Hart v. Bayer Corporation ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60496
consolidated with
No. 98-60811
Summary Calendar
RODALTON HART, ET AL.,
Plaintiffs,
RODALTON HART; JOSEPH BURRELL; EDWARD MURTAGH; CARL PEPPER;
RICHARD PERRY; GEORGE T. WYNNE; WALTER L. UPCHURCH; TOM SLACK;
SHARPE PLANTING COMPANY II, a Partnership; L&L PLANTING CO., a
Partnership,
Plaintiffs-Appellants,
VERSUS
BAYER CORPORATION; FMC CORPORATION; ZENECA INC.; AMERICAN
CYANAMID COMPANY; RHONE-POULENC INCORPORATED; E.I. DUPONT DE
NEMOURS AND COMPANY; VALENT U.S.A. CORPORATION; CIBA-GEIGY
CORPORATION; AND LARRY MAKAMSON,
Defendants-Appellees.
Appeals from the United States District Court
For the Southern District of Mississippi
January 6, 2000
Before DAVIS, DUHÉ, and PARKER, Circuit Judges:
ROBERT M. PARKER, Circuit Judge:
Plaintiffs brought state-law claims alleging that various
pesticides manufactured and marketed by the corporate defendants,
and one pesticide promoted by individual defendant, corporate agent
Larry Makamson, failed to control or prevent tobacco budworm
infestation of their crops ultimately resulting in substantial
damage to their crops. Plaintiffs appeal dismissal of their case
by the United States District Court for the Southern District of
Mississippi, Jackson Division. Specifically, plaintiffs appeal
from the grant of judgment on the pleadings in favor of defendants.
While this order constituted the final adjudication of the case,
the order incorporated earlier district court rulings on preemption
and fraudulent joinder. Since, these rulings formed the legal
basis for the district court’s dismissal, they are the substantive
decisions we must review on appeal. We REVERSE and REMAND to the
district court with instructions to remand the case to state court.
I. FACTS AND PROCEDURAL HISTORY
A. Background
Rodalton Hart (“Hart”); Joseph Burrell; Edward Murtagh; Carl
Pepper; Richard Perry; George T. Wynne; Walter L. Upchurch;1 Tom
Slack; Sharpe Planting Company II, a Partnership; and L&L Planting
Company, a Partnership, brought suit against pesticide
manufacturers Bayer Corp., FMC Corp., Zeneca Incorporated, American
Cyanamid, Rhone-Poulenc Incorporated, E.I. Dupont De Nemours and
Company, Valent U.S.A. Corp., Ciba-Geigy Corporation, and agent
Larry Makamson. Plaintiffs are cotton farmers who applied
defendants’ chemicals to enhance production by controlling crop
diseases and infestations. During the 1995 cotton season, despite
application of defendants’ chemicals, Plaintiffs were unable to
1
By joint stipulation of the parties, that portion of the appeal
brought by Plaintiff-Appellant Walter L. Upchurch against
Defendant-Appellee American Cyanamid Company was dismissed as of
February 16, 1999.
2
successfully control or prevent budworm infestation of their crops.
Nevertheless, the corporate defendants and their agents, such as
Makamson, allegedly continued touting the effectiveness of their
chemicals. The alleged failure of the chemicals to perform, the
alleged misrepresentations by defendants concerning the
effectiveness of the chemicals, and the resulting losses suffered
by plaintiffs prompted this lawsuit.
B. Procedural History
Plaintiffs filed their complaint in Mississippi state court
asserting four state common-law causes of action: breach of the
implied warranty of merchantability (actually a breach of implied
warranty of fitness for a particular purpose claim), breach of good
faith and fair dealing, intentional infliction of emotional
distress, and negligence. Plaintiffs did not assert any federal
causes of action. On June 3, 1996, defendants removed to federal
district court claiming that there was both federal question and
diversity jurisdiction. Defendants claimed federal question
jurisdiction existed based on the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq., which
defendants raised as a defense to plaintiffs’ claims. Diversity
jurisdiction purportedly was proper because plaintiffs were
Mississippi citizens, all corporate Defendants were citizens of
other jurisdictions, and the sole in-state defendant, Larry
Makamson, was fraudulently joined. The district court denied
plaintiffs’ motion to remand on the grounds that it had subject
matter jurisdiction upon the dual theories advanced by Defendants.
3
After addressing jurisdiction, the parties turned to the
question of whether FIFRA preempted Plaintiffs’ state-law claims.
Ultimately, the district court agreed with defendants’ arguments
that FIFRA completely precluded all of plaintiffs’ state-law
claims. Nevertheless, defendants did not immediately seek
dismissal of the case. Shortly thereafter, the district court
entered an order staying discovery. Some four months later, the
parties agreed that the case was ripe for dismissal based upon the
court’s earlier rulings on preemption and fraudulent joinder.
Defendants then moved for judgment on the pleadings and the
district court dismissed plaintiffs’ claims but only as to
defendant Makamson. Plaintiffs appealed that ruling and sought
permission to ask the district court for an order dismissing the
case as to the remaining defendants. We granted permission, and on
November, 23, 1998, the district court issued the requested order.
Plaintiffs then filed a notice of appeal on December 2, 1998, and
they are now before us appealing the district court’s rulings.
II. DISCUSSION
Plaintiffs raise three issues on appeal. First, plaintiffs
maintain that FIFRA does not provide a basis for federal
jurisdiction in this case because it is not a complete preemption
statute. Second, plaintiffs contend that the lower court erred in
finding that the in-state defendant was fraudulently joined since
plaintiffs have properly asserted claims against Makamson for which
he could be found independently liable. Third, plaintiffs argue
that while FIFRA may preempt some state-law damage actions, it does
4
not bar state common-law claims that are not based upon
inadequacies in labeling or packaging. Since we hold that the
district court erred in concluding that (1) a “FIFRA defense” is
sufficient to establish federal question jurisdiction, and (2)
corporate agent Makamson was fraudulently joined, neither we nor
the district court have jurisdiction to reach the issue of whether
FIFRA bars plaintiffs’ state-law claims.
A. Standard of Review
We begin by establishing the appropriate standard of review.
This court reviews de novo a district court's conclusions on
questions of law. Voest-Alpine Trading USA Corp. v. Bank of China,
142 F.3d 887, 891 (5th Cir. 1998). The district court’s fraudulent
joinder analysis turned solely upon such a question, namely the
proper interpretation of Mississippi tort law. Judgment for
defendants also was premised upon the district court’s ruling on
federal preemption. The district court’s preemption ruling is a
determination of original jurisdiction, and therefore, is also
subject to de novo review. See Hook v. Morrison Milling Co., 38
F.3d 776, 780 (5th Cir. 1994).
B. Absence of Federal Question Jurisdiction
Federal question jurisdiction arises when a plaintiffs’ set
forth allegations “founded on a claim or right arising under the
Constitution, treaties or laws of the United States.” See 28
U.S.C. § 1441(b), § 1331. In general, questions concerning federal
question jurisdiction are resolved by application of the
“well-pleaded complaint” rule. Louisville & Nashville R.R. v.
5
Mottley, 211 U.S. 149, 152-53 (1908). The rule provides that the
plaintiff's properly pleaded complaint governs the jurisdictional
inquiry. If, on its face, the plaintiff’s complaint raises no
issue of federal law, federal question jurisdiction is lacking.
See Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 10
(1983).
Since, on its face, plaintiffs' complaint sets forth only
state-law claims, defendants relied upon the “complete preemption”
exception to the well-pleaded-complaint rule in their efforts to
establish jurisdiction. Under this exception, if a federal law is
found to "completely preempt" a field of state law, the state-law
claims in the plaintiff's complaint will be “recharacterized” as
stating a federal cause of action. See Caterpillar, Inc. v.
Williams, 482 U.S. 386, 393 (1987)(“Once an area of state law has
been completely pre-empted, any claim purportedly based on that
pre-empted state law is considered, from its inception, a federal
claim, and therefore arises under federal law.”). The
recharacterization of a plaintiff’s state-law claim will also make
removal proper on the basis of federal question jurisdiction. See
Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499
(5th Cir. 1999).
Yet the mere fact that a given federal law might "apply" or
even provide a federal defense to a state-law cause of action, is
insufficient alone to establish federal question jurisdiction. To
give rise to federal question jurisdiction, a court must find
complete preemption. See Franchise Tax Bd., 463 U.S. at 23-24.
6
"In complete preemption a federal court finds that Congress desired
to control the adjudication of the federal cause of action to such
an extent that it did not just provide a federal defense to the
application of state law; rather, it replaced the state law with
federal law and made it clear that the defendant has the ability to
seek adjudication of the federal claim in a federal forum." 14B
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3722.1 (3d ed.
1998). In sum, to establish federal question jurisdiction through
the invocation of a federal preemption defense, the defendant must
demonstrate that Congress intended not just to “preempt a state law
to some degree," but to altogether substitute "a federal cause of
action for a state cause of action." Schmeling v. NORDAM, 97 F.3d
1336, 1341 (10th Cir. 1996).
Here, defendants argue that all of plaintiffs’ state common
law claims asserted against them are, in reality, federal claims.
Defendants contend that FIFRA,2 by its express prohibition on
state-imposed labeling or packaging requirements, so throughly
preempts all state common law claims in the field of pesticide
regulation that federal question jurisdiction is created. This is
a fundamental misreading of the statute and relevant case law.
We know that FIFRA does not completely preempt all state or
local regulation of pesticides. In fact, the Supreme Court has
2
FIFRA’s preemption language is found in 7 U.S.C. § 136v(b)
(1994), which provides:
(b) Uniformity
[The States] shall not impose or continue in effect any
requirements for labeling or packaging in addition to or
different from those required under this subchapter.
7
expressly held that FIFRA does not preempt local pesticide
ordinances:
FIFRA ... leaves substantial portions of the field
vacant.... Whatever else FIFRA may supplant, it does not
occupy the field of pesticide regulation in general....
Rather, it acts to ensure that the States could continue
to regulate use and sales even where, such as with regard
to the banning of mislabeled products, a narrow
pre-emptive overlap might occur.
Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 613-14
(1991). “Tellingly, it is precisely this expression, 'occupy the
field,’ that courts have repeatedly used to describe complete
preemption, and it is exactly this 'occupying of the field’ which
the Supreme Court tells us does not exist in FIFRA.” Ell v. S.E.T.
Landscape Design, Inc., 34 F. Supp. 2d 188, 193 (S.D.N.Y. 1999).
Furthermore, we have determined that FIFRA preemption does not
extend to non-labeling state common-law causes of action. See
MacDonald v. Monsanto, 27 F.3d 1021, 1024 (5th Cir. 1994) (“This is
not to say, however, that [] all common law is preempted by FIFRA
-- § 136v(b) does not preempt common law that is unconcerned with
herbicide labeling, nor does it preempt those state laws concerned
with herbicide labeling that do not impose any requirement 'in
addition to or different from’ the FIFRA requirements.”).3
3
In MacDonald, we were not confronted with the issue of whether
federal question jurisdiction is created by a FIFRA defense because
the defendants removed the case to federal court based upon
diversity of citizenship. See 27 F.3d at 1023. Nevertheless, it
is worth noting that our holding in MacDonald -- that FIFRA’s
preemptive power reaches both positive enactments and common law
actions, but not all common law actions – is inconsistent with a
finding that FIFRA represents a complete preemption statute. Here,
plaintiffs asset a variety of state common law causes of action
none of which directly relate to product labeling. Defendants
8
The text of the statute itself belies any claim that Congress
intended it to operate as a complete preemption statute. FIFRA
begins with an anti-preemption provision:
Authority of the States
(a) In general
A state may regulate the sale or use of any federally
registered pesticide or device in the State, but only if
and to the extent the regulation does not permit any sale
or use prohibited by this subchapter
7 U.S.C. § 136v(a) (1994) (emphasis added). Rather than disarm the
states in the area of pesticide regulation, Congress chose to
expressly confirm the states’ “historic police powers” to regulate
products that may affect the health and safety of their citizens.
See MacDonald, 27 F.3d at 1023. As the Supreme Court explained in
Mortier, the legislative history only reenforces this conclusion:
We agree that neither the language of the statute nor its
legislative history, standing alone, would suffice to
pre-empt local regulation. But it is also our view that,
even when considered together, the language and the
legislative materials relied on below are insufficient to
demonstrate the necessary Congressional intent to
pre-empt. As for the statutory language, it is wholly
inadequate to convey an express preemptive intent on its
own. Section 136v plainly authorizes the "States" to
regulate pesticides . . .
501 U.S. at 607. In short, the Supreme Court not only failed to
find the requisite expression of congressional intent to occupy the
contend that all of these claims are really disguised labeling
claims which fall within the preemptive (read preclusive) scope of
FIFRA. This is the question that we cannot reach, because even if
all of plaintiffs’ claims are in fact barred because FIFRA provides
a federal defense to each of these state law claims, the fact that
many state law causes of action survive means that the statute does
not establish federal question jurisdiction over the case.
Therefore, defendants are not deprived of their FIFRA defenses,
they are only deprived of a federal forum in which to utilize their
defenses.
9
field of pesticide regulation, it instead found an explicit grant
of authority to the states. The inexorable conclusion to be drawn
is that FIFRA is not a complete preemption statute, and therefore,
federal question jurisdiction is not established.
Many courts have reached this same conclusion through the
application of our analysis in Aaron v. National Union Fire Ins.
Co., 876 F.2d 1157 (5th Cir. 1989), where we held that the
Longshore and Harbor Workers' Compensation Act did not so
completely preempt state law as to authorize removal on the basis
of federal question jurisdiction. See, e.g., Rodriguez v. Shell
Oil Co., 818 F. Supp. 1013 (S.D. Tex. 1993). Our decision was
motivated by our findings that the statute: (1) did not contain a
civil enforcement provision, (2) did not include a specific grant
of federal subject matter jurisdiction, and (3) did not reflect a
clear manifestation of congressional intent to make preempted
state-law claims removable to federal court. See Aaron, 876 F.2d
at 1163-66. Applying the Aaron analysis to the instant case, we
find that FIFRA fails all three prongs of the test.
If we err in this determination, we enjoy plentiful company.
The vast majority of district courts that have faced this
jurisdictional question have concluded that FIFRA does not
completely preempt state law and thus a "FIFRA defense" does not
establish federal question jurisdiction. See Ell v. S.E.T.
Landscape Design, Inc., 34 F. Supp. 2d 188, 193 (S.D.N.Y. 1999);
Thigpen v. Cheminova, 992 F. Supp. 864, 869 (S.D. Miss. 1997);
Murray v. Commonwealth Edison, 905 F. Supp. 512, 514 (N.D .Ill.
10
1995); Rodriguez, 818 F. Supp. at 1016-18. Additionally, the only
circuit court to squarely address the issue also determined that
FIFRA does not completely preempt state law. See Hurt v. Dow
Chemical Co., 963 F.2d 1142 (8th Cir. 1992).4
Since there is no federal question jurisdiction in the instant
case, the district court’s ability to hear the case should have
turned exclusively upon the existence of diversity jurisdiction.
In turn, the existence of diversity jurisdiction rests upon a
finding that joinder of Makamson was fraudulent.
C. Absence of Diversity Jurisdiction
The second possible basis for federal subject matter
jurisdiction is diversity of citizenship. Plaintiffs in this case
are Mississippi citizens whereas all of the corporate defendants
are non-residents. It is the presence of diversity-destroying in-
state defendant Makamson that, if properly included in the action,
prevents federal jurisdiction. The district court concluded that
Makamson had been fraudulently joined as a defendant in order to
defeat diversity jurisdiction. Plaintiffs contend that the
4
Defendants point to two aberrant, unpublished district court
opinions to support their argument, both cases from within the
Fifth Circuit. See LaCoste v. Stamps, 1995 WL 442070 (E.D. La.
July 25, 1995); Burge v. Jones, 1992 WL 415263 (S.D. Tex. Nov. 18,
1992). The reasoning in neither case is persuasive. Both courts
erred by (1) failing to distinguish between ordinary preemption and
complete preemption, and (2) mistakenly relying upon FIFRA cases
removed based on diversity jurisdiction, not complete preemption
federal question jurisdiction. Subsequent to these decisions, both
courts have applied the Aaron test and reached the conclusion that
FIFRA does not confer federal question jurisdiction. See Martinez
v. Dow Chemical Co., Nos. 95-3212, 95-3214, 1996 WL 502461 (E.D.
La. Sept. 4, 1996); Rodriguez, 818 F. Supp. 1013 (S.D. Tex. 1993).
11
district court erred in this finding.
"The burden of persuasion placed upon those who cry
'fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller
Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). In Dodson v.
Spiliada Maritime Corp., 951 F.2d 40 (5th Cir.1992), the standard
for evaluating such a claim were summarized as follows:
Where charges of fraudulent joinder are used to establish
[federal] jurisdiction, the removing party has the burden
of proving the claimed fraud.... To prove their
allegation of fraudulent joinder [removing parties] must
demonstrate that there is no possibility that [plaintiff]
would be able to establish a cause of action against them
in state court. In evaluating fraudulent joinder claims,
we must initially resolve all disputed questions of fact
and all ambiguities in the controlling state law in favor
of the non-removing party. We are then to determine
whether that party has any possibility of recovery
against the party whose joinder is questioned.
Dodson, 951 F.2d at 42 (citations omitted) (emphasis added). In
many instances, we have cautioned against “pretrying a case to
determine removal jurisdiction,” stating that fraudulent joinder
claims can be resolved by "piercing the pleadings" and considering
summary judgment-type evidence such as affidavits and deposition
testimony. Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100
(5th Cir. 1990). The district court failed to follow this
procedure. Consequently, we are limited to a review of the
allegations in the complaint in determining whether Makamson could
be subject to individual liability.
The question of whether plaintiffs could possibly establish a
claim against Makamson in state court is resolved by reference to
Mississippi law. In circumstances where a defendant acts as an
12
agent for a known principal, the general rule in Mississippi law is
that the defendant-agent incurs no liability for a principal’s
breach of duty. See Moore v. Interstate Fire Insurance Company,
717 F. Supp. 1193 (S.D. Miss. 1989); Schoonover v. West American
Ins. Co., 665 F. Supp. 511 (S.D. Miss. 1987) (interpreting
Mississippi law). On the other hand, an agent for a disclosed
principal can be held personally liable for his own tortious acts
committed within the scope of his employment. Wheeler v. Frito-
Lay, Inc., 743 F. Supp. 483, 487 (S.D. Miss. 1990)(holding that
plaintiff had stated a possible claim against employee-driver for
negligent driving within the scope of employment). The agent is
subject to personal liability when he "directly participates in or
authorizes the commission of a tort," Id. (quoting Mississippi
Printing Co., Inc. v. Maris, West & Baker, Inc., 492 So. 2d 977,
978 (Miss. 1986)), but individual liability may not be predicated
merely on his connection to the corporation but must have as its
foundation "individual wrongdoing." Turner v. Wilson, 620 So. 2d
545, 548 (Miss. 1993). “The thrust of the general rule is that the
officer [or agent] to be held personally liable must have some
direct, personal participation in the tort, as where the defendant
was the 'guiding spirit' behind the wrongful conduct ... or the
'central figure' in the challenged corporate activity." Mozingo v.
Correct Mfg. Corp., 752 F.2d 168, 173 (5th Cir. 1985) (quotations
omitted).
Based on our review of the pleadings, we conclude that
appellees failed to demonstrate that there is no possibility that
13
plaintiffs could establish a cause of action against Makamson. The
district court in its order denying remand based its decision
entirely upon Makamson’s status as a agent working within the
course and scope of his employment. Appellees use a similar
analysis on appeal. They state that all information conveyed to
plaintiffs by Makamson originated with the manufacturers;
therefore, he could not be anything more than a conduit for
information from his principal. Accordingly, defendants conclude
that he could not be liable for dissemination of information he
received from the manufacturer, “unless he knew it to be untrue.”
Of course, that is exactly what plaintiffs allege in their
complaint: “Mr. Makamson breached his duty by continuing to
represent that Defendant FMC’s products would effectively control
budworms when he knew or should have known that the chemicals were
failing to control the budworms as represented.” (Emphasis added).
The scenario set forth in plaintiffs’ pleadings, if true, could
result in liability being imposed on Makamson for his alleged
continuing misrepresentations.5 The fact that Makamson was acting
within the course and scope of his employment is not dispositive on
5
Defendants attempt to re-characterize plaintiffs’ allegations
of misrepresentation as “promises of future conduct which did not
concern a past or present fact.” This interpretation misreads
plaintiffs’ allegations which complain of “continuing”
misrepresentations when “the chemicals were failing to control the
budworms . . .” This is not the type of “future promise” fraud
claim that the Mississippi Supreme Court has rejected as
inadequate. See Spragins v. Sunburst Bank, 605 So. 2d 777, 781
(Miss. 1992).
14
this point.6 The district court stated that “the conduct of
Makamson must rise to the level of an independent tort, committed
on his own, to remove him from the agency relationship such that he
will have to answer personally for his conduct.” This misreads
the proper standard. Plaintiffs need only set forth allegations
6
Defendants also contend that the claim against Makamson is
deficient because plaintiffs have failed to plead it with
sufficient particularity in accordance with FED. R. CIV. P. 9(b).
While the Court agrees that plaintiffs’ allegations of deceitful or
deceptive behavior by Makamson are somewhat conclusory, we do not
believe that the penalty should be dismissal with prejudice to re-
filing.
Typically, a plaintiff's complaint must contain a "short and
plain statement of the claim showing that the pleader is entitled
to relief." FED. R. CIV. P. 8(a)(2). To prevail on a motion to
dismiss an ordinary claim under FED. R. CIV. P. 12(b) or (c), a
defendant must show that "the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). However, FED. R. CIV. P. 9(b)
imposes a heightened level of pleading for fraud claims: "In all
averments of fraud or mistake, the circumstances constituting fraud
or mistake shall be stated with particularity." Tuchman v. DSC
Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). Although
the particularity demanded by Rule 9(b) differs with the facts of
each case, see Guidry v. Bank of LaPlace, 954 F.2d 278, 288 (5th
Cir. 1992), a plaintiff pleading fraud must set forth “the who,
what, when, and where . . . before access to the discovery process
is granted.” Williams v. WMX Technologies, Inc., 112 F.3d 175, 178
(5th Cir. 1997). Anything less fails to provide defendants with
adequate notice of the nature and grounds of the claim. See
Tuchman, 14 F.3d at 1067.
But a plaintiff’s failure to meet the specific pleading
requirements should not automatically or inflexibility result in
dismissal of the complaint with prejudice to re-filing. See Cates
v. International Telephone and Telegraph Corp., 756 F.2d 1161, 1180
(5th Cir. 1985) (“But such deficiencies do not normally justify
dismissal of the suit on the merits and without leave to amend, at
least not in the absence of special circumstances.”). Although a
court may dismiss the claim, it should not do so without granting
leave to amend, unless the defect is simply incurable or the
plaintiff has failed to plead with particularity after being
afforded repeated opportunities to do so. See O’Brien v. National
Property Analysts Partners, 936 F.2d 674, 675-76 (2d Cir. 1991).
15
demonstrating that Makamson directly participated in the commission
of a tort; there is no requirement that such allegations remove him
from the agency relationship. This heightened test fails to
recognize those situations in which an agent and his principal
could be found to be jointly and severally liable for tortious
conduct committed jointly by them.7
Plaintiffs’ complaint, taking all allegations set forth as
true and taking all inferences in a light most favorable to
plaintiffs, at least raises the possibility that they could succeed
in establishing a claim against Makamson under Mississippi law.
Accordingly, Makamson’s citizenship cannot be ignored for the
purposes of determining subject matter jurisdiction. His presence
in this civil action means that there is not the complete diversity
of citizenship necessary to maintain federal jurisdiction over this
case.
III. CONCLUSION
For the reasons set forth above, we hold that the district
court had no jurisdiction to hear this case. Removal of this case
7
It is interesting to note that Plaintiffs’ allegations against
Makamson pass even the test articulated by the district court:
In accordance with these principles, an agent or other
employee, merely because of his relationship as an agent
or employee, or because of the additional fact that he
has acted at the direction or command of his employer,
cannot escape or exempt himself from liability to a third
person for his own negligence or his own positive wrongs,
such as a trespass, an assault, the conversion of
property, fraud or misrepresentation, defamation or other
form of tortious conduct.
3 AM. JUR. 2d Agency § 300 (1962) (Emphasis added).
16
to federal court was improper. Accordingly, we REVERSE the Rule
12(c) judgment in favor of defendants and REMAND the case to the
district court with instructions to remand the case to the state
court from whence it came.
It is so ordered.
17