United States District Court for the Western District of Texas, El Paso Division

May 1, 2024, Decided; May 1, 2024, Filed

CAUSE NO. EP-24-CV-47-KC

Reporter

2024 U.S. Dist. LEXIS 79824 *; 2024 WL 1904545

MARIA BRIZEIDA NAVARRO UBALDO, individually and on behalf of the Estate of JULIAN ESPINO MENDOZA, deceased, and as Next Friend of V.E.N., J.E.N., and A.E.N., minor children, Plaintiff, v. F&A BORDER TRANSPORT, LLC et al., Defendants.

Core Terms

preemption, state-law, federal law, cause of action, Removal, federal question, cases, subject matter jurisdiction, preempt, argues, district court, federal court, regulations, broker, federal issue, state court, intrastate, freight, transportation, asserts

Counsel:  [*1] For Alejandro Issac Sanchez, F&A Border Transport LLC, Defendants: Jeffrey S. Seeburger, LEAD ATTORNEY, Walters Balido & Crain, Dallas, TX; Randall Garland Walters, LEAD ATTORNEY, Walters Balido & Crain L.L.P., Dallas, TX.

For LoHi Logistics LLC, Defendant: Andres Eduardo Almanzan, Mounce Green Myers Safi Paxson & Galatzan, El Paso, TX.

For Maria Brizeida Navarro Ubaldo, Individually and on behalf of the Estate of Julian Espino Mendoza Deceased and as Next Friend of V.E.N. J.E.N and A.E.N. Minor Children, Plaintiff: Mark D. Standridge, Tawney Acosta Chaparro, Las Cruces, NM; Alejandro Acosta III, James Daniel Tawney, LEAD ATTORNEYS, Tawney Acosta & Chaparro P.C., El Paso, TX.

Judges: KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE.

Opinion by: KATHLEEN CARDONE

Opinion

ORDER

On this day, the Court considered Plaintiff Maria Brizeida Navarro Ubaldo’s Opposed Motion to Remand to State Court (“Motion”), ECF No. 6. For the reasons below, the Motion is GRANTED.

I. BACKGROUND

The following facts derive from Plaintiff’s First Amended Petition, ECF No. 1-1. On January 27, 2022, Julian Espino Mendoza “was driving a blue 2006 Freightliner tractor trailer eastbound on State Highway 302” in Winkler County, Texas, when a 2011 Freightliner [*2]  tractor trailer approached the intersection with State Highway 302 from a private road. 1st Am. Pet. 3. Defendant Alejandro Issac Sanchez, operating the 2011 Freightliner, “failed to yield the right-ofway and made a left turn in front of oncoming traffic, . . . causing a collision” that caused Mendoza to suffer fatal injuries. Id. At the time of the incident, Sanchez was an employee of Defendant F&A Border Transport, LLC (“F&A”), “transporting a load pursuant to a ‘Broker—Carrier Agreement’ with Defendant LoHi Logistics[, LLC (“LoHi”)].” Id. at 3-4. For his part, Mendoza “was operating a vehicle insured by Defendant Trisura Specialty Insurance [Co. (“Trisura”)].” Id. at 4.

Plaintiff, who is Mendoza’s surviving spouse, filed her Original Petition in state court on March 18, 2022, asserting claims against F&A and Sanchez on behalf of herself, Mendoza, and their children.¹ See 1st Am. Pet. 2; Notice Removal 2 n.1, ECF No. 1. On January 10, 2024, Plaintiff filed the First Amended Petition, adding LoHi and Trisura as Defendants. Notice Removal 1-2. Relevant here, Plaintiff asserts claims against LoHi for negligent hiring and vicarious liability for Sanchez and F&A’s negligence. 1st Am. Pet. [*3]  7-8.

On February 9, 2024, with the consent of F&A and Sanchez,² LoHi removed the case, asserting federal question jurisdiction as the basis for removal. Notice Removal 4-6. LoHi argues that “[r]emoval is proper here because LoHi is a federally-licensed freight broker which arranges for the transportation of goods through both intrastate and interstate commerce and the claims advanced relate to these services provided by LoHi.” Notice Removal 4 (citing 49 U.S.C. § 14501(b)(1), (c)(1)). Plaintiff then filed this Motion, arguing that the case should be remanded because there is no substantial federal question presented. Mot. 8-10. LoHi filed a Response, ECF No. 8, to which Plaintiff filed a Reply, ECF No. 9.

II. DISCUSSION

A. Standard

A defendant may remove to federal district court any state court civil action over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). “A federal district court may exercise original jurisdiction over any civil action that either satisfies diversity requirements or that arises under the federal constitution, statutes, or treaties . . . .”³ Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 258-59 (5th Cir. 2014).

A plaintiff may move to remand an action for lack of subject matter jurisdiction at any point before a final judgment is entered. 28 U.S.C. § 1447(c). When a plaintiff [*4]  moves to remand, the burden is on the removing party to establish that federal jurisdiction exists and removal is proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citations omitted). “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2009)). A court must grant a motion to remand if it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

B. Analysis

Plaintiff argues that removal was improper because the Court lacks subject matter jurisdiction over Plaintiff’s claims. See generally Mot. “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 568 U.S. 251, 256, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)). Under 28 U.S.C. § 1331, federal courts have subject matter jurisdiction over cases that arise under federal law. A case arises under federal law when “federal law creates the cause of action asserted” or when a state-law claim raises substantial federal issues. Gunn, 568 U.S. at 257-58 (citing Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S. Ct. 585, 60 L. Ed. 987 (1916)); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005) (citation omitted). LoHi argues that the Court has jurisdiction under both theories. Notice Removal ¶ 8; Resp. 5. The Court considers each in turn.

1. Complete [*5]  preemption

LoHi first argues that, as “a federally-licensed freight broker,” the Federal Aviation Administration Amendments Act (“FAAAA”), 49 U.S.C. § 14501, completely preempts Plaintiff’s state common-law claims against it, thus “giv[ing] rise to federal subject matter jurisdiction.” Resp. 14, 20; see Notice Removal ¶ 7. Plaintiff responds that LoHi’s argument “fail[s] at the first step” of the complete preemption analysis. Mot. 5 n.1.

Ordinarily, under the well-pleaded complaint rule, “[a] defendant cannot remove an action to federal court unless the plaintiff pleaded a federal question on the face of his complaint.” Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237, 242 (5th Cir. 2022) (citation omitted). But the doctrine of complete preemption provides an exception to that rule. Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 585 (5th Cir. 2022) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987)). Under that doctrine, “a state-law claim may raise a federal question if Congress has ‘so completely preempted’ that legal area ‘that any civil complaint raising’ the state-law claim ‘is necessarily federal in character.'” Manyweather, 40 F.4th at 243 (quoting Metro. Life, 481 U.S. at 63-64). Complete preemption has three elements:

First, federal law “creates a cause of action that both replaces and protects the analogous area of state law.” Second, Congress has empowered federal courts to hear that cause of action. Third, Congress clearly intended that grant of jurisdiction to be exclusive. [*6]  Once those conditions are met, the party invoking federal jurisdiction must show that the plaintiff “could have brought his state-law claims under th[at] federal cause of action.”

Id. (alteration in original) (quoting Mitchell, 28 F.4th at 585).

Complete preemption is exceptionally rare and not to be confused with the more common “ordinary” preemption. See id.; New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 331 (5th Cir. 2008). Complete preemption furnishes original subject matter jurisdiction over state-law claims, while ordinary preemption provides “an affirmative defense that a defendant can invoke ‘to defeat a plaintiff’s state-law claim on the merits by asserting the supremacy of federal law.'” Mitchell, 28 F.4th at 585 n.2 (quoting Spear Mktg. Inc. v. BancorpSouth Bank, 844 F.3d 464, 467 n.3 (5th Cir. 2016)).

LoHi argues that because it “is a federally-licensed freight broker which arranges for the transportation of goods through both intrastate and interstate commerce,” and Plaintiff’s claims relate to those services, the FAAAA’s express preemption provisions in § 14501(b)(1) and (c)(1) completely preempt Plaintiff’s state-law claims, thus furnishing subject matter jurisdiction. See Notice Removal ¶ 8; Resp. 14. Section 14501(b)(1), reads:

[N]o state or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, [*7]  or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.

49 U.S.C. § 14501(b)(1).

Section 14501(c)(1) similarly provides:

[A] State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

49 U.S.C. § 14501(c)(1).

As discussed, for complete preemption to apply, the FAAAA must “create[] a cause of action that both replaces and protects the analogous area of state law.” Manyweather, 40 F.4th at 243 (quoting Mitchell, 28 F.4th at 585). In each of the three cases in which the Supreme Court has found complete preemption, the preemptive statutes “provide[d] the exclusive cause of action,” together with procedures and remedies for that cause of action. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 11, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003); see Metro. Life., 481 U.S. at 63; Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (1968); accord Mitchell, 28 F.4th at 585.

The plain language of the FAAAA does not create a federal cause of action, much less one that “wholly displaces the state-law cause of action” with its own scheme of remedies and procedures. Mitchell, 28 F.4th at 585 (quoting Beneficial, 539 U.S. at 8). Many district courts in the Fifth Circuit have confirmed [*8]  this reading. Torres v. Minnaar, No. 23-cv-486, 2024 U.S. Dist. LEXIS 32266, 2024 WL 778383, at *5 (E.D. Tex. Feb. 26, 2024) (“Unlike the statutory provisions . . . considered by the Supreme Court in Avco, Metropolitan Life, and Beneficial, the FAAAA includes no federal remedy or civil enforcement scheme, much less a scheme authorizing a cause of action that may be heard by federal courts.”); Nesbitt v. Moonlight Logistics, Inc., No. 23-cv-181-OLG-HJB, 2023 U.S. Dist. LEXIS 121373, 2023 WL 4535480, at *3 (W.D. Tex. June 20, 2023) (“Section 14501, however, does not contain any cause of action, let alone one that meets the complete-preemption standard.” (citing M, G, & B Servs., Inc. v. Buras, No. 04-cv-1512, 2004 U.S. Dist. LEXIS 16624, 2004 WL 1872718, at *4 (E.D. La. Aug. 19, 2004))), adopted, 2023 U.S. Dist. LEXIS 120920, 2023 WL 4535713 (July 13, 2023); Malone v. Russell, No. 23-cv-1, 2023 U.S. Dist. LEXIS 98028, 2023 WL 3854265, at *3 (N.D. Tex. June 6, 2023) (collecting cases). And the Fifth Circuit itself has held that a similar preemption provision in the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(4)(A), which the FAAAA mirrors, does not completely preempt state-law claims. Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 925-26 (5th Cir. 1997). Following this weight of persuasive authority, the Court finds that the first element of the complete preemption analysis is not satisfied, and the FAAAA does not completely preempt Plaintiff’s state-law claims. See Manyweather, 40 F.4th at 243; see, e.g., Nesbitt, 2023 U.S. Dist. LEXIS 121373, 2023 WL 4535480, at *2-3 (“[T]he FAAAA does not completely preempt [the p]laintiffs’ [negligent hiring] claims . . . .”).

Yet LoHi asserts that “there is a split of legal authority on the issue,” and that “cases within th[e] Fifth Circuit have found that there is complete preemption,” as have the United States Courts of Appeals for the Seventh and Eleventh Circuits. See Resp. 14-20 (first citing Gillum v. High Standard, LLC, No. 19-cv-1378-XR, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *6 (W.D. Tex. Jan. 27, 2020); then [*9]  citing Zamorano v. Zyna LLC, No. 20-cv-151-XR, 2020 U.S. Dist. LEXIS 82289, 2020 WL 2316061, at *5 (W.D. Tex. May 11, 2020); then citing Derouen v. Swan Transp. Servs., Ltd., No. 23-cv-193-LY, Order 1, ECF No. 6 (W.D. Tex. Mar. 21, 2023); then citing Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261 (11th Cir. 2023); and then citing Ye v. GlobalTranz Enters., Inc., 74 F.4th 453 (7th Cir. 2023)).

But only two of the five cases LoHi cites as authority—Gillum and Zamorano—purported to consider whether the complete preemption doctrine applied. See Gillum, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *6; Zamorano, 2020 U.S. Dist. LEXIS 82289, 2020 WL 2316061, at *1 n.1, *4-5 (citing Gillum, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *2, *5); cf. Aspen, 65 F.4th at 1266 n.1 (“Because we have federal jurisdiction in this case because of the parties’ diverse citizenship, we take no position on whether the FAAAA satisfies the standard for complete preemption.”). In Gillum, the court “did not undertake the Fifth Circuit’s complete preemption analysis and instead appeared to evaluate ordinary preemption.” Malone, 2023 U.S. Dist. LEXIS 98028, 2023 WL 3854265, at *3 (citation omitted); accord Gregg v. Rodriguez, No. 23-cv-1031, 2023 U.S. Dist. LEXIS 105542, 2023 WL 4053590, at *4 (D. Kan. June 16, 2023) (observing that Gillum was “based on an ordinary preemption analysis and courts have declined to find the decision persuasive on that basis”); Est. of Wray v. Kennedy Bros. Logistics, Inc., No. 22-cv-70, 2022 U.S. Dist. LEXIS 197815, 2022 WL 16550315, at *4 (E.D.N.C. Oct. 31, 2022) (“Gillum‘s analysis, however, fails to distinguish between complete preemption and ordinary preemption, and draws upon ordinary preemption principles in its complete preemption analysis.”). Zamorano adopted Gillum‘s complete preemption analysis and thus suffers from the same flaw. See Zamorano, 2020 U.S. Dist. LEXIS 82289, 2020 WL 2316061, at *4-5 (citing Gillum, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *5). The Court therefore does not find Gillum or Zamorano persuasive.

The other cases LoHi cites considered only whether ordinary preemption applies as an affirmative defense.  [*10] See Aspen, 65 F.4th at 1265 (“The district court dismissed [the plaintiff’s] suit as expressly preempted by the FAAAA, 49 U.S.C. § 14501(c)(1).”); Ye, 74 F.4th at 456 (“The district court granted the motion [to dismiss] as to [the plaintiff’s] negligent hiring claim, finding the claim to be barred by the [FAAAA].”); Derouen, Mar. 21, 2023, Order 2 (granting motion to dismiss in which the defendant argued the affirmative defense of ordinary preemption and the plaintiffs did not respond). Other courts have found these same cases inapplicable to the jurisdictional question of complete preemption. See Torres, 2024 U.S. Dist. LEXIS 32266, 2024 WL 778383, at *4 n.2 (noting that Aspen and Ye “are inapposite because they address defensive preemption, not the complete preemption doctrine”); Ruff v. Reliant Transp., Inc., 674 F. Supp. 3d 631, 634 (D. Nev. May 25, 2023) (citation omitted).

Aside from Gillum and Zamorano, the Court is aware of no other court that has concluded that the FAAAA completely preempts common law tort claims. LoHi’s argument for complete preemption is thus unavailing.

2. Substantial federal question doctrine

LoHi next argues that even if Plaintiff has not stated a federal claim by way of complete preemption, Plaintiff’s state-law claims raise a substantial federal question, therefore creating federal question jurisdiction under the Supreme Court’s Grable decision. Resp. 7. LoHi argues [*11]  that “Plaintiff seeks to superimpose state negligence principles onto the federally-defined duty and standard of care,” so the Court must determine “the standard of care for a federally-authorized freight broker under the FAAAA[] in order to to resolve Plaintiff’s state-law claims.” Resp. 9. Plaintiff responds that her claims “arise under Texas state law,” and “the federal regulations cited in the [P]etition will operate only to provide a standard regarding defendants’ negligence.” Mot. 10 (citation omitted). Thus, Plaintiff argues, her “right to relief on the claims raised in the[] First Amended Petition d[oes] not depend on resolution of any question of federal law,” so “this matter must be remanded back to Texas state court.” Id. (citations omitted).

Grable applies to a “special and small category” of cases. Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699, 126 S. Ct. 2121, 165 L. Ed. 2d 131 (2006). It “provides that, even when a state court petition pleads only state law causes of action, federal jurisdiction nonetheless exists ‘if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.'” Box v. PetroTel, Inc., 33 F.4th 195, 201 (5th Cir. 2022) (quoting Gunn, 568 U.S. at 258). “The type of claim that creates a [*12]  federal question under Grable is typically a state-law claim premised on some component of federal law.” Mitchell, 28 F.4th at 588 (citation omitted).

But state-law claims that merely implicate federal laws or regulations are “not sufficient to establish federal-question jurisdiction.” Longitude 150 LLC v. McGee, No. 22-cv-2181, 2022 U.S. Dist. LEXIS 206580, 2022 WL 16942239, at *4-5 (W.D. La. Oct. 27, 2022) (citing Till v. Unifirst Fed. Sav. & Loan Ass’n, 653 F.2d 152, 155 (5th Cir. Unit A 1980)) (collecting cases), adopted, 2022 U.S. Dist. LEXIS 205887, 2022 WL 16927801 (Nov. 14, 2022); see Till, 653 F.2d at 155 n.2. The “fact that a federal standard is to be referenced by a state court in determining whether there has been a state-law violation” does not “cause[] a state-law claim to ‘necessarily raise a stated federal issue.'” Am. Airlines, Inc. v. Sabre, Inc., No. 11-cv-488, 2011 U.S. Dist. LEXIS 86830, 2011 WL 3468418, at *6 (N.D. Tex. Aug. 4, 2011) (quoting Grable, 545 U.S. at 314). Even where a state-law claim refers to or partly relies on a federal standard, “[t]he issue remains a state-law issue throughout, which might or might not be resolved by reference to federal law.” Id.

“Like most federal question doctrines, Grable is applied in the shadow of the wellpleaded complaint rule,” so “the court looks to the face of a plaintiff’s well-pleaded complaint to determine whether the issues it raises implicate Grable.” Mitchell, 28 F.4th at 588 (citations omitted). Plaintiff asserts state causes of actions against LoHi for direct negligence—LoHi’s allegedly negligent hiring, selection, screening, and/or retention of F&A and Sanchez—and vicarious liability—LoHi’s allegedly negligent [*13]  exercise of control over F&A and Sanchez. 1st Am. Pet. 7-8. And Plaintiff seeks to hold LoHi and Sanchez liable for Sanchez’s forty-one acts or omissions constituting negligence under state common law and state and federal laws and regulations. Id. at 4-5, 7-8. Similarly, Plaintiff seeks to hold LoHi vicariously liable for F&A’s nineteen negligent acts or omissions under state common law and state and federal laws and regulations. Id. at 6-8.

While Plaintiff’s negligence claims partly rely on federal law, her “reliance upon federal law as one basis for an element of [her] negligence claims is insufficient to satisfy [Grable’s] first element.” White v. Scotty’s Contr. & Stone, LLC, No. 21-cv-161, 2022 U.S. Dist. LEXIS 177300, 2022 WL 4588417, at *3 (W.D. Ky. Sept. 29, 2022) (first citing Bennett v. Sw. Airlines Co., 484 F.3d 907, 912 (7th Cir. 2007); and then citing Valdez ex rel. Miller Energy Res., Inc. v. Miller, No. 11-cv-462, 2012 U.S. Dist. LEXIS 39522, 2012 WL 397814, at *10 (E.D. Tenn. Jan. 20, 2012)); see Empire, 547 U.S. at 701 (“Grable emphasized that it takes more than a federal element ‘to open the “arising under” door.'” (quoting Grable, 545 U.S. at 313)); Till, 653 F.2d at 155 n.2 (“[A] claim does not arise under the law of the United States pursuant to either sections 1331 or 1337 if the relief sought is based entirely upon a state cause of action in which [federal laws or] regulations are used merely as further evidence of the right to recover under state law.” (citations omitted)).

And, although Plaintiff’s negligence claims partly rely on federal law, nowhere in the First Amended Petition does Plaintiff [*14]  allege that LoHi, Sanchez, or F&A violated the FAAAA. See generally 1st Am. Pet. LoHi’s “invocation of the FAAAA’s preemption provisions” in its Notice of Removal thus “fails to implicate Grable because the relevance of these provisions is purely defensive.” Torres, 2024 U.S. Dist. LEXIS 32266, 2024 WL 778383, at *6; see Mitchell, 28 F.4th at 589 (“[W]hen a federal issue is raised ‘[a]s a defense, it does not appear on the face of a well-pleaded complaint.’ Thus, these federal issues are neither raised nor disputed on the face of the complaint, and Grable does not apply.” (second alteration in original) (quoting Metro. Life., 481 U.S. at 63)); Malone, 2023 U.S. Dist. LEXIS 98028, 2023 WL 3854265, at *4; Lyles v. Wren, No. 23-cv-51, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (E.D. Ark. May 9, 2023) (“[T]here are no elements of [the plaintiff’s common law negligence] claims that rely on a determination of the FAAAA’s express preemption provision.”). Because the First Amended Petition does not, on its face, raise or dispute a substantial federal issue, Grable does not apply.⁴ See Mitchell, 28 F.4th at 589.

III. CONCLUSION

For these reasons, Plaintiff’s Motion to Remand, ECF No. 6, is GRANTED. This case shall be IMMEDIATELY REMANDED to the 210th Judicial District Court of El Paso County, Texas.

IT IS FURTHER ORDERED that LoHi’s Motion to Dismiss, ECF No. 2, is DENIED as moot.

SO ORDERED.

SIGNED this 1st day of May, 2024.

/s/ Kathleen Cardone

KATHLEEN CARDONE

UNITED STATES DISTRICT JUDGE [*15] 

End of Document

---

¹ Plaintiff also sued Black Mountain Sand, LLC, but later dropped her claims against that Defendant. Notice Removal 2 n.1.

² The only other Defendant, Trisura, has not appeared in this matter.

³ No party argues that diversity jurisdiction applies here.

⁴ Like the defendant in Torres, LoHi argues that 28 U.S.C. § 1337 serves as an additional basis for jurisdiction. Notice Removal ¶ 3; see Torres, 2024 U.S. Dist. LEXIS 32266, 2024 WL 778383, at *6 n.4. Section 1337 “gives federal courts original jurisdiction over ‘any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.'” Torres, 2024 U.S. Dist. LEXIS 32266, 2024 WL 778383, at *6 n.4 (quoting 28 U.S.C. § 1337(a)). But “this argument fails for the same reasons discussed above,” id., because “[t]here is no distinction . . . between [the] ‘arising under’ standards for section 1337 and section 1331.” Willy v. Coastal Corp., 855 F.2d 1160, 1165 n.6 (5th Cir. 1988) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 8 n.7, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983)).

United States District Court for the Southern District of Texas, Houston Division

May 21, 2024, Decided; May 21, 2024, Filed, Entered

CIVIL ACTION NO. 4:23-CV-03009

Reporter

2024 U.S. Dist. LEXIS 91263 *; 2024 WL 2303924

EMILLY EDITH VELILLA, individually and a/n/f of E.A.V. (Minor) and a/n/f of B.D. (Minor), and KEYLA ESTEFANIA FUENTES ORELLANA, Plaintiffs, VS. LADARIOUS SHARMACO RUSHING, PACCAR FINANCIAL SERVICES CORPORATION, and JBS CARRIERS, INC., Defendants.

Core Terms

lease, summary judgment, material fact, nonmoving

Counsel:  [*1] For Emilly Edith Velilla, Individually a/n/f of E.A.V. (Minor) and B.D, (Mnor), Keyla Estefania Orellana, Plaintiffs: Jason D Goff, LEAD ATTORNEY, The Law Offices of Marcos & Associates, PC, Houston, TX.

For Ladarious Sharmaco Rushing, JBS Carriers, Inc., Defendants: Clayton Haley, LEAD ATTORNEY, Fairchild, Price, Haley & Smith, LLP, Nacogdoches, TX.

Judges: Andrew S. Hanen, United States District Judge.

Opinion by: Andrew S. Hanen

Opinion

ORDER

Pending before the Court is Defendant Paccar Financial Services Corporation’s (“Paccar”) Motion for Summary Judgment. (Doc. No. 16). Plaintiffs Emilly Edith Velilla, individually and as Next Friend of E.A.V. and as Next Friend of B.D., and Keyla Estefania Fuentes Orellana (collectively, “Plaintiffs”) did not respond. For the reasons outlined below, the Court hereby GRANTS Paccar’s motion. (Doc. No. 16).

BACKGROUND

This case arises from a motor vehicle accident that occurred on August 14, 2021 in Harris County, Texas. According to Plaintiffs’ Original Petition, Plaintiffs were traveling on Interstate 45 when Defendant Ladarious Sharmaco Rushing (“Rushing”), who was driving a tractor trailer allegedly owned by Paccar and Defendant JBS Carriers, Inc. (“JBS”), collided with Plaintiffs [*2]  as he was changing lanes. Plaintiffs suffered severe injuries. In 2023, Plaintiffs filed suit in state court in Harris County, Texas. The Original Petition states a cause of action for negligence, gross negligence, and negligence per se under Texas Transportation Code § 545.060 against Rushing and causes of action for negligence and negligence per se under the doctrine of respondeat superior against JBS. Plaintiffs seek damages for past and future medical expenses, past and future pain, suffering, and mental anguish, past and future physical impairment and disfigurement, lost wages and future loss of earning capacity, and property damage to the vehicle. Paccar and Rushing both asserted counterclaims against Plaintiff Emilly Velilla for negligence and/or negligence per se. Paccar removed the case to this Court in August 2023, citing diversity of citizenship as the grounds for subject matter jurisdiction.¹

Paccar filed the instant motion for summary judgment in November 2023, arguing that Plaintiffs have failed to state a claim against Paccar, and, alternatively, that pursuant to the Graves Amendment (49 U.S.C. § 30106(a)), it “cannot be held liable for any harm to persons or property that results or arises out of the use, operation, or possession [*3]  of the Kenworth tractor with VIN # 1XKYDP9X2KJ238613 that was leased to JBS Carriers, Inc. during the period of the lease.” (Doc. No. 16 at 4). Plaintiffs did not respond.

LEGAL STANDARD

Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The court must draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255. The key question on summary judgment is whether there is evidence raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in favor of the [*4]  nonmoving party. Id. at 248. It is the responsibility of the parties to specifically point the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). It is not the duty of the Court to search the record for evidence that might establish an issue of material fact. Id.

Local Rules 7.3 and 7.4 of the Southern District of Texas state that a motion will be submitted to the judge twenty-one days after filing. Under Local Rule 7.4, a failure to respond will be taken “as representation of no opposition.” See Local Rule LR7.4. Furthermore, Rule 7.4(a) plainly states that such responses must be filed by the submission date. Id.

The Fifth Circuit, however, has explained that “although we have endorsed the adoption of local rules that require parties to file responses to opposed motions, we have not approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation.” John v. Louisiana, 757 F.2d 698, 707-09 (5th Cir. 1986). Since granting summary judgment based solely on the local rules and Plaintiffs’ failure to respond would be improper, this Court will address the merits of the motion.

ANALYSIS

Paccar argues that Plaintiffs’ claim against it (if any) is barred by the Graves Amendment. See 49 U.S.C. § 30106(a).² Accordingly, Paccar contends [*5]  that it is entitled to judgment as a matter of law. Pursuant to the Graves Amendment:

(a) In general…An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if…

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

49 U.S.C. § 30106.

Paccar has presented evidence that it “provides finance, lease and insurance services to dealers and customers in 24 countries including a portfolio of more than 180,000 trucks and trailers[.]”. (Doc. No. 16 at 4). Paccar offers the affidavit of Linda Markle, an employee of Paccar, who states under oath that “Paccar and JBS Carriers, Inc. entered into [an equipment lease] for several Kenworth tractors.” (Doc. No. 16-1 at 2). Paccar has further [*6]  presented evidence that Rushing was driving one of the leased Kenworth tractors (VIN #1XKYDP9X2KJ238613) at the time of the accident. (Doc. No. 16-3 at 2). Plaintiffs did not respond to Paccar’s motion; as such, the evidence presented by Paccar in support of its motion is uncontroverted. Further, Plaintiffs did not make any allegations of negligence on the part of Paccar in their Original Petition. Accordingly, the Court finds that Paccar, as the lessor of the vehicle involved in the car accident at issue, is entitled to summary judgment in its favor. See 49 U.S.C. § 30106; see also Marr v. Croxton, No. SA-21-CV-00961-XR, 2022 U.S. Dist. LEXIS 106904, 2022 WL 2161059 at *3 (W.D. Tex. June 14, 2022).

For the foregoing reasons, the Court hereby GRANTS Paccar’s Motion for Summary Judgment in its entirety. (Doc. No. 16).

Signed at at Houston, Texas, on this the 21st day of May 2024.

/s/ Andrew S. Hanen

Andrew S. Hanen

United States District Judge

End of Document

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¹ Plaintiffs are allegedly citizens of Texas. Rushing is a citizen of Louisiana. JBS Carriers is a citizen of Colorado, and Paccar is a citizen of the state of Washington. (Doc. No. I at 2-3). Plaintiffs’ Original Petition seeks monetary relief in excess of $1,000,000.

² Paccar also argues that Plaintiffs “fail to allege a cause of action,” asking the Court to “take judicial notice of Plaintiffs’ [Original Petition].” (Doc. No. 16 at 3). This would be a more appropriate argument at the motion to dismiss stage rather than at summary judgment. Nonetheless, the Court notes that the only mention of Paccar in Plaintiffs’ Original Petition—outside of the Parties and Service section—is in the facts section, in which Plaintiffs state that “Defendant Rushing was driving a tractor and trailer owned by Defendant, Paccar and Defendant, JBS.” (Doc. No. 9-1 at 26).

The two captioned causes of action explicitly state negligence and/or negligence per se claims against Rushing and JBS, but no mention is made of Paccar outside of the facts section. (Doc. No. 9-1 at 26-27). No specific allegations are made against Paccar other than the statement that it was a co-owner of Rushing’s tractor trailer. This is insufficient to adequately state a claim under the Federal Rules and would have been appropriately dismissed on a Rule 12(b)(6) motion, had it been filed. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).