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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

D.C. TOLVER, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 05-0580-CG-B

)

WEYERHAEUSER COMPANY and )

JAMES HARNER, )

)

Defendants. )

ORDER

This matter is before the court on the motion of plaintiff, D.C. Tolver, to remand (Doc.

10), defendant Weyerhaeuser Company’s response in opposition (Doc. 12), and plaintiff’s reply

(Doc. 13). For the reasons stated below, the court finds that defendant, Weyerhaeuser, has not

met its burden of demonstrating federal jurisdiction. Therefore, plaintiff’s motion to remand is

due to be GRANTED, and the case shall be REMANDED to the Circuit Court of Wilcox

County, Alabama.

DISCUSSION

Plaintiff moves for remand, asserting that there is no basis for federal question

jurisdiction and that the parties are not diverse because both plaintiff and defendant, James

Harner, are residents of the State of Alabama. Weyerhaeuser, on the other hand, argues that the

complaint asserts federal claims and that Harner was fraudulently joined and, therefore, should

not be considered in determining whether there is diversity jurisdiction.

Federal courts are courts of limited jurisdiction; therefore, remand statutes are construed

narrowly and jurisdictional uncertainties are resolved in favor of remand. Burns v. Windsor Ins.

Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Diversity jurisdiction, as a general rule, requires

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complete diversity - every plaintiff must be diverse from every defendant. Strawbridge v.

Curtiss, 3 Cranch (7 U.S.) 267, 2 L. Ed. 435 (1806); 28 U.S.C. § 1332(a)(1). In evaluating a

motion to remand, the removing party bears the burden of demonstrating federal jurisdiction. 

Pacheco De Perez v. AT &T Co., 139 F.3d 1368, 1373 (11th Cir. 1998).

In a removal case alleging fraudulent joinder, the removing party has the burden of

proving either: (1) there is no possibility the plaintiff can establish a cause of action against the

resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the

resident defendant into state court. Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); see

also Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). The removing

party’s burden is a heavy one. "The federal court makes these determinations based on the

plaintiff’s pleadings at the time of removal; but the court may consider affidavits and deposition

transcripts submitted by the parties." Crowe, 113 F.3d at 1538 (citing B., Inc. v. Miller Brewing

Co., 663 F.2d 545, 549 (5th Cir. 1981)). Moreover, "[w]here a plaintiff states even a colorable

claim against the resident defendant, joinder is proper and the case should be remanded to state

court." Pacheco De Perez, 139 F.3d at 1380. Or in other words, "if there is even a possibility

that a state court would find that the complaint states a cause of action against any one of the

resident defendants, the federal court must find that the joinder was proper and remand the case

to the state court." Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir. 1983), superceded by

statute on other grounds as stated in Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir.

1989).

In this case, the complaint asserts claims against defendant, Weyerhaeuser, for

discrimination on the basis of age in violation of Alabama Act 97-723 (Count One), for breach of

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contract (Count Three), and for negligence (Count Four). The complaint only asserts one claim

against defendant, Harner, for defamation (Count Two). The complaint alleges that Harner

defamed plaintiff by falsely saying that plaintiff had violated a company policy. (Complaint, ¶

18). The complaint avers that Harner’s defamatory statement was made maliciously and outside

the line and scope of his duties and in furtherance of Harner’s own personal agenda of seeing

that plaintiff was terminated. (Complaint, ¶ 18). Harner’s statements were allegedly used as

justification for terminating plaintiff (Complaint, ¶ 18). 

Plaintiff contends that Harner cannot be held liable for defamation because his statements

were not published. 

To establish a prima facie case of defamation, plaintiffs must show: 

[1] that the defendant was at least negligent [2] in publishing [3] a false and

defamatory statement to another [4] concerning the plaintiff, [5] which is either

actionable without having to prove special harm (actionable per se) or actionable

upon allegations and proof of special harm (actionable per quod). 

Delta Health Group, Inc. v. Stafford, 887 So.2d 887, 895 (Ala. 2004) (quoting Nelson v.

Lapeyrouse Grain Corp., 534 So.2d 1085, 1091 (Ala.1988)). Defendant, Weyerhaeuser, points

out that this court found in a previous case that communications among employees in that case

did not constitute a publication. Watters v. Lousiana Pacific Corp, 2005 WL 1588676, *4 (S.D.

Ala. July 1, 2005) (citations omitted), affirmed 156 Fed.Appx. 177, 2005 WL 3150516 (11th Cir.

2005). In Watters, the court stated that “communications among employees in the course of

transacting the company's business and in the proper scope of the employee's duties do not

constitute a publication.” Id. “[T]here is no publication, and thus no actionable defamation, ‘[a]s

long as a communication to a nonmanagerial employee falls within the proper scope of that

employee's knowledge or duties.’” Id. (quoting Cantrell v. North River Homes, Inc., 628 So.2d

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551, 553 (Ala.1993)). This court found that the evidence in Watters demonstrated that the

statements at issue were made to employees in the line and scope of the employees' employment

and did not constitute publication to a third party. Id. Even if the statements had been made

outside the line and scope of the employees’ employment, the Watters defendant still would not

have been liable because in Watters, the plaintiff had only named the corporation as a defendant

and had not sued the individual employee. The defendant corporation could not have been

liable for an employee’s actions that were outside the scope of his employment. See Hoover v.

Tuttle, 611 So.2d 290, 294 (Ala. 1992) (finding that basic principles of agency law apply to

defamation, and that a principal is not vicariously liable for an agent's defamation outside the

scope of his duties). 

In this case, the complaint asserts a claim for defamation directly against the individual

employee, Harner, and alleges that Harner’s statements were made maliciously and outside the

line and scope of his duties and in furtherance of Harner’s own personal agenda of seeing that

plaintiff was terminated. Therefore, taking plaintiff’s factual allegations as true, Harner’s

statements are not protected by the fact that they were made to other employees. See Hoover,

611 So.2d at 293 (“Because there appears to be a fact question as to whether Tuttle, Mullens, and

Wright, either individually or in concert, acted outside the scope of their duties to the Post by

making false statements concerning Hoover's military service record, the summary judgment for

Tuttle, Mullens, and Wright could not have been based on a lack of publication. There was

sufficient evidence of publication and of a conspiracy among these individual defendants to

defame Hoover to warrant submission of the defamation claims to a jury.”)

Weyerhaeuser, further alleges that Harner cannot be held liable for defamation because

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his statements were true. The complaint states that Harner “told him in front of HR personnel

that he was being terminated because he had not submitted the paperwork for the Grade-all.” 

Weyerhaeuser, contends that plaintiff was, in fact, terminated for that reason and, therefore, that

the statement is true. However, the complaint also alleges that Harner said that plaintiff “had

violated a company policy, which he had not.” (Complaint, ¶ 18). Plaintiff alleges that it was

this defamatory statement that was used as justification for terminating plaintiff. (Complaint, ¶

18). Whether plaintiff violated company policy is a question of fact, yet to be determined. Thus,

the court finds that Weyerhaeuser, has not met its burden of demonstrating that plaintiff cannot

maintain an action for defamation against Harner on the basis that the statements were true.

Defendant, Weyerhaeuser, argues that even if Harner’s statements were false, they were

not defamatory because they did not damage plaintiff’s reputation or tend to impute dishonesty

or corruption. Weyerhaeuser, argues that the statements do not rise to the level of accusing

plaintiff of theft or misappropriation of company property. The issue appears to be the degree

of plaintiff’s injury. However, Harner’s accusations were allegedly used to terminate plaintiff.

(Complaint, ¶ 11, 18). Termination is clearly a serious injury. As plaintiff points out, the

Supreme Court of Alabama has stated that “[w]ords are actionable which directly tend to the

prejudice of any one in his office, profession, trade, or business, in any lawful employment by

which he may gain his livelihood.” Gaither v. Advertiser Co., 14 So. 788, 789 (1894) (citations

omitted). The court finds that defendant, Weyerhaeuser, has not met its burden of demonstrating

that the statements alleged did not sufficiently injure plaintiff to be actionable. 

 Weyerhaeuser, also asserts that plaintiff should not be allowed to maintain his claim

against Harner because the allegation that Harner acted outside the line and scope of his

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 The complaint alleges that Harner wrote plaintiff up for not submitting paperwork for

requisitioning equipment, but did not write up other younger, white, employees who were guilty

of the same violation. (Complaint, ¶ 6). The court notes that the alleged defamatory statements

also arise from Harner stating that plaintiff failed to properly submit paperwork for

requisitioning equipment. However, plaintiff alleges that on the occasion from which plaintiff’s

defamation claim arises, the proper paperwork was in fact submitted, although it was submitted

by someone else. Plaintiff does not allege that Harner falsely stated the facts when Harner wrote

plaintiff up on previous occasions.

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employment is inconsistent with plaintiff’s claim that Weyerhaeuser Company discriminated

against plaintiff. However, the complaint does not specify the discriminatory conduct which

plaintiff alleges is the basis of plaintiff’s discrimination claim. The complaint alleges that

Harner engaged in other allegedly discriminatory conduct that may have been within the line and

scope of Harner’s employment.1 Plaintiff also alleges that Weyerhaeuser failed to investigate

plaintiff’s claim that Harner’s statements were false and plaintiff’s claim that the false statements

were made for discriminatory reasons. (Complaint, ¶¶ 11,12). Thus, the court finds that

plaintiff’s allegation that Harner’s defamatory statements were made outside the line and scope

of Harner’s employment is not inconsistent with plaintiff’s claim against Weyerhaeuser. 

Weyerhaeuser, also asserts that plaintiff’s claims, although drafted as state law claims,

are essentially federal discrimination claims. However, it is a well-settled rule that the plaintiff

is the master of his complaint. See, e.g., Franklin v. QHG of Gadsden, Inc., 127 F.3d 1024, 1028

(11th Cir. 1997); U.S. v. Jones, 125 F.3d 1418, 1428 (11th Cir. 1997); Ariail Drug Co., Inc. v.

Recomm Int. Display Inc., 122 F.3d 930, 934 (11th Cir 1997). As the Supreme Court has noted:

Only state-court actions that originally could have been filed in federal

court may be removed to federal court by the defendant. Absent diversity

of citizenship, federal-question jurisdiction is required. The presence or

absence of federal-question jurisdiction is governed by the “well-pleaded

complaint rule,” which provides that federal jurisdiction exists only when

a federal question is presented on the face of the plaintiff’s properly

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pleaded complaint. See Gully v. First Nat’l Bank, 299 U.S. 109, 112-113,

57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936). The rule makes the plaintiff the

master of the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (emphasis added). In this case, plaintiff’s

complaint relies exclusively on Alabama law. Defendant, Weyerhaeuser, further asserts that

there is no state law action in Alabama for discrimination by an individual. However, the

complaint does not assert a claim of discrimination against Harner. The complaint only asserts a

claim of discrimination against Weyerhaeuser Company.

CONCLUSION

For the reasons stated above, plaintiff’s motion to remand (Doc. 10) is GRANTED, and

this case is hereby REMANDED to the Circuit Court of Wilcox County, Alabama.

DONE and ORDERED this 25th day of May, 2006. 

 /s/ Callie V. S. Granade

 CHIEF UNITED STATES DISTRICT JUDGE

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