Board hearing, Defendant Gabriel Aparicio testified on behalf of Defendant ConocoPhillips. (Compl. ¶ 29.) He testified that neither Plaintiff nor Mr. Valdespino raised safety issues at the time. (Compl. ¶ 28.) Plaintiff avers that this is "obviously untrue." (Id. ¶ 29.) Explaining the untrue testimony, Plaintiff posits that Supervisor Barton "lied to Mr. Aparicio so as to push the blame to Plaintiff and Mr. Valdespino instead of where it belonged which was with him." (Compl. ¶ 30.)

On August 28, 2014, Plaintiff filed a Complaint with the Eleventh Judicial District Court in McKinley County, New Mexico. He asserted four causes of action to challenge his termination, all grounded in state law. (Compl.) He named ConocoPhillips and Mr. Aparicio as Defendants. (Id.) Asserting fraudulent joinder, Defendant invoked diversity jurisdiction to remove the action to this Court. (Doc. 1.) Defendants then moved to dismiss, on the ground that all of Plaintiff's causes of action are preempted by the National Labor Relations Act ("NLRA"). (Doc. 3.) Plaintiff opposed this motion. (Doc. 7.) In his response to the motion to dismiss, Plaintiff stated his objection to the removal. (Doc. 7 at 5 n.1). Two and half months later—and more than three and half months after the case was removed—Plaintiff filed a motion to remand. (Doc. 13.) The same day, Plaintiff filed a motion to amend his Complaint, stating claims against non-diverse parties. (Doc. 14.)

II. DISCUSSION

Before deciding the motion to dismiss on preemption grounds, the Court must first determine whether it has jurisdiction over the claims. By itself, NLRA Garmon preemption does not provide a basis for removal jurisdiction. Felix v. Lucent Technologies, Inc., 387 F.3d 1146, 1165 (10th Cir. 2004) (finding that Garmon preemption does not provide a federal court with subject matter jurisdiction); see also Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908) (holding that defenses raising federal question cannot confer federal jurisdiction). NLRA preemption is a question which state courts can decide—and must decide if there is no independent basis for federal jurisdiction. See United Ass'n of Journeymen, Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 887 (10th Cir. 1987) (reasoning that state courts may evaluate whether activity is protected under the NLRA). Therefore, the Court first decides whether the case was properly removed to this Court. Next, the Court will consider Defendants'preemption arguments. Finally, the Court will address Plaintiff's motion to amend his Complaint. The Court must navigate carefully through jurisdictional thickets.

A. Propriety of Removal

This case was properly removed only if Defendants can prove that Plaintiff fraudulently joined Defendant Aparicio. Arguing that Plaintiff does not allege any plausible claims against Defendant Aparicio, Defendants removed this suit on the theory that Defendant Aparicio was fraudulently joined "for the sole purpose of defeating diversity jurisdiction." (Notice of Removal, Doc. 1 ¶¶ 7, 9.) Excluding Defendant Aparicio would make diversity complete because Plaintiff is a citizen of New Mexico and Defendant ConocoPhillips is incorporated in Delaware with a principal place of business in Texas. (Id. ¶ 6.) Complete diversity would give the Court subject matter jurisdiction over the suit. 28 U.S.C. § 1332.

If a plaintiff has no cause of action against a resident defendant and joins the defendant solely to prevent removal to federal court, the plaintiff has "fraudulently joined" the party. Dodd v. Fawcett Pubs., Inc., 329 F.2d 82, 85 (10th Cir. 1964). To establish fraudulent joinder, the removing party must demonstrate either (1) actual fraud in the pleading of jurisdictional facts, or (2) the plaintiff's inability to establish a cause of action against the non-diverse party in state court. Dutcher v. Matheson, 733 F.3d 980, 988 (10th Cir. 2013). The party seeking removal "bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of the plaintiff." Id.

Plaintiff's Complaint states two causes of action against Defendant Aparicio: retaliatory discharge and prima facie tort. (Compl. ¶¶ 31-41.) If either cause of action is colorable, then Defendants cannot meet their fraudulent joinder burden. See Brazell v. Waite, 525 F. App'x 878, 881 (10th Cir. 2013) ("[T]he removing party must show that the plaintiff has 'no cause of action'against the fraudulently joined defendant."). In his Motion for Remand, Plaintiff explains that he stated causes of action against Defendant Aparicio because the Complaint alleges that Defendant Aparicio made material representations about Plaintiff. (Doc. 13 at 9.) The Complaint alleges that Defendant Aparicio issued Plaintiff two memos regarding missed safety meetings, which Plaintiff admittedly did not attend, although he claims he missed the meetings for good reasons. (Compl. ¶¶ 8-12.) The missed meetings occurred a year or more before Plaintiff was fired. (Compl. ¶¶ 5, 8, 10.) Plaintiff also avers that Defendant Aparicio misstated the truth about Plaintiff's dismissal during his testimony before the Labor Board. (Id. ¶ 28.) However, Plaintiff blames Supervisor Barton for the untrue testimony. He explains that "[t]he obvious conclusions is that Mr. Barton lied to Mr. Aparicio so as to push the blame to Plaintiff and Mr. Valdespino instead of where it belonged which was with him." (Id. ¶ 30.)

The facts in the Complaint do not state a viable claim for retaliatory discharge against Defendant Aparicio. Under New Mexico law, supervisors are not liable for the tort of retaliatory discharge unless the supervisor intentionally fired the plaintiff for his own interest, outside the scope of employment. See Bourgeous v. Horizon Healthcare Corp., 872 P.2d 852, 855 (N.M. 1994) (holding that individual defendants could not be held liable under a theory of retaliatory discharge based on actions done in the scope of employment). The Complaint accuses Supervisor Barton of lying to save his own skin, but absolves Defendant Aparicio of any intentional misconduct by explaining that Defendant Aparicio was misled by Supervisor Barton. (Compl. ¶¶ 38-30.) While the Complaint alleges a colorable claim against Supervisor Barton, he is not named as a Defendant. Meanwhile, the Complaint does not state a colorable retaliatory discharge claim against Defendant Aparicio.

Similarly, the Complaint does not state a viable prima facie tort claim against Defendant Aparicio. Defendants argue that this claim must fail because Plaintiff, an at-will employee, did not have a contractual relationship with Defendant Aparicio. (Doc. 25 at 4.) To support this argument, Defendants cite to dicta from one non-binding, unpublished Tenth Circuit opinion, Cordova v. PNM Elec. & Gas Servs., 72 F. App'x 789, 793 (10th Cir. 2003). The Court is not persuaded by Defendants' construction of the law. Prima facie tort is rooted in tort law, not contract law. After reviewing New Mexico law, the Court finds that an employment contract is not a required element of prima facie tort.

The elements of prima facie tort are: (1) an intentional, lawful act by defendant; (2) an...