ADAMS v. FIRST HORIZON BANK

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DONNA ADAMS, )

)

Plaintiff, )

)

v. ) 1:20CV992

)

FIRST HORIZON BANK, formerly )

d/b/a FIRST TENNESSEE BANK, )

and ANNA LONG, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This matter comes before the court on a Motion to Remand to

State Court, (Doc. 12), filed by Plaintiff Donna Adams and a

Partial Motion to Dismiss, (Doc. 18), for failure to state a

claim filed by Defendants First Horizon Bank and Anna Long. For

the reasons described herein, this court finds that Plaintiff’s

motion to remand should be granted and that Defendants’ motion

to dismiss should be denied as moot.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The facts taken in the light most favorable to Plaintiff

are as follows. Plaintiff Donna Adams is a North Carolina

citizen. (Amended Complaint (“Am. Compl.”) (Doc. 11) ¶ I.)

Plaintiff was employed at Defendant First Horizon Bank, (“the

Bank”), formerly known as First Tennessee Bank, (id. ¶ IV), with

its regional office located in Winston-Salem, North Carolina.

(Id. ¶ II.) Defendant Anna Long (“Long”) is an employee of the

Bank who resides in Buncombe County, North Carolina. (Id.

¶ III.) She worked as the Bank’s Regional Sales Manager. (Id.

¶ VI.)

Plaintiff “brought a large amount of business” into the

Bank, and the Bank responded by giving “credit to a young

manager who had nothing to do with bringing in that business.”

(Id. ¶ VIII.) Plaintiff was “excluded” from making presentations

at meetings and conference calls, while her employer allowed

younger and less experienced employees to make the

presentations. (Id.) Plaintiff was also not chosen for a trip to

corporate headquarters, while younger managers with less

experience were chosen instead. (Id.) Finally, Defendant Long

“frequently made comments referring to Donna Adams’ age; and

Long frequently asked [Adams] when she planned to retire from

the Bank.” (Id.)

Plaintiff also alleges that in May or June of 2019, “upper

management changed a bank form, and requested Donna Adams to

re-do the original document using the new format.” (Id. ¶ XI.)

Adams dealt with this as “a clerical matter.” (Id.) Plaintiff

does not elaborate on how this incident related to her

termination or any age discrimination against her.

On September 20, 2019, Defendant Long “falsely accused

Donna Adams in writing of falsifying a bank record.” (Id. ¶ IX.)

Long made this writing “on the premises of First Tennessee Bank

in North Carolina” and published the statement to other people

“including but not limited to managers and employees” of the

Bank. (Id. ¶ XVIII.)

This led to Adams’ termination by the Bank that same day.

(Id. ¶ X.) The Bank terminated at least six other bank employees

“older than 40 years of age,” mostly in their 50s and 60s, in

spite of their excellent performance records. (Id. ¶¶ VII,

XXIX.) These employees were replaced by younger managers. (Id.

¶ XII.) Plaintiff alleges that Long “instigated” these

terminations. (Id. ¶ XXIX.)

B. Procedural Background

Though Plaintiff filed her Complaint in state court, the

case was removed to federal court on November 2, 2020. (Doc. 1.)

The Complaint was amended on November 18, 2020. (Am. Compl.

(Doc. 11).) Plaintiff alleges wrongful discharge - the “reason

given for her termination was false and bogus” and “was a

pretext for the Bank’s age discrimination.” (Id. ¶ X.) She also

alleges Long committed libel, (id. ¶ XVIII), slander, (id.

¶ XXIII, and tortious interference with Plaintiff’s employment

contract, (id. ¶ XXIX). Plaintiff seeks both punitive and

compensatory damages. (Id. at 11.)

Plaintiff filed a Motion to Remand on November 20, 2020,

(Doc. 12), along with an accompanying Memorandum, (Doc. 13).

Defendants responded, (Doc. 17), and Plaintiff replied, (Doc.

24). Defendants filed a Partial Motion to Dismiss on

December 16, 2020, (Doc. 18), along with an accompanying

Memorandum, (Doc. 19). Plaintiff responded, (Doc. 28), and

Defendants replied, (Doc. 29).

II STANDARD OF REVIEW

Courts “should dismiss a complaint for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) if the complaint

fails to allege facts upon which subject matter jurisdiction can

be based or if the jurisdictional allegations in the complaint

are not true.” McLaughlin v. Safway Servs., LLC, 429 F. App’x

347, 348 (4th Cir. 2011) (per curiam) (citation omitted); Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Subject matter

jurisdiction and removal to federal court are governed by 28

U.S.C. § 1441. Under 28 U.S.C. § 1441(b)(2), the inclusion of a

defendant in the action who is a citizen of the same state as a

plaintiff prevents removal. See Sharpe v. FCFS NC, Inc.,

No. 19cv985, 2020 WL 4016055, at *2 (M.D.N.C. July 16, 2020).

Here, it is undisputed that Defendant Long is a citizen of the

same state as Plaintiff Adams. (See Am. Compl. (Doc. 11) ¶¶ I,

III.)

“The burden of proof on a motion to remand falls on the

party seeking to preserve the removal, not the party moving for

remand.” Artesian Enters., Inc. v. Shelton Brothers, Inc.,

No. 1:14-CV-894, 2014 WL 12672643, at *2 (M.D.N.C. Nov. 24,

2014) (internal citation omitted). Ultimately, “[a]ny doubts

about removal must be resolved in favor of remand.” UMLIC

Consol., Inc. v. Spectrum Fin. Servs. Corp., 665 F. Supp. 2d

528, 532 (W.D.N.C. 2009); see also Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941); Turner v. CTS Con-Way

Transp. Servs., No. 1:98CV00624, 1999 WL 1939243, at *1

(M.D.N.C. Apr. 28, 1999).

III. ANALYSIS

This court will grant Plaintiff’s Motion to Remand. Both

Plaintiff Adams and Defendant Long are North Carolina citizens.

(Am. Compl. (Doc. 11) ¶¶ I, III.) Ordinarily, this would

preclude this court from exercising diversity jurisdiction over

this case. See 28 U.S.C. § 1441(b)(2). However, Defendants

allege that Long was fraudulently joined, and therefore should

not be considered for jurisdictional purposes. (Defs.’ Resp. to

Pl.’s Mot. to Remand to State Ct. (“Defs.’ Resp.”) (Doc. 17) at

2.)

The fraudulent joinder doctrine “effectively permits a

district court to disregard, for jurisdictional purposes, the

citizenship of certain nondiverse defendants, assume

jurisdiction over a case, dismiss the nondiverse defendants, and

thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457,

461 (4th Cir. 1999). To establish that fraudulent joinder has

occurred, “Defendants must demonstrate either that there is ‘no

possibility’ that [the plaintiff] would be able to establish a

cause of action . . . in state court; or that there has been

‘outright fraud’ in [the plaintiff’s] pleading of jurisdictional

facts.” Sharpe, 2020 WL 4016055, at *2 (quoting Marshall v.

Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993)). There is

no allegation of outright fraud in the pleading of the facts.

Therefore, this court will assess whether there is “no

possibility” Plaintiff could recover from Defendant Long, id.,

even if the factual allegations in the Complaint are accepted as

true.

In analyzing whether any possibility of recovery exists,1

this court is “to accept the parties joined on the face of the

1 The court is permitted to examine the entire record in its

inquiry. John S. Clark Co. v. Travelers Indem. Co., 359 F. Supp.

2d 429, 436 (M.D.N.C. 2004).

complaint unless joinder is clearly improper[,]” as “[t]o permit

extensive litigation of the merits of a case while determining

jurisdiction thwarts the purpose of jurisdictional rules.”

Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).

The burden is on Defendants to “negate all possibility of

recovery.” Id. Fraudulent joinder is rare and “typically only

found in cases of legal impossibility[.]” Flores v. Ethicon,

Inc., 563 F. App'x 266, 269 (4th Cir. 2014). Ultimately, this

high standard is “even more favorable to the plaintiff than the

standard for ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6).” Hartley, 187 F.3d at 424.

Plaintiff has brought three state law claims against Long:

libel, slander, and tortious interference with contract.

Regardless of whether Plaintiff’s claims may be viable, there

remains at least a “glimmer of hope” on the claims of libel and

tortious interference, with all questions of law and fact

resolved in Plaintiff’s favor. Id. at 426.

A. Libel

Plaintiff alleges that Long’s written statement “tended to

impeach the Plaintiff in her profession, and tended to subject

the Plaintiff to ridicule, contempt and disgrace.” (Am. Compl.

(Doc. 11) ¶ XVIII.) Plaintiff provides a vague accounting of the

facts, which includes the place, time, and general recipients of

the statement. (Id.) Defendants take issue with Plaintiff’s lack

of particularity about the logistics and content of the

allegedly libelous statement. (Defs.’ Resp. (Doc. 17) at 3-4.)

However, Plaintiff’s level of factual information about these

elements is not so vague that it completely eliminates any

possibility of recovery. Plaintiff alleges the statement was

made “on the premises of First Tennessee Bank in North

Carolina[.]” (Am. Compl. (Doc. 11) ¶ XVIII); see Stutts v. Duke

Power Co., 47 N.C. App. 76, 83-84, 266 S.E.2d 861, 866 (1980)

(finding complaint was well-pled where location was only

identified by name of employer and business). Plaintiff

adequately alleges the recipients and time of the statement by

claiming the “statement was published to third parties,

including but not limited to managers and employees of First

Tennessee Bank” on September 20, 2019. (Am. Compl. (Doc. 11)

¶ XVIII); see Moore v. Cox, 341 F. Supp. 2d 570, 575 (M.D.N.C.

2004) (Complaint sufficed where it alleged the defendant

“communicated false information . . . to third persons . . . and

the time frame in which the alleged misconduct took place.”);

Terry v. Swift Transp., No. 1:16cv256, 2017 WL 1013074, at *9

(M.D.N.C. Mar. 14, 2017), report and recommendation adopted, No.

1:16CV256, 2017 WL 2881141 (M.D.N.C. July 6, 2017) (Complaint

“state[d] a plausible North Carolina defamation claim” where it

alleged the time frame of the false statements that were

“reported to third parties”). Under federal procedural law, see

Terry, 2017 WL 1013074, at *9 (“In evaluating Plaintiff's

defamation claim, the Court applies state substantive law and

federal procedural law.”), the facts provided by Plaintiff,

though sparse, are not vague enough to leave no possibility of

recovery for the state law claim of libel. See Guider v. Hertz

Corp., Rent-A-Car Div., No. 1:04CV00126, 2004 WL 1497611, at *5

(M.D.N.C. June 28, 2004) (finding that even where “[i]t is

unclear from the Complaint who heard the statements, the context

in which the statements were made, and the exact wording used[,]

. . . it cannot be said that there would be no possibility of

success against [the defendant] and that he was therefore

fraudulently joined”).

A legal question remains open regarding the libel claim. As

the parties have noted, North Carolina courts are split on

whether intra-office communications are “published” for purposes

of libel actions.2 In a Rule 12(b)(6) motion, this court might

2 In White v. Trew, the North Carolina Court of Appeals held

that “intra-office communications can be published in terms of

defamation if the individual who reads the communications is

independent of the process by which the communications were

produced.” 217 N.C. App. 574, 581, 720 S.E.2d 713, 720

(2011), rev’d on other grounds, 366 N.C. 360, 736 S.E.2d 166

(2013). In other words, the court in White found that the

sharing of statements between employees of the same company

(Footnote continued)

analyze this legal question regarding intra-office

communications. However, at this stage, where this legal

question must be assumed resolved in favor of Plaintiff, there

remains a “glimmer of hope” for Plaintiff’s libel claim.

Hartley, 187 F.3d at 426. This alone is adequate to require

remand.

B. Slander

Plaintiff’s slander claim is not adequate to justify

joinder on its own. “Libel encompasses any false, written

publication while slander encompasses a false oral

communication.” Diagnostic Devices, Inc. v. Pharma Supply, Inc.,

could constitute publication. However, after the holding in

White was reversed on other grounds, almost every North Carolina

court that took up the issue began interpreting intra-office

communications differently. In 2013, the Western District of

North Carolina held that “[i]n the employment context, agents

and employees of a single employer are not considered third

persons to the employer or to each other.” Reikowski v. Int'l

Innovation Co. USA, No. 3:12CV854-GCM, 2013 WL 526489, at *3

(W.D.N.C. Feb. 11, 2013). The Reikowski court viewed intra-

office communications differently from the White court, finding

“no publication occurs when statements are only communicated

between officers, employees and agents of a single employer.”

Id.; see also Dale v. Red Hat, Inc., No. 5:18-CV-262-BO, 2018 WL

6172516, at *3 (E.D.N.C. Nov. 26, 2018) (“[W]here, as here, the

communication of allegedly libelous statements is between only

employees of a single employer, no publication of the libelous

statement has occurred[.]”); Hall v. Charter Commc'ns, LLC,

Civil Action No. 3:17-CV-00497-GCM, 2018 WL 651345, at *3

(W.D.N.C. Jan. 31, 2018) (requiring publication “to a third

party outside of the employment relationship”); Lee v. AT & T

Mobility Servs. LLC, No. 5:11-CV-294-FL, 2013 WL 1246747, at *8

(E.D.N.C. Mar. 27, 2013) (same).

No. 3:08-CV-149-RJC-DSC, 2009 WL 2998004, at *3 (W.D.N.C.

Sept. 15, 2009). Plaintiff alleges, in one instance, that the

statement at issue “was made in writing,” (Am. Compl. (Doc. 11)

¶ XVIII), while alleging elsewhere that the statement “was made

orally.” (Id. ¶ XXIII.) In laying out the facts at the beginning

of her Complaint, however, Plaintiff merely states that “Mandy

Long falsely accused Donna Adams in writing of falsifying a bank

record.” (Id. ¶ IX (emphasis added).) No facts are provided

regarding any oral statement. It is referenced only in the cause

of action for slander and no information is provided as to when

it was made, where it was made, or who it was made to. There is

no possibility of relief on the slander claim.

C. Tortious Interference

In order to state a claim for tortious interference,

Plaintiff must allege:

(1) a valid contract between the plaintiff and a third

person which confers upon the plaintiff a contractual

right against a third person; (2) defendant knows of

the contract; (3) the defendant intentionally induces

the third person not to perform the contract; (4) and

in doing so acts without justification; (5) resulting

in actual damage to the plaintiff.

Mkt. Choice, Inc. v. New England Coffee Co., No. 5:08-CV-90,

2009 WL 2590651, at *6–7 (W.D.N.C. Aug. 18, 2009) (quoting

Embree Constr. Grp., Inc. v. RAFCOR, Inc., 330 N.C. 487, 498,

411 S.E.2d 916, 924 (1992)). Plaintiff claims Defendant Long

“knew of the valid oral contract of employment between Plaintiff

and First Tennessee Bank,” and “intentionally induced First

Tennessee Bank to terminate Plaintiff’s employment for improper

motives . . . involv[ing] age discrimination . . . with actual

malice and legal malice and without legal justification . . . .”

(Am. Compl. (Doc. 11) ¶ XXIX.) This court finds Plaintiff has a

possibility of relief based on these allegations.

Defendants’ primary answer to Plaintiff’s tortious

interference claim is legal in nature. Defendant Long is a

non-outsider to the contract, and therefore has certain

immunities with respect to interference with the contract. See,

e.g., Benjamin v. Sparks, 173 F. Supp. 3d 272, 290 (E.D.N.C.

2016), aff'd, 986 F.3d 332 (4th Cir. 2021). Plaintiff’s claim

may ultimately fail if Long had a legitimate business

justification for telling management that Plaintiff had

falsified a document. However, at the pleading stage, Plaintiff

need not preemptively provide facts to refute a plaintiff’s

privilege. See Embree Constr. Grp., 330 N.C. at 500 (“[I]nsofar

as questions regarding the scope of defendants' privilege are

evoked by the allegation that defendants acted ‘without

justification,’ plaintiff's complaint need not address such

questions in order to withstand a motion to dismiss for failure

to state a claim.”); Barker v. Kimberly-Clark Corp., 136 N.C.

App. 455, 462, 524 S.E.2d 821, 826 (2000) (“[N]on-outsider

status is pertinent only to the question of whether the

defendant's action was justified[.]”). Thus, Plaintiff need not

refute Long’s claim to non-outsider status at this stage.

Plaintiff has alleged the elements of tortious interference, and

the possibility of recovery on this claim cannot be completely

excluded by the court.

IV. CONCLUSION

Because this court cannot completely eliminate the

possibility of relief on Plaintiff’s claims of libel and

tortious interference with contract, Plaintiff’s Motion to

Remand will be granted. Defendants’ Partial Motion to Dismiss

will be denied as moot.

For the aforementioned reasons,

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand

to State Court, (Doc. 12), is GRANTED and that this case is

hereby REMANDED for further proceedings in the Superior Court of

Forsyth County, North Carolina.

IT IS FURTHER ORDERED that the Clerk of Court is directed

to send a certified copy of this Memorandum Opinion and Order to

the Clerk of Superior Court in Forsyth County.

IT IS FURTHER ORDERED that Defendants’ Partial Motion to

Dismiss, (Doc. 18), is DENIED AS MOOT.

This the Sth day of September, 2021.

LA; fir

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