Graves v. Union Pacific Railroad

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

BILLY JACK GRAVES,

Plaintiff,

v. Case No. 21-CV-046-JFH-JFJ

UNION PACIFIC RAILROAD, et al.,

Defendants.

ORDER

Before the Court is the Motion to Remand (“Motion”) filed by Plaintiff Billy Jack Graves

(“Plaintiff”). Dkt. No. 14. Defendants Union Pacific Railroad, Lloyd Plymale and Kelly Smith

(collectively, “Defendants”) filed a Response in Opposition. Dkt. No. 20.

BACKGROUND

Plaintiff was employed by Union Pacific for almost fifteen (15) years. Dkt. No. 2-1 at ¶ 8.

Plaintiff was a collective bargaining unit employee and represented by a union. Id. at ¶ 12.

Defendants contend Union Pacific is a rail carrier subject to the RLA and Sheet, Metal, Air, Rail,

Transportation, Transportation Division (“SMART-TD”), which is the successor to United

Transportation Union. Dkt. No. 2 at ¶ 9; see also Dkt. No. 2-5. Previously, in 2017, Plaintiff was

terminated for allegedly stealing safety materials from Union Pacific. See Dkt. No. 2-1 at ¶ 11,

see also Richard Adamson and Billy Graves v. Union Pacific Railroad et al., Case No. 18-CV-

432-CVE, Dkt. No. 2 at ¶¶ 40-43. Plaintiff was ultimately reinstated in December 2017. 18-CV-

432-CVE, Dkt. No. 2 at ¶ 52. As a result of the 2017 matter and other matters associated with

Plaintiff’s FMLA leave, Plaintiff brought suit against Union Pacific and Lloyd Plymale on August

28, 2018 alleging claims for discrimination, interference and retaliation. See 18-CV-432-CVE,

Dkt. No. 2. The first case was ultimately settled and dismissed on December 20, 2019. See Case

No. 18-CV-432-CVE at Dkt. Nos. 65 and 67.

Plaintiff filed the instant suit on April 16, 2020 in the District Court for Mayes County,

State of Oklahoma. Dkt. No. 2-3. On September 22, 2020, Plaintiff filed an Amended Petition.

Dkt. No. 2-1. Plaintiff alleges on the evening of August 14, 2018/early morning of August 15,

2018, he began his shift as a member of a small crew of workers overseen by the Footboard

Yardmaster. Dkt. No. 2-1 at ¶¶ 13-15. Plaintiff observed lighting in the area and was directed by

his supervisor to leave due to safety concerns. Id. at ¶ 16. Subsequently, Plaintiff was terminated.

Id. at ¶ 19. On August 28, 2018, Plaintiff participated in an administrative proceeding concerning

his termination. Id. at ¶¶ 20, 24. In September of 2018, Plaintiff was given his job back before a

decision was reached at his administrative hearing. Id. at ¶ 25. Plaintiff was once again terminated

on April 24, 2019. Id. at ¶ 26. A hearing was held on April 24, 2019 pursuant to a “Notice of

Investigation.” Id. at ¶ 27. On July 17, 2019, Plaintiff was reinstated but was not provided back

pay and was placed on probation. Id. at ¶ 29.

Plaintiff asserts a state law Burk tort claim against Defendant Union Pacific Railroad

(“Union Pacific”) and a state law malicious interference with contractual relationship claim against

Defendants Lloyd Plymale and Kelly Smith. Dkt. No. 2-1. As to his Burk claim, Plaintiff contends

he was unlawfully terminated in retaliation for filing the first lawsuit, the assertion of his right to

access the courts and reporting unsafe working conditions. Dkt. No. 2-1 at ¶¶ 22, 25. Plaintiff

alleges Defendants Smith and Plymale interfered with Plaintiff’s contractual relationship with his

employer, Union Pacific, and Smith and Plymale caused Union Pacific to beach the contract. Id.

at ¶¶ 29-32.

On February 3, 2021, Defendants removed the action from state court to this Court. Dkt.

No. 2. Defendants premised the removal on their contention that Plaintiff’s state law claims are

preempted by federal law and that the individual Defendants were fraudulently joined thereby

giving this Court diversity jurisdiction. See id. Plaintiff filed the instant Motion contending he

only asserted state law claims and those claims are not preempted by federal law. Dkt. No. 14.

Additionally, Plaintiff contends he has valid claims against the individual Defendants, and they

were not fraudulently joined. See id. Defendants filed a Response in opposition. Dkt. No. 20.

The Response re-urges many of the same arguments advanced in the Notice of Removal. See Dkt.

No. 20.

LEGAL STANDARD

I. Federal Question Jurisdiction

To remove a case to federal court under 28 U.S.C. § 1441, the claim must “aris[e] under”

federal law. Deford v. Soo Line R. Co., 867 F.2d 1080, 1084 (8th Cir. 1989). To establish federal

question jurisdiction for removal purposes, the federal question must be “presented on the face of

the plaintiff's properly pleaded complaint.” Holmes Group, Inc. v. Vornado Air Circulation

Systems, Inc., 535 U.S. 826, 830, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002); Garley v. Sandia Corp.,

236 F.3d 1200, 1207 (10th Cir.2001) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

(1987)). Under the “well-pleaded complaint rule,” a suit “arises under federal law ‘only when the

plaintiff's statement of his own cause of action shows that it is based’ on federal law.” Turgeau v.

Administrative Review Board, 446 F.3d 1052, 1060 (10th Cir.2006) (quoting Schmeling v.

NORDAM, 97 F.3d 1336, 1339 (10th Cir.1996)). The plaintiff is the “master of the claim and may

prevent removal by choosing not to plead a federal claim even if one is available.” Id. Thus, a

plaintiff “may avoid federal question jurisdiction by exclusive reliance on state law.” City of Park

City v. Rural Water Dist. No. 2, 960 F.Supp. 255, 257 –258 (D.Kan.1997) (citing Caterpillar, Inc.,

482 U.S. at 392). A defendant cannot “change the character of a plaintiff's case” by inserting

allegations of a federal nature in the petition for removal. Warner Brothers Records, Inc. v. R.A.

Ridges Distributing Company, Inc., 475 F.2d 262, 264 (10th Cir.1973). However, “a plaintiff may

not defeat removal by failing to plead federal questions that are essential elements of his claim.”

Turgeau, 446 F.3d at 1060–61; Schmeling, 97 F.3d at 1339 (citing Franchise Tax Bd. v.

Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)).

Furthermore, a defense of federal law, including the defense of federal preemption, is

traditionally not a basis for removal. Deford, 867 F.2d at 1084; Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 4 (1983). However, there is an exception to

this general rule under the “complete preemption doctrine.” Deford, 867 F.2d at 1084. Under this

doctrine, “when the preemptive force of a federal statute is ‘extraordinary,’ it ‘converts an ordinary

state common law complaint into one stating a federal claim for purposes of the well-pleaded

complaint rule.’” Id. (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)). The doctrine

prohibits a plaintiff from defeating removal by failing to plead necessary federal questions in a

complaint and allows a defense of federal preemption as a basis for removal. Id.

II. Diversity Jurisdiction

To invoke diversity jurisdiction, “a party must show that complete diversity of citizenship

exists between the adverse parties and that the amount in controversy exceeds $75,000.” Dutcher

v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013) (quoting Symes v. Harris, 472 F.3d 754, 758

(10th Cir. 2006)). Complete diversity is lacking when the plaintiff has the same residency as even

a single defendant. Id. However, if a defendant is fraudulently joined, they can be ignored for the

purposes of assessing complete diversity. See Smoot v. Chicago, Rock Island & Pac. R.R. Co.,

378 F.2d 879, 881-81 (10th Cir. 1967). “To establish fraudulent joinder, the removing party must

demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the

plaintiff to establish a cause of action against the non-diverse party in state court.” Dutcher, 733

F.3d at 988 (quoting Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir.

2011)). “The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and

all factual and legal issues must be resolved in favor of the plaintiff.” Pampillonia v. RJR Nabisco,

Inc., 138 F.3d 459, 461 (2d Cir. 1998).

DISCUSSION

I. RLA Preemption of the Burk Claim and Malicious Interference Claim

Defendants argue the Burk claim asserted against it and the malicious interference claim

asserted against Plymale and Smith are completely preempted by the Railway Labor Act (“RLA”).

Dkt. No. 20 at 4-9. Therefore, such preemption provides a basis for Defendants to remove this

action to federal court. Dkt. No. 2 at 3 and Dkt. No. 20 at 4. Defendants focus their argument on

their belief that the relevant collective bargaining agreement must be interpreted to resolve

Plaintiff’s claims. See Dkt. No. 20 at 4-9. Plaintiff disagrees with Defendants’ position. Dkt. No.

14 at 9-10.

Defendants rely on the ordinary preemption analysis to contend this case was properly

removed pursuant to complete preemption.1, 2 Dkt. No. 20 at 4-9. This analysis misses the mark.

1 Ordinary preemption is a defense, which does not appear on the face of a well-pleaded complaint,

and therefore does not provide a basis for removal. Caterpillar, Inc., 482 U.S. 386, 393 (1987)

(“It is now settled law that a case may not be removed to federal court on the basis of a federal

defense, including the defense of preemption.”). In contrast, under the complete preemption

doctrine, the preemptive force of a statute is so “extraordinary” that it “converts an ordinary state

common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint

rule.” Id.

2 For example, Defendants cite the following cases: Ertle v. Continental Airlines, Inc., 136 F.3d

690 (10th Cir. 1998) (affirming district court’s dismissal of breach of contract claim because the

The issue before the Court is whether the RLA gives rise to complete preemption thereby giving

Defendants a channel to remove the action. Defendants do not cite any cases wherein the Tenth

Circuit or the Supreme Court has held the RLA completely preempts state law claims.

Courts agree that “[o]rdinary preemption is plainly a viable defense under the RLA:

pursuant to 45 U.S.C. §§ 153 (governing railroads) and 184 (governing airlines), minor disputes

must be heard in the first instance before arbitral panels, not courts, and state-law claims that are

disguised minor disputes are therefore preempted by the RLA.” Sullivan v. Am. Airlines, Inc., 424

F.3d 267, 273 (2d Cir. 2005). The test for ordinary preemption under the RLA is the same as the

test established by Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988), with respect to

§ 301 of the Labor Management Relation Act (“LMRA”). See Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246, 262-63 (1994) (holding that Lingle “provides an appropriate framework for

addressing pre-emption under the RLA” and “adopt[ing] the Lingle standard to resolve claims of

RLA preemption”); see also Mowry v. United Parcel Service, 415 F.3d 1149, 1155 (10th Cir.

2005) (noting the Hawaiian Airlines Court applied the Lingle framework to the RLA).

In Lingle, the Supreme Court held that the LMRA preempted state law only if a state law

claim is dependent on the interpretation of a collective bargaining agreement. Lingle, 486 U.S. at

413. The Supreme Court has held that § 301 of the LMRA is one of the few statutes that has the

claim required interpretation of the CBA and was preempted under the RLA); Carmack v. National

R.R. Passenger Corp., 486 F.Supp.2d 58 (D. Mass. 2007) (granting summary judgment to

defendant because plaintiff’s state law claims were preempted by the RLA); Healy v. Metropolitan

Pier and Exposition Authority, 804 F.3d 836 (7th Cir. 2015) (affirming district court’s dismissal

of tortious interference claim because it was preempted by the LMRA); Johnson v. Anheuser

Busch, Inc., 876 F.2d 620 (8th Cir. 1989) (summary judgment case); Cumpston v. Dyncorp

Technical Service, Inc., 76 Fed. Appx. 861 (10th Cir. 2003) (unpublished) (affirming dismissal of

claim for tortious interference because it was preempted by the LMRA).

requisite extraordinary preemptive force to support complete preemption. See Avco Corp. v.

Machinists, 390 U.S. 557, 560 (1968).

Courts are split on the question of whether the RLA gives rise to complete preemption.

Southwest Airlines Pilots Association v. Boeing Company, No. 19-CV-2680, 2020 WL 2549748,

at *4 (N.D. Tex. Apr. 29, 2020). “[C]ourts disagree about whether the holding in Hawaiian

Airlines means that the analysis of the LMRA’s complete preemption also applies to the RLA, or

if it means that the RLA provides only ordinary preemption.” Id.; see also Sullivan, 424 F.3d at

273-74 (“The key question, however, is whether the analogy drawn by the Court between the RLA

and LMRA preemption as to ordinary preemption also extends to complete preemption.”

(emphasis in original)).

The Second Circuit has held that the RLA does not support complete preemption. Sullivan,

424 F.3d at 273. In Sullivan, the Second Circuit relied on Beneficial National Bank v. Anderson,

539 U.S. 1 (2003), and determined that Hawaiian Airlines’ analogy between the RLA and LMRA

does not extend to complete preemption. Id. at 275. In Beneficial National Bank, the Supreme

Court stated that it had previously found complete preemption under only the LMRA and ERISA:

“In the two categories of cases where this Court has found complete preemption – certain causes

of action under the LMRA and ERISA – the federal statutes at issue provided the exclusive cause

of action for the claim asserted and also set for procedures and remedies governing that cause of

action.” Beneficial National Bank, 539 U.S. at 8.3 The Second Circuit reasoned that if Hawaiian

Airlines had established that the RLA completely preempted state law causes of action within its

3 Additionally, later in the Beneficial National Bank opinion, the Court determined the National

Bank Act gave rise to complete preemption. Beneficial National Bank, 539 U.S. at 10-11; see also

Stark-Romero v. National Railroad Passenger Company¸ No. CIV-09-295, 2010 WL 11602777,

at *9 (D.N.M. Mar. 31, 2010).

scope, the Supreme Court in Beneficial National Bank would have listed the RLA as a third

category of complete preemption. Sullivan, 424 F.3d at 275. Other circuits have determined the

issue consistently with the Second Circuit. See Ry. Labor Executives Ass’n v. Pittsburgh & lake

Erie R.R. Co., 858 F.2d 936, 942-43 (3d Cir. 1998) (finding no complete preemption under the

RLA); Roddy v. Grand Trunk W. R. Inc., 395 F.3d 318, 326 (6th Cir. 2005) (same); Hughes v.

United Air Lines, Inc., 634 F.3d 391, 395 (7th Cir. 2011) (same); Moore-Thomas v. Alaska

Airlines, Inc., 553 F.3d 1241 (9th Cir. 2009) (same); Geddes v. Am. Airlines, Inc., 321 F.3d 1349,

1357 (11th Cir. 2003) (same).

In contrast, the Eighth Circuit has found complete preemption under the RLA. Deford,

867 F.2d 1080, 1085 (8th Cir. 1989). The Tenth Circuit has not expressly stated whether the RLA

supports complete preemption. The Tenth Circuit has addressed RLA preemption in the ordinary

preemption context, but not as a means to remove state law claims. See e.g., Davies v. American

Airlines, Inc., 971 F.2d 463 (10th Cir. 1992). Further, the Tenth Circuit has recognized ordinary

preemption and complete preemption are distinct doctrines. Devon Energy Production Co., L.P.

v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1203 n.4 (10th Cir. 2012).

The United States District Court for the Northern District of Texas relied on Sullivan to

hold the RLA did not completely preempt a plaintiff’s state law claims. Southwest Airlines Pilots

Assoc., 2020 WL 2549748, at *5. There, the Court stated:

In Beneficial National Bank, the Supreme Court stated that it had previously found

complete preemption only under the LMRA and ERISA. 539 U.S. at 8, 123 S.Ct.

2058. As the Second Circuit concluded in Sullivan, “[h]ad Hawaiian Airlines

established that § 184 of the RLA, like § 301 of the LMRA, completely preempted

state-law causes of action within its scope, the Court in Beneficial National Bank

would have discussed three, not two, categories of cases involving complete

preemption.” Sullivan, 424 F.3d at 275.

Id. The Court further agreed with the Sullivan Court’s conclusion that “applying Beneficial

National Bank’s test for complete preemption leads to the conclusion that the RLA does not

support complete preemption, because a minor dispute under the RLA cannot be brought within

the original jurisdiction of a federal court.” Id. This is because the primary jurisdiction over RLA

minor disputes exists with the adjustment boards. See 45 U.S.C. § 184; see also Consol. Rail Corp.

v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 304 (1989) (“The Board . . . has exclusive

jurisdiction over minor disputes.”). The Court held that it did “not have federal question

jurisdiction under the complete preemption doctrine, even though the case will require

interpretation of the CBA.” Id. The Court remanded the case to state court. Id. at *6.

The appropriate initial inquiry in this case is to consider whether the RLA has completely

preempted state law claims giving Defendants an avenue to remove this case. The Court is

persuaded by Sullivan and Southwest Airlines Pilots Association that the RLA does not completely

preempt state law claims. If it had, the Supreme Court would have recognized as much in

Beneficial National Bank. For these reasons, the Court concludes that Plaintiff’s Burk claim and

malicious interference with contract claim are not completely preempted by the RLA. Therefore,

Defendants cannot rely on the RLA as the vehicle to remove this case to federal court and this

Court does not have federal question jurisdiction.

II. FRSA Preemption of the Burk Claim

Defendants also assert Plaintiff’s Burk tort is preempted by the Federal Railroad Safety Act

(“FRSA”). Dkt. No. 20 at 9. Defendants note that to have a viable Burk claim there must be no

adequate statutory remedy to protect the Oklahoma public policy goal. Id. at 9-10; see also Vasek

v. Bd. Of County Com’rs of Noble County, 186 P.3d 928, 932 (Okla. 2008). Defendants argue the

FRSA provides the adequate statutory remedy because it explicitly provides protections for

employees who report or refuse to participate in hazardous safety or security conditions. Dkt. No.

20 at 10; see also 49 U.S.C. § 20109(b).

To support this position, Defendants cite two cases that had different procedural postures

than the case at bar. In Debus v. Burlington Northern & Santa Fe Railway Company, 157 F.Supp.

3d 1034 (D. Kan. 2016), the defendant sought dismissal “because an adequate remedy exist[ed]

under the Federal Railroad Safety Act.” Id. at 1036. The Court dismissed the plaintiff’s public

policy retaliation claim concluding the FRSA provided an adequate alternative remedy. Id. at

1039. In Rayner v. Smirl, 873 F.2d 60 (4th Cir. 1989), Court was faced with a similar issue. After

the case was removed to federal court, the defendant filed a motion to dismiss claiming the state

law claim was preempted by the FRSA. Id. at 62-63. The Fourth Circuit affirmed the district

court’s dismissal of the claim. Id. at 67. However, in Debus and Rayner the defendants did not

use preemption to remove the cases. Once again, Defendants cite no Tenth Circuit precedent that

has blessed the removal of a case based on FRSA preemption. In other words, Defendants have

not established the FRSA completely preempts Plaintiff’s state law claim. Stark-Romero, 2010

WL 11602777, at *9 (“The Supreme Court has interpreted complete federal preemption very

narrowly, applying it to only three federal statutes – the FRSA is not one of [them.]”).

Furthermore, in formulating their argument, Defendants ignore Plaintiff’s allegation that

he was discharged for filing the prior suit and asserting his right to access the courts. Dkt. No. 2-

1 at ¶¶ 22, 25. Defendants do not contend the FRSA provides an adequate remedy for such a

grievance. For these reasons, the Court concludes the FRSA does not completely preempt

Plaintiff’s Burk claim.

III. Fraudulent Joinder

Defendants also contend Defendants Smith and Plymale were fraudulently joined and, thus,

this Court has diversity jurisdiction. Dkt. No. 20 at 11-16. As stated above, Plaintiff also asserts

a claim for malicious interference with a contractual relationship against the individual

Defendants, Plymale and Smith. Dkt. No. 2-1 at ¶¶ 29-32. Plaintiff is a resident of Oklahoma,

Defendant Smith is also a resident of Kansas and Defendant Plymale is a resident of Oklahoma.

Dkt. No. 2-1 at ¶¶ 4, 5 and 9.

Defendants proceed on the theory that Plaintiff is unable to establish a cause of action

against the individual defendants in state court. The removing party “must demonstrate that there

is no possibility that [plaintiff] would be able to establish a cause of action against the non-diverse

defendant in state court.” Sang v. Smith, No. 19-CV-686, 2020 WL 6472683, at *3 (N.D. Okla.

May 19, 2020) (quoting Montano v. Allstate Indem., 211 F.3d 1278, at *1 (10th Cir. 2000)

(unpublished)); see also Loeffelbein v. Milberg Weiss Bershard Hynes & Lerach, LLP, No. A. 02-

2435, 2003 WL 21313957, at *5 (D. Kan. May 23, 2003). This standard is “more exacting than

that for dismissing a claim under Fed. R. Civ. P. 12(b)(6); indeed, the latter entails the kind of

merits determination that, absent fraudulent joinder, should be left to the state court where the

action was commenced.” Montano, 311 F.3d at *2 (internal citations omitted). A court may look

beyond the pleadings to determine whether a joinder is fraudulent. See Smoot, 378 F.2d at 881-

82. Additionally, any doubts arising from defective or inartful pleading should be resolved in

favor of retention of state court jurisdiction. Todd Holding Co., Inc. v. Super Valu Stores, 755 F.

Supp. 1025, 1028 (D. Colo. 1990) (quoting Greenshields v. Warren Petroleum Corp., 248 F.2d

61, 65 (10th Cir. 1957)).

Defendants argue Plaintiff does not state a plausible claim for relief against Defendant

Plymale. Plaintiff alleges “Plymale’s animus towards Plaintiff was documented in the prior suit.

Moreover, Plymale continues to display his animus by driving past the residence of the co-plaintiff

in the prior case and flipping him the middle finger.” Dkt. No. 2-1 at 4, ¶ 22. Plaintiff alleges he

was terminated “due to a decision of Defendant Smith,” “Smith appeared as a witness [at the

administrative hearing] and provided numerous false testimony against Plaintiff to satisfy his

agenda of retaliating against Plaintiff.” Id., ¶ 20. Ultimately, Plaintiff contends “Smtih and

Plymale caused UP to breach the contract with Plaintiff.” Id, ¶ 31. Defendants contend this claim

is untenable because under Oklahoma law an agent of a principal cannot be held liable for

interfering with the contract between the principal and a third-party. Dkt. No. 20 at 13.

To prevail on a claim for malicious interference with contract, Plaintiff must establish: 1)

he had a business or contractual right that was interfered with; 2) that the interference was

malicious and wrongful, and that such interference was neither justified, privileged nor excusable;

and 3) that damage was proximately sustained as a result of the complained-of interference. Mac

Adjustment, Inc. v. Property Loss Research Bureau, 595 P.2d 427, 428 (Okla. 1979). Typically,

an agent cannot be liable for interfering with a contract between his principal and a third party. See

Martin v. Johnson, 975 P.2d 889, 896 (Okla. 1998); see also Grillot v. Okla. ex rel. Univ. of Okla.

Board of Regents, No. CIV-19-241, 2019 WL 3558183, at *3 (W.D. Okla. Aug. 5, 2019).

However, there is an exception to this rule. A plaintiff can prevail on a claim for tortious

interference against an agent if the agent acts against the interest of the principal and in furtherance

of the interests of the agent. See Grillot, 2019 WL 3558183, at *3.

Defendants contend Plaintiff’s allegations fail to qualify Plaintiff’s claim for the exception

to the rule. Specifically, Defendants argue “Plaintiff’s First Amended Petition is devoid of any

factual averments to show that Defendant Plymale’s actions meet this narrow exception.” Dkt.

No. 20 at 14. The Court acknowledges Plaintiff has failed to plead with sufficient factual

allegations that Plymale acted in any way in his own interest or against the interest of Union

Pacific.

However, the Court cannot conclude there is no possibility that Plaintiff will be able to

establish a cause of action for tortious interference against Plymale. See Montano, 211 F.3d at *1;

Sang, 2020 WL 6472683, at *4; Loeffelbein, 2003 WL 21313957, at *5. This Court is to freely

give leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). And the Court must resolve

factual issues in Plaintiff's favor. Pampillonia, 138 F.3d at 461. Therefore, the Court concludes

Defendants failed to satisfy their “heavy burden” of establishing that Defendant Plymale was

fraudulently joined. Therefore, diversity jurisdiction does not exist.

IT IS THEREFORE ORDERED that Plaintiff's Motion to Remand [Dkt. No. 14] is

GRANTED and this case is REMANDED to the District Court for Mayes County, State of

Oklahoma.

Dated this 30th day of September 2025.

C □ Lz tL2wW

JOHN F. HEAL, III

UNITED STATES DISTRICT JUDGE

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