1The three other original Plaintiffs-Appellants, C.B. Cox,

Jr., William L. Comes, and Homer E. Boyd, were voluntarily

dismissed from the instant case after it was appealed to this

court. For the sake of convenience, the discussion relating to

the case proceedings refers to Burden only, although he was

joined by the three others in filing suit and subsequently

appealing to this court. 

1

United States Court of Appeals,

Fifth Circuit.

No. 94-10925

Summary Calendar.

Jimmy L. BURDEN, et al., Plaintiffs,

Jimmy L. Burden, Plaintiff-Appellant,

v.

GENERAL DYNAMICS CORPORATION, et al., Defendants,

Homer F. Davis, Individually and Frank E. Riney, Individually,

Defendants-Appellees.

Aug. 4, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

WIENER, Circuit Judge:

In this employment discrimination case, Plaintiff-Appellant

Jimmy L. Burden1 appeals from the district court's denial of his

motion for remand to the state court and from its subsequent grant

of summary judgment dismissing his claim as against Homer Davis and

Frank Riney who, together with their employer, General Dynamics

Corporation (General Dynamics), Burden had sued for, inter alia,

intentional infliction of emotional distress. Finding no

reversible error in the district court's determination that it had
2

diversity jurisdiction because the non-diverse defendants, Davis

and Riney, had been fraudulently joined, and agreeing with that

court's take-nothing summary judgment dismissing Burden's claims

against Davis and Riney, we affirm.

I

FACTS AND PROCEEDINGS

Burden was hired in 1967 by the Fort Worth Division of General

Dynamics. In the summer of 1992, General Dynamics informed Burden

that his position with the company would be reclassified from a

management position to a non-managerial personnel position. Riney,

as Vice President of the Contract Estimating and Business

Management Department, made the decision to reclassify Burden's job

as part of an effort to reduce the General Dynamics work force.

Davis—who, as Vice President of the Estimating Department, reported

directly to Riney—implemented Riney's plan for job

reclassifications within the company.

Prior to the reclassification of his position, Burden served

as Director of Administration and Operations. On August 3, 1992,

Burden's job was reclassified to the "staff" position of Estimating

Specialist. Although he experienced a sharp decline in his job

duties, Burden retained his previous pay grade, salary, and parking

space. Effective December 31, 1992, the fifty-seven year-old

Burden voluntarily retired from General Dynamics.

Burden, a Texas resident, originally filed suit in state

court, seeking to recover damages against Riney, Davis, and General

Dynamics for age discrimination in violation of the Texas Human
3

Rights Act (the Act) and for negligent and intentional infliction

of severe emotional distress. General Dynamics is incorporated in

Delaware and has its principal place of business in Virginia.

Riney and Davis are citizens and residents of Texas.

The defendants removed the case to district court based on

complete diversity of citizenship, alleging that Riney and Davis

had been fraudulently joined to defeat diversity jurisdiction.

Burden filed a motion to remand the case to state court, contending

that the district court lacked jurisdiction because Burden's action

did not involve claims arising under the Constitution, treaties, or

laws of the United States and because complete diversity did not

exist among the parties. Not surprisingly, Burden insisted that

Riney and Davis were not fraudulently joined to defeat removal to

federal court.

The district court denied Burden's motion to remand the case

to state court, finding on the basis of the state court pleadings,

affidavits, and other evidentiary materials, that no reasonable

basis existed for predicting that Burden could recover against

Riney and Davis in a Texas court. The district court concluded

that the joinder of Riney and Davis was fraudulent and that their

presence in the action should be disregarded for removal purposes.

In its ruling denying the motion to remand, the court recognized

that Burden had abandoned his claims for negligent infliction of

emotional distress, for which no cause of action exists in Texas.

In addition, the court observed that Burden had also abandoned his

claims against Riney and Davis for age discrimination in violation
 

2Fed.R.Civ.P. 54(b). As the district court's final judgment

pursuant to Rule 54(b) dismissed Burden's intentional infliction

of emotional distress claim against Riney and Davis only, the

court retained jurisdiction over all of Burden's claims against

General Dynamics. As a result, we cannot review the grant of

summary judgment in favor of General Dynamics on the intentional

infliction of emotional distress claim. 

 

3See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 548 (5th

Cir. Unit A 1981). 

4

of the Act. Burden had not pleaded that Riney and Davis were

employers for purposes of the Act and had not named Riney and Davis

in the discrimination charge filed with the Texas Commission on

Human Rights. The district court subsequently granted summary

judgment in favor of all defendants on Burden's claims for

intentional infliction of emotional distress, and rendered a final

Rule 54(b) judgment dismissing only Davis and Riney as defendants

in this case.2

II

ANALYSIS

A. STANDARD OF REVIEW

This appeal is interlocutory: Although the district court

granted summary judgment to all defendants on Burden's emotional

distress claims, it entered final judgment of dismissal as to Davis

and Riney only. The court did not dismiss General Dynamics as a

defendant in the case.

 A district court's refusal to remand an action to the state

court is ordinarily not a final order and cannot be reviewed unless

the court enters a final judgment.3 The district court in the

instant case, however, expressed its intent to enter a final and
 

4See Fed.R.Civ.P. 54(b) (stating that an appeal will lie

from a partial summary judgment only "upon an express

determination that there is no just reason for delay and upon an

express direction for the entry of judgment"). 

 

5See B., Inc., 663 F.2d at 549. 

 

6See Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th

Cir.1992); B., Inc., 663 F.2d at 549. 

 

7See Dodson, 951 F.2d at 42; B., Inc., 663 F.2d at 550. 

5

appealable judgment, pursuant to Rule 54(b), in favor of Riney and

Davis—but not General Dynamics—in its order granting summary

judgment, stating that "there is no just reason for delay in, and

[the court] hereby directs, entry of final judgment as to the

dismissal of plaintiffs' claims against defendants Davis and

Riney."4 As Burden appeals from the entry of judgment ordering

that he take nothing against Riney and Davis and dismissing his

claims against them, we review the denial of the motion to remand

and the grant of summary judgment as to Riney and Davis only.

Our review of the district court's decision to deny the

motion to remand to state court is de novo, as it is a question of

law. In determining the validity of a claim of fraudulent joinder,

the district court "must evaluate all of the factual allegations in

the light most favorable to the plaintiff, resolving all contested

issues of substantive fact in favor of the plaintiff."5 The court

must also resolve all ambiguities in the controlling state law in

the plaintiff's favor.6 If the plaintiff has any possibility of

recovery under state law against the party whose joinder is

questioned, then the joinder is not fraudulent in fact or law.7 We

do not determine whether the plaintiff will actually or even
 

8See Dodson, 951 F.2d at 42-43. 

 

9See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d

167, 177 (5th Cir.1990), cert. denied, --- U.S. ----, 114 S.Ct.

171, 126 L.Ed.2d 131 (1993). 

 

10Fed.R.Civ.P. 56(c). 

 

11See Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th

Cir.1994); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.,

831 F.2d 77, 79 (5th Cir.1987). 

 

12See Celotex Corp. v. Catrett, 477 U.S. 317, 321-25, 106

S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). 

 

13See id. 

6

probably prevail on the merits of the claim, but look only for a

possibility that the plaintiff might do so.8

In reviewing a grant of summary judgment, we apply the same

standards as those that govern the district court in its

determination.9 Summary judgment must be granted if the court,

viewing the facts and inferences in the light most favorable to the

non-moving party, determines that "there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law."10 The moving party must demonstrate

by competent evidence that no issue of material fact exists.11 The

non-moving party then has the burden of showing the existence of a

specific factual issue which is disputed.12 If any element of the

plaintiff's case lacks factual support, a district court should

grant a defendant's motion for summary judgment.13

B. FRAUDULENT JOINDER CLAIM

1. Scope of District Court's Examination

Burden argues that the district court erred in looking beyond
 

14707 F.2d 201 (5th Cir.1983), cert. denied 464 U.S. 1039,

104 S.Ct. 701, 79 L.Ed.2d 166 (1984). 

 

15See id. at 205. In Green we recognized a limited

exception to the requirement that a court resolve disputed facts

in favor of the plaintiff for cases in which the plaintiff is

collaterally estopped from contesting a given issue or fact. See

id. at 205-06. 

7

the pleadings in determining that Riney and Davis were fraudulently

joined. He contends that a conflict exists within our court's

jurisprudence on the question whether only the pleadings should be

considered in a fraudulent joinder claim or whether the court may

instead "pierce the pleadings" and examine affidavits and other

evidentiary material as well. In support of his position, Burden

cites to Green v. Amerada Hess Corp.14

In Green, we reversed the district court's denial of a motion

for remand to the state court, finding that the court erred in

conducting a full evidentiary hearing to resolve disputed factual

issues relating to matters of substance rather than jurisdiction.

We observed that, in considering a claim of fraudulent joinder, the

"court must normally assume all the facts as set forth by the

plaintiff to be true."15 The ambit of our holding in Green is not

so broad, however, as to dictate that a district court must look

solely at the pleadings in determining whether a plaintiff has any

possibility of recovery in state court against the non-diverse

parties whose joinder is questioned. Green merely teaches that the

district court should not conduct a full-scale evidentiary hearing

on questions of fact, but rather should make a summary

determination by resolving disputed facts in favor of the
 

16663 F.2d 545 (5th Cir. Unit A Dec. 10, 1981). 

 

17See id. at 549. 

 

18See, e.g., Cavallini v. State Farm Mut. Auto Ins. Co., 44

F.3d 256, 263 (5th Cir.1995) (court can consider summary

judgment-type evidence); Ford v. Elsbury, 32 F.3d 931, 935 (5th

Cir.1994) (fraudulent joinder claims can be resolved by "piercing

the pleadings" and considering summary judgment-type evidence); 

Jernigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir.1993)

(upholding district court's consideration of affidavits and

depositions), cert. denied, --- U.S. ----, 114 S.Ct. 192, 126

L.Ed.2d 150 (1993); LeJeune v. Shell Oil Co., 950 F.2d 267, 271

(5th Cir.1992) ("court is to pierce the pleadings to determine

whether, under controlling state law, the non-removing party has

a valid claim against the non-diverse parties"); Carriere v.

Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir.1990) (trial

court properly considered affidavits and depositions), cert.

denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990). 

8

plaintiff.

We clearly expressed in B., Inc. v. Miller Brewing Co.16 that

"[i]n support of ... [a] motion for remand, the plaintiff may

submit affidavits and deposition transcripts along with the factual

allegations contained in the verified complaint."17 Our decisions

subsequent to B., Inc. have consistently maintained that a district

court may look to evidence outside of the pleadings in determining

a fraudulent joinder claim.18 Thus, we hold that the district court

did not err in looking beyond Burden's pleadings to determine

removal jurisdiction. Lest there remain even a shadow of a doubt

as to this circuit's position, we reiterate—in hopes that further

pronouncement will not be necessary—that in testing for fraudulent

joinder the district court in its discretion may "pierce the

pleadings," albeit in so doing the court should not conduct an

evidentiary hearing but, based on appropriate documentation in

addition to the pleadings, should instead resolve all disputed
 

19See Jernigan, 989 F.2d at 815 (citing B., Inc.). 

 

20See B., Inc., 663 F.2d at 550. 

 

21This is not to say that such defendants must be dismissed,

for the district court presumably had jurisdiction in personam

over the fraudulently joined parties. 

9

questions of fact in favor of the plaintiff.

2. Possibility That Texas Law Would Recognize Claim

(a) Fraudulent Joinder Criteria

The removing party bears the heavy burden of proving that

non-diverse defendants have been fraudulently joined to defeat

diversity, either by showing that (1) there has been outright fraud

in the plaintiff's recitation of jurisdictional facts, or (2) there

is no possibility that the plaintiff would be able to establish a

cause of action against the non-diverse defendants in state court.19

The instant case involves the latter inquiry: whether, "as a

matter of law, there [is] no reasonable basis for predicting that

the plaintiff might establish liability against a named in-state

defendant in state court."20 If, after resolving all disputed

questions of fact and all ambiguities in the controlling state law

in favor of the non-removing party (Burden), there is no

possibility that the state court would recognize a valid cause of

action against the non-diverse defendants (Riney and Davis), then

those defendants have been fraudulently joined and must be ignored

for purposes of diversity jurisdiction.21 That being the case, the

district court had proper subject matter jurisdiction to adjudicate
 

22See Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42-43

(5th Cir.1992). 

 

23See Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993) (citing

Restatement (Second) of Torts § 46(1) (1965)). 

 

24See id. at 621 (quoting Restatement (Second) of Torts § 46

cmt. d (1965)). 

10

Burden's claims,22 so we turn now to an analysis of the state law

pertinent to the instant case.

(b) Possibility of Recovery for Intentional Infliction of Emotional

Distress

To prevail in a suit for intentional infliction of emotional

distress in Texas, a plaintiff must show (1) intentional or

reckless conduct; (2) that is extreme or outrageous; (3) that

caused emotional distress; and (4) that was severe in nature.23

A defendant is liable for outrageous conduct "only where the

conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community."24 We here conclude that, taking the facts that Burden

related in his deposition testimony to be true, no reasonable basis

exists for predicting that Burden could meet the elements of an

intentional infliction of emotional distress claim and recover

against Riney and Davis under Texas law on that claim.

In his deposition Burden expressed the opinion that he was

outrageously treated because, even though his job performance was

excellent, he was reclassified into a position in which he was

isolated and given no input into critical management decisions. He

testified that the reclassification "humiliated" him and caused him
11

to have problems with his health and his marriage because his

former job responsibilities were given to a younger man. Burden

stated that his office and secretary were taken away despite the

fact that he had been assured by Davis that he (Burden) would be

keeping both. He was, however, given another, slightly smaller

office and access to the company's secretarial staff. Burden also

testified that Davis gave him "menial" short-term assignments and

that Davis never talked with him, in essence ostracizing him from

every activity in the department. In discussing his eventual

retirement from General Dynamics, however, Burden admitted in his

deposition that no one ever told him explicitly that he was

required to retire from the company.

According to Burden, in one conversation with Riney, Burden

expressed his dissatisfaction with his new position under the

reclassification scheme. Burden admitted, however, that he did not

know whether Riney did anything in response to that conversation.

Burden also stressed that Riney and Davis had not implemented the

reclassification plan in accordance with company policy.

Taking all of Burden's allegations as true, the actions of

Riney and Davis might be deemed insensitive to Burden's feelings

and contrary to the company's policy or procedure for implementing

job reclassifications. Still, there is nothing in the pleadings,

affidavits, or deposition testimony to indicate that the conduct of

Riney or Davis even came close to the level of outrageousness

needed to succeed on a Texas claim of intentional infliction of

emotional distress. All of the Texas cases which have adjudicated
 

25895 S.W.2d 825 (Tex.App.—Corpus Christi 1995, n.w.h.). 

 

26See id. at 828. 

 

27891 S.W.2d 640 (Tex.1995) 

 

28See id. at 644. 

 

29886 S.W.2d 459 (Tex.App.—Houston [1st Dist.] 1994, writ

denied) (motion for rehearing pending). 

12

such a claim have required conduct far more egregious than that

described here by Burden.

For example, in Nayef v. Arabian American Oil Co.25, the Texas

Court of Appeals held that it was not extreme and outrageous

conduct for an employer to dispute an employee's claimed inability

to do desert driving, to refuse to provide the employee with

transportation, and to transfer the employee to a different

position and location, without any reduction in salary or

benefits.26 Similarly, in Randall's Food Mkts., Inc. v. Johnson27,

the Texas Supreme Court held that it was not extreme and outrageous

for an employer to question an employee in a "severe and curt" tone

about her taking a wreath from the store where she worked without

paying for it.

28 In the same vein, the Texas Court of Appeals in

Sebesta v. Kent Elecs. Corp.29 stated that it was not extreme and

outrageous for employer to arrange an "exit parade" of the

terminated employee for the busiest part of day, to give the

employee a memorandum containing negative comments regarding her

job performance, and to tell the employee, immediately before her

termination, that she could apply vacation days to days she had
 

30See id. at 463-64. 

 

31895 S.W.2d 773 (Tex.App.—Texarkana 1995, writ requested). 

 

32See id. at 776. 

 

33856 S.W.2d 732 (Tex.1993). 

 

34See id. at 735-36 (citing cases). 

 

35See id. at 736. 

 

36939 F.2d 1138 (5th Cir.1991). 

13

missed due to jury duty.30

On the other end of the spectrum, the Texas Court of Appeals

in Hooper v. Pitney Bowes, Inc.31, found that supervisors'

statements that an employee was "cultist," "occult," "unchristian,"

"a sorceress," "satanistic," and "a witch" were sufficient to

support a jury's implicit finding of extreme and outrageous conduct

because of the "high degree of opprobrium" attached to those

terms.32 Burden proffers nothing of that extreme nature here. In

another such case, Wornick Co. v. Casas33, the Texas Supreme Court

surveyed Texas cases in which conduct had been found to be

outrageous in the employment setting34 and compared them to the

facts of the case then before it. The Casas court concluded that,

when compared to the conduct considered in the cases surveyed, the

subject employer's conduct—having a security guard escort the

plaintiff from the workplace after she was discharged—was not

sufficiently outrageous, as a matter of law, to state a claim for

intentional infliction of emotional distress.35

The federal experience with this Texas tort has paralleled

that of the state courts. In Wilson v. Monarch Paper Co.36, we
 

37See id. at 1144-46. 

14

reviewed a district court jury verdict awarding the plaintiff

damages for, inter alia, intentional infliction of emotional

distress based on Texas law. The plaintiff presented evidence that

his former job responsibilities were assigned to a younger man,

that the plaintiff's supervisor refused to speak with him, that the

supervisor acknowledged that such silence was an indication that

the plaintiff's job was in trouble, and that one of plaintiff's

managers referred to him as old and even prepared and posted a sign

stating that the plaintiff was old. Most significantly, the

plaintiff, who formerly held an executive managerial position in

the company, was transferred to a warehouse where his primary

duties were to sweep and clean up after the employees in the

warehouse cafeteria. We held that, except for the employer's

extremely "painful and embarrassing" "steep downhill push" of the

plaintiff to demeaning and degrading job duties, the employer's

conduct was within the realm of an ordinary employment dispute and

was not so extreme and outrageous as to support an intentional

infliction of emotional distress claim.37

After examining the facts of the instant case—viewed most

favorably to Burden—we find that his post-reclassification

assignments do not even approximate the extremely humiliating shift

in duties and working conditions experienced by the plaintiff in

Wilson. Although Burden alleges that the reclassification resulted

in his performing "menial" assignments, his own testimony indicates

that he was given assignments involving coordinating projects,
15

reviewing budgets, and reviewing and compiling evaluations of

proposed company "Standard Practices." He also testified in his

deposition that he was appointed by Davis to serve as Vice Chair of

the Proposal Council, which reviewed the proposal process by

obtaining input from the company's different functional

departments. Moreover, Burden was given an office that was

comparable to his former office, albeit slightly smaller, and was

allowed to retain his parking space as well as his former earnings

level, which had increased by $16,500 in July 1992, just a month

before his reclassification. Unlike the demeaning and degrading

change to visually apparent janitorial duties in Wilson, the

changes in Burden's employment were non-apparent to the casual

observer and were significantly more subtle in quality.

Burden also testified that he received a nasty anonymous

letter, which stated negative reasons why Burden should "get out of

there." Although preparation and delivery of this letter is the

only fact contained in Burden's testimony that could even arguably

reflect extreme or outrageous conduct, the letter was anonymous and

no record evidence indicates that either Riney or Davis sent it.

Moreover, according to Burden's own testimony, when he informed

Davis that he had received the letter, Davis volunteered to refer

the matter to "Security" and stated that the sender, if identified,

would be discharged. We are not persuaded that Burden has any

possibility of recovery in a Texas court on the basis of that

anonymous letter alone.

Neither are we swayed by Burden's argument that, because only
 

38855 S.W.2d 619 (Tex.1993). 

16

a few Texas cases deal with a claim of intentional infliction of

emotional distress, the district court erred in speculating what a

Texas court would do. The tort of intentional infliction of

emotional distress was explicitly recognized in Twyman v. Twyman38,

a 1993 case. The Texas cases that have applied the four-part test

enunciated in Twyman have been consistent in using the stringent

"extreme and outrageous" element of the claim.

Here the district court properly relied on those Texas cases

to guide its reasoning. Given the utter lack of record evidence of

any conduct explicitly attributable to Riney or Davis that could

meet the established criteria for a claim of intentional infliction

of emotional distress, we conclude that the district court did not

err in determining that those two defendants were fraudulently

joined.

In sum, we are satisfied that no reasonable jury in Texas

could find that the conduct of Riney and Davis in changing Burden's

duties after reclassification constituted extreme and outrageous

conduct. Even though the determination whether a valid intentional

infliction of emotional distress claim exists necessarily depends

on the facts of each case, we conclude that, as a matter of law,

the facts portrayed by the pleadings, affidavits, and deposition

testimony in the instant case do not reveal any conduct that

"go[es] beyond all possible bounds of decency, and [that could] be

regarded as atrocious [ ] and utterly intolerable in a civilized
 

39See Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993)

(quoting Restatement (Second) of Torts § 46 cmt. d (1965)). 

 

40See Cormier v. Pennzoil, 969 F.2d 1559, 1561 (5th

Cir.1992) ("plaintiff's entitlement to discovery prior to a

ruling on a summary judgment motion may be cut off when, within

the trial court's discretion, the record indicates that further

discovery will not likely produce facts necessary to defeat the

motion"); Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285-

86 (5th Cir.1990) (court did not abuse its discretion in denying

request for continuance because party opposing summary judgment

motion did not demonstrate how additional time would enable him

to rebut movant's allegations that no genuine issue of fact

17

community."39

Burden nevertheless contends that if he had been given more

discovery time he could have established additional facts that

would tend to demonstrate the true, non-pretextual reasons behind

the defendants' conduct. In his response to the defendants' motion

for summary judgment, Burden alternatively requested the district

court to grant a continuance of the hearing on the motion so that

he could have more time for discovery. The court ruled on the

summary judgment motion without granting a continuance. As Burden

himself asserts, however, additional time for discovery would have

aided him only in determining whether Riney and Davis acted

intentionally or recklessly. Nothing in Burden's argument suggests

that more time for discovery would have produced a cure for his

failure to meet the second prong for a valid claim of intentional

infliction of emotional distress—that the defendant's conduct was

extreme and outrageous—regardless of whether it was intentional or

reckless. We therefore find that the district court did not abuse

its discretion in failing to delay its consideration of the

defendant's summary judgment motion.40
existed for trial). 

 

41See Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex.1993); 

Coté v. Rivera, 894 S.W.2d 536, 542 (Tex.App.—Austin 1995,

n.w.h.); Shaheen v. Motion Indus., Inc., 880 S.W.2d 88, 92

(Tex.App.—Corpus Christi 1994, writ denied) (terminated

employee's allegation that employer's motivation was outrageous,

but that manner of discharge was not, was insufficient to support

intentional infliction of emotional distress claim). 

 

42In light of our disposition of the fraudulent joinder

issue, we need not, and therefore do not, address the contention

of Riney and Davis that even if they were not fraudulently

joined, the district court properly exercised its jurisdiction

over the case under 28 U.S.C. § 1441(c) because Burden's

intentional infliction of emotional distress claims against Riney

and Davis were separate from and independent of Burden's claim

under the Act against General Dynamics. 

18

Texas courts have held that, as a matter of law, the fact of

termination alone cannot constitute outrageous behavior; rather,

the "extreme and outrageous" element focuses only on the manner of

termination.41 Here, Burden's employment with General Dynamics was

not terminated; yet Burden alleges—analogous to constructive

termination—that the actions of Riney and Davis in reclassifying

him directly resulted in his voluntary retirement from the company.

But, as we have previously noted, Burden's pleadings, affidavits,

and deposition testimony do not contain evidence or allegations of

conduct by Riney and Davis, in reclassifying Burden's job, that a

Texas court could possibly deem to be extreme and outrageous.

In conclusion, we agree with the district court's

determination that there is no basis for believing that Burden

could recover from Riney and Davis in a Texas court and that,

therefore, they were fraudulently joined to defeat diversity

jurisdiction.42
 

43See Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 102

(5th Cir.1990) ("Summary judgment will always be appropriate in

favor of a defendant against whom there is no possibility of

recovery"), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d

35 (1990). 

 

44We have previously observed that the standard of review

for a fraudulent joinder claim is similar to that used for ruling

on a motion for summary judgment. See B., Inc. v. Miller Brewing

Co., 663 F.2d 545, 549 n. 9 (5th Cir. Unit A Dec. 10, 1981). 

19

C. SUMMARY JUDGMENT

Given our conclusion that Burden fraudulently joined Riney

and Davis to defeat diversity, it follows that the district court

had subject matter jurisdiction to consider and grant the

Defendants-Appellees' summary judgment motion, which ruling Burden

also appeals. And our analysis of the fraudulent joinder issue

presages our de novo consideration of summary judgment here.43

Looking at the summary judgment evidence in the light most

favorable to Burden, we see that he has not raised any genuine

issue of material fact for trial. As we noted in connection with

fraudulent joinder, nothing in the pleadings or other evidentiary

material indicates that the conduct of Riney and Davis rose to the

level of extreme and outrageous conduct.44 Burden's allegations

against those two, therefore, when viewed in the light most

favorable to Burden, do not create a genuine issue of material fact

related to his claims against them for intentional infliction of

emotional distress. Accordingly, we affirm the district court's

summary judgment of dismissal as to such claims against Riney and

Davis.

III
20

CONCLUSION

Having viewed all questions of substantive fact in the light

most favorable to Burden and having taken all of Burden's

allegations to be true, we nevertheless conclude that there is no

possibility that a Texas court would recognize a valid cause of

action in Burden's claims against Riney and Davis for intentional

infliction of emotional distress. Therefore, as a matter of law,

Riney and Davis were fraudulently joined, a conclusion that

effectively vests the district court with subject matter

jurisdiction, by virtue of diversity, to rule on the summary

judgment motion of Riney and Davis.

Moreover, the summary judgment evidence demonstrates that, as

a matter of law, Riney and Davis are entitled to have Burden's

claims against them dismissed on summary judgment. The "extreme

and outrageous" element needed for Burden's intentional infliction

of emotional distress claims lacks factual support, and no material

disputes of fact exist relating to Burden's claims against those

two defendants. Thus the district court's orders denying Burden's

motion to remand to the state court and granting summary judgment

dismissing Burden's intentional infliction of emotional distress

claims against Riney and Davis are AFFIRMED.