IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GETTHERE, L.P., §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-221-A

§

MATTHEW BECK, ET AL., §

§

Defendants. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the motion of plaintiff, Getthere,

L.P., to remand. The court, having considered the motion, the

response of defendants, Matthew Beck ("Beck"), Paula T. Belikove,

Jerome T. Chen, Anthony J. D'Astolfo, Deanna J. Foster, Robert J.

Gabany, Sean Handel, Richard Hernandez, Deborah A. Klish, Kelly

L. Martin, Suzette D. Messa, Mark H. Orttung, and Rearden

Commerce, Inc. ("Rearden"), the reply, the memoranda filed in

response to the court's May 20, 2005, telephone

conference/hearing and written order, the record, and applicable

authorities, finds that the motion should be granted.

I.

Proceedings and Claims

On March 2, 2005, plaintiff filed its original petition in

the 96th Judicial District Court of Tarrant County, Texas. The

action was brought before this court by notice of removal filed

 

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The notice of removal was ordered stricken by order signed

April 6, 2005, for failure to meet certain procedural requirements. 

An amended notice of removal was filed April 7, 2005.

2

April 4, 2005.1 Defendants contend that the court has

jurisdiction of this action, because complete diversity of

jurisdiction exists, but for the fraudulent joinder of Beck as a

defendant. 

The defendants are a competitor and former employees of

plaintiff who, plaintiff alleges, are using plaintiff's

confidential, proprietary, and trade secret information to

plaintiff's detriment. Plaintiff asserts causes of action for

breach of its contract with Rearden, breach of confidentiality

agreements by the individual defendants, misappropriation of

trade secrets, tortious interference with contract, breach of

fiduciary duty and conspiracy to breach fiduciary duty, and

common law misappropriation.

II.

Ground of the Motion

Plaintiff alleges that Beck has not been fraudulently joined

and that the action should be remanded to the state court from

which it was removed.

III.

Removal Jurisdiction

The burden of establishing federal jurisdiction is on the

party seeking removal. Jernigan v. Ashland Oil, Inc., 989 F.2d

812, 815 (5th Cir. 1993). Interests of federalism and comity

require that removal jurisdiction be strictly construed. Bosky

 

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v. Kroger Tex., L.P., 288 F.3d 208, 211 (5th Cir. 2002); Willy v.

Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). Jurisdiction

is determined as of the time of removal. Bank One Tex., N.A. v.

Morrison, 26 F.3d 544, 547 (5th Cir. 1994). The court considers

only the citizenship of real and substantial parties to the

controversy and disregards nominal or formal parties who have no

real interest in the dispute before the court. Navarro Savs.

Ass'n v. Lee, 446 U.S. 458, 460-61 (1980); Wolff v. Wolff, 768

F.2d 642, 645 (5th Cir. 1985). 

A removing party alleging jurisdiction on the basis of

improper joinder bears a heavy burden. Smallwood v. Illinois

Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir. 2004); B., Inc. v.

Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The

burden may be met by showing either (1) actual fraud in the

pleading of jurisdictional facts, or (2) the inability of the

plaintiff to establish a cause of action against the non-diverse

party in state court. Travis v. Irby, 326 F.3d 644, 647 (5th

Cir. 2003). To prove the latter, the party must establish that

there is no possibility that the plaintiff would be able to

establish a cause of action against the in-state defendant in

state court. B., Inc., 663 F.2d at 549. If there is arguably a

reasonable basis for predicting that state law might impose

liability on the facts involved, then there is no improper

joinder. Travis, 326 F.3d at 648. 

To determine whether the plaintiff will be able to establish

a cause of action, the court may either conduct a Rule 12(b)(6)-

 

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type analysis or, in rare cases, make a summary inquiry to

identify the presence of discrete and undisputed facts that would

preclude the plaintiff's recovery against the in-state defendant. 

McDonal v. Abbot Labs., No. 02-60773, slip op. at 6 n.6 (5th Cir.

Apr. 26 2005); Smallwood, 385 F.3d at 573-74. The court should

not deny the motion to remand unless the plaintiff would not be

entitled to any relief under any set of facts or any possible

theory it could prove consistent with the allegations in the

petition. Travis, 326 F.3d at 648. And, in making its ruling,

the court should not become involved in substantial hearings that

go beyond the issue of jurisdiction to the merits of the

plaintiff's claims. Smallwood, 385 F.3d at 574; Sid Richardson

Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751

(5th Cir. 1996).

IV.

Analysis

In this case, Beck wants the court to undertake a

substantial analysis to conclude that plaintiff cannot recover on

any of its pleaded causes of action against him. He asks the

court to consider the merits, urging in his declaration that

there is no factual basis for the claims against him. However,

this is not a case where a discrete and undisputed fact precludes

plaintiff's recovery against Beck. See Smallwood, 385 F.3d at

573. Because defendants have not shown that plaintiff would not

be entitled to any relief under any set of facts or any possible

 

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theory that it could prove consistent with the allegations in the

petition, the motion to remand must be granted.

V.

Order

For the reasons discussed herein, 

The court ORDERS that plaintiff's motion to remand be, and

is hereby, granted, and that this action be, and is hereby,

remanded to the 96th Judicial District Court of Tarrant County,

Texas, from which it was removed.

SIGNED May 27 , 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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