United States Court of Appeals

for the Fifth Circuit

No. 20-40707

Tonya Van Tiem, 

Plaintiff—Appellant,

versus

First American Title Company;

First American Home Warranty Corporation;

First American Corporation;

Suzan Kelly, Individually, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:18-CV-458

Before Jones, Southwick, and Engelhardt, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Tonya Van Tiem challenges several rulings of the 

district court that resulted in the dismissal of her claims against Defendants-

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2021

Lyle W. Cayce

Clerk

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Appellees. For the following reasons, the judgment of the district court is 

AFFIRMED.

I. BACKGROUND

Tonya Van Tiem worked as a sales representative for First American 

Home Warranty Corporation (“First American”). During her employment, 

various disputes arose stemming from Van Tiem’s belief that her orders were

being wrongfully redirected, reassigned, and misappropriated to other 

accounts, resulting in an alleged reduction of her “numbers, bonuses, and 

compensation.” In 2017, she resigned.

In 2018, Van Tiem sued First American, First American Title Co. 

(“FATCO”), First American Corporation (collectively, the “corporate 

Defendants”), and a former colleague, Suzan Kelly, in state court for fraud, 

conspiracy to commit fraud, breach of contract, tortious interference with 

existing and prospective contracts, and intentional infliction of emotional 

distress. Both Kelly and Van Tiem are citizens of Texas. First American and 

FATCO are California corporations, and First American Corporation is a 

Delaware corporation. Defendants removed the case on the basis of diversity 

jurisdiction, arguing that Kelly, the only non-diverse defendant, was 

improperly joined. Van Tiem filed a motion to remand the case back to state 

court, which the district court denied. In the same order, the district court

disregarded Kelly’s citizenship for the purpose of determining diversity 

jurisdiction and dismissed the claims against Kelly without prejudice.

Van Tiem amended her complaint. The remaining Defendants 

moved to dismiss her claims, a motion the court granted for all claims except

the breach-of-contract claim against First American. Months later, the court

resolved the remaining breach-of-contract claim in favor of the First 

American on summary judgment and entered final judgment on August 6, 

2020.

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On September 3, Van Tiem filed a motion for a new trial. Because no 

trial had taken place, the district court construed the motion as two separate 

motions—a Rule 59(e) motion and a Rule 60(b) motion. The court reasoned 

that Van Tiem filed her motion twenty-eight days after the entry of final 

judgment, so the portion of the motion contesting summary judgment should 

be adjudicated under Rule 59(e). But, because the portion seeking relief from 

the earlier Rule 12(b)(6) dismissal was not filed “within twenty-eight days of 

the judgment or order of which the party complains,” the district court 

construed that request as falling within Rule 60(b). The district court denied 

relief from summary judgment under Rule 59(e). The court denied relief for 

the remainder of Van Tiem’s motion as untimely under Rule 60(b), as it was 

“filed more than one year after her fraud claims were dismissed.” On 

October 18, twenty-seven days after the district court denied the motion for 

a new trial, Van Tiem filed her notice of appeal.1

II. STANDARD OF REVIEW

This court conducts de novo review of both denials of motions to 

remand and grants of motions to dismiss. See Badgerow v. Walters, 975 F.3d 

469, 472 (5th Cir. 2020) (motions to remand); Jebaco, Inc. v. Harrah’s 

Operating Co., 587 F.3d 314, 318 (5th Cir. 2009) (motions to dismiss). 

Further, this court has “an independent duty to determine [its] jurisdiction 

over any case presented to [it] for decision.” Colle v. Brazos Cnty., 981 F.2d 

237, 240 (5th Cir. 1993).

III. DISCUSSION

On appeal, Van Tiem challenges (1) the district court’s denial of her 

motion to remand; (2) its dismissal of her claims against Kelly; and (3) its 

1 In her briefing, Van Tiem did not appeal the district court’s grant of summary 

judgment for First American on the breach-of-contract claim.

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dismissal of her claims against the corporate Defendants. Defendants add a 

jurisdictional challenge, contending that Van Tiem’s notice of appeal was 

untimely filed more than a year after entry of the dismissal order to which it 

was directed. Rule 60(b) motions must ordinarily be filed within a year of the 

entry of judgment. FED. R. CIV. P. 60(c)(1). The timeliness of Van Tiem’s 

appeal and the district court’s denial of her motion to remand implicate this 

court’s jurisdiction and are analyzed first.2

A. Timeliness of Van Tiem’s Appeal

The issue undergirding the timeliness of Van Tiem’s appeal is one of 

interpretation. Both the Defendants and the district court effectively

assumed, for different purposes, that “judgment” as used in the Federal 

Rules of Civil Procedure and the Federal Rules of Appellate Procedure 

includes non-final orders entered by the district court. That assumption is 

incorrect.

Defendants argue that Van Tiem’s notice of appeal is untimely 

because it was filed more than one year—the maximum amount of time 

permitted under Rule 60(b)—after entry of the dismissal order to which it 

was directed. In other words, since Van Tiem appeals only the district 

court’s 12(b)(6) dismissal order, Defendants argue that Van Tiem’s 

opportunity to challenge the earlier dismissals has lapsed. Defendants’ 

argument is based on the district court’s bifurcated disposition of Van 

2 Defendants filed a motion asking this court to strike Van Tiem’s arguments in 

support of jurisdiction because they were not raised in her opening brief. We deny this 

request. Just as objections to subject-matter jurisdiction can never be waived, neither can 

arguments responding to such objections. Colbert v. Brennan, 752 F.3d 412, 416 (5th Cir. 

2014) (“Because this is a jurisdictional issue, it cannot be waived or forfeited.” (citing 

Bowles v. Russell, 551 U.S. 205, 213, 127 S. Ct. 2360, 2366 (2007))). Regardless, this court 

has an independent responsibility to evaluate its jurisdiction. FW/PBS, Inc. v. City of 

Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 607 (1990).

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Tiem’s motion for new trial under Rules 59(e) and 60(b). Mindful of the 

different deadlines in each rule, the district court assumed there were two 

different “judgment” dates.

But the proper interpretation of “judgment” includes only appealable

orders. A “judgment” is “any order from which an appeal lies.” FED. R.

CIV. P. 54(a). This includes any final decision from which an appeal is 

permitted under 28 U.S.C. § 1291, or any appealable interlocutory order. See

Swope v. Columbian Chems. Co., 281 F.3d 185, 191 (5th Cir. 2002); Ronel Corp. 

v. Anchor Lock of Fla., Inc., 312 F.2d 207, 208 (5th Cir. 1963). Because the 

district court’s denial of remand and dismissals of the claims against Kelly 

and the corporate Defendants fit in neither category, they do not qualify as 

“judgments.” See Williams v. Seidenbach, 958 F.3d 341, 343 (5th Cir. 2020) 

(en banc) (“[I]n a suit against multiple defendants, there is no final decision 

as to one defendant until there is a final decision as to all defendants.”).

Consequently, Van Tiem’s motion for a new trial should have been

construed as a Rule 59(e) motion in its entirety. Rule 59(e) provides that a 

motion to alter or amend a judgment may be made “no later than 28 days 

after the entry of the judgment.” FED. R. CIV. P. 59(e) (emphasis added). 

The only “judgment” in this case was the district court’s final judgment on 

August 6, and Van Tiem filed her motion within the 28-day window 

permitted under Rule 59(e). Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th 

Cir. 1994) (“A motion for reconsideration is deemed to arise under Rule 59 

if filed within rule 59’s . . . time limit regardless of the label applied to the 

motion.” (internal quotations omitted)).

Here, the record indicates no entry of final judgment as to any of the 

parties or claims until the judgment was entered on August 6, 2020. Neither

the order dismissing Van Tiem’s claims against Kelly nor the order 

dismissing her claims against the corporate Defendants include any

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indication that the district court intended to certify Rule 54(b) final 

judgments as it pertained to those dismissals. Therefore, the dismissals 

remained “prejudicial adverse interlocutory rulings” that were

nonreviewable until they “merged into the final judgment terminating the 

action.” See Diece-Lisa Indus., Inc. v. Disney Enters., Inc., 943 F.3d 239, 247 

(5th Cir. 2019). Accordingly, Van Tiem’s motion for new trial is properly 

understood in its entirety as a timely Rule 59(e) motion.

The consequence is that Van Tiem’s appeal is timely. “The filing of 

a Rule 59(e) motion within the 28-day period suspends the finality of the 

original judgment for purposes of an appeal.” Banister v. Davis, 140 S. Ct. 

1698, 1703 (2020) (internal quotations omitted). It is only upon the 

resolution of that motion that the finality of the judgment is restored and the 

“30-day appeal clock” starts again. Id. Here, Van Tiem timely filed her 

notice of appeal twenty-seven days after the district court denied her motion.

B. Motion to Remand

Remand of a case removed to federal court is proper when the federal 

court determines it lacks subject-matter jurisdiction. See 28 U.S.C.

§§ 1441(a), 1447(c). “The removing party bears the burden of showing that 

federal jurisdiction exists and that removal was proper.” Manguno v. 

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). 

Ambiguities should be strictly construed in favor of remand. Id.

Because Van Tiem and Kelly are non-diverse, removal was proper 

only if Kelly was improperly joined. See Lincoln Prop. Co. v. Roche, 546 U.S. 

81, 89, 126 S. Ct. 606, 613 (2005) (describing the complete diversity 

requirement). The federal removal statute, 28 U.S.C. § 1441(a), authorizes 

removal of “any civil action brought in a State court of which the district 

courts of the United States have original jurisdiction;” but subsection (b)(2)

specifies that suits not arising under federal law are removable “only if none 

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of the parties in interest properly joined and served as defendants is a citizen 

of the State in which such action is brought.” Smallwood v. Ill. Cent. R.R. Co., 

385 F.3d 568, 572 (5th Cir. 2004) (en banc) (quoting 28 U.S.C. § 1441(b)) 

(emphasis in original).

To determine whether a nondiverse defendant wasimproperly joined, 

a district court must determine whether “the defendant has demonstrated 

that there is no possibility of recovery by the plaintiff against an in-state 

defendant.”3

 Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 

818 F.3d 193, 200 (5th Cir. 2016) (quoting Smallwood, 385 F.3d at 573). The 

court follows a Rule 12(b)(6)-type analysis. Id. at 207–08. But “the focus of 

the inquiry must be on the joinder, not the merits of the plaintiff’s case.” 

Smallwood, 835 F.3d at 573.

The district court concluded that Kelly was improperly joined after 

conducting a thorough claim-by-claim analysis that applied the relevant 

pleading standards and applicable law. We briefly address why each of the 

claims against Kelly was insufficiently plead and therefore had “no possibility 

of recovery.”

1. Fraud

Van Tiem contends she met Rule 9(b)’s heighted standard for 

pleading fraud because the state court petition provided the “who, what, 

when, where, and how” of the alleged fraud. She points to allegations that 

“Defendants, including Suzan Kelly ‘redirected, reassigned, and 

3 Van Tiem argues that Texas pleading standards apply to our evaluation of 

improper joinder. This court’s precedent establishes that the contrary is true. Int’l Energy 

Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir. 2016) (“So, 

in a case that has been removed to federal court on the basis of diversity, the determinative 

question is whether—under federal law—a nondiverse defendant was improperly joined.” 

(emphasis in original)).

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misappropriated’ Van Tiem’s orders.” And she alleged that these orders 

would be moved to house accounts or cancelled and re-logged to other 

employees. Further, Van Tiem emphasized that she brought this to the 

attention of her supervisors, “namely Kelly,” who “began to retaliate” by 

manipulating more orders, making false claims about Van Tiem’s sales 

numbers, and trying to revoke a “sales award previously given.” She 

emphasizes that Kelly “spearheaded” the effort against her.

Van Tiem argues that, on these allegations, the district court erred in 

three specific ways. First, the court erred by assuming an affirmative 

representation is required to plead fraud when deceptive conduct is enough. 

Second, the court erred by missing the fact that Van Tiem pled a viable fraud 

by non-disclosure claim. Third, that Van Tiem did, in fact, allege an 

affirmative misrepresentation by stating that Defendants, inter alia, “claimed 

that Van Tiem was mistaken, there was no problem, and that Van Tiem 

simply did not know how to read the reports.”

The first two arguments were not raised before the district court in 

Van Tiem’s motion to remand. In fact, in that motion Van Tiem set forth 

the very elements of fraud—including the requirement of a material 

misrepresentation—cited by the court and now criticized on appeal. Thus, 

to the extent the district court “missed on Texas law demanding an 

affirmative representation to maintain a fraud claim,” it was arguably relying 

on Van Tiem’s own characterization of the applicable law in her motion for 

remand.

Regardless, the district court did not “miss” the fact that fraud in 

Texas can be based on concealment or non-disclosure. It expressly 

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recognized this possibility.4 At bottom, though, the district court could not 

identify “any misrepresentations made by Kelly” alleged in the petition. 

This conclusion was correct. Notwithstanding its general averment that 

“Defendants fraudulently schemed” by “re-directing, reassigning and 

misappropriating” Van Tiem’s clients’ orders, the Original Petition failed to 

allege any specific misrepresentation made by Kelly (or any defendant) that 

Van Tiem relied upon. Even the examples of fraud by concealment or nondisclosure raised by Van Tiem in her brief provide the specific acts relied 

upon to form the basis of the fraud claim (e.g., “lighting a scented candle to 

mask a permanent, offensive odor,” and “swapping a document to convey a 

piece of land different from what was intended”).5

 Nothing so specific was 

alleged in the pleading. Thus, the district court did not err in concluding Van 

Tiem’s Original Petition failed to state a claim of fraud for improper joinder 

purposes.

2. Conspiracy to Commit Fraud

Van Tiem’s arguments with respect to conspiracy fare no better. As 

a threshold matter, to the extent the Original Petition failed to allege fraud it 

4 Its focus on Defendants’ alleged “material misrepresentations” is 

understandable given alleged “material misrepresentations” were mentioned multiple 

times in the short portion of the Original Petition titled “Fraud/Conspiracy to Commit 

Fraud.” 

5 Nor does the Original Petition state a claim under the elements of fraud by nondisclosure presented in Van Tiem’s appellate briefing. For example, the petition does not 

specify the “non-disclosure” that she “relied on” that “resulted in injury.” Nor did she 

allege particularized facts suggesting Defendants intended Van Tiem “to act or refrain 

from acting based on the nondisclosure.” And Van Tiem did not specifically explain what 

“material facts” Defendants “deliberately failed to disclose.” What material facts about 

this process were concealed from Van Tiem that she relied upon? Her conclusory 

allegations are not enough. Nor is generally asserting these efforts were “spearheaded by 

Kelly.” 

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a fortiari failed to allege conspiracy to commit fraud. But even setting that 

aside, the petition did not sufficiently allege a conspiracy specific to Kelly.

Van Tiem concedes that Kelly could not have conspired with her 

employer, First American, because Kelly was the employer’s agent. But Van 

Tiem argues that, because the other two corporate defendants were distinct 

legal entities from First American, Kelly could conspire with them. 

Nevertheless, the Original Petition lacks any specific facts about this 

supposed conspiracy. At best, it generally alleges that “Defendants, jointly 

and severally, conspired to fraudulently acquire [Van Tiem’s] placements 

through their numerous misrepresentations.” But it is entirely bereft of any 

specific misrepresentations made by a particular defendant, much less factual 

allegations supporting a conspiracy between the three corporate defendants.

3. Tortious Interference with Contract

Van Tiem attacks the district court’s decision on tortious interference 

on two grounds. First, she contends that tortious interference with a 

prospective contract does not require “any contract exist or that the defendant 

be a third party to the transaction.” Second, she contends the Original 

Petition did allege “that Kelly’s conduct was independently tortious.” She 

contends it did so by alleging that “Defendants, including Kelly, ‘began 

denigrating plaintiff’ with ‘false and malicious representations’ to her 

clients” and by “providing fraudulent, ‘slanderous statements and 

information’ to Van Tiem’s professional contacts.”

As to the first argument, Van Tiem is right in part—by definition 

interference with a prospective contract does not require an existing contract. 

But Van Tiem points to no example of such a claim applying to tortious 

interference with a defendant’s own prospective contract with a third party. 

That makes little sense. What Van Tiem seems to be arguing is that Kelly’s 

tortious interference with prospective contracts was not interference with 

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contracts that Van Tiem was procuring on behalf of First American. Rather, 

as she makes clear in her second point, Van Tiem contends Kelly, and the 

other defendants, interfered in her personal ability to enter into prospective 

contracts with potential clients after she no longer worked for First 

American.

But the Original Petition only alleged tortious interference with her 

contracts while she was employed by First American. The facts relating to 

post-employment retaliation were applied in the context of her IIED claim. 

And even if those facts were considered as applied to tortious interference 

with prospective contracts, Van Tiem provides nothing more than 

conclusory allegations. She does not point to specific statements (of Kelly or 

any defendant), name a single potential client, or allege any facts to support 

a conclusion that Van Tiem would have entered into a business relationship 

with a particular third party but for such interference. In short, she does not 

sufficiently allege facts to satisfy the elements of interference with 

prospective business relationships.6

4. IIED

Van Tiem does not dispute the district court’s characterization of the 

legal standard for IIED claims. Rather, she focuses on supporting the 

6 See D’Onofrio v. Vacation Publ’ns, Inc., 888 F.3d 197, 218 (5th Cir. 2018) (“The 

elements of tortious interference with a prospective business relationship are that (1) there 

was a reasonable probability that the plaintiff would have entered into a business 

relationship with a third party; (2) the defendant either acted with a conscious desire to 

prevent the relationship from occurring or knew the interference was certain or 

substantially certain to occur as a result of the conduct; (3) the defendant’s conduct was 

independently tortious or unlawful; (4) the interference proximately caused the plaintiff 

injury; and (5) the plaintiff suffered actual damage or loss as a result.” (quotation marks 

and citation omitted)).

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possibility that the alleged conduct was “extreme and outrageous.” 

Alternatively, Van Tiem suggests that the district court improperly applied 

the application of IIED as a “gap filler” because it ultimately disposed of all 

of the alternative claims for relief. But she does nothing to refute the case law 

cited by the district court that a plaintiff cannot assert an IIED claim merely 

because of her inability to prevail on another theory of relief designed to 

address the gravamen of the plaintiff’s complaint. See, e.g., Creditwatch, Inc. 

v. Jackson, 157 S.W.3d 814, 815–16 (Tex. 2005) (describing IIED 

requirements as “exacting,” a “gap-filler,” and recognizing that when a 

plaintiff’s “complaints are covered by other statutory remedies, she cannot 

assert them as intentional infliction claims just because those avenues may 

now be barred”). And the facts alleged in the Original Petition do not come 

close to pleading the elements required of an IIED claim.7

 Id. at 818 

(“[E]xcept in circumstances bordering on serious criminal acts, we repeat 

that such acts will rarely have merit as intentional infliction claims.”).

We find no error of fact or law in the court’s decision to deny remand.

C. Motion to Dismiss for Failure to State a Claim

Van Tiem also challenges the district court’s grant of the corporate 

Defendants’ motion to dismiss all but one of her claims (the remaining one 

having been the subject of an un-appealed adverse summary judgment). 

When considering a motion to dismiss, this court views “the facts as pled in 

the light most favorable to the nonmovant” and judges whether the 

7 To establish a cause of action for IIED, a plaintiff must demonstrate that: (1) the 

defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and 

outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the 

emotional distress suffered by the plaintiff was severe. Brennan v. Mercedes Benz USA, 

388 F.3d 133, 136 (5th Cir. 2004).

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complaint alleges “more than labels and conclusions.” Jebaco, 587 F.3d at

318 (internal citations omitted).

Van Tiem’s arguments relating to the district court’s dismissal of the 

fraud, conspiracy to commit fraud, tortious interference with contracts, and 

IIED claims for the remaining defendants generally follow the arguments 

made with respect to Kelly’s improper joinder. But a few distinct points bear 

mentioning.

With respect to the fraud claims, Van Tiem takes issue with the 

district court’s conclusion that FATCO and First American Corporation 

were not a party to the compensation plan and, thus, could not be liable for 

fraud. Van Tiem argues that a direct contractual relationship isn’t required 

“so long as the defendant partakes in and benefits from the fraud.” In 

context, the district court was addressing Van Tiem’s position that First 

American executed the compensation plan “with no intent to pay 

commissions or give her credit for the orders she secured on its behalf.” The 

district court concluded the complaint gave only “threadbare recitals of the 

elements of a cause of action.” On top of that, the court observed that there 

was no indication that “FATCO and First American” Corporation were 

“party to” the compensation plan, thus “there is no allegation that any 

Defendant other than [First American] made any material representations to 

Van Tiem.” This can be fairly construed as finding no sufficiently 

particularized allegation that FATCO and First American Corporation

“partook in” the alleged fraud. Whatever the circumstances may be where 

non-parties to a contract can be liable for fraud without making any material 

misrepresentations themselves, this case is not it.8

8 Van Tiem similarly argues that she alleged a conspiracy among multiple parties 

because she alleged that Defendants jointly perpetrated the alleged fraud. But this 

argument misses the point: The First Amended Complaint’s conclusory allegations of 

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With respect to tortious interference, Van Tiem argues that First 

American (warranties), FATCO (titles), and First American Corporation

(human resources and legal), all worked together to “conceal the scheme,” 

and that this means there is “a viable basis of recovery for tortious 

interference.” But this misses the point that the “allegations” in the 

complaint were conclusory in nature. The factual heart of the complaint 

were the allegations that First American was not paying Van Tiem in 

accordance with their mutually agreed upon compensation plan. That 

breach-of-contract claim was not dismissed. It was disposed of at summary 

judgment only after Van Tiem completely failed to adduce any evidence of a 

single improperly attributed order. And Van Tiem does not appeal that 

ruling.

Here again, after careful review of the record, this court finds no error 

of fact or law requiring reversal of the district court’s meticulous order.

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

AFFIRMED.

9

jointly perpetrated fraud are insufficient to allege specific facts to support a claim of 

conspiracy. Simply saying the word “jointly” is not enough. Van Tiem tries to flesh out 

the role of the various defendants in her brief, but these details weren’t alleged in her 

complaint.

9 Appellees’ motion to strike arguments made in Appellant’s Reply Brief is 

DENIED.

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