* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60657

FRANCES ELAINE HOOD

Plaintiff - Appellant

v.

ADRIAN TINTA; ET AL

Defendants

SEARS ROEBUCK & CO. 

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

3:02-CV-405

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:*

Frances Elaine Hood brought this suit alleging that Sears Roebuck & Co.

and its employee Adrian Tinta denied Hood’s workers’ compensation claim in

bad faith. The claim arose out of psychological injuries allegedly resulting from

sexual harassment and retaliation by one of Hood’s supervisors, Michael

McDonald. Hood claimed that she and McDonald engaged in a sexual
No. 05-60657

2

relationship in December 1995 and that McDonald treated her with hostility and

refused to give her a favorable work schedule in retaliation for reporting the

relationship to her supervisor, Adrian Tinta, in March 1996. Hood’s emotional

condition deteriorated in the spring and summer of 1996.

This litigation, in one form or another, has been ongoing for several years.

Earlier, Hood filed suits under Title VII and state law that ended in summary

judgment for Sears. She then filed a claim with the Mississippi Workers’

Compensation Commission. Sears and its carrier settled with Hood in January

2002. Hood filed the present case against Sears and Tinta in state court,

alleging breach of contract, gross negligence, and bad faith in refusing to pay

workers’ compensation benefits. Sears removed the case to district court on the

basis of diversity. The court denied Hood’s motion to remand, finding fraudulent

joinder because Hood had signed a release that precluded any possibility of

recovery against Tinta. 

Sears filed a motion for summary judgment, which the district court

denied. The district court revisited the summary judgment motion during a

pretrial conference approximately two weeks later. The court granted Sears’s

motion for summary judgment, finding that Sears had an arguable reason to

deny Hood’s claim. The district court entered a final judgment from which Hood

appeals. Hood contends that the district court erred in denying remand,

reconsidering summary judgment without prior notice, relying on McDonald’s

deposition, and granting summary judgment in favor of Sears.

Finding no error in the district court’s denial of remand or grant of

summary judgment, we AFFIRM.

I.

The district court did not err in denying Hood’s motion to remand. “To

establish that a non-diverse defendant has been improperly joined to defeat

diversity jurisdiction, the removing party must prove (1) actual fraud in the
No. 05-60657

3

pleading of jurisdictional facts, or (2) inability ofthe plaintiffto establish a cause

of action against the non-diverse party in state court.” Rico v. Flores, 481 F.3d

234, 238 (5th Cir. 2007) (quotation omitted). Here, Hood signed a release that

clearly releases Sears and its employees from “any and all claims of every kind

and character arising out of or in any way connected with” her compensation

claim. This case obviously arises from her workers’ compensation claim. The

district court did not err in finding that this release established an inability to

pursue a cause of action against Tinta in state court. 

II.

The district court did not err in reconsidering Sears’s motion for summary

judgment at the pretrial conference without giving Hood prior notice. This Court

has stated that when “the parties have been given ample opportunity to respond

to the motion for summary judgment,the district court may rule on it. . . without

giving the parties advance notice of the court’s intention to consider and decide

the motion on a ‘date certain.’” Daniels v. Morris, 746 F.2d 271, 275-76 (5th Cir.

1984). Hood had notice of Sears’s original motion for summary judgment and

responded to it. The same issues disputed at summary judgment were to be at

the forefront of the trial and were thus fresh to the parties when the court

reconsidered its denial of Sears’s motion for summary judgment. Moreover,

Hood has not shown that she was prejudiced by the district court’s

reconsideration of Sears’s motion for summary judgment. 

III.

The district court did not err in considering McDonald’s deposition in

determining that Sears had an arguable reason to deny Hood’s workers’

compensation claim. In his deposition for an earlier lawsuit involving the

incidents underlying this case, McDonald denied having a sexual relationship

with Hood. Federal Rule of Civil Procedure 56(c) includes affidavits and

depositions as appropriate bases for summary judgment. The deposition is not
No. 05-60657

4

inadmissible hearsay, because it was not offered to prove the truth ofthe matter

of whether there was a sexual relationship, but as evidence that McDonald

denied the relationship. In addition, the deposition was referenced in Sears’s

motion for summary judgment and supplements other affidavits of Sears that

reflect McDonald’s denial of any sexual relationship with Hood.

IV. 

Finally, the district court did not err in granting Sears’s motion for

summary judgment. To show bad faith denial of a workers’ compensation claim

under Mississippi law, “there must be a determination as to whether there was

a legitimate or arguable reason to deny the benefits, and/or that the denial

constituted a willful or malicious wrong.” Mississippi Power and Light Co. v.

Cook, 832 So. 2d 474, 479 (Miss. 2002). McDonald’s denials of any sexual

relationship with Hood were presented in his own deposition and in affidavits

of Sears employees who investigated the allegations. The evidence shows that

Sears had an arguable reason to deny Hood’s claim because McDonald’s sworn,

unequivocal denial of Hood’s allegations was a basis for Sears reasonably to

believe Hood’s injuries were not work-related and therefore not eligible for

workers’ compensation. The record reflects no indication that Sears had any

reason to doubt McDonald’s denial.

In sum, Hood cannot satisfy the requirements ofthe standard for bad faith

under Mississippi law. There is no evidence that Sears committed a willful and

malicious wrong by denying Hood coverage with the knowledge that she had a

valid claim. Therefore, the district court did not err in determining that Hood

could not recover as a matter of law and granting Sears’s motion for summary

judgment.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.