July 2023

J.B. Hunt Transp., Inc. v. Lester

Court of Appeals of Texas, Second District, Fort Worth

June 8, 2023, Decided

No. 02-23-00035-CV

Reporter

2023 Tex. App. LEXIS 3967 *; 2023 WL 3876758

J.B. HUNT TRANSPORT, INC., Appellant v. KIM LESTER, Appellee

Prior History: [*1] On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV22-1664.

Core Terms

arbitration, trial court, arbitration agreement, motion to compel arbitration, signature, exemption, parties, scope of arbitration, benefits, delegated, waived, compel arbitration, injuries, courts

Case Summary

Overview

HOLDINGS: [1]-Where appellant appealed the denial of its motion to compel arbitration of personal injury claims, appellant met its burden to establish the existence of a valid arbitration agreement because appellant’s signed copy of the arbitration agreement established a prima facie valid arbitration agreement; [2]-Appellee’s arguments were waived under Tex. R. App. P. 33.1(a) because she first asserted them in her appellate brief and not at trial; [3]-The trial court abused its discretion in denying appellant’s motion to compel arbitration because appellant satisfied its two-pronged burden to establish both the existence of a valid arbitration agreement and that the disputed claims fell within the scope of that agreement. Appellee failed under Tex. R. App. P. 33.1(a), to timely raise a valid defense to the agreement’s enforcement.

Outcome

Judgment reversed and remanded.

LexisNexis® Headnotes

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Judicial Review

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

HN1 Alternative Dispute Resolution, Judicial Review

An appellate court reviews a trial court’s decision to deny a motion to compel arbitration for abuse of discretion. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN2 Arbitration, Arbitrability

A party seeking to compel arbitration bears the burden to establish (1) the existence of a valid arbitration agreement and (2) that the disputed claims fall within the scope of that agreement. If the party seeking arbitration meets its two-pronged burden to establish the agreement’s validity and scope, then the burden shifts to the party opposing arbitration to raise a valid defense to the agreement’s enforcement, and absent evidence supporting such a defense, the trial court must compel arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Judicial Review

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN3 Arbitration, Arbitrability

A trial court’s determinations as to whether a valid arbitration agreement exists and whether the claims fall within the scope of an arbitration agreement are legal determinations subject to de novo review. Similarly, all gateway matters are questions of law that an appellate court reviews de novo. If no findings or conclusions were entered, an appellate court must uphold the trial court’s decision on any appropriate legal theory urged below. Yet, as a corollary, the appellate court is limited to considering the grounds presented to the trial court by the party resisting arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN4 Arbitration, Arbitrability

Because arbitration is a matter of contract, courts must first decide whether a valid arbitration agreement exists. The party seeking arbitration has the burden to establish the existence of a valid arbitration agreement.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN5 Arbitration, Arbitrability

Generally, a written arbitration agreement is prima facie valid and must be enforced unless the opposing party alleges and proves that the arbitration clause itself was a product of fraud, coercion, or such grounds as exist at law or in equity for the revocation of the contract. In addition, the uncontested existence of the non-movant’s signature on an arbitration agreement meets the evidentiary standard necessary to prove the prima facie existence of an arbitration agreement.

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

HN6 Reviewability of Lower Court Decisions, Preservation for Review

A party should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Labor & Employment Law > … > Conditions & Terms > Arbitration Provisions > Enforcement

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Arbitration Clauses

HN7 Arbitration, Arbitrability

The Texas Supreme Court has never held that the employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee. Neither the Federal Arbitration Act nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

HN8 Arbitration, Arbitrability

A dispute over whether parties agreed to resolve their controversies through arbitration—referred to as a dispute over the controversies’ “arbitrability”—typically encompasses three distinct disagreements: (1) the merits of the underlying controversy; (2) whether the merits must be resolved through arbitration instead of in the courts; and (3) who (a court or the arbitrator) decides the second question. The second question must be answered before the first, but the third must be answered before the second.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Business & Corporate Compliance > … > Pretrial Matters > Alternative Dispute Resolution > Validity of ADR Methods

HN9 Arbitration, Arbitrability

As a general rule, an agreement to arbitrate in accordance with the American Arbitration Association or similar rules constitutes a clear and unmistakable agreement that the arbitrator must decide whether the parties’ disputes must be resolved through arbitration.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Civil Procedure > Judgments > Preclusion of Judgments > Res Judicata

Business & Corporate Compliance > … > Contracts Law > Contract Conditions & Provisions > Conditions Precedent

HN10 Arbitration, Arbitrability

Whether certain claims are barred by res judicata should be referred to the arbitrator. Issues of substantive arbitrability are for a court to decide, and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide. Courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration, including the satisfaction of prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate.

Business & Corporate Compliance > … > Alternative Dispute Resolution > Arbitration > Arbitrability

Evidence > Burdens of Proof > Allocation

HN11 Arbitration, Arbitrability

In determining the arbitrability of a claim, once the questions of validity and scope are resolved affirmatively, the court then considers whether any statute or policy renders the claims non-arbitrable. The party seeking to invalidate an arbitration agreement bears the burden of proof on these matters.

Admiralty & Maritime Law > Arbitration > Federal Arbitration Act

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Arbitration Agreements

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Scope

HN12 Arbitration, Federal Arbitration Act

The Federal Arbitration Act does not apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. 9 U.S.C.S. § 1.

Business & Corporate Compliance > … > Arbitration > Federal Arbitration Act > Orders to Compel Arbitration

Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review

Labor & Employment Law > … > Conditions & Terms > Arbitration Provisions > Enforcement

HN13 Federal Arbitration Act, Orders to Compel Arbitration

As a general rule, a party is required to present a complaint to the trial court before being allowed to raise the complaint on appeal. Tex. R. App. P. 33.1. A party must present argument to the trial court or the argument is waived and cannot be considered for the first time on appeal. Regarding waiver of the 9 U.S.C.S. § 1 exemption, the Dallas Court of Appeals has summarized the applicable law in this area: Texas courts have held that an objection to arbitration under the 9 U.S.C.S. § 1 exemption from arbitration, must be raised before the trial court rules on a motion to compel arbitration. In determining whether an employee is a transportation worker for purposes of the 9 U.S.C.S. § 1 exclusion, appellate courts review affidavit and live testimony as well as other evidence presented to the trial court. Differentiating transportation workers from those who only incidentally aid in the transport of goods is a fact intensive inquiry.

Counsel: For Kim Lester, Appellee: Bonan Link, Stephen Burris.

For J.B. Hunt Transport, Inc., Appellant: Michael C. Wright, David F. Johnson.

Judges: Before Sudderth, C.J.; Birdwell and Womack, JJ. Memorandum. Opinion by Justice Womack.

Opinion by: Dana Womack Justice

Opinion

MEMORANDUM OPINION

I. Introduction

In one issue, Appellant J.B. Hunt Transport, Inc. appeals the denial of its motion to compel arbitration of personal injury claims by Appellee Kim Lester, an employee of J.B. Hunt who was driving a tractor trailer “in tandem” with another employee-driver but who was resting when her injuries occurred. We will reverse and remand.

II. Background

On November 3, 2020, Lester was an employee of J.B. Hunt, but as alleged in her pleadings, “was not on the clock or within the course and scope of her employment” because her shift had ended and Brian McCarthy had “swapped positions as driver and operator of the tractor trailer and assumed the role of driver.” Shortly after McCarthy began driving and Lester had moved to the sleeping compartment, McCarthy performed a “hard br[ake],” causing Lester “to fly forward and collide with the metal barrier [*2] between the driving area and the resting area.” Almost two years later, Lester filed suit against J.B. Hunt and McCarthy¹ for her injuries.

J.B. Hunt answered the lawsuit and filed a plea in abatement and motion to compel arbitration. Attached to the motion were the “relevant page[s]” of the “J.B. Hunt Texas Injury Benefit Plan” (the Plan). It contained what purported to be the signatures of Lester and an unidentified person representing J.B. Hunt. The Plan required that arbitration be administered by the American Arbitration Association (AAA) and that the Federal Arbitration Act (FAA) “govern the interpretation, enforcement, and proceedings under the arbitration provisions of [the] Plan.”

As relevant to this appeal, the Plan contained the following provisions:

The Employer hereby adopts a mandatory company policy requiring that the following claims or disputes must be submitted to final and binding arbitration under this Appendix: . . . any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma . . . .

The determination of whether a claim is covered by this Appendix shall also [*3] be subject to arbitration under this Appendix. Neither an Employee nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Appendix. . . . This binding arbitration will be the sole and exclusive remedy for resolving any such claim or dispute.

. . . .

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement including, but not limited to, any claim that all or any part of this agreement is void or voidable.

In the paragraph before the signature lines, the signer acknowledged that the plan included a mandatory company policy requiring that “claims or disputes relating to the cause of an on-the-job injury” be submitted to an arbitrator. Two sentences before the signature lines and in bold type were the following words: “I understand that the arbitrator, and not a judge or jury, has the exclusive authority to resolve any dispute about the enforceability of this arbitration.”

In her response to the motion, Lester argued that her claims did not fall within the scope of the arbitration agreement because she [*4] was not within the course and scope of her employment at the time of her injuries. To support her argument, she pointed to the definition of “Course and Scope of Employment” contained in the Plan: “an activity of any kind or character for which the Participant was hired and that has to do with, and originates in, the work, business, trade or profession of an Employer, and that is performed by a Participant in the furtherance of the affairs or business of an Employer.” According to the Plan, the term does not include “any injury occurring before the Participant clocks in or otherwise begins work for an Employer or after the Participant clocks out or otherwise ceases work for an Employer.” Also in her response, Lester noted that, had J.B. Hunt accepted her claim for benefits under the Plan, she may not have needed to file suit. The only evidence attached to her response was a letter from the Plan’s administrator denying Lester’s claim for benefits. The letter stated that benefits were denied (1) for failure to timely report the injury as required by the Plan and (2) for insufficient evidence to support an accident or injury in the course and scope of employment.

At the non-evidentiary [*5] hearing on the motion,² Lester did not challenge the validity of the agreement. Rather, she referred to the letter attached to her response and argued that, based on the denial of benefits under the Plan, arbitration was not required. Lester’s attorney also noted that “to protect the statute of limitations, a concurrent arbitration” had been filed with the AAA. J.B. Hunt argued that Lester did not contest the arbitration agreement and that the only issue before the court was determining whether the claim fell within the scope of the arbitration agreement. Further, J.B. Hunt asserted that the trial court did not have the authority to make the scope determination as that issue should be sent to arbitration. At the conclusion of the hearing, the trial court took the matter under advisement. Later, the trial court signed an order denying the plea in abatement and the motion to compel arbitration. J.B. Hunt appeals from that order. See Tex. Civ. Prac. & Rem. Code Ann. §§ 51.016, 171.098(a)(1); see also 9 U.S.C. § 16(a)(1)(B), (C).

III. Discussion

In one issue, J.B. Hunt complains that the trial court erred in denying its motion to compel arbitration “because the trial court’s order permits Lester to continue to litigate her claims in derogation of a broadly-worded, [*6] mandatory arbitration provision” in the Plan.

A. Standard of Review

HN1 We review a trial court’s decision to deny a motion to compel arbitration for abuse of discretion. Henry v. Cash Biz, LP, 551 S.W.3d 111, 115 (Tex. 2018). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

HN2 A party seeking to compel arbitration bears the burden to establish (1) the existence of a valid arbitration agreement and (2) that the disputed claims fall within the scope of that agreement. Wagner v. Apache Corp., 627 S.W.3d 277, 284 (Tex. 2021); see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003); see also Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, No. 21-0783, 2023 Tex. LEXIS 407, 2023 WL 3398584, at *5 (Tex. May 12, 2023). If the party seeking arbitration meets its two-pronged burden to establish the agreement’s validity and scope, then the burden shifts to the party opposing arbitration to raise a valid defense to the agreement’s enforcement, and absent evidence supporting such a defense, the trial court must compel arbitration. J.M. Davidson, Inc., 128 S.W.3d at 227-28.

HN3 A trial court’s determinations as to whether a valid arbitration agreement exists and whether the claims fall within the scope of an arbitration agreement are legal determinations subject to de novo review. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Similarly, all “gateway matters” are questions of law that we review de novo. Lennar Homes of Tex. Land & Constr., Ltd., 2023 Tex. LEXIS 407, 2023 WL 3398584, at *5.

Because the trial court here did not enter specific [*7] findings of fact or conclusions of law to explain its denial of the motion to compel arbitration, we infer that the trial court made all necessary findings to support its ruling. Kmart Stores of Tex., L.L.C. v. Ramirez, 510 S.W.3d 559, 565 (Tex. App.—El Paso 2016, pet. denied). And, because no findings or conclusions were entered, “we must uphold the trial court’s decision on any appropriate legal theory urged below.” APC Home Health Servs., Inc. v. Martinez, 600 S.W.3d 381, 389 (Tex. App.—El Paso 2019, no pet.) (emphasis added). “Yet, as a corollary, we are limited to considering the grounds presented to the trial court by the party resisting arbitration.” Id.

B. Analysis

In its initial appellate brief, J.B. Hunt confines its arguments to those made at the trial court, namely that Lester’s claims “fall within the broad language of the arbitration clause,” and more fundamentally, that the issue as to whether her claims fall within the scope of the arbitration provision should have been sent to the arbitrator. In response, Lester raises several arguments that were neither in her response to the motion to compel arbitration nor in her arguments at the hearing below, including the following: (1) the “contract was improperly formed” because the Plan’s signature line for J.B. Hunt contains an illegible signature and fails to state that person’s position with J.B. Hunt; (2) under [*8] a state law analysis, no valid arbitration contract was ever formed because the contract did not show that each party and its attorney signed the agreement as required by Texas Civil Practice and Remedies Code Section 171.002(c); and (3) under a federal law analysis, an interstate truck driver like Lester cannot be compelled to arbitrate her claims under 9 U.S.C. § 1. In its reply brief, J.B. Hunt argues that all of Lester’s appellate arguments, with the exception of the scope argument and the right to delegate that issue to the arbitrator, cannot be considered due to Lester’s failure to present them to the trial court. We will address these issues in turn as necessary to the disposition of this appeal.

1. Did J.B. Hunt meet its burden to establish the existence of a valid arbitration agreement?

HN4 Because arbitration is a matter of contract, courts must first decide whether a valid arbitration agreement exists. See TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC, No. 21-0028, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *19 (Tex. Apr. 14, 2023) (citing Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530, 202 L. Ed. 2d 480 (2019)). As the party seeking arbitration, the burden was on J.B. Hunt to establish the existence of a valid arbitration agreement. See Henry, 551 S.W.3d at 115.

J.B. Hunt attached to its motion a copy of the Plan containing the arbitration agreement which was purportedly signed by Lester and an individual on behalf of J.B. Hunt. In the Plan, the parties agreed that [*9] “any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma” would be submitted to “final and binding arbitration.” The Plan also stated that neither party “shall be entitled to a bench or jury trial on any claim covered” by the Plan. Further, “[t]he arbitrator, and not any federal, state, or local court or agency” has the “exclusive authority to resolve any dispute” regarding the agreement or the “enforceability of this arbitration.”

HN5 Generally, a “written arbitration agreement is prima facie valid and must be enforced unless the opposing party . . . ‘allege[s] and prove[s] that the arbitration clause itself was a product of fraud, coercion, or such grounds as exist at law or in equity for the revocation of the contract.'” Knox Waste Serv., LLC v. Sherman, No. 11-19-00407-CV, 2021 Tex. App. LEXIS 8010, 2021 WL 4470876, at *2 (Tex. App.—Eastland Sept. 30, 2021, no pet.) (mem. op.) (quoting Freudensprung v. Offshore Tech., Servs., Inc., 379 F.3d 327, 341 (5th Cir. 2004) (internal quotations omitted)). In addition, the uncontested existence of the non-movant’s signature on an arbitration agreement meets the evidentiary standard necessary to prove the prima facie existence of an arbitration agreement. APC Home Health Servs, Inc., 600 S.W.3d at 390.

On appeal, Lester argues that “the signature line labeled ‘For the Employer’ [*10] contains an illegible signature and does not identify the signer, their position with J.B. Hunt, or any indication that the signer has the authority to bind J.B. Hunt.” Therefore, Lester contends that J.B. Hunt failed to show prima facie evidence of a valid arbitration agreement between the parties. However, this argument was not raised in the trial court. Therefore, it cannot be considered on appeal. See HN6 Tex. R. App. P. 33.1(a)(1) (“As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court . . . .”); see also Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (stating that a party “should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time”). HN7 Even if it was not waived for failure to present it to the trial court, the supreme court has “never held that the employer must sign the arbitration agreement before it may insist on arbitrating a dispute with its employee.” In re Polymerica, LLC, 296 S.W.3d 74, 76 (Tex. 2009) (orig. proceeding); In re AdvancePCS Health, L.P., 172 S.W.3d 603, 606 (Tex. 2005) (orig. proceeding) (“[N]either the FAA nor Texas law requires that arbitration clauses be signed, so long as they are written and agreed to by the parties.”).

J.B. Hunt attached [*11] the “relevant page[s]” of the Plan to its motion to compel.³ Lester does not dispute that she signed the document. Therefore, J.B. Hunt’s signed copy of the arbitration agreement contained within the Plan established a prima facie valid arbitration agreement and satisfied J.B. Hunt’s initial burden in seeking arbitration. See Wagner, 627 S.W.3d at 284; see also In re DISH Network, L.L.C., 563 S.W.3d 433, 439 (Tex. App.—El Paso 2018, orig. proceeding).

2. Did J.B. Hunt meet its burden to establish that the disputed claims fell within the scope of that agreement?

After establishing the existence of a valid arbitration agreement, it was J.B. Hunt’s next burden to establish that the claims at issue fell within the scope of that agreement. See Henry, 551 S.W.3d at 115; see also TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *19.

The scope of arbitration issue was recently discussed by the Texas Supreme Court. In TotalEnergies, the court addressed a dispute over whether the parties’ contracts required them to resolve their controversies through arbitration and whether they agreed that an arbitrator, rather than the courts, must resolve that dispute. TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *1. In resolving the case, the court first noted:

HN8 A dispute over whether parties agreed to resolve their controversies through arbitration—referred to as a dispute over the controversies'”arbitrability”—typically encompasses three [*12] distinct disagreements: (1) the merits of the underlying controversy [ ]; (2) whether the merits must be resolved through arbitration instead of in the courts; and (3) who (a court or the arbitrator) decides the second question.

2023 Tex. LEXIS 315, [WL] at *4 (citing RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 120 (Tex. 2018)). The court stated that “[t]he second question must be answered before the first, but the third must be answered before the second.” Id. Therefore, the court began with the third question. Id.

We too begin with the third question. In the Plan at issue here, the agreement expressly provided that the “determination of whether a claim is covered” by the Plan “shall also be subject to arbitration.” Further, the “arbitrator, and not any federal, state, or local court or agency” has the “exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation” of the agreement. Finally, any arbitration under the Plan “will be administered by the [AAA] under its then-current Employment Arbitration Rules and Mediation Procedures.” Rule 6(a) of the AAA Employment Rules states, “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” [*13] Am. Arb. Ass’n, Employment Arbitration Rules & Mediation Procedures Rule 6(a) (2023), http://adr.org/sites/default/files/EmploymentRules-Web.pdf.

Lester argues that her claims do not fall within the scope of the arbitration agreement because they are not based on work-related injuries as she was off the clock and not within the course and scope of her employment when she was injured. To support her argument, Lester refers to the letter from the Plan’s administrator denying Lester’s claim for benefits. However, as noted by J.B. Hunt, the “scope of the Plan benefits for injuries and the scope of the arbitration clause are not coextensive”; rather, they are different. Regardless of the scope of the Plan benefits, the arbitration provision applies to “any legal or equitable claim by or with respect to an Employee for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma.”

HN9 In TotalEnergies, the court held that it “agree[d] with the vast majority of courts that, as a general rule, an agreement to arbitrate in accordance with the AAA or similar rules constitutes a clear and unmistakable agreement that the arbitrator [*14] must decide whether the parties’ disputes must be resolved through arbitration.” TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *10. The court also explained that it “need not decide whether the arbitration agreement [was] ‘sufficiently’ broad, however, because . . . any limitation contained within these parties’ arbitration agreement d[id] not affect the agreement’s clear and unmistakable delegation of arbitrability issues to the arbitrator.” 2023 Tex. LEXIS 315, [WL] at *12. And, while one party argued that the parties had “agreed to arbitrate only certain controversies and carved out others,” id., the court rejected this argument because it “ignore[d] the severability rule and conflate[d] the parties’ agreement to arbitrate disputes with their agreement to delegate arbitrability issues to the arbitrator.” 2023 Tex. LEXIS 315, [WL] at *14.

Here, the parties not only expressly referred to arbitrability pursuant to the AAA but also specifically delegated the scope issue to the arbitrator. Further, the AAA rules require the arbitrator to rule on any objections “with respect to the existence, scope or validity of the arbitration agreement.” Am. Arb. Ass’n, Employment Arbitration Rules & Mediation Procedures Rule 6(a) (2023), http://adr.org/sites/default/files/EmploymentRules-Web.pdf. Therefore, similar [*15] to the TotalEnergies arbitration agreement, objections “with respect to the existence, scope or validity of the arbitration agreement” between J.B. Hunt and Lester were delegated to the arbitrator. TotalEnergies, 2023 Tex. LEXIS 315, 2023 WL 2939648, at *3, *5, *10. We conclude that the parties here have “clearly and unmistakably” delegated the arbitrability issue to the arbitrator.⁴ See 2023 Tex. LEXIS 315, [WL] at *19.

3. Were Lester’s appellate arguments waived because she failed to present them to the trial court?

HN11 Once the questions of validity and scope are resolved affirmatively, the court then considers whether any statute or policy renders the claims nonarbitrable. See In re W. Dairy Transp., 457 S.W.3d 467, 471 (Tex. App.—El Paso 2014, no pet.). The party seeking to invalidate an arbitration agreement bears the burden of proof on these matters. Id.

As noted above, on appeal Lester presents two arguments not presented to the trial court: (1) under a federal law analysis, an interstate truck driver like Lester cannot be compelled to arbitrate her claims under 9 U.S.C. § 1,⁵ and (2) under a state law analysis, no valid arbitration contract was ever formed because the contract did not show that each party and its attorney signed the agreement as required by Texas Civil Practice and Remedies Code Section 171.002(c).

Because of these new arguments, we must initially answer the question whether Lester [*16] has preserved them for our review. HN13 As a general rule, a party is required to present a complaint to the trial court before being allowed to raise the complaint on appeal. See Tex. R. App. P. 33.1; All Am. Excavation, Inc. v. Austin Materials, LLC, No. 04-15-000779-CV, 2016 Tex. App. LEXIS 3773, 2016 WL 1464409, at *4 (Tex. App.—San Antonio Apr. 13, 2016, no pet.) (mem. op.) (stating that a party must present argument to the trial court or the argument is waived and cannot be considered for the first time on appeal). Regarding waiver of the 9 U.S.C. § 1 exemption, the Dallas Court of Appeals has summarized the applicable law in this area:

Texas courts have held that an objection to arbitration under the 9 U.S.C. § 1 exemption from arbitration must be raised before the trial court rules on a motion to compel arbitration. See Conn Appliances, Inc. v. Puente, No. 09-18-00326-CV, 2020 Tex. App. LEXIS 6410, 2020 WL 4680283, at *4 (Tex. App.— Beaumont 2020, no pet.) (mem. op.) (failure to object to arbitration procedure on the ground that 9 U.S.C. § 1 exemption applied before the trial court rules on motion to compel arbitration waived the objection); J.B. Hunt Transp., Inc. v. Hartman, 307 S.W.3d 804, 809 (Tex. App.—San Antonio 2010, no pet.) (on appeal from denial of motion to compel arbitration, court of appeals refused to consider whether 9 U.S.C. § 1 exempted the dispute from arbitration when the appellee did not assert the application of the exemption in the trial court).

Gordon v. Trucking Res., Inc., No. 05-21-00746-CV, 2022 Tex. App. LEXIS 8379, 2022 WL 16945913, at *2 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.). In determining whether an employee is a transportation worker for purposes of the 9 U.S.C. § 1 exclusion, appellate courts review affidavit and live testimony as well as other [*17] evidence presented to the trial court. See OEP Holdings, LLC v. Akhondi, 570 S.W.3d 774, 778 (Tex. App.—El Paso 2018, pet. denied) (“Differentiating transportation workers from those who only incidentally aid in the transport of goods is a fact intensive inquiry.”).

In this case, Lester first asserted the 9 U.S.C. § 1 exemption from arbitration in her appellate brief. Before the trial court, other than attaching a letter from the Plan’s administrator to her response to the motion to compel arbitration, Lester offered no evidence and made no argument regarding any matter other than scope. Because she failed to timely assert the transportation-worker exemption to the trial court, we cannot rely on that ground to affirm the trial court’s ruling.⁶ See Tex. R. App. P. 33.1(a); J.B. Hunt, 307 S.W.3d at 809 (“The issue of whether section 1 of the FAA exempts Mr. Pilat from coverage was never presented to the trial court. Therefore, we conclude this issue was not preserved for our review.”); see also Duarte v. Mayamax Rehab. Servs., L.L.P., 527 S.W.3d 249, 257-58 (Tex. App.—El Paso 2016, pet. denied) (holding that because appellants failed to timely raise the argument regarding whether arbitrator or trial court determines the validity of any arbitration agreement contained in a challenged contract, appellants waived error on this argument).

Regarding the attorney’s signature on the arbitration agreement, under state law, an arbitration agreement [*18] is generally enforceable, but if it governs a personal injury claim, the agreement must be approved and signed by both parties and their attorneys. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(b)(3); see also APC Home Health Servs., Inc., 600 S.W.3d at 391; Chambers v. O’Quinn, 305 S.W.3d 141, 147 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Once again, this issue was not raised before the trial court. Therefore, we cannot now consider it on appeal.⁷ See Tex. R. App. P. 33.1(a).

Also on appeal, Lester alludes to other vague “contract formation” arguments and “additional bar[s]” to arbitration. She argues, without support, that “no valid arbitration contract was ever formed” between J.B. Hunt and Lester. However, again, she never raised these arguments in the trial court. Instead, her written response to the motion was limited to the “course and scope” issue, and her attorney’s argument before the trial court began with the admission that “there’s an arbitration agreement. And the arbitration clause defines whether or not that arbitration agreement is going to apply.” J.B. Hunt’s counsel echoed this understanding as he began his argument to the trial court: “The court is correct, there is an arbitration agreement. And Ms. Lester does not contest that there’s an arbitration agreement. The issue before the court today is what can this court do with respect to determining if [*19] the claim falls within the arbitration?” Because she failed to present these arguments to the trial court, Lester cannot now raise these new arguments on appeal. See Tex. R. App. P. 33.1(a).

In summary, J.B. Hunt satisfied its two-pronged burden to establish both the existence of a valid arbitration agreement and that the disputed claims fell within the scope of that agreement. See Wagner, 627 S.W.3d at 284. Lester failed to timely raise a valid defense to the agreement’s enforcement. See J.M. Davidson, Inc., 128 S.W.3d at 227-28. Therefore, the trial court abused its discretion in denying J.B. Hunt’s motion to compel arbitration. We sustain J.B. Hunt’s sole issue.

IV. Conclusion

Having sustained J.B. Hunt’s sole issue, we reverse and remand for entry of an order compelling arbitration and staying the proceedings in the trial court pending completion of the arbitration proceedings. See Mid-Am. Apts., L.P. v. Trojan, No. 02-21-00204-CV, 2021 Tex. App. LEXIS 8776, 2021 WL 5028794, at *7 (Tex. App.—Fort Worth Oct. 28, 2021, no pet.) (mem. op.).

/s/ Dana Womack

Dana Womack

Justice

Delivered: June 8, 2023

End of Document

¹McCarthy is neither a party to this appeal nor a party to the underlying motion to compel arbitration.

²Whether or not an evidentiary hearing should be held depends on the circumstances. In re MP Ventures of S. Tx., Ltd., 276 S.W.3d 524, 528 n.4 (Tex. App.— San Antonio 2008, orig. proceeding). If material facts are uncontroverted, the trial court may decide whether to compel arbitration based on the affidavits, pleadings, discovery, and stipulations. Id. (citing Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding)). The trial court is only required to hold a hearing to resolve disputed facts. Id.

³On appeal, in her Statement of Facts, Lester for the first time states that “the record does not contain the whole contract (the Plan), only excerpts.” To the extent that this can be interpreted as an argument supporting the trial court’s ruling, the argument was never raised before the trial court and cannot be considered on appeal. See Tex. R. App. P. 33.1(a).

⁴In her appellate brief, Lester contends that “[t]o coerce the parties to arbitrate what they have not agreed to arbitrate would fly in the face of fairness,” and, under the doctrine of estoppel or quasi-estoppel, “a party seeking benefits from a contract cannot also avoid the burdens of a contract.” While Lester states that she made this argument below, it was only in her written response and was contained within her “course and scope” argument, where she stated that J.B. Hunt should be “estopped from taking the polar opposite position that [Lester’s] claims [were] within the course and scope of employment after all and must therefore be subject to arbitration.” Lester cited no authority below in support of this argument, and she did not raise it at the hearing on the motion to compel arbitration. HN10 Nevertheless, we have previously determined that whether certain claims are barred by res judicata should be referred to the arbitrator. Robinson v. Home Owners Mgmt. Enters. Inc., No. 02-20-00215-CV, 2021 Tex. App. LEXIS 1877, 2021 WL 924839, at *16 (Tex. App.—Fort Worth Mar. 11, 2021, pet. denied) (mem. op.). In making that decision, we relied on both United States Supreme Court and Texas Supreme Court precedent. See 2021 Tex. App. LEXIS 1877, [WL] at *5 (citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84, 123 S. Ct. 588, 592, 154 L. Ed. 2d 491 (2002) (stating that “issues of substantive arbitrability . . . are for a court to decide[,] and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide”) (emphasis added); and G.T. Leach Builders, L.L.C. v. Sapphire V.P., LP, 458 S.W.3d 502, 521 (Tex. 2015) (stating that courts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration, including “the satisfaction of ‘prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate'”) (emphasis added) (quoting BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34-35, 134 S. Ct. 1198, 1206-07, 188 L. Ed. 2d 220 (2014))). Similarly, we conclude here that any procedural matter relating to estoppel or quasi-estoppel should be decided by the arbitrator.

⁵HN12 The FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; see Circuit City Stores v. Adams, 532 U.S. 105, 112, 121 S. Ct. 1302, 1307, 149 L. Ed. 2d 234 (2001).

⁶In its reply brief, J.B. Hunt argues that, even if not waived, the transportation-worker exemption does not apply in this case because the exemption applies only to “contracts of employment” and this was “an ERISA employee benefit plan that provides for certain non-fringe disability, death, dismemberment, and health care benefits.” See 9 U.S.C. § 1; see also In re Mission Petroleum Carriers, Inc., No. 13-04-00550-CV, 2005 Tex. App. LEXIS 1108, 2005 WL 326848, at *2 (Tex. App.—Corpus Christi—Edinburg, Feb. 11, 2005, orig. proceeding) (mem. op.) (stating that the transportation-worker exemption did not apply because “the arbitration clause at issue [was] found in the Mission employee health and safety plan, rather than an employment contract”). Because we conclude that this issue was not raised before the trial court, we need not address this alternative argument.

⁷In its reply brief, J.B. Hunt argues that the dual signature argument is meritless because the FAA, not the TAA, applies in this situation. J.B. Hunt avoids the Texas statute if the FAA—9 U.S.C. §§ 1-16—applies, because the FAA preempts conflicting state law. APC Home Health Servcs., Inc., 600 S.W.3d at 391. Here, the Plan specifically provided that the FAA would control: “The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings under the arbitration provisions of this Plan.” See Perry v. Thomas, 482 U.S. 483, 489, 107 S. Ct. 2520, 2525, 96 L. Ed. 2d 426 (1987) (stating that the FAA applies when the dispute concerns a “contract evidencing interstate commerce”). While the arbitrator could apply the substantive law of Texas, the arbitrator specifically could not apply the “Texas General Arbitration Act.” Where the FAA applies, the signature of counsel is not a prerequisite to enforcement of an arbitration agreement. See In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 70 (Tex. 2005) (orig. proceeding) (“Because the TAA is preempted by the FAA in this case, the signature of Marjorie’s counsel was not a prerequisite to enforcement of the arbitration agreement.”). However, as in the transportation-worker-exemption argument, we need not address this alternative argument because it was not raised before the trial court.

Malone v. Russell

United States District Court for the Northern District of Texas, Dallas Division

June 6, 2023, Decided; June 6, 2023, Filed

CIVIL ACTION NO. 3:23-CV-0001-S

MOLLIE MALONE and DIDRAIL JENNINGS v. BRIAN LOUIS RUSSELL, RUSSELL TRUCKING, LLC, DM TRANS, LLC d/b/a ARRIVE LOGISTICS, LUIS ALBERTO LOVO, Individually and d/b/a LOVO TRANSPORTS, ARMSTRONG TRANSPORT GROUP, LLC, NAVISTAR, INC, and SOUTHWEST INTERNATIONAL TRUCKS, INC.

Core Terms

preemption, Broker, preempts, cause of action, removal, federal issue, federal court, federal law, state law, state-law, district court, federal question, transportation, crash

Counsel: [*1] For Mollie Malone, Didrail Jennings, Plaintiffs: Joseph Andrew Mokodean, LEAD ATTORNEY, Law Firm of Roger Walton, Arlington, TX; Roger D Walton, Law Firm of Roger ‘Rocky’ Walton PC, Arlington, TX.

For Brian Louis Russell, Russell Trucking LLC, Defendants: Jeffrey D Smith, Fletcher Farley Shipman & Salinas, LLP, Dallas, TX.

For DM Trans LLC, doing business asArrive Logistics, Defendant: Matthew Francis Popp, LEAD ATTORNEY, Christina K Schovajsa, Robert L Klawetter, PRO HAC VICE, Schouest Bamdas Soshea BenMaier & Eastham PLLC, Houston, TX.

For Luis Alberto Lovo, Individually, doing business asLovo Transports, Defendant: Brett David Timmons, LEAD ATTORNEY, Fee Smith & Sharp LLC, Dallas, TX; Adam J Strange, Michael P Sharp, Fee Smith & Sharp LLP, Dallas, TX.

For Armstrong Transport Group LLC, Defendant: Carlos A Balido, LEAD ATTORNEY, Laura A Wright, Walters Balido & Crain, LLP, Meadow Park Tower, Dallas, TX.

For Navistar Inc, Southwest International Trucks Inc, Defendants: Jeff S Patterson, LEAD ATTORNEY, Bowman and Brooke LLP, Plano, TX; Luke Charles Spencer, Bowman and Brooke, LLP, Plano, TX.

Judges: KAREN GREN SCHOLER, UNITED STATES DISTRICT JUDGE.

Opinion by: KAREN GREN SCHOLER

Opinion

MEMORANDUM OPINION AND ORDER

This [*2] Memorandum Opinion and Order addresses Plaintiffs Mollie Malone and Didrail Jennings’s Motion to Remand (“Motion”) [ECF No. 14]. The Court has reviewed and considered the Motion, Defendant Arrive Logistics, LLC’s Response in Opposition to Plaintiffs’ Motion to Remand¹ (“Response”) [ECF No. 20], the arguments of counsel at the March 21, 2023, hearing on the Motion, and the applicable law. For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND

This case arises out of a July 19, 2022, motor vehicle crash. See Pls.’ First Am. Pet. [ECF No. 1-11] ¶¶ 21, 25. Malone stopped on the highway due to traffic caused by a crash involving Defendant Luis Alberto Lovo. Id. ¶ 22-23, 70. Defendant Brian Louis Russell, an employee of Russell Trucking, was driving a tractor-trailer behind Malone on the same highway, failed to stop, and crashed into Malone’s vehicle. Id. ¶¶ 24-25, 43. As a result of the crash, Malone is paralyzed from the waist down. Id. ¶ 32. Malone and her husband, Jennings, sued multiple individuals and entities, including Broker Defendants, for their alleged roles in the crash. See, e.g., id. ¶¶ 50-52, 76-78. According to Plaintiffs, Arrive Logistics “acted as a broker [*3] to arrange the transportation of the goods being transported by Defendant Russell,” id. ¶ 50, and Armstrong “acted as a broker to arrange the transportation of the goods being transported by Defendant Lovo,” id. ¶ 76. Plaintiffs assert Texas state-law negligence and/or negligent hiring claims against Broker Defendants. Id. ¶¶ 50-52, 76-78.

Plaintiffs filed suit in the 192nd Judicial District Court of Dallas County, Texas. Arrive Logistics removed the case, asserting that the Court has subject-matter jurisdiction because: (1) the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501, preempts Plaintiffs’ claims; and (2) Plaintiffs’ claims raise significant federal issues.² See Notice of Removal by DM Trans, LLC d/b/a Arrive Logistics [ECF No. 1] ¶¶ 6-11. Armstrong later consented to removal.³ See Consent to Removal by Carlos A. Balido [ECF No. 6-1].

II. LEGAL STANDARD

Any civil action brought in a state court of which the district courts have original jurisdiction may be removed to the district court embracing the place where such action is pending. 28 U.S.C. § 1441(a). “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) (internal quotation marks and citation omitted). A federal court must [*4] presume that a case lies outside its limited jurisdiction, and the party asserting jurisdiction bears the burden of establishing the contrary. Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014) (citation omitted). Because removal raises significant federalism concerns, the removal statute is strictly construed, and any doubt about the propriety of removal jurisdiction is resolved in favor of remand. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007) (citations omitted). The two principal bases upon which a district court may exercise removal jurisdiction are: (1) the existence of a federal question, see 28 U.S.C. § 1331; and (2) complete diversity of citizenship among the parties, see 28 U.S.C. § 1332.

III. ANALYSIS

A. Complete Preemption

Broker Defendants argue that the Court has federal question jurisdiction because Section 14501 completely preempts Plaintiffs’ state-law claims. Notice of Removal ¶¶ 6-8. 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). “The complete preemption doctrine is an exception to the well-pleaded complaint rule.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (citing McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir. 2008)). The complete preemption doctrine provides a basis for federal question jurisdiction if “a federal statute so completely preempts a particular [*5] area that any civil complaint raising the select group of claims is necessarily federal in character.” La. Indep. Pharmacies Ass’n v. Express Scripts, Inc., 41 F.4th 473, 479 (5th Cir. 2022) (cleaned up).

Here, Broker Defendants acknowledge that Plaintiffs only bring state-law claims but contend that the Court has jurisdiction because federal law completely preempts those claims. In arguing that the Court should find complete preemption, Broker Defendants cite two provisions of Section 14501:

“[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, 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).

“[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.

Id. § 14501(c)(1). According to Broker Defendants, each of these provisions “provide for preemption of Plaintiffs’ claims.” [*6] Resp. ¶ 11. Broker Defendants rely heavily on the “plain language” of each provision to argue in favor of preemption, but their arguments miss the mark because they focus on the wrong form of preemption. Id. ¶ 14.

Although Broker Defendants’ opposition to the Motion is ostensibly based on the complete preemption doctrine, they fail to cite the Fifth Circuit’s standard for complete preemption. “The Fifth Circuit has developed a stringent tripartite test to determine whether a statute is among the few falling within the complete preemption exception.” Rogers v. Am. Airlines, Inc., 192 F. Supp. 2d 661, 665 (N.D. Tex. 2001) (citing Aaron v. Nat’l Union Fire Ins. Co., 876 F.2d 1157, 1164 (5th Cir. 1989)). First, federal law must “create[] a cause of action that both replaces and protects the analogous area of state law.” Manyweather, 40 F.4th at 243 (citation omitted). Second, Congress must have “empowered federal courts to hear that cause of action.” Id. Third, Congress must have “clearly intended that grant of jurisdiction to be exclusive.” Id. “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). This analysis is “required under [the Fifth Circuit’s] precedents.” Bellfort Enters. Inc. v. PetroTex Fuels Inc., 339 F. App’x 416, 418 (5th Cir. 2009).

Broker Defendants confuse complete [*7] preemption with ordinary preemption.⁴ This error is significant because “complete preemption is less common and more extraordinary than defensive or ordinary preemption.” Barrois, 533 F.3d at 331 (citation omitted); see also Meade v. Avant of LLC, 307 F. Supp. 3d 1134, 1140 (D. Colo. 2018) (“The doctrine of complete preemption should not be confused with ordinary preemption, which occurs when there is the defense of ‘express preemption,’ conflict preemption,’ or ‘field preemption’ to state law claims.”). Unlike complete preemption, “[d]efensive preemption does not create federal jurisdiction and simply declares the primacy of federal law, regardless of the forum or the claim.” Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011) (internal quotation marks and citation omitted). The ordinary preemption analysis asks “the more common question of whether a given federal law preempts a conflicting state cause of action.” Rogers, 192 F. Supp. 2d at 665. By contrast, “[t]he complete preemption doctrine applies only when Congress intends not merely to preempt a field in state law, but also intends to transfer jurisdiction of the subject matter from state to federal courts.” Id. at 671 (citation omitted). “Complete preemption is rare,” and the Supreme Court has only found complete preemption three times. Woodard-Hall v. STP Nuclear Operating Co., 473 F. Supp. 3d 740, 747 (S.D. Tex. 2020) (citation omitted); see also Lopez v. Amazon Logistics, Inc., 458 F. Supp. 3d 505, 510 (N.D. Tex. 2020) (setting forth contexts in which Supreme [*8] Court has found complete preemption).

Broker Defendants’ misunderstanding of the difference between complete and ordinary preemption is evident in the cases they cite, many of which do not contain the Fifth Circuit’s complete preemption standard. For example, Broker Defendants rely on Gillum v. High Std., LLC, No. SA-19-CV-1378-XR, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371 (W.D. Tex. Jan. 27, 2020). But as other district courts have noted, the Gillum court did not undertake the Fifth Circuit’s complete preemption analysis and instead appeared to evaluate ordinary preemption. See, e.g., Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021) (citation omitted), report and recommendation adopted by 2021 U.S. Dist. LEXIS 62056, 2021 WL 1209469 (S.D. Ohio Mar. 31, 2021). Other cases cited by Broker Defendants explicitly involve only ordinary preemption. See, e.g., Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1272 (11th Cir. 2023) (dismissing the plaintiff’s claims as “barred by [Section 14501‘s] express preemption provision”); McCarter v. Ziyar Express, Inc., No. 3:21-CV-2390, 2023 U.S. Dist. LEXIS 4552, 2023 WL 144844, at *1-2 (N.D. Ohio Jan. 10, 2023) (conducting ordinary preemption analysis at motion to dismiss stage where jurisdiction was not disputed); Ga. Nut Co. v. C.H. Robinson Co., No. 17-C-3018, 2017 U.S. Dist. LEXIS 177269, 2017 WL 4864857, at *2 (N.D. Ill. Oct. 26, 2017) (analyzing the defendant’s argument that Section 14501 “expressly preempts [the plaintiff’s] negligent hiring and negligent supervision claim”). Because “[o]nly complete preemption would give this Court federal question jurisdiction over [Plaintiffs’] claim[s],” Broker Defendants’ “arguments applying the [ordinary] preemption standard are erroneous.” Caulley v. Interprise/Southwest Interior & Space Design, Inc., No. 3:20-CV-03077-X, 2021 U.S. Dist. LEXIS 108577, 2021 WL 2376720, at *2 (N.D. Tex. June 10, 2021).

For this reason alone, Broker Defendants [*9] have not carried their burden to justify removal. Even if the Court conducted the complete preemption analysis, however, Broker Defendants’ argument would fail at the first step. As noted above, for a federal statute to completely preempt a state-law cause of action, the federal law must “create[] a cause of action that both replaces and protects the analogous area of state law.” Manyweather, 40 F.4th at 243 (citation omitted). But “[Section] 14501 doesn’t contain any cause of action.” Gulf Winds Int’l Inc. v. Almanzar, No. 4:20-CV-04136, 2021 U.S. Dist. LEXIS 187181, 2021 WL 4481340, at *4 (S.D. Tex. Sept. 29, 2021); see also M, G, & B Servs. v. Buras, No. 04-1512, 04-1509, 2004 U.S. Dist. LEXIS 16624, 2004 WL 1872718, at *4 (E.D. La. Aug. 19, 2004) (“[Section 14501] does not contain a civil enforcement provision that creates a private cause of action. . . . Without a civil enforcement provision, [Section 14501] cannot completely preempt [the plaintiffs] state law claims.”); Lyles v. Wren, No. 2:23-CV-00051-JM, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (E.D. Ark. May 9, 2023) (finding that “the absence of a replacement cause of action for negligence claims in Section 14501 “creates an exceptionally strong presumption against complete preemption” (internal quotation marks omitted)). “The absence of a federal remedy makes it difficult to conclude that Congress intended to displace state law.” Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 686 (5th Cir. 2001) (citation omitted) (affirming district court’s dismissal for lack of subject-matter jurisdiction because the federal statute at issue did not completely displace state-law remedies).

In sum, Broker Defendants did not provide the [*10] Court with the correct standard by which to evaluate its jurisdiction. And even if they had, the Court concludes that Section 14501 is not one of the rare statutes that completely preempts state law. “Fortifying the Court’s conclusion is the jurisdictional standard,” which requires the Court to resolve all doubts in favor of remand. Gerred v. Fedex Ground Packaging Sys., No. 4:21-CV-1026-P, 2021 U.S. Dist. LEXIS 187602, 2021 WL 4398033, at *3 (N.D. Tex. Sept. 23, 2021) (citations omitted) (holding that Section 14501 did not completely preempt the plaintiffs state-law claims and remanding case). In reaching this conclusion, the Court expresses no opinion on the merits of Broker Defendants’ ordinary preemption arguments, which are more properly asserted in state court in support of a defense to Plaintiffs’ claims. See White v. Scotty’s Contr. & Stone, LLC, No. 1:21-CV-00161-GNS, 2022 U.S. Dist. LEXIS 177300, 2022 WL 4588417, at *9 (W.D. Ky. Sept. 29, 2022). In other words, Plaintiffs’ claims implicate Section 14501 only to the extent that Broker Defendants are likely to rely on it as a defense to Plaintiffs’ claims, and “the assertion of a defense of federal preemption of state law is insufficient to invoke federal-question jurisdiction.” Beers v. N. Am. Van Lines, Inc., 836 F.2d 910, 913 (5th Cir. 1988) (citations omitted), overruled on other grounds by Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). As such, the Court lacks subject-matter jurisdiction over this case.

B. Significant Federal Issue

For largely the same reasons, the Court holds that Plaintiffs’ claims also are not removable on the ground that [*11] the claims raise a significant federal issue. “[E]ven when a state court petition pleads only state law causes of action,” a federal court has jurisdiction “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) (citation omitted). “The category of cases that satisfy these requirements is ‘special and small.'” Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 588 (5th Cir. 2022) (quoting Bd. Of Comm’rs of Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 850 F.3d 714, 721 (5th Cir. 2017)).

Broker Defendants argue that Plaintiffs’ claims raise a significant federal issue because their right to relief necessarily depends on the resolution of a substantial question of federal law, their allegations represent a dispute as to the effect and breadth of federal law concerning freight brokers, and their argument that state law applies to their claims will impact freight brokers’ selection of federally licensed motor carriers. Notice of Removal ¶ 11. All of these arguments go back to whether Section 14501 expressly preempts Plaintiffs’ claims, which, as stated above, is a defense to Plaintiffs’ claims. Broker Defendants’ “affirmative defense of [preemption] belongs in a responsive pleading, which cannot itself support federal [*12] jurisdiction.” Box, 33 F.4th at 202. “That is true even for federal defenses that are ‘inevitable.'” Id. (citation omitted); see also Mitchell, 28 F.4th at 588-89 (holding that the plaintiff’s claims did not raise a significant federal issue where preemption was raised as a defense because the federal issues “are neither raised nor disputed on the face of the complaint”); Lyles, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (concluding that the plaintiff’s claims did not raise a significant federal issue and rejecting arguments nearly identical to those asserted in the instant case).

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiffs’ Motion to Remand [ECF No. 14]. This case is REMANDED to the 192nd Judicial District Court of Dallas County, Texas.

SO ORDERED.

SIGNED June 6, 2023.

/s/ Karen Gren Scholer

KAREN GREN SCHOLER

UNITED STATES DISTRICT JUDGE

End of Document

¹Defendant Armstrong Transport Group, LLC (“Armstrong”) also requests that the Court deny the Motion for the reasons set forth in the Response. See Def. Armstrong Transport Group, LLC’s Mem. Concerning Suppl. Jurisdiction [ECF No. 34] 3. The Court will refer to DM Trans d/b/a Arrive Logistics, LLC (“Arrive Logistics”), and Armstrong Transport Group, LLC, collectively as “Broker Defendants” throughout this Order.

²In its Response, Arrive Logistics no longer argues that Plaintiffs’ claims raise significant federal issues. Instead, Arrive Logistics argues only that removal was proper based on the complete preemption doctrine. Nonetheless, the Court will address both arguments below.

³Because the asserted bases for federal jurisdiction only apply to freight brokers, none of the other defendants have joined in the notice of removal. However, some of the defendants have requested that the Court exercise supplemental jurisdiction over the claims against them should the Court deny the Motion. See ECF Nos. 32, 33.

⁴There are three categories of ordinary preemption: (1) express, (2) field, and (3) conflict. See Washington v. Fred’s Stores of Tenn., Inc., 427 F. Supp. 2d 725, 728 (S.D. Miss. 2006) (citation omitted). Broker Defendants’ arguments primarily go to the issue of express preemption.