United States District Court for the Western District of Texas, El Paso Division
May 31, 2024, Decided; May 31, 2024, Filed
CAUSE NO. EP-24-CV-82-KC
2024 U.S. Dist. LEXIS 99219 *; 2024 WL 2794964
FELIPE SALAS, Plaintiff, v. VRP TRANSPORTATION INC.; VRP TRANSPORTES DE MEXICO S. DE R.L. DE C.V.; and JUAN DAVID PRADO TORRES, Defendants.
allegations, removal, diversity, improper joinder, driving, entities, argues, state court
Counsel: [*1] For Felipe Salas, Plaintiff: Craig D. Cherry, LEAD ATTORNEY, Justin Wayne Allen, Cherry Johnson Siegmund James, PLLC, Waco, TX USA; Jacob Charles Boswell, LEAD ATTORNEY, Robbie Malone, PLLC, Dallas, TX USA; Hector G. Longoria, Longoria Law Firm, Houston, TX USA; Ryan C. Johnson, Cherry Johnson Siegmund James PLLC, Waco, TX USA.
For VRP Transportes de Mexico S. de R.L. de C.V., Defendant: Barry L. Hardin, Waddell Serafino, Dallas, TX USA.
Judges: KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE.
ORDER
On this day, the Court considered Plaintiff Felipe Salas’s Motion to Remand (“Motion”), ECF No. 3. For the reasons set forth below, the Motion is GRANTED.
I. BACKGROUND
This case arises from a motor vehicle collision. Plaintiff alleges that on August 3, 2023, he was traveling westbound on I-10 in his 2018 Toyota Camry. Pet. 3, ECF No. 1-3. Defendant Juan David Prado was also traveling westbound on I-10 in an adjacent lane, driving a tractor trailer. Id. “[S]uddenly and without warning,” Torres “swerved” into Plaintiff’s lane and collided with him. Id. Plaintiff was injured, and his vehicle was damaged. Pet. 4. A police investigation determined that Torres caused the collision by failing [*2] “to maintain single lane of travel,” and that Plaintiff was not at fault. Pet. 3-4.
Plaintiff alleges that, at the time of the accident, Torres was driving in the scope of his employment with both Defendants VRP Transportation, Inc. (“VRP USA”) and VRP Transportes de Mexico S. de R.L. de C.V. (“VRP Mexico”). Pet. 3. The truck Torres drove was owned or leased by both VRP USA and VRP Mexico. Id. And both entities “appear to operate out of the same office space” at an address in El Paso, Texas. Id.
On January 26, 2024, Plaintiff initiated this lawsuit by filing his Petition in the County Court at Law Number 3 for El Paso County, Texas. See Pet. 1. Plaintiff asserts state common law negligence claims against Torres, VRP USA, and VRP Mexico for damages suffered in the collision. Pet. 4-13. Plaintiff seeks to hold Torres directly liable for his allegedly negligent driving. Pet. 4-6, 11. And he raises two theories of liability against VRP USA and VRP Mexico: direct liability for negligently hiring and supervising Torres, Pet. 6-11, as well as vicarious liability for negligence committed by Torres in the scope of his employment, Pet. 12-13.
On March 11, 2024, VRP Mexico removed the case, asserting [*3] diversity jurisdiction under 28 U.S.C. § 1332(a) as the basis for removal. Notice Removal ¶ 8, ECF No. 1. For purposes of assessing diversity jurisdiction, the parties agree that Plaintiff and VRP USA are citizens of Texas, while Torres and VRP Mexico are citizens of Mexico. Id. ¶¶ 2, 5-6; Mot. 1-2. Plaintiff moves to remand, arguing that the Court lacks subject-matter jurisdiction. Mot. 2-3. VRP Mexico filed a Response, ECF No. 4, to which Plaintiff filed a Reply, ECF No. 6. Neither Torres nor VRP USA have appeared.
II. DISCUSSION
A. Standard
A defendant may remove to federal district court any state court civil action over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). A party can challenge the propriety of a removal by attempting to remand the case back to state court. Id. § 1447(c). Remand must be granted if a defect in subject matter jurisdiction is shown. Id.
Removal deprives a state court of the opportunity to adjudicate a case properly before it, “rais[ing] significant federalism concerns.” See Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995), abrogated on other grounds by Rivet v. Regions Bank of La., 522 U.S. 470, 118 S. Ct. 921, 139 L. Ed. 2d 912 (1998)). For that reason, federal courts must strictly construe removal statutes and resolve doubts about removal in favor of remand. Id. at 281-82 (citations omitted); see also [*4] Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 339 (5th Cir. 2014) (citing Gasch, 491 F.3d at 281-82). When a party moves to remand, the burden is on the removing party to establish “that federal jurisdiction exists and that removal was proper.” Wolf v. Deutsche Bank Nat’l Tr. Co. ex rel. Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App’x 205, 207 (5th Cir. 2018) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).
B. Analysis
Plaintiff argues that because he and VRP USA are both citizens of Texas for purposes of diversity jurisdiction, there is not complete diversity of citizenship between the parties and the case must be remanded to state court. Mot. 1-3. VRP Mexico does not dispute that Plaintiff and VRP USA are both Texas citizens. Resp. ¶¶ 2, 4. However, VRP Mexico argues that Torres was only employed by VRP Mexico, meaning Plaintiff cannot state a viable claim against VRP USA. Resp. 4-5. Consequently, VRP Mexico asks the Court to dismiss VRP USA as improperly joined, which would restore complete diversity of citizenship and obviate the need for remand. Id. at 5.
The doctrine of improper joinder allows a removing defendant to prove that a plaintiff improperly joined a nondiverse defendant to a lawsuit, thereby justifying dismissal of the nondiverse defendant and restoring complete diversity. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-74 (5th Cir. 2004). Because this doctrine is but a “narrow exception to the rule of complete diversity . . . the ‘burden of demonstrating [improper] joinder [*5] is a heavy one.'” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999)). That heavy burden rests on the defendant alleging improper joinder. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).
To establish improper joinder, the removing defendant must establish either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the [nondiverse] party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). The second basis for improper joinder, inability to establish a cause of action, requires courts to “conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. (citations omitted). At core, this Rule 12(b)(6)-type analysis asks whether “there is no possibility of recovery by the plaintiff against an in-state defendant.” Id. Courts use the federal pleading standard when conducting this analysis. Int’l Energy Ventures Mgmt. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016).
When conducting a Rule 12(b)(6) analysis, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain “detailed” factual allegations, a plaintiff’s complaint must allege sufficient facts “to state a claim to relief that [*6] is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). If a complaint has sufficiently alleged a state-law claim against a nondiverse defendant, the district court may additionally make a “summary inquiry” into whether there are “discrete and undisputed facts that would preclude [the] plaintiff’s recovery against the in-state defendant.” Smallwood, 385 F.3d at 573-74.
VRP Mexico does not argue that Plaintiff’s joinder of VRP USA was actually fraudulent. See generally Resp. Rather, it argues that Plaintiff has failed to state a plausible claim for relief against VRP USA. Resp. 3. To state a negligence claim under Texas law, a plaintiff must allege: “(1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach.” Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)). “The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (citations omitted). In Texas, a “person operating a motor vehicle on the public roads” has a duty to “do so in a careful, prudent manner with due regard to the rights of others on the road.” Wilson v. Penguin Trucking, Inc., No. H-19-2580, 2019 U.S. Dist. LEXIS 180509, 2019 WL 5296590, at *2 (S.D. Tex. Oct. 18, 2019) (quoting Cleaver v. Dresser Indus., 570 S.W.2d 479, 485 (Tex. Civ. App. 1978)).
VRP Mexico does not dispute that Plaintiff has adequately alleged that Torres breached his duty to drive carefully, and thus caused the collision that injured Plaintiff. See [*7] generally Resp. Instead, VRP Mexico argues Plaintiff has failed to state a claim against VRP USA because VRP USA was not Torres’s employer. Id. at 3-5.
Under the doctrine of respondeat superior, “an employer may be vicariously liable for its employee’s negligence if ‘at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment.'” Gay v. Ala. Motor Express, No. 21-cv-255, 2023 U.S. Dist. LEXIS 2336, 2023 WL 123512, at *2 (W.D. Tex. Jan. 6, 2023) (quoting Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130-31 (Tex. 2018)). “[A] person may function as the employee of two employers at the same time and as to the same conduct, ‘if the service to one does not involve an abandonment of the service to the other.'” Powell v. Knipp, 479 S.W.3d 394, 401 (Tex. App. 2015) (citing White v. Liberty Eylau Sch. Dist., 880 S.W.2d 156, 159 (Tex. App. 1994)).
Plaintiff alleges that Torres was driving in the scope of his employment with both VRP Mexico and VRP USA at the time of the accident. Pet. 3. He further alleges that both VRP entities jointly own or lease the truck that Torres was driving, and that both entities operate out of the same physical location in El Paso. Id. There is nothing inherently implausible about the notion that two affiliated entities with nearly identical business names, working in the same industry and operating out of the same office space, might share employees and equipment. And even if the Court were to accept [*8] the proposition that it is implausible for Torres to be jointly employed by the two VRP entities, pleading in the alternative is allowed under Texas law. See Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007). Thus, Plaintiff has adequately alleged that VRP Mexico and VRP USA are both liable for Torres’s negligent driving under principles of respondeat superior.
VRP Mexico resists this conclusion on two grounds. First, it argues that Plaintiff’s allegations do not state a claim against VRP USA because they are “conclusory.” Resp. 4. Certainly, when conducting an improper joinder analysis, “the Court may properly disregard all legal conclusions couched as factual allegations.” Gros v. Warren Props. Inc., No. 12-cv-2184, 2012 U.S. Dist. LEXIS 167137, 2012 WL 5906724, at *6 (E.D. La. Nov. 26, 2012). But Plaintiff’s allegations about Torres’s employer, the ownership of the truck, and the co-location of the two similarly named entities’ offices do not simply regurgitate the standard for vicarious liability. They contain specifics that elevate them beyond mere conclusory allegations.1 See Salazar v. Lubbock Cnty. Hosp. Dist., 982 F.3d 386, 392 (5th Cir. 2020) (Ho, J., concurring) (“[A] conclusory statement recites the bottom-line legal standard but fails to present any factual detail or specifics indicating what evidence will actually satisfy the requisite legal standard.”).
Second, VRP Mexico argues that Plaintiff cannot proceed [*9] against VRP USA because VRP Mexico “has admitted via its pleadings that Defendant Torres was an employee of VRP Mexico and [was acting] in the course and scope of his employment with VRP Mexico at the time of the subject incident.” Resp. 4. VRP Mexico references no authority permitting a defendant’s unsworn factual contention to negate a plaintiff’s allegations when conducting a fraudulent joinder analysis. See generally id. Indeed, courts piercing the pleadings to conduct a summary inquiry look only to facts established by evidence that would be competent at summary judgment. See, e.g., Cormie’s Grocery & Deli, Inc. v. Colony Ins. Co., No. CV 12-562, 2012 U.S. Dist. LEXIS 98566, 2012 WL 2906634, at *5 & n.7 (W.D. La. July 16, 2012). And “unsworn allegations” made in a response brief “are not evidence” and “cannot defeat summary judgment.” Craig v. Martin, 49 F.4th 404, 416 (5th Cir. 2022).
As previously discussed, without evidence, the Court evaluates Plaintiff’s allegations under the familiar Rule 12(b)(6) standard, taking his allegations as true to determine whether he has stated a plausible claim for relief. Int’l Energy Ventures Mgmt., 818 F.3d at 208. VRP Mexico would have the Court do the opposite: reject Plaintiff’s allegations on the basis of VRP Mexico’s own, unsubstantiated allegation to the contrary. See Resp. 4. To prove improper joinder, VRP Mexico bears the “heavy burden” of demonstrating “that there is no possibility [*10] of recovery by the plaintiff against an in-state defendant.” Smallwood, 385 F.3d at 573-74. By submitting no evidence to negate Plaintiff’s plausible allegation that Torres was acting in the scope of his employment with VRP USA when he negligently collided with Plaintiff, VRP Mexico has failed to carry that burden. Because Plaintiff has plausibly alleged a negligence claim against VRP USA on vicarious liability grounds,2 VRP USA was properly joined, the parties are not completely diverse, and the Court lacks subject-matter jurisdiction under the only asserted basis, 28 U.S.C. § 1332(a)(2).
III. CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and the case is IMMEDIATELY REMANDED to the County Court at Law Number 3 of El Paso County, Texas.
After remand, the Clerk shall close the case.
SIGNED this 31st day of May, 2024.
End of Document
1 In the Reply, Plaintiff further bolsters these allegations with photographs showing that VRP Mexico and VRP USA use the same logo and keep trucks branded with each company’s name at the same yard in El Paso. Reply 4-5. Plaintiff also alleges that records published online by the Federal Motor Carrier Safety Administration show that the two entities share a mailing address in El Paso. Id. at 4. While these additional facts lend further support to Plaintiff’s allegations, the Court need not consider them in order to find that Plaintiff has stated a plausible claim for relief against VRP USA.
2 The Court expresses no opinion as to whether Plaintiff has also stated a plausible claim against either Defendant on negligent hiring or supervision grounds.
