Neutral As of: July 22, 2020 5:29 PM Z
Amguard Ins. Co. v. Ortiz
United States District Court for the District of Maryland
July 14, 2020, Decided; July 14, 2020, Filed
Civil Action No. 18-3885

Reporter
2020 U.S. Dist. LEXIS 122999 *

Amguard Insurance Company v. Carla A. Ortiz, et al.

Prior History: Amguard Ins. Co. v. Ortiz, 2019 U.S. Dist. LEXIS 94643 (D. Md., June 4, 2019)

MEMORANDUM
This is an interpleader action brought by AmGUARD Insurance Company and arising from a motor vehicle accident in June 2018. Now pending are Paul and Angela Manion and Cierra Lashae Rice-Wilder’s motions for leave to file cross-claims, motions for leave to file third-party complaints, and amended motions for leave to file an amended complaint for joinder of third parties (ECF 105, 106, 107, 108, 112, 116); Bowman’s motion to vacate the order of default against it (ECF 114); Maryland Transportation Authority’s motion to dismiss (ECF 124); Cowan Systems, LLC’s motion to consolidate cases (ECF 126); Carla Ortiz’s motion to enforce disbursement (ECF 127) and motion to seal (ECF 128), and AmGUARD’s motion to dismiss (ECF 134). The motions have been briefed and oral argument was held on June 16, 2020.1

FACTS
On June 18, 2018, John Oliver Terry, Jr., an employee of Ben Strong Trucking, Inc., was driving a tractor trailer owned by Alliance Trucking and Logistics LLC (“Alliance Trucking”), and was towing a semi trailer owned by Bowman [*3] Sales and Equipment, Inc. (“Bowman”) and filled with a load owned by Cowan Systems, LLC. (Compl. PP 21, 22). Terry was involved in a multivehicle motor vehicle accident while driving on Interstate 95 in Harford County, Maryland. (Id. ¶ 21). Terry first struck Carla Ortiz’s car, in which Ortiz’s minor daughter, J.L., was a passenger; Ortiz’s car then struck Paul Michael Manion and Angela Cheryl Manion’s car, in which their child M.M. was a passenger; Ortiz’s car then struck Cierra Lashae Rice-Wilder’s car; and Rice-Wilder’s car then struck a tractor trailer being driven by Bruce J. Hurst and also occupied by Lateesah Renee Whitley. (Id. ¶¶ 23-25). The tractor trailer driven by Hurst was owned by New Horizon Leasing, Inc. and was towing a semi-trailer owned by Western Express, Inc. (Id. ¶ 25). Some or all of the individuals involved in the accident sustained personal injuries and/or property damage, and M.M. was killed. (Id. ¶ 26).
On October 17, 2018, Carla Ortiz, individually and on behalf of J.L., who sustained severe and debilitating injuries, filed a complaint against Ben Strong Trucking, Inc.; Alliance Trucking; John Oliver Terry, Jr.; Bowman; Cowan Systems, Inc.; Cowan Systems, [*4] LLC; and Cowan Systems Transportation, LLC, relating to the motor vehicle accident.2 (Case No. CCB-18-3230, ECF 1, Compl.). It is not clear exactly which of the Cowan entities were involved in the shipment that John Oliver Terry and Ben Strong Trucking were hauling. (Case No. CCB-18-3230, ECF 26, Memorandum at 8).3
AmGUARD issued a policy of automobile liability insurance to Ben Strong Trucking, which provided an aggregate per occurrence policy limit of one million dollars. (Compl. ¶ 20). Because AmGUARD has received and/or expects to receive claims that will likely exceed the one million dollar aggregate limit of the policy, (id. ¶ 31), it filed this complaint of interpleader against the claimants and potential claimants: Carla Ortiz; Paul Michael Manion; Angela Cheryl Manion; Cierra Lashae Rice-Wilder; Bruce J. Hurst; Lateesah Renee Whitley; Bowman; Alliance Trucking; Western Express, Inc.; New Horizons Leasing, Inc.; Cowan Systems, LLC; Cowan Systems, Inc.; Aetna Life Insurance Company (which provided AmGUARD a notice of subrogation of medical claims paid on behalf of Ortiz and J.L.); and the Maryland Transportation Authority (“MTA”) (which provided AmGUARD notice of a claim for services [*5] rendered and repairs made). (Id. ¶¶ 27-31). AmGUARD brings this complaint pursuant to 28 U.S.C. § 1335 (statutory interpleader) and Federal Rule of Civil Procedure 22, requesting that it deposit the one million dollars in the court’s registry for determination, by the court, as to the distribution among the various claimants. AmGUARD’s motion for interpleader deposit was granted on June 4, 2019, and AmGUARD deposited one million dollars into the court’s registry. (ECF 90, ECF 91).
On March 12, 2019, the clerk of the court entered default as to New Horizon Leasing and Western Express (ECF 60, 61), to which they have not responded. Bruce Hurst and Alliance Trucking were served on July 18, 2019, (ECF 98), but neither has filed an answer or otherwise appeared in this action.4

DISCUSSION

I. AmGUARD’s Motion to Dismiss
A statutory interpleader case normally proceeds in a two-step process. “During the first stage, courts determine whether the action is appropriate and whether the stakeholder is entitled to bring the action. During the second stage, courts determine the rights of the competing claimants to the property or fund.” In re Paysage Bords De Seine, 1879 Unsigned Oil Painting on Linen by Pierre-Auguste Renoir, 991 F. Supp. 2d 740, 743 (E.D. Va. 2014).
This interpleader action is appropriate. “The propriety of interpleader depends on whether [*6] the stakeholder ‘legitimately fears’ multiple litigation over a single fund. The Court considers whether: (1) it has jurisdiction over the suit; (2) a single fund is at issue; (3) there are adverse claimants to the fund; (4) the stakeholder is actually threatened with multiple liability; and (5) equitable concerns prevent the use of interpleader.” Mut. of Am. Life Ins. Co. v. Smith, No. CV DKC 16-1125, 2018 U.S. Dist. LEXIS 108858, 2018 WL 3209376, at *2 (D. Md. June 29, 2018)5 (quoting Metro. Life Ins. Co. v. Vines, No. WDQ-10-2809, 2011 U.S. Dist. LEXIS 55881, 2011 WL 2133340, at *2 (D. Md. May 25, 2011)). Here, the Cowan entities and Bowman appear to challenge factors 4 and 5.
AmGUARD is threatened with multiple liability, as the existing and proposed claims against AmGUARD’s insureds seek damages exceeding the $ 1 million dollar policy limit. This is similar to the situation in State Farm Fire & Cas. Co. v. Tashire, also arising from a motor vehicle accident, in which the Supreme Court found interpleader appropriate. 386 U.S. 523, 533, 87 S. Ct. 1199, 18 L. Ed. 2d 270 (1967) (“Were an insurance company required to await reduction of claims to judgment, the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims. The difficulties such a race to judgment [*7] pose for the insurer, and the unfairness which may result to some claimants, were among the principal evils the interpleader device was intended to remedy.” (internal footnotes omitted)). The Cowan entities argue that AmGUARD does not face multiple liabilities because the claimants have reached an agreement as to the disbursement of the funds. It cites to Nash & Assocs., LLC v. Gwynn, but that case found that interpleader was proper; rather, the subsequent agreement among the claimants as to how to disburse the funds rendered the interpleader claim moot. No. CIV. WDQ-14-0376, 2014 U.S. Dist. LEXIS 94591, 2014 WL 3428933, at *4 (D. Md. July 10, 2014). Further, as discussed infra, it is not clear if the claimants will still wish to proceed with their agreement.
Bowman and the Cowan entities also state that equitable reasons preclude the use of interpleader. First, Bowman attempts to distinguish this case from Tashire, stating that the Tashire insurer sought to obtain the release of its insured, and the court did not consider the obligation of an insurer “not to advance its own interests over that of its insured.” (ECF 143, Bowman’s Opp’n at 7). But the Supreme Court in Tashire held that the court could not prevent other liability claims against the insured [*8] from proceeding, stating that “[t]o the extent that the District Court sought to control claimants’ lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.” 386 U.S. at 535.6 It does not appear that the propriety of interpleader in Tashire turned on whether the insurer requested that its insured be released from liability, and the Supreme Court indicated that the district court had no power to stop other liability actions against the insured in any event.
Bowman and the Cowan entities also argue that AmGUARD may be separately liable to them for violating the duty to defend.7 But even if AmGUARD is independently liable to Bowman or the Cowan entities, this does not bar the interpleader action. See Builders & Developers Corp. v. Manassas Iron & Steel Co., 208 F. Supp. 485, 490-91 (D. Md. 1962) (independent liability of stakeholder to claimants does not bar statutory interpleader); Brooks Run Coal Co. v. Waggy, 813 F.2d 400 (Table), 1986 WL 18586, at *2 (4th Cir. 1986) (unpublished) (liability of interpleader plaintiff to claimants did not preclude interpleader jurisdiction); J.G. Wentworth Originations, LLC v. Mobley, No. 11-CV-1406, 2012 U.S. Dist. LEXIS 150157, 2012 WL 4922862, at *6-7 (D. Md. Oct. 12, 2012) (interpleader action only shields stakeholder from certain claims relating to fund). In any event, neither the Cowan entities nor Bowman has filed any counterclaim against AmGUARD in the 18 months that the interpleader has been pending, so [*9] it is not clear what AmGUARD’s continued role in this litigation would be.8
Finally, Bowman argues that AmGUARD is not a disinterested stakeholder. But AmGUARD is disinterested because it makes no claim to the interpleaded funds. See Companion Prop. & Cas. Ins. Co. v. Apex Serv., Inc., 76 F. Supp. 3d 212, 215 (D.D.C. 2014); Orseck, P.A. v. Servicios Legales De Mesoamerica S. De R.L., 699 F. Supp. 2d 1344, 1349 (S.D. Fla. 2010) (“District courts addressing the first phase of an interpleader action may also determine if the stakeholder is disinterested—i.e., makes no claim to the res—and, if so, discharge it from liability and dismiss it from the action.”). To the extent Bowman argues that AmGUARD is not disinterested because it is a liability insurer for the tortfeasors, it provides no support for this argument.9
The Cowan entities and Bowman also object to AmGUARD’s requested relief because they state it will preclude them from asserting a potential bad faith failure to defend or failure to settle claim against AmGUARD in the future. It appears the specific language in Amguard’s proposed order that they take issue with is:
AmGUARD Insurance Company is hereby released and discharged from all liability whatsoever to anyone with respect to the payment of the policy proceeds and its indemnity obligation under AmGuard Insurance Policy No. NCFR 902718; . . . [and] [*10] all named Defendants in the above-captioned matter be and hereby are permanently enjoined and specifically restrained from instituting or prosecuting any suit, proceeding or action in any State or Federal court or other forum against AmGUARD Insurance Company arising from proceeds of the policy of insurance issued to Ben Strong Trucking, Inc., Policy No. NCFR 902718[.]
AmGUARD is entitled to a release from its indemnification obligation under the policy issued to Ben Strong Trucking and the interpleader defendants will be enjoined from “seeking to enforce against [AmGUARD] any judgment obtained against its insured, except in the interpleader proceeding itself.” Tashire, 386 U.S. at 535. But AmGUARD is not entitled to (and does not appear to seek) a release as to any liability arising from its duty to defend or settle.10 Prudential Ins. ICo. of Am. v. Hovis, 553 F.3d 258, 264 (3d Cir. 2009) (“Thus, the normal rule is that interpleader protection does not extend to counterclaims that are not claims to the interpleaded funds”); J.G. Wentworth Originations, LLC, 2012 U.S. Dist. LEXIS 150157, 2012 WL 4922862, at *8 (interpleader action does not bar negligent misrepresentation claim that was not a claim to the interpleaded funds). The accompanying Order will reflect this scope of AmGUARD’s release.11
The Manions, Rice-Wilder and Ortiz also oppose AmGUARD’s motion to dismiss, [*11] arguing that it is premature to dismiss AmGUARD prior to resolving the pending motions. This memorandum and order, however, resolves those open motions, and no other reason is provided as to why AmGUARD should not be dismissed.

II. Motion to Enforce Disbursement of Funds
On February 27, 2020, the bodily injured claimants (Ortiz, the Manions, Rice-Wilder, and Whitley) reached an agreement as to the disbursement of the funds in the court’s registry. The distribution of the funds was “contingent upon all parties agreeing or the Court ordering that any disbursement from the Court’s registry of these funds shall act as a pro tanto reduction” of any future award or verdict. (ECF 127-1, Mot. at 3). Bowman and the Cowan entities refused to agree to this, and Ortiz filed the motion to enforce disbursement.12
The parties dispute what effect the disbursement of the funds will have on potential future verdicts and awards arising from the automobile accident. Defendants Ortiz and J.L. request that the court hold that any disbursement of funds “shall be a pro tanto contribution to any further award under the existing claims against any and all joint tortfeasors,” (ECF 127 at 2), rather than a pro rata [*12] contribution. Bowman and the Cowan entities object to this, and also object to any disbursement of funds without a full release of liability for them.13
The pro tanto/pro rata dispute appears to turn on whether the Maryland Uniform Contribution Among Joint Tortfeasors Act applies. Md. Code Ann., Cts. & Jud. Proc. § 3-1401 et seq. According to Ortiz, and not contradicted by the Cowan entities or Bowman, the Act would not apply, and the disbursements would therefore be on a pro tanto instead of a pro rata basis. The court notes that the Act “provides that a release of one joint tort-feasor does not relieve the liability of other joint tort-feasors, but instead reduces the judgment against them by either the consideration paid for the release or an amount or proportion provided in the release, whichever is greater.” Mercy Med. Ctr. v. Julian, 429 Md. 348, 356, 56 A.3d 147 (2012). Here, no tortfeasor is being released, so it appears that Ortiz is correct that the Act does not apply.
Notwithstanding the above, it does not appear that the court has the authority to order that the disbursement will operate as a pro tanto rather than pro rata reduction on future awards. Ortiz cites to Builders & Developers Corp. v. Manassas Iron & Steel Co., 208 F. Supp. 485, as support for the court’s authority to make such a ruling. But that case merely held that “all controversies regarding [*13] the fund and other claims of the parties may be decided in an action in the nature of a bill of interpleader with the salutary result of marshalling,” id. at 490; it did not state that in marshalling the funds the court may decide the effect a disbursement will have on future judgments and awards. Ortiz provide no other authority and the court is hesitant to make any decision that would purport to be binding on hypothetical future awards.
Because it is not clear if the claimants wish to proceed with the disbursement agreement in the absence of an order stating the disbursement is on a pro tanto basis, the motion will be denied without prejudice. If the claimants wish to proceed with the agreement, they should advise the court.

III. Unopposed Motions
There are various unopposed motions that the court will address. First, the MTA has filed a motion to dismiss, stating that it does not seek any money from AmGUARD. (ECF 124). The motion has not been opposed, and MTA will be dismissed from this action. AmGUARD initially opposed Bowman’s motion to vacate the order of default (ECF 118) but subsequently withdrew the opposition (ECF 147). Bowman’s unopposed motion to vacate the order of default will be [*14] granted.
The Manions and Rice-Wilder filed motions for leave to file cross-claims (seeking to assert negligence claims against Alliance Trucking; Bowman; Cowan Systems, Inc.; and Cowan Systems, LLC) and amended14 motions for leave to file an amended complaint for joinder of third parties (seeking to assert negligence claims against Ben Strong Trucking; John Oliver Terry; Cowan Systems Transportation, LLC; and Cowan Logistic Systems, LLC1516 (ECF 105, 108, 112, 116). AmGUARD filed an opposition, but stated at oral argument that it would withdraw the opposition if AmGUARD was dismissed. Because the court will dismiss AmGUARD, and because no other party has opposed the motions, it appears that the motions for leave to file cross-claims and the amended motions for leave to file an amended complaint for joinder of third parties are unopposed. Therefore, for present purposes, the court will grant the motions. If necessary, the court will examine the propriety of the claims at a future time.17
Cowan Systems filed a motion to consolidate this case with Ortiz’s individual liability action (No. CCB 18-3230), (ECF 126), and it appears that no party objects. (ECF 129, Status Report, ¶ 8). Therefore, [*15] the motion to consolidate will be granted.

CONCLUSION
For the reasons stated above, the motion to dismiss AmGUARD will be granted; the motion to enforce disbursement will be denied without prejudice; the motion to seal will be denied; the motion to dismiss MTA will be granted; Bowman’s motion to vacate the order of default will be granted; the motions for leave to file cross-claims and the amended motions for leave to file an amended complaint for joinder will be granted; the motions for leave to file a third party complaint will be denied as moot; and the motion to consolidate will be granted. Because AmGUARD will be dismissed, the parties also will be realigned. A separate order follows.
7/14/20
Date
/s/ Catherine C. Blake
United States District Judge

ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Carla Ortiz’s motion to set scheduling order (ECF 100) is DENIED AS MOOT;
2. Angela Manion and Paul Manion’s motion for leave to file cross-claims (ECF 105) and amended motion for leave to file an amended complaint for joinder (ECF 112) are GRANTED;
3. Cierra Lashae Rice-Wilder’s motion for leave to file cross-claims (ECF 108) and amended motion for leave [*16] to file an amended complaint for joinder (ECF 116) are GRANTED;
4. The motions for leave to file a third-party complaint filed by Angela and Michael Manion and by Cierra Lashae Rice-Wilder (ECF 106, ECF 107) are DENIED AS MOOT;
5. Bowman Sales and Equipment’s motion to vacate the order of default (ECF 114) is GRANTED;
6. AmGUARD’s motion to strike (ECF 119) has been WITHDRAWN;
7. Maryland Transportation Authority’s motion to dismiss (ECF 124) is GRANTED;
8. Maryland Transportation Authority is DISMISSED from this case;
9. Cowan Systems, LLC’s motion to consolidate cases (ECF 126) is GRANTED;
10. This case will be consolidated with CCB No. 18-3230;
11. Carla Ortiz’s motion to enforce disbursement (ECF 127) is DENIED WITHOUT PREJUDICE;
12. Carla Ortiz’s motion to seal (ECF 128) is DENIED;
13. AmGUARD’s motion to dismiss (ECF 134) is GRANTED;
14. AmGUARD is DISMISSED from this case;
a. AmGUARD Insurance Company is hereby released and discharged from all liability whatsoever to anyone with respect to its indemnity obligation under AmGUARD Insurance Policy No. NCFR 902718;
b. All named Defendants in the above-captioned matter are permanently enjoined and specifically restrained from seeking to enforce [*17] against AmGUARD any judgment obtained against AmGUARD’s insureds, based on the policy of insurance issued to Ben Strong Trucking, Inc., Policy No. NCFR 902718, except in the interpleader proceeding itself;
c. Nothing in the above releases or discharges AmGUARD from any independent liability relating to its duty or obligation to defend and/or settle under the insurance policy stated above;
15. The Clerk of Court shall REMOVE AmGUARD Insurance Company as the named Plaintiff and identify Interpleader Defendants Carla Ortiz; Paul Michael Manion; Angela Cheryl Manion; Cierra Lashae Rice-Wilder; Lateesah Renee Whitley; and Aetna Life Insurance Company as the named Plaintiffs going forward;
16. All other Defendants (except for Maryland Transportation Authority) remain as Defendants at this time;
17. The CLERK SHALL add Ben Strong Trucking, Inc.; John Oliver Terry, Jr.; Cowan Systems Transportation, LLC; and Cowan Logistic Systems, LLC as defendants; and
18. The Clerk shall SEND copies of this Order and the accompanying Memorandum to counsel of record.
7/14/20
Date
/s/ Catherine C. Blake
United States District Judge

Metzloff v. Royal Trucking Co.
United States District Court for the Eastern District of Texas, Beaumont Division
July 20, 2020, Decided; July 20, 2020, Filed
CIVIL ACTION NO. 1:20-CV-00184

Reporter
2020 U.S. Dist. LEXIS 127988 *

VALERIE METZLOFF, Plaintiff, v. ROYAL TRUCKING COMPANY, ANTHONY BROWN, BEAUMONT TRACTOR COMPANY, INC., Defendants.

OPINION AND ORDER
Before the Court is Defendant Beaumont Trucking Company (“BTC”)’s Motion to Dismiss under Rule 12(b)(6) (“MTD”) [Dkt. 5] and Plaintiff Valerie Metzloff’s Motion to Remand [Dkt. 9]. The central issue in both motions is whether Plaintiff has established a cause of action against BTC; and thus, the Court will rule on both motions jointly.
The Plaintiff timely1 filed a Second Amended Complaint2 (hereinafter the “Complaint”) [Dkt. 11]. Both motions will be viewed in light of the Complaint because some of the defects raised in the MTD remain in the new pleading. See Rountree v. Dyson, 892 F.3d 681, 683-84 (5th Cir. 2018) (stating that if the defects in the original pleading remain in the new pleading, “[the court] may consider the motion as being addressed to the amended pleading”).
After a careful review of the motions and [*2] responses, the Court is of the opinion that Plaintiff has failed to establish a cause of action against BTC. By consequence, BTC is dismissed from this action and the Court retains subject matter jurisdiction.

I. BACKGROUND
Plaintiff brought suit against Royal Trucking Company (“Royal”), Anthony Brown (“Brown”), and BTC for several negligence claims that allegedly caused an automobile wreck on Highway 90 in Beaumont, Texas. [Dkt. 11]. The Complaint states that Plaintiff was traveling west in the outside or “slow” lane. Id. at ¶3.01, 3.03. Brown was also traveling west but in the middle lane of the road and attempted to make a right turn into BTC’s driveway, for which he had to cross Plaintiff’s lane. Id. at ¶3.08-.11. Plaintiff states that Brown’s negligent turn from the middle lane of the road and crossing her lane, was the proximate cause of the collision. See id. at ¶3.10-.11.
The Complaint states that Brown caused the collision while working in the course of his employment for Royal, and thus Royal is vicariously liable. See id. at ¶3.03, 4.05. Additionally, it states that Royal is liable for the negligent hiring, retention, training, and supervision of Brown. Id. at ¶4.02. As to [*3] BTC, Plaintiff states that BTC’s driveway did not meet Texas Department of Transportation (“TxDOT”) standards, that it was not properly permitted by TxDOT, and that BTC’s negligence in repairing and maintaining the driveway caused the collision. Id. at ¶3.19-.20, 3.25-.28, 3.31-.32.

II. LEGAL STANDARD

1) Motion to Remand.
“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 568 U.S. 251, 256 (2013). Only cases that “could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). This Court must presume “that a suit lies outside its limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
The removing party “bears the burden of showing that federal jurisdiction exists and that removal was proper.” Maguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). To remove a case to a federal district court based on diversity, the defendant must demonstrate that all the prerequisites of diversity jurisdiction outlined in 28 U.S.C. § 1332 are satisfied. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (en banc). Under 28 U.S.C. § 1332, there must be complete diversity of citizenship and the amount in controversy must exceed $75,000, exclusive of interests and costs. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 183 (5th Cir. 2018).

2) Motion to Dismiss Under Rule 12(b)(6).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter which, when taken as true, states ‘a claim to relief that is plausible on its face.'” [*4] Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “does not need detailed factual allegations,” but the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Furthermore, ‘dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief.'” Caleb v. Grier, 598 F. App’x 227, 232 (5th Cir. 2015) (citing Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995)).

III. DISCUSSION
Plaintiff’s claims against BTC revolve around its driveway. Plaintiff alleges that BTC’s negligence in maintaining its driveway caused the collision, and that BTC owes a duty to motorists driving on the adjacent road. Royal and Brown disagree with Plaintiff’s contentions and removed this case to federal court with the argument that Plaintiff improperly joined BTC (the only non-diverse party). BTC filed the MTD requesting the Court to dismiss it from the lawsuit. Subsequently, Plaintiff filed a motion to remand requesting the Court to remand the case to state court because she did state a claim against BTC.
The Fifth Circuit has stated that when assessing an issue of improper joinder, [*5] one of two methods must be present: “(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.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). The Court may use a “Rule 12(b)(6)-type analysis” to assess if plaintiff is unable to establish a cause of action. Id. Ordinarily, if a claim can survive a Rule 12(b)(6) motion, there would be no improper joinder. Id.
The MTD and the motion to remand share a common characteristic; they both hinge on whether the plaintiff can establish a cause of action. If the Plaintiff fails to establish a cause of action against BTC, then the motion to remand must be denied, and the MTD must be granted.

1) Plaintiff Failed to Establish a Claim Because BTC Does Not Owe a Common-Law Duty to Plaintiff.
To establish a claim of negligence under Texas law, three elements must be present: (1) a duty of care must exist; (2) that duty of care must be breached; and (3) damages must be shown that were proximately caused by the breach. Western Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). As a general rule, a person is not under a duty to control the acts of another person. See Restatement (Second) of Torts § 315 (1965). However, under certain circumstances, a person or entity may have a duty to control the [*6] acts of another when a special relationship exists or when they have a superior knowledge of risk. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405, 410 (Tex. 2009).
In determining the existence of a duty of care, Texas courts apply a risk-utility balancing test. Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.). Courts must weigh “the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017). The “foremost and dominant consideration” in determining whether a duty exists is the foreseeability of the risk. Midwest Emp’rs Cas. Co., 293 S.W.3d at 779. “Foreseeability … requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Without foreseeability, there is no duty. NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 955 (Tex. 1996). When a duty has not been recognized in particular circumstances, courts should examine whether a duty should be imposed upon a defined class of cases, not whether the facts of the case at hand show a breach. Pagayon, 536 S.W.3d at 504.
Under Texas law an owner or occupier of a premises abutting a highway has a duty to exercise reasonable care to avoid endangering motorists on the highway near his property, but such a duty “has been limited to cases where an owner negligently [*7] releases upon the highway an agency that becomes dangerous by its very nature once upon the highway.” Ranolls v. Dewling, No. 1:15-CV-111, 2016 WL 7743498, at *2 (E.D. Tex. Oct. 26, 2016) (citing Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 763 (Tex. App—Houston [1st Dist.] 1994, no writ). Property owners owe a duty to motorists on an adjacent highway to properly maintain the grass and weeds so that they do not impair the motorists’ view. Hamric v. Kan. City S. Ry. Co., 718 S.W.2d 916, 919 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.).
“[A]n owner or occupier of property is not an insurer of safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.” Dixon, 874 S.W.2d at 762-63. “A landowner’s duty to exercise reasonable care not to endanger the safety of persons on an abutting highway does not create an obligation to guard passing motorists against the possible negligence of an independent contractor over whom the landowner exercises no control and whose competence to perform his duties the landowner has no reason to doubt.” Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 191-92 (Tex. App.—San Antonio 1988, pet. denied).
In Naumann, a Texas Court of Appeals found that a property owner did not owe a duty to motorists even when it knew that truck drivers blocked both lanes of a highway when exiting its property. See id. at 192. The Court held that the property owner “is not an insurer of the safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.” [*8] Id. The property owner was not responsible for the independent contractor, the length of the trailer, or the fact that the highway was too narrow. See id.
Plaintiff pleads that BTC’s driveway was not adequately built or maintained. She also claims that BTC violated a duty of reasonable care to motorists on the adjacent highway by not properly building or maintaining the driveway up to codes, regulations, and manuals by TxDOT. Plaintiff alleges that BTC was required to procure a permit from TxDOT for repairs to the driveway but failed to do so. She claims that as a result, the defective driveway featured irregular and unmatching grades and a curb whose curvature did not match the level of the pavement of the highway.
The Plaintiff failed to demonstrate how BTC owes a duty to maintain its driveway in favor of motorists driving on the road adjacent — no object was released on the road, and Plaintiff’s visibility was not hindered. Plaintiff relies on Hamric, but that case is not applicable because it discussed obstruction of the view of motorists due to a dangerous condition on the property, which is not the case here. See Hamric, 718 S.W.2d at 919. Additionally, Plaintiff did not state that BTC exerted control [*9] over the road, so the Court need not consider it.
Like in Naumann, this case involves an adjacent property owner sued for the actions of an independent contractor. Plaintiff makes no pleading stating BTC controls Brown in his role as an independent contractor, nor does she plead that BTC had reason to believe Brown would act negligently in that role. BTC does not bear a duty of care over the actions of an independent contractor over which it has no control. Like the defendant in Naumann, BTC had every reason to believe Brown would act safely in the scope of his work and could not have expected Brown to turn negligently out of the middle lane.
Plaintiff attempts to distinguish Naumann from the present case through Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 185-87 (Tex. App.—Amarillo 1992, pet. denied). However, Plaintiff’s reliance on Carter to allege a duty of care that envelops situations beyond release of a dangerous agency is misguided. Carter did not find that a such a duty existed — in a plurality opinion, two of the three Carter justices found that no duty existed due to the unforeseeable actions of the independent contractor. Carter, 835 S.W.2d at 185-87.
Furthermore, taking the pleaded facts as true, the Plaintiff failed to demostrate how the “irregular and unmatching grades and radius of curvature [*10] of [BTC’s] curb(s), which was also of a different level than both the driveway and the highway pavement” [Dkt. 11, ¶3.22] makes a person foresee that an independent contractor would block incoming traffic while entering the driveway. The Court rejects imposing a duty because the general danger caused by a negligent independent contractor could not have been reasonably anticipated in this case.

2) Plaintiff Failed to Establish A Negligence Per Se Claim Because It Is Not Appropriate to Impose Tort Liability for Violations of The Texas Administrative Code’s Provision.
Under Texas Law, “[t]he threshold questions in every negligence per se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff’s injury is of a type that the statute was designed to prevent.” Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998). Negligence per se applies to “statutes adopted by state legislatures, but equally applies to regulations adopted by state administrative bodies…” Restatement (Third) of Torts, § 14 cmt. a (2010). But even if the threshold question is met, courts “must still determine whether it is appropriate to impose tort liability for violations of the statute.” Perry, 973 S.W.2d at 305.The statute under which [*11] a negligence per se claim is brought need not expressly impose private liability in the event of a statutory violation. Restatement (Third) of Torts, § 14 cmt. b-c (2010); see Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). In appropriate cases, Courts may infer a direct cause of action for damages against the violator. Id. Whether a particular statute will support a claim for negligence per se, however, is a matter of judicial discretion. Perry, 973 S.W.2d at 305 n.4.
The Supreme Court of Texas has established some factors to determine whether it is appropriate to impose tort liability for violations of a statute:
(1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common law duty; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and (5) whether the plaintiff’s injury is a direct or indirect result of the violation of the statute.
See Perry, 973 S.W.2d at 309 (clarifying [*12] that these factors are more like considerations to be used “as guides to assist a court in answering the ultimate question of whether imposing tort liability for violations of a criminal statute is fair, workable, and wise.”); Reeder v. Daniel, 61 S.W.3d 359, 367 (Tex. 2001) (Phillips, C.J., concurring).
In the present case, Plaintiff alleges that BTC is liable for Plaintiff’s injuries because BTC’s driveway did not meet TxDOT’s standards which caused the negligent truck driver to attempt an unsafe turn. The Complaint states that TxDOT’s codes and manuals allow BTC to construct and repair a driveway only with a permit and in compliance with such standards, but it alleges that BTC’s driveway violated those codes by having: (1) irregular and unmatching grades; (2) an irregular radius of curvature of the curb(s); and (3) curb(s) with a different level than both the driveway and the highway pavement.3 See [Dkt. 11, ¶3.22].
Plaintiff relies on Title 43, Part 1, Chapter 11, Subchapter C of the Texas Administrative Code (code that addresses access connections to state highways) to argue that BTC had a statutory duty. The relevant part of the Code states that a permit is required before constructing an access connection4 or before materially [*13] changing that access connection. 43 Tex. Admin. Code § 11.52 (a)(1). Such permits are issued in accordance with the “access management standards”5 and the design for the construction of an access connection is the responsibility of the permittee. Id. at § 11.52 (b)(2), (d)(1). The Code then directs all the technical specifications on how access connections should be built to Chapter 2 of the Access Management Manual promulgated by TxDOT. Id. at § 11.51 (2), § 11.52 (c) (noting that the manual is “available online at the Texas Department of Transportation web site.”).
Chapter 2 of the Access Management Manual6 does not mention that driveways have to be built with regular and matching grades, nor that the curb(s) have to be of the same level than both the driveway and the highway pavement — thus Plaintiff fails to establish that BTC’s driveway was not up to code as to those two alleged facts because the code does not require that. But, Chapter 2 of the Access Management Manual does regulate the radius of the curvature by stating that “the radius of curvature connecting the driveway to highway pavement may vary in size depending on traffic and location and should be selected in accordance with Appendix C of the Roadway Design Manual” — thus Plaintiff’s alleged fact [*14] as to the radius of the curvature is still subject to analysis because that could be something regulated by Appendix C of the Roadway Design Manual.
Section 3 of Appendix C of the Roadway Design Manual7 states that:
Each driveway radius should accommodate the appropriate design vehicle. This will generally be the passenger car (AASHTO P design vehicle) unless the driveway will routinely be expected to handle more than four larger vehicles per hour. Examples of facilities for which a larger design vehicle would normally be appropriate include truck terminals, bus terminals, and connections that serve the loading docks of shopping centers…
The manual also provides the following “standard design criteria for two-way commercial driveways”:

Table C-2. Designs for Two-Way Commercial Driveways
Go to table1
Assuming arguendo that the Texas Administrative Code does require BTC to have a driveway with a radius of the curvature compliant with the above table, the Court needs to determine whether imposing tort liability for violations to the Code is fair, workable, and wise. The Court will now apply the five factors set out in Perry.
First, the Court considers whether the Texas Administrative Code is the sole source of any tort duty from BTC to the Plaintiff or merely supplies a standard of conduct for an existing common law duty. “[R]ecognizing a new, purely statutory duty can have an extreme effect upon the common law of negligence when it allows a cause of action where the common law would not.” Perry, 973 S.W.2d at 306. “[T]he absence of a relevant common law duty should be considered in deciding whether to apply negligence per se to the [statute’s] provision.” Id. at 307. In this case, BTC does not owe a common law duty (as previously discussed), and the Plaintiff failed to provide any other source [*16] that requires BTC’s driveway to have a certain curvature radius, thus by extrapolating the statute into a tort duty the Court would be recognizing a new duty that will have an significant effect upon the common law of negligence. The Court declines to recognize a new duty, so it finds that this factor weights against imposing tort liability for violations to the Code.
Second, the Court considers whether the Texas Administrative Code puts the public on notice by clearly defining the required conduct. Clearly defined statutes allow courts to easily analyze the statute, determine the class of persons it seeks to protect, define the protected interest of that class, and isolate the particular hazards covered by the statute. See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278-79 (Tex. 1979) (comparing a “too far removed” statute with other more clearly defined statutes). Here, the specifications as to what should be the radius of the curvature of a driveway are not directly stated in the Code, rather, the Code refers to a TxDOT manual which in turn refers to an appendix of another TxDOT manual. Also, these manuals do not point to a clear rule, instead they use language like: “the radius of curvature…may vary in size depending on traffic and location…” [*17] 8 and “[e]ach driveway radius should accommodate the appropriate design vehicle. This will generally be the passenger car (AASHTO P design vehicle) unless the driveway will routinely be expected to handle more than four larger vehicles per hour.”9 For these reasons the Court finds that the Code’s required conduct is not clearly defined, and thus finds that this factor weights against imposing tort liability for violations to the Code.
Third, the Court considers whether the Texas Administrative Code would impose liability without fault. Plaintiff alleges that the radius of the curvature caused the negligent truck driver to be unable to safely turn his vehicle. Since the Court must take pleaded facts as true at this stage of the litigation, then the Code would not impose liability without fault — weighing in favor of imposing tort liability for violations to the Code.
Fourth, the Court considers whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers. The Court finds that violating the Texas Administrative Code’s provision does not warrant, [*18] and would be disproportionate with, Plaintiff’s damages in this case because, as decided above, the negligence of the independent contractor could not have been reasonably anticipated by BTC — weighing against imposing tort liability for violations to the Code.
Fifth, the Court considers whether the plaintiff’s injury is a direct or indirect result of the violation of the statute. Since Plaintiff pleads that the violation of the statute was a direct result of the accident, then this factor weighs in favor of imposing tort liability for violations to the Code.
Although not a numbered factor, the Supreme Court of Texas in Perry considered that an ill-defined standard would impose immense potential liability on a broad class of individuals whose relationship to the abuse was extremely indirect. Perry, 973 S.W.2d at 309. That could also happen here because plaintiffs could start suing landowners with property adjacent to a state highway by simply alleging that the radius of the cuvature of driveway was not up to code. Likewise, as in this case, plaintiffs could start using a negligence per se cause of action against landowners to avoid diversity jurisdiction.
Taking these factors as guides to assist the Court in [*19] answering the ultimate question of whether imposing tort liability for violations of the Code, the Court finds that it would not be fair, workable, nor wise to impose tort liability on BTC for its alleged construction or repair of its driveway without a permit and not compliant with the required curvature radius. See Perry, 973 S.W.2d at 309. Because Plaintiff has failed to establish a cause of action against BTC, then BTC is dismissed from this action and this Court has diversity jurisdiction.

3) BTC’s Consent to Removal is Not Necessary Because BTC Was Improperly Joined.
Plaintiff also claims in her motion to remand that BTC did not provide timely written consent to removal, which warrants remand.
“[A] removing party need not obtain the consent of a co-defendant that the removing party contends is improperly joined.” Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (citing Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993). But, the removing party must show “that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Jernigan, 989 F.2d at 815.
Here, Defendants Royal and Brown’s notice of removal stated that BTC was improperly joined, and since the Court found that BTC was indeed improperly joined, then BTC’s consent to removal was not necessary.

IV. [*20] CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Remand [Dkt. 9] is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Under Rule 12(b)(6) [Dkt. 5] is hereby GRANTED.
IT IS FURTHER ORDERED that the case against Defendant Beaumont Tractor Company is dismissed without prejudice.
SIGNED this 20th day of July, 2020.
/s/ Michael J. Truncale
Michael J. Truncale
United States District Judge
Table1 (Return to related document text)
US Customary Units Metric Units
Condition Radius Throat Radius Throat
(R) Width (R) Width
(ft) (W) (m) (W)
(Min. ) (ft) (Min . ) (m)
One entry lane and one exit lane, 25 28 7.5 8.4
fewer than 4 large vehicles per
hour (see Fig. C-3)
One entry lane and one exit lane, 30 30 9.0 9.0
4 or more SU vehicles per day
(see Fig. C-3)
One entry lane and two exit lanes, 25 40 7.5 12.0
without divider (see Fig. C-4)
One entry lane and two exit lanes, 25 44(1)-55(2) [*15] 7.5 13.2(1)
with divider (see Fig. C-5) -15.0(2)
Two entry lanes and two exit 25 56(1)-67(2) 7.5 16.8(1)
lanes, with divider (see Fig. C-6) -18.9(2)
(1) See Table C-3 for minimum divider widths
(2) See Table C-3 for maximum divider widths
Table1 (Return to related document text)