2020 WL 2894792
United States District Court, W.D. Texas, El Paso Division.
Andres Aguilar LOPEZ, Jr., Individually and as Next Friend of A.L.L., a Minor, and as Representative of the Estate of Amy Michelle Lopez (Deceased), Tailor Fields, George W. Berrihger and Gail Berrihger, Plaintiffs,
TRUCKERS TRANSPORTATION ALLIANCE, INC., Gabriel Enriquez; ROAR Logistics, Inc., and Ford Motor Company, Defendants,
Kolby Fields, Intervenor Plaintiff,
Truckers Transportation Alliance, Inc., Gabriel Enriquez; ROAR Logistics, Inc., and Ford Motor Company, Defendants.
Jose Antonio Rodriguez Pineda and Maria Romo-Carlos, Individually and as Next Friends of M.R., A.R. and B.R., Minors, Intervenor Plaintiffs,
Truckers Transportation Alliance, Inc., Gabriel Enriquez; and ROAR Logistics, Inc., Defendants.
June 3, 2020
Attorneys and Law Firms
Jeffrey H. Cluff, Fadduol, Cluff & Hardy, PC, Lubbock, TX, Manuel H. Hernandez, Fadduol, Cluff, Hardy & Conaway, P.C., Odessa, TX, for Plaintiffs.
Carlos Rincon, Cindy M. Vazquez, Rincon Law Group, P.C., El Paso, TX, for Defendants Trucker Transportation Alliance, Inc., Gabriel Enriquez.
Aldo R. Lopez, Daniel H. Hernandez, Ray, Valdez, McChristian & Jeans a Professional Corporation, El Paso, TX, Jacob M. Borchers, Patrick Francis Madden, MacDonald Devin PC, Dallas, TX, for Defendant Roar Logistics, Inc.
Chantel Crews, Ainsa Hutson Hester & Crews LLP, El Paso, TX, William L. Mennucci, Thompson, Coe, Cousins & Irons LLP, Austin, TX, for Defendant Ford Motor Company.
KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE
*1 On this day, the Court considered Intervenor-Plaintiffs Jose Antonio Rodriguez Pineda and Maria Romos-Carlos’, Individually and as Next Friends of M.R., A.R., and B.R., Minors, (collectively, the “Pineda Plaintiffs”) Motion to Remand (the “Pineda Motion”), ECF No. 8; Plaintiffs Andres Aguilar Lopez, Jr., Individually and as Next Friend of A.L.L., a Minor, and as Representative of the Estate of Amy Michelle Lopez (Deceased), Tailor Fields, George W. Berrihger, and Gail Berrihger’s (collectively, the “Lopez Plaintiffs”) Motion to Remand (the “Lopez Motion”), ECF No. 12; and Intervenor-Plaintiff Kolby Fields’ Motion to Remand (the “Fields Motion”), ECF No. 13 (collectively, the “Motions”). For the following reasons, the Motions are GRANTED, and this matter is REMANDED to the 448th Judicial District Court, El Paso County, Texas.
This matter arises out of an April 16, 2019, motor vehicle accident that occurred in Weatherford, Texas and resulted in the death of Amy Lopez. Pl.’s 2d Am. Pet. & Jury Demand 12, ECF Nos. 6-3–6-4.1 The Lopez Plaintiffs filed suit in state court against Truckers Transportation, Inc. (“Truckers”) and Gabriel Enriquez on April 29, 2019, bringing state common law claims for negligence and gross negligence.2 Pl.’s Original Pet. & Jury Demand 1, ECF No. 6-3. On July 12, 2019, the Lopez Plaintiffs filed their First Amended Petition (the “July 2019 Petition”), naming ROAR Logistics, Inc. (“ROAR”) as an additional Defendant. Pl.’s 1st Am. Pet. & Jury Demand (the “July Pet.”) 2–3, 9–11, ECF No. 6-3. The July 2019 Petition included the following pertinent allegations regarding ROAR:
2. Defendant ROAR Logistics entered into a contract with Defendant Truckers Transportation on January 3, 2019 in El Paso County, Texas regarding the hauling of freight/goods in interstate commerce.
3. Pursuant to this agreement, on April 16, 2019 ROAR Logistics arranged for Truckers Transportation, an El Paso, Texas trucking company with El Paso, Texas truck drivers, to haul a load of Gatorade from Tolleson, Arizona to Dallas, Texas.
1. Defendant ROAR Logistics is liable for the injuries to Plaintiffs that resulted from the negligent conduct of Defendant Truckers Transportation because Defendant ROAR Logistics was a member of the joint venture with Defendant Truckers Transportation that resulted in the death, injuries, and/or damages of Plaintiffs.
2. The negligent conduct of Defendant Truckers Transportation is imputable to Defendant ROAR Logistics because they were mutual agents and principals [sic] in the operation of the vehicle in the furtherance of the joint venture, and as such had a joint and mutual right to ensure the safe operation of the vehicle involved in the collision.
3. …. Defendant ROAR Logistics’ negligence includes but is not limited to the following acts and/or omissions:
a. In contracting Truckers Transportation and/or others of the companies with which it contracts;
b. In failing to conduct a thorough and proper investigation into the record, background, and/or qualifications of Defendant Truckers Transportation and its drivers, including Defendant Enriquez;
*2 c. In retaining Defendant Truckers Transportation as a carrier when it knew or reasonably should have known that the company and/or Defendant Enriquez was incompetent and/or dangerous and/or retaining other employees when it knew or should have known they were incompetent and/or dangerous;
d. In failing to exercise reasonable care in the control retained over the work performed by Defendant Truckers Transportation and/or Defendant Enriquez;
e. In negligently imposing and/or failing to impose controls and/or requirements over Defendants Truckers Transportation and/or Enriquez in such a manner that it was foreseeable to Defendant ROAR Logistics would induce unsafe driving and/or violation of traffic laws and regulations in order to attempt to maintain the required delivery schedule and/or dispatches.
f. In negligently scheduling and/or dispatching the delivery to be fulfilled by Defendant Truckers Transportation and/or Defendant Enriquez in such a manner that it was foreseeable to Defendant ROAR Logistics that the driver dispatched by Defendant Truckers Transportation, Defendant Enriquez, would drive unsafely and/or violate traffic laws and regulations in order to attempt to maintain his schedule and/or dispatches.
Id. at 3, 9–10.
On August 1, 2019, ROAR was served with the July 2019 Petition. Service of Process Notice 1, ECF No. 6-3. On August 23, 2019, ROAR filed its Original Answer, which included the following defense:
1. Defendant asserts that Plaintiffs’ claims and causes of action are preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 14501.
Def. ROAR Logistics, Inc.’s Original Ans. 2, ECF No. 6-3.
ROAR also filed special exceptions to the July 2019 Petition, arguing that the Lopez Plaintiffs’ allegations did not provide ROAR “with fair notice of the specific claims against it.” Def. ROAR Logistics, Inc.’s Special Exceptions to Pl.’s 1st Am. Pet. 1, ECF No. 6-3.
Then, on September 3, 2019, Fields filed his Plea in Intervention, making substantially the same allegations against ROAR as those made by the Lopez Plaintiffs in the July 2019 Petition. Plea in Intervention 4, 7–8, ECF No. 6-3. On September 24, 2019, the Pineda Plaintiffs also intervened, making substantially the same allegations against ROAR as the other Plaintiffs. Intervenor Pl.’s Original Pet. in Intervention & Request for Disclosure 5, 11–13, ECF No. 6-3. On October 2 and 3, 2019, ROAR filed Answers to Fields’s Plea in Intervention and the Pineda Plaintiffs’ Original Petition in Intervention, asserting the same preemption defense it asserted against the Lopez Plaintiffs. Def. ROAR Logistics, Inc.’s Original Ans. to Kolby Fields’ Plea in Intervention 2, ECF No. 6-3; Def. ROAR Logistics, Inc.’s Original Ans. to Intervenor Pls. Rodriguez’/Romo’s Pet. in Intervention, ECF No. 6-3. ROAR also filed special exceptions to the Intervenors’ pleadings. Def. ROAR Logistics, Inc.’s Special Exceptions to Kolby Fields’ Plea in Intervention, ECF No. 6-3; Def. ROAR Logistics, Inc.’s Special Exceptions to Rodriguez’/Romo’s Pet. in Intervention, ECF No. 6-3.
*3 On October 28, 2019, the Lopez Plaintiffs filed their Second Amended Petition, adding Ford Motor Company (“Ford”) as a Defendant, but bringing the same allegations against ROAR. Pl.’s 2d Am. Pet. 17–22. ROAR renewed its special exceptions. Def. ROAR Logistics, Inc.’s Special Exceptions to Pl.’s 2d Am. Pet., ECF No. 6–4. On January 21, 2020, Fields also filed an Amended Petition, similarly adding allegations against Ford but maintaining the same allegations against ROAR. Intervenor Pl. Kolby Field’s 1st Am. Pet. in Intervention 8–12, ECF No. 6-4. ROAR again renewed its special exceptions. Def. ROAR Logistics, Inc.’s Special Exceptions to Intervenor Pl. Kolby Fields’ 1st Am. Pet. in Intervention, ECF No. 6-4.
On February 18, 2020, the Pineda Plaintiffs filed an Amended Petition (the “February 2020 Petition”). Intervenor Pl.’s 1st Am. Pet. in Intervention (the “Feb. 2020 Pet.”), ECF Nos. 6-7–6-8. The Pineda Plaintiffs attached a copy of the Broker-Carrier Agreement between ROAR and Truckers, as Exhibit B to the February 2020 Petition. See Feb. 2020 Pet. Ex. B (the “Broker-Carrier Agreement”), ECF No. 6-8. The Broker-Carrier Agreement requires the parties to comply with various federal statutes and regulations, and states that “[t]his Agreement is for specified services pursuant to 49 U.S.C. § 14101(b).” Broker-Carrier Agreement 2, 4–6. In the February 2020 Petition, the Pineda Plaintiffs allege that “the Broker-Carrier Agreement between ROAR Logistics and Truckers Transportation … clearly shows the common course of action and/or common business enterprise” between the two Defendants. Feb. 2020 Pet. 12. Otherwise, the February 2020 Petition brings essentially the same allegations against ROAR as those brought by the various previous petitions in this matter, including the July 2019 Petition. Compare id. at 11–14, with July Pet. 2–3, 9–11.
On March 17, 2020, ROAR removed the case to this Court. Notice of Removal, ECF No. 1. Because it contained the names of minor children, the Court ordered ROAR to redact the minors’ name and refile the Notice of Removal, which it did, on March 24, 2020. Mar. 18, 2020, Order, ECF No. 3; Am. Notice of Removal, ECF No. 6. ROAR asserted federal question jurisdiction as the basis for removal. Id. at 5 (citing 28 U.S.C. §§ 1331, 1337). While Plaintiffs bring only state common law claims, ROAR argues that those claims are preempted by a federal statute, the Interstate Commerce Commission Termination Act (the “ICCTA”), codified in relevant part at 49 U.S.C. § 14501. Id. at 5–11.
On April 2, 2020, the Pineda Motion was filed, to which ROAR filed a Response on April 9, 2020. Def. ROAR Logistics, Inc.’s Resp. to Intervenor-Pl.’s Mot. to Remand (“Resp. to Pineda Mot.”), ECF No. 10. On April 16, 2020, the Lopez Motion and Fields Motion were filed, to which ROAR filed a Response on April 23, 2020. Def. ROAR Logistics, Inc.’s Resp. to Pl.’s Mot. to Remand & to Intervenor Fields’s Mot. to Remand (“Resp. to Lopez & Fields Mots.”), ECF No. 18. Each of the three sets of Plaintiffs filed Replies. Intervenor-Pl.’s Reply to ROAR’s Resp. to Intervenor-Pl.’s Mot. to Remand (“Pineda Reply”), ECF No. 16; Pl.’s Reply to Def. ROAR Logistics, Inc.’s Resp. to Pl.’s Mot. to Remand (“Lopez Reply”), ECF No. 20; Intervenor Kolby Fields’ Reply to Def. ROAR Logistics, LLC’s [sic] Resp. to Pl.’s Opposed Mot. to Remand & Intervenor Kolby Fields’ Opposed Mot. to Remand to State Court (“Fields Reply”), ECF No. 21.
A defendant may remove a case to the federal district court in the division embracing the place where such action is pending in state court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). The district court is required to remand a case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction over the case. Id. § 1447(c).
*4 Even where a district court would otherwise possess original jurisdiction over a case, that case must nonetheless be remanded to state court if removal is procedurally defective. See Addo v. Globe Life and Accident Ins. Co., 230 F.3d 759, 760–62 (5th Cir. 2000). While a district court may remand a case sua sponte based on defects in subject matter jurisdiction, a district court may remand a case based on procedural defects, such as untimely removal, only upon a party’s motion. In re Allstate, 8 F.3d 219, 223–24 (5th Cir. 1993).
“On a motion to remand, ‘[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.’ ” Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). Removal statutes are to be construed strictly against removal and in favor of remand. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988); Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986).
Plaintiffs contend that this case must be remanded for three reasons. First, Plaintiffs argue that ROAR’s removal was untimely because it was effected more than thirty days after receipt of service of the July 2019 Petition. Pineda Mot. 14–16; Lopez Mot. 6–9; Fields Mot. 7–8. Second, Plaintiffs argue that ROAR’s removal was improper for lack of unanimity; that is, because the other Defendants have not joined in the removal. Pineda Mot. 16–17; Lopez Mot. 9–13.3 And third, Plaintiffs argue that their state common law claims are not preempted by federal law, and the Court therefore lacks subject matter jurisdiction over the case. Pineda Mot. 18–31; Lopez Mot. 13; Fields Mot. 8–13. Because the Court finds the first, timeliness argument dispositive, it does not consider the unanimity or jurisdictional arguments.
The timing of removal is governed by 28 U.S.C. § 1446(b). It reads in pertinent part:
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b).
That is, when an initial pleading starts the removal clock, the defendant must file a notice of removal within thirty days of being served with it. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397–98 (5th Cir. 2013). When the initial pleading does not trigger removal, the defendant must remove within thirty days of receiving a document from which it may first ascertain that the case is removeable. Id. A pleading triggers the thirty-day removal period when it “affirmatively reveals on its face” that the district court has original jurisdiction. Id. at 399 (emphasis removed) (citing Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)) (diversity jurisdiction); Leffall v. Dall. Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (citing Aaron v. Nat’l Union Fire Ins. Co., 876 F.2d 1157, 1160–61 (5th Cir. 1989)) (federal question jurisdiction). Determining whether a pleading reveals federal jurisdiction requires an objective assessment. Bosky v. Kroger Tex., LP, 288 F.3d 208, 210 (5th Cir. 2002). “[T]he defendant’s subjective knowledge [of the basis for original jurisdiction] cannot convert a case into a removable action.” Id. (quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996)).
*5 Ordinarily, under the well-pleaded complaint rule, the pleading filed in state court must bring a claim under federal law in order to give rise to federal question jurisdiction and permit removal. Aaron, 876 F.2d at 1160–61. “Thus, the general rule provides that a federal defense to a state law claim does not create removal jurisdiction.” Id. However, there are exceptions to the well-pleaded complaint rule, pursuant to which “[a] federal court may find that a plaintiff’s claims arise under federal law even though the plaintiff has not characterized them as federal claims.” Frank v. Bear Stearns & Co., 128 F.3d 919, 921–22 (5th Cir. 1997). One such exception is the complete preemption doctrine. Aaron, 876 F.2d at 1161–63 (citing Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)). “If a federal law is found to completely preempt a field of state law, the state-law claims in the plaintiff’s complaint will be recharacterized as stating a federal cause of action.” Rio Grande Underwriters, Inc. v. Pitts Farms, Inc., 276 F.3d 683, 685 (5th Cir. 2001) (quoting Hart v. Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000)). A state court petition raising completely preempted state-law claims may affirmatively reveal a basis for removal, even where no federal claims appear on its face. Aaron, 876 F.2d at 1160–63.
As the basis for this Court’s jurisdiction, ROAR argues that Plaintiffs’ state common law claims are completely preempted by the ICCTA. And, ROAR argues that its March 17, 2020, removal was timely because the first paper to affirmatively reveal that the claims were subject to preemption was the February 2020 Petition, with which ROAR was served fewer than thirty days prior. Resp. to Lopez & Fields Mots. 6; Resp. to Pineda Mot. 6; Am. Notice of Removal 4. In particular, ROAR argues that it was the attached Broker-Carrier Agreement and the explicit allegation of ROAR’s “broker” status from which the propriety of removal then became ascertainable. Resp. to Pineda Mot. 5–7.
For their part, Plaintiffs argue that the removal was untimely, because the July 2019 Petition, with which ROAR was served on August 1, 2019, affirmatively revealed that the claims may be subject to preemption. Pineda Mot. 14; Lopez Mot. 7; Fields Mot. 7–8. Plaintiffs do not concede that the claims are subject to preemption. See, e.g., Pineda Mot. 16. Rather, they argue that “if this case is otherwise removable now (which Intervenor Plaintiffs dispute), it was equally removable once Plaintiffs filed their First Amended Petition in July 2019.” Id.
The Fifth Circuit does not appear to have ever considered the timeliness of a removal petition, where, as here, a removing party claimed that a subsequent pleading or other paper clarified that claims raised in a prior pleading were subject to complete preemption. In Eggert v. Britton, 223 F. App’x 394 (5th Cir. 2007), the Fifth Circuit referenced with approval and distinguished a Sixth Circuit case that did consider the precise issue at hand. Eggert, 223 F. App’x at 397 (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 468–69 (6th Cir. 2002)).4 In Peters, the plaintiff brought state common law claims against his former employer, including an allegation that the employer “breached certain unspecified promises and representations.” 285 F.3d at 465. During the plaintiff’s deposition, he testified:
[Defense counsel:] Were you ultimately taken out of the [Supplemental Executive Retirement Plan (“SERP”) ] or told that you would likely be taken out of it?
[Plaintiff:] I was initially told I was going to be out of the program.
[Defense counsel:] And so part of why you’re suing is over the company’s decision not to let you participate in the [SERP]?
[Plaintiff:] Very much so.
Id. at 466–67 (emphasis in original).
*6 It was undisputed that the SERP was an employee benefit plan, and that claims to enforce such plans are subject to complete preemption under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq. Id. at 467–68. Because the deposition testimony established that the plaintiff was “ ‘seeking to clarify his rights to future benefits’ under the SERP,” it revealed—for the first time—that the nebulous “breach of promises” claim raised in the state court complaint was subject to complete preemption. Id. at 468 (quoting the district court decision from which the appeal was taken). Therefore, the Sixth Circuit affirmed that the district court had original jurisdiction and that removal was timely under 28 U.S.C. § 1446(b)(3). Id. at 465–69.
District courts within the Fifth Circuit have applied a similar analysis to determine whether complete preemption removal based on an amended petition or other paper was timely. See, e.g., Par. of Plaquemines v. Riverwood Prod. Co., No. 18-5217, 2019 WL 2271118, at *4–8 & n.25, *18–19 (E.D. La. May 28, 2019) (considering whether a report obtained in discovery “revealed, for the first time, that the plaintiffs’ claims implicated conduct [that would make complete preemption applicable]”); Flowerette v. Heartland Healthcare Ctr., 903 F. Supp. 1042, 1043–46 (N.D. Tex. 1995) (analyzing whether “the original petition could not have been removed to federal court” under complete preemption doctrine).
Meisel v. USA Shade & Fabric Structures, Inc., 795 F. Supp. 2d 481 (N.D. Tex. 2011) is particularly apt. There, the plaintiff brought common law claims for libel, slander, and defamation against U.S. Bank. Id. at 483, 492. In an amended petition, the plaintiff alleged that “U.S. Bank through ChexSystems has repeatedly republished false and defamatory statements about the [p]laintiff to other banks and financial institutions.” Id. at 492. U.S. Bank removed the case greater than thirty days after receiving service of the amended petition, but within thirty days of receiving the plaintiff’s discovery response. Id. at 484. U.S. Bank contended, in its notice of removal, that removal was timely because the discovery response “revealed that the alleged defamatory statements by U.S. Bank consisted exclusively of a U.S. Bank report to the consumer reporting agency ChexSystems,” rather than “traditional allegations of defamation,” thus making the common law claims subject to complete preemption by the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq. Id. at 484, 492–93. But, the amended petition had already alleged that U.S. Bank was liable for publishing false statements through ChexSystems, a consumer reporting agency. Id. at 492–93. Even before it obtained the specific report at issue through discovery, all necessary ingredients of the preemption defense were revealed by the allegations in the amended petition. Id. Therefore, the court held that removal was untimely. Id.
Here, like Meisel and unlike Peters, the July 2019 Petition affirmatively revealed on its face everything necessary for ROAR to raise its complete preemption defense. ROAR’s preemption defense is based on the ICCTA. Am. Notice of Removal 5–11. Under the ICCTA, “a State … 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 … broker [inter alia] with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). ROAR argues that removal was timely because the February 2020 Petition and the attached Broker-Carrier Agreement revealed, for the first time, that the claims against ROAR were based on ROAR’s “status as a broker under federal law.” Resp. to Pineda Mot. 4, 6.5
*7 Under the applicable federal law, a freight broker is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.” Am. Notice of Removal 6 (quoting 49 U.S.C. 13102(2)). In the July 2019 Petition, Plaintiffs alleged that “[ROAR] entered into a contract with [Truckers] on January 3, 2019 in El Paso County, Texas regarding the hauling of freight/goods in interstate commerce,” and that “[p]ursuant to this agreement, on April 16, 2019 ROAR … arranged for [Truckers] … to haul a load of Gatorade from Tolleson, Arizona to Dallas, Texas.” July Pet. 3. The July 2019 Petition also contained the allegations that ROAR is liable for contracting with Truckers and for “retaining [it] as a carrier.” Id. at 10. These are specific allegations that ROAR is liable for actions taken in the course of arranging for transportation by motor carrier for compensation. Accordingly, the July 2019 Petition affirmatively revealed that Plaintiffs’ claims were brought against ROAR in its capacity as a broker. See 49 U.S.C. 13102(2).
Unlike the complaint in Peters, the July 2019 Petition contained detailed factual allegations that made the availability of the complete preemption defense apparent. See 285 F.3d at 465 (noting that the complaint contained only allegations that the defendant “breached certain unspecified promises and representations”). Just as the complaint in Meisel “clearly set[ ] forth libel, slander, and defamation causes of action against [U.S.] Bank in its capacity as a furnisher of information to a [credit reporting agency],” here, the July 2019 Petition clearly set forth negligence causes of action against ROAR in its capacity as a broker that retained Truckers to transport goods. See 795 F. Supp. 2d at 492. Both here and in Meisel, the subsequently filed documents on which the removing party relied merely reaffirmed the earlier pleadings’ core allegations. See id. In both cases, earlier pleadings had long before revealed the potential for complete preemption, making removal untimely. See id.
As the removing party, ROAR bears the burden to demonstrate that removal was proper. Barker, 713 F.3d at 212. ROAR has not demonstrated that the February 2020 Petition revealed, for the first time, anything in support of federal jurisdiction that was not already revealed by the July 2019 Petition. Assuming, without finding, that Plaintiffs’ claims against ROAR are completely preempted, service of the July 2019 Petition on August 1, 2019, started the thirty-day removal clock. ROAR’s March 17, 2020, removal, was therefore untimely. By not removing within thirty days of receipt of service of the July 2019 Petition, ROAR waived its right to remove, and this matter must be remanded to state court.6 See Addo, 230 F.3d at 760–62.
For the foregoing reasons, the Motions, ECF No. 8, ECF No. 12, and ECF No. 13, are GRANTED. It is hereby ORDERED that the case be IMMEDIATELY REMANDED to the 448th Judicial District Court, El Paso County, Texas.
*8 IT IS FURTHER ORDERED that the Motion to Dismiss, ECF No. 25, is DENIED as moot.
The clerk shall close the case.
— F.Supp.3d —-, 2020 WL 2894792
The state court record has been redacted to remove the names of minor children and filed as a series of attachments to the Amended Notice of Removal, ECF No. 6. When referring to documents in the state court record, the Court provides the document number or numbers created by the Court’s electronic case filing system (“CMECF”), at which the particular component of the state court record may be found. However, the Court uses the original page numbers for each respective state court document, rather than the page numbers created by CMECF.
The case was filed in County Court at Law Six, El Paso County, Texas, then transferred to the 448th Judicial District Court, El Paso County, Texas, on November 1, 2019. Transfer Order, ECF No. 6-4.
The Lopez and Pineda Plaintiffs, but not Fields, make the second, unanimity argument. Fields only argues that removal was inappropriate on timeliness and jurisdictional grounds. See generally Fields Mot.
The Eggert case itself did not involve a complete preemption defense. See generally id. There, the Fifth Circuit considered whether a plaintiff’s discovery response had revealed allegations under 42 U.S.C. § 1983, making the case removable, even though the state court pleading had raised only state law claims. Id. at 398. The court distinguished Peters and held that removal was impermissible under the well-pleaded complaint rule. Id.
ROAR also argues that because the July 2019 Petition contained no explicit reference to any provision of federal law, it could not remove the case until it was presented with the citations to provisions of federal law in the Broker-Carrier Agreement attached to the February 2020 Petition. Id. ROAR references Morales v. FSI Rest. Dev. Ltd., No. 4:19-CV-0593, 2020 WL 1046820 (S.D. Tex. Mar. 3, 2020), describing that case as holding that “no reference to federal statutes made removal improper.” Id. However, as ROAR notes elsewhere in the same Response, its assertion of federal jurisdiction is grounded in complete preemption. Id. at 12. Because the complete preemption doctrine provides an exception to the well-pleaded complaint rule, it is not necessary for the petition to explicitly reference federal law to support removal. See Rio Grande Underwriters, 276 F.3d at 685; Aaron, 876 F.2d at 1161–63. Indeed, it is difficult to imagine why such a petition would include references to federal law. Thus, the absence of citations to federal statutes and regulations is immaterial to the question of whether the July 2019 Petition was removeable under a complete preemption theory. See id.
Moreover, the Court has grave doubts that it would have jurisdiction over this matter, even if removal were timely. Only complete preemption—where a federal cause of action supplants a state cause of action—provides an exception to the well-pleaded complaint rule. Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 553 (5th Cir. 2008). “Federal question jurisdiction therefore exists where, because state law is completely preempted, there is, in short, no such thing as a state-law claim.” Id. at 551 (quoting Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003)). On the other hand, “a defense that relies on … the pre-emptive effect of a federal statute will not provide a basis for removal.” Id. (quoting Anderson, 539 U.S. at 6, 123 S.Ct. 2058). ROAR claims to remove this matter on complete preemption grounds but refers to no federal cause of action; only a federal law preventing states from enacting or enforcing certain state laws. Am. Notice of Removal 5 (quoting 49 U.S.C. § 14501(c)(1)). In any event, it is unnecessary to consider the issue any further because removal is untimely.