           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 30, 2009

                                     No. 08-20783                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



HARVELLA JONES

                                                   Plaintiff-Appellant
v.

COMPASS BANCSHARES INC also known as, Compass Bank

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2712


Before GARZA, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Harvella Jones sued Defendant-Appellee Compass
Bank in state court for slander and libel. Jones claimed that she was defamed
when a Compass Bank employee filed a false report with the police after a
dispute arose between her and the employee regarding overdraft charges on
Jones’s account.       Jones’s original complaint sought damages of $100,000.
Compass Bank removed the case to federal court on the basis of diversity


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-20783

jurisdiction. Subsequently, Jones amended her complaint to allege damages
below the $75,000 jurisdictional minimum.         The district court later denied
Jones’s request to remand back to state court based upon the amended complaint
and dismissed the action with prejudice. Jones timely appealed. For essentially
the same reasons as the district court, we AFFIRM.
      First, Jones asserts that the district court erred in failing to remand the
case back to state court after she amended her complaint. “In the traditional
removal context, a district court ‘shall have original jurisdiction’ over lawsuits
. . . satisfying statutory diversity and amount in controversy requirements.”
Preston v. Tenent Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 804, 809–10 (5th
Cir. 2007) (citing 28 U.S.C. § 1332(a)). Thus, a district court has jurisdiction
“where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between . . . citizens of different States.” 28 U.S.C.
§ 1332(a).
      Jones and Compass Bank agree that they are citizens of different states,
but Jones submits that, after she amended her complaint, her case no longer met
the amount in controversy requirement. It is well established that the amount
in controversy is determined at the time of removal. Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000) (citing St Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 289–90 (1938)). Moreover, “[a]n amendment to the
complaint limiting damages for jurisdictional purposes cannot divest [a federal
court of] jurisdiction.” Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th
Cir. 1995). Accordingly, we hold that Jones’s amended complaint did not strip
the district court of subject matter jurisdiction over the suit. The district court
properly denied remand to the state court.
      Next, Jones asserts that the district court erroneously dismissed her case.
The district court dismissed Jones’s case pursuant to Federal Rule of Civil
Procedure 12(c).     We review a Rule 12(c) dismissal de novo, and “the

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well-pleaded facts are viewed in the light most favorable to the plaintiff.”
Turbomeca, S.A. v. Era Helicopters LLC, 536 F.3d 351, 354 (5th Cir. 2008).
Jones seeks relief for libel and slander, both of which are types of defamation.
Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.—Corpus Christi 2003, no pet. h.),
abrogated on other grounds by Ft. Brown Villas III Condo. Ass’n, Inc. v.
Gillenwater, — S.W.3d —, 2009 WL 1028047, at * 1 (Tex. Apr. 17, 2009). “An
action for libel requires publication to a third party of written defamatory words
about the plaintiff.” Id. “Slander requires defamatory words about the plaintiff
to be spoken, without legal excuse, to a third party.” Id. Jones has not alleged
that Compass Bank or any of its employees made a written publication that
would subject it to an action for libel. Therefore, we will consider only whether
she has sufficiently pleaded a case for slander.
       “To maintain a defamation cause of action, the plaintiff must prove that
the defendant: (1) published a statement; (2) that was defamatory concerning the
plaintiff; (3) while acting with . . . negligence, if the plaintiff was a private
individual, regarding the truth of the statement.” WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568, 571 (Tex. 1998).1 On appeal, Jones argues that the Compass
Bank employee told “the police a malicious lie that [she] was screaming, using
obscene words and causing a disturbance in the bank just to get them to come
to the bank and arrest” her. The only evidence of the employee’s statement is
the police incident report, which simply states that Jones was “screaming and




       1
         Jones asserts that she is a public figure. “Public officials and public figures must
establish a higher degree of fault.” WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998). Because she is unable to make out a case even under the lower standard applied to
private plaintiffs (negligence), we assume that she is a private plaintiff for the purposes of this
appeal.

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saying upsce,” which we take to mean that Jones was screaming and using
obscenities.2
       “Whether the words used are reasonably capable of a defamatory meaning
is a question of law.” Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653,
654 n.1 (Tex. 1987). “The court construes the statement as a whole in light of
surrounding circumstances based upon how a person of ordinary intelligence
would perceive the entire statement.”                Id. at 655.       “Only when the court
determines the language is ambiguous or of doubtful import should the jury then
determine the statement’s meaning and the effect the statement’s publication
has on an ordinary reader.” Id. Thus, a necessary question in this case is
whether the statement at issue is capable of a defamatory meaning.
       In a similar case, a Texas court found that a newspaper’s statement that
the plaintiff made an “obscene gesture with his arms” was not defamatory.
Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 510 (Tex. App.—Tyler
2008, no pet. h.) The court noted that “the word ‘obscene’ is, by its nature, an
indefinite or ambiguous individual judgment that rests solely in the eye of the
beholder or is otherwise a loose and figurative term.” Id. at 511. Accordingly,
the court held that such a vague statement of opinion was too subjective and
indefinite to be defamatory. Id. at 512. We find that the statement that Jones


       2
          The district court held that Jones failed to plead sufficient facts to overcome the
qualified privilege afforded to statements made to law enforcement officers. “In cases of libel
and slander, Texas has long recognized at least ‘a qualified privilege’ for ‘the communication
of alleged wrongful acts to an official authorized to protect the public from such acts.’”
Campbell v. City of San Antonio, 43 F.3d 973, 980 (5th Cir. 1995) (quoting Zarate v. Cortinas,
553 S.W.2d 652, 655 (Tex. App.—Corpus Christi 1977, no writ)). “The privilege is founded on
‘a strong public policy consideration,’ it being ‘vital to our system of criminal justice’ that there
be the ability ‘to communicate to peace officers the alleged wrongful acts of others without fear
of civil action for honest mistakes.’” Id. (quoting Zarate, 553 S.W.2d at 655). The plaintiff
bears the burden of showing that the defendant acted in bad faith or with malice. Vista
Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 438 (Tex. App.—Corpus Christi 1985, no writ).
Because we find that the words at issue are not defamatory as a matter of law, and thus that
Jones has not pleaded an essential element of slander, we need not consider whether Jones
has met her burden to overcome the qualified privilege.

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was screaming and using obscenities is similarly vague and subjective, and
therefore incapable of being defamatory.
      Having failed to allege a defamatory statement, Jones has not pleaded an
essential element of her claim. Accordingly, we AFFIRM the district court’s
ruling.
      AFFIRMED.




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