Auto - Central Analysis Bureau

Davenport v. Bonini

United States District Court, E.D. Texas.

Crystal DAVENPORT, Plaintiff,

Brian BONINI and Just In Time Systems, LLC, Defendants.

CIVIL ACTION NO. 1:22-CV-469

Signed January 4, 2024

Attorneys and Law Firms

Matthew Paul Skrabanek, Pierce Skrabanek, PLLC, Houston, TX, for Plaintiff.

William James Cozort, Jr., Bianca Daniella Martinez, Brothers, Alvarado, Piazza & Cozort, P.C., Houston, TX, for Defendants.

MEMORANDUM AND ORDER

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

*1 Pending before the court is Defendants Brian Bonini (“Bonini”) and Just In Time Systems, LLC’s (“Just In Time”) (collectively, “Defendants”) Motion for Summary Judgment (#17). Plaintiff Crystal Davenport (“Plaintiff”) filed a response in opposition (#18). Having considered the motion, the submissions of the parties, the record, and the applicable law, the court is of the opinion that Defendants’ motion should be granted in part and denied in part.

I. Background

This lawsuit arises from a motor vehicle collision that occurred in Orange County, Texas, on August 23, 2022, between a Ford F-150 pick-up truck driven by Plaintiff and a tractor–trailer operated by Bonini “under the motor carrier authority” of his employer, Just In Time. Prior to the collision, Plaintiff and Bonini were both traveling eastbound on a section of Interstate Highway 10 (“I-10”) with three lanes of travel. Plaintiff was driving in the right-hand lane and Bonini was driving in the center lane when a vehicle driven by an unknown third party entered Plaintiff’s lane, causing Plaintiff to “take evasive action” and lose control of her truck. Plaintiff’s truck then collided with one or more concrete barriers, veered into the lane where Bonini was driving, and was struck by Bonini’s tractor–trailer. Plaintiff alleges that, as a result of the collision, she “suffered severe injuries to her neck, back, shoulders, and other parts of her body.”

On September 26, 2022, Plaintiff filed her Original Petition (#3) in the 260th Judicial District Court of Orange County, Texas, asserting causes of action against Bonini for negligence and against Just In Time for negligent hiring; negligent training; negligent entrustment; and negligence in its supervision, retention, and monitoring of Bonini. On October 27, 2022, Defendants removed the case to this court on the basis of diversity jurisdiction.¹ Subsequently, Defendants filed an Unopposed Motion for Leave to Designate Responsible Third Party (#9) under Texas Civil Practice and Remedies Code § 33.004(j). Defendants asserted that the unknown motorist, whose “identities and whereabouts cannot be determined,” operated his or her vehicle “in a reckless manner with willful and wanton disregard for the safety of persons and/or property” and was, as a result, either the “sole proximate cause” or “a contributing proximate cause” of the collision and Plaintiff’s injuries. On January 5, 2023, the court granted Defendants’ unopposed motion to designate the unknown driver as a responsible third party.

Now, Defendants seek summary judgment, asserting that Plaintiff cannot present any admissible evidence in support of her claims against Defendants. In response, Plaintiff agrees to the dismissal of her “negligent entrustment, hiring, supervision[,] and training claims,” abandoning all of her claims against Just In Time. Plaintiff contends, however, that summary judgment is improper on her negligence claim against Bonini because Bonini’s deposition testimony (#18-3) contains evidence from which it can be inferred that Bonini was driving negligently at the time of the collision and that his negligence was a proximate cause of Plaintiff’s injuries.

II. Analysis

*2 A party may move for summary judgment without regard to whether the movant is a claimant or a defending party. See Union Pac. R.R. Co. v. Palestine, 41 F.4th 696, 703 (5th Cir. 2022), cert. denied, 143 S. Ct. 579 (2023); Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 380 (5th Cir. 2019); Apache Corp. v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”² Fed. R. Civ. P. 56(a); Union Pac. R.R. Co., 41 F.4th at 703; United Steel, Paper & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Anderson, 9 F.4th 328, 331 (5th Cir. 2021); Smith v. Harris County, 956 F.3d 311, 316 (5th Cir. 2020); Parrish, 917 F.3d at 378; Hefren v. McDermott, Inc., 820 F.3d 767, 771 (5th Cir. 2016). The parties seeking summary judgment bear the initial burden of informing the court of the basis for their motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323; MDK Sociedad De Responsabilidad Limitada v. Proplant Inc., 25 F.4th 360, 368 (5th Cir. 2022); Goldring v. United States, 15 F.4th 639, 644-45 (5th Cir. 2021); Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 416-17 (5th Cir. 2021); Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019).

“A fact issue is ‘material’ if its resolution could affect the outcome of the action.” Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (quoting Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)), cert. denied, 578 U.S. 945 (2016); see MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Lexon Ins. Co., Inc. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021); Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020). “Factual disputes that are irrelevant or unnecessary will not be counted.” Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); accord Valencia v. Davis, 836 F. App’x 292, 296 (5th Cir. 2020); see Dyer, 964 F.3d at 379; Parrish, 917 F.3d at 378. “An issue is ‘genuine’ if it is real and substantial, as opposed to merely formal, pretended, or a sham.” Gerhart v. Barnes, 724 F. App’x 316, 321 (5th Cir. 2018) (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)), cert. denied, 139 S. Ct. 1239 (2019); accord Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686, at *6 n.7 (5th Cir. Apr. 20, 2023); Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). Thus, a genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Hefren, 820 F.3d at 771; accord MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Sanchez Oil & Gas Corp. v. Crescent Drilling & Prod., Inc., 7 F.4th 301, 309 (5th Cir. 2021); Dyer, 964 F.3d at 379; Tiblier, 743 F.3d at 1007. The moving parties, however, “need not negate the elements of the nonmovants[’] case.” Terral River Serv., Inc. v. SCF Marine Inc., 20 F.4th 1015, 1018 (5th Cir. 2021) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)); Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014); see Savoy v. Kroger Co., 848 F. App’x 158, 160 (5th Cir. 2021).

*3 Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to demonstrate the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322 n.3; see Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Fed. R. Civ. P. 56(e)); Flowers v. Wal-Mart Inc., 79 F.4th 449, 452 (5th Cir. 2023); MDK Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Clark v. CertainTeed Salaried Pension Plan, 860 F. App’x 337, 340-41 (5th Cir. 2021); Acadian Diagnostic Lab’ys, L.L.C. v. Quality Toxicology, L.L.C., 965 F.3d 404, 410 (5th Cir. 2020). The court “should review the record as a whole.” Black v. Pan Am. Lab’ys, LLC, 646 F.3d 254, 273 (5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)); see Hacienda Recs., L.P. v. Ramos, 718 F. App’x 223, 234 (5th Cir. 2018); City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014). All the evidence must be construed in the light most favorable to the nonmoving party, and the court will not weigh the evidence or evaluate its credibility. Reeves, 530 U.S. at 150; Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th 472, 476 (5th Cir. 2022); Batyukova v. Doege, 994 F.3d 717, 724 (5th Cir. 2021); Lyons v. Katy Ind. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020). The evidence of the nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts resolved in her favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014) (quoting Anderson, 477 U.S. at 255); Seigler, 30 F.4th at 476; Batyukova, 994 F.3d at 724; Lyons, 964 F.3d at 302.

Furthermore, the court’s obligation to draw reasonable inferences “does not extend so far as to allow a wholly ‘unreasonable inference’ or one which amounts to ‘mere speculation and conjecture.’ ” Mack v. Newton, 737 F.2d 1343, 1351 (5th Cir. 1984) (quoting Bridges v. Groendyke Transp., Inc., 553 F.2d 877, 879 (5th Cir. 1977)); accord McGill v. BP Expl. & Prod., Inc., 830 F. App’x 430, 432 (5th Cir. 2020); Batyukova, 994 F.3d at 724 (“ ‘Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation’ will not survive summary judgment.” (quoting Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016))); Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 528 (5th Cir. 1999) (“If the [nonmoving party’s] theory is … senseless, no reasonable jury could find in its favor, and summary judgment should be granted.” (quoting Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468-69 (1992))); Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 779 (E.D. Tex. 2008) (“[O]nly reasonable inferences in favor of the nonmoving party can be drawn from the evidence.” (citing Eastman Kodak Co., 504 U.S. at 468 n.14)). “[S]ummary judgment may not be thwarted by conclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence.” Certain Underwriters at Lloyd’s, London v. Axon Pressure Prods. Inc., 951 F.3d 248, 256 (5th Cir. 2020) (quoting McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)); accord Allaudin v. Perry’s Rests., Ltd., 805 F. App’x 297, 299 (5th Cir. 2020); Acadian Diagnostic Lab’ys, L.L.C., 965 F.3d at 410 (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)); see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); Heath v. Elaasar, 763 F. App’x 351, 354 (5th Cir. 2019).

Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Lyons, 964 F.3d at 302; Musser v. Paul Quinn Coll., 944 F.3d 557, 560 (5th Cir. 2019); Tiblier, 743 F.3d at 1007; Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). “[W]here the nonmoving party fails to establish ‘the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,’ no genuine issue of material fact can exist.” Goode v. Greenstream Int’l, L.L.C., 751 F. App’x 518, 521 (5th Cir. 2018) (quoting Nichols v. Enterasys Networks, Inc., 595 F.3d 185, 188 (5th Cir. 2007)); see Phillips v. Sanofi U.S. Servs. (In re Taxotere (Docetaxel) Prods. Liab. Litig.), 994 F.3d 704, 710 (5th Cir. 2021); Apache Corp., 626 F.3d at 793. In such a situation, “ ‘[a] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial’ and ‘mandates the entry of summary judgment’ for the moving party.” Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018) (quoting United States ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir.), cert. denied, 555 U.S. 1012 (2008)), cert. denied, 139 S. Ct. 2690 (2019); accord Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir. 2023); Stingley v. Watson Quality Ford, 836 F. App’x 286, 288 (5th Cir. 2020).

A. Plaintiff’s Negligent Entrustment; Negligent Hiring; Negligent Training; and Negligent Supervision, Retention, and Monitoring Claims Against Just In Time

*4 Defendants seek summary judgment on all of Plaintiff’s claims. In her response, Plaintiff agrees to “the dismissal of the negligent entrustment, hiring, supervision[,] and training claims.”³ Thus, it appears that Plaintiff has abandoned the aforementioned claims against Just In Time.

“This circuit’s well-settled precedent instructs that a party abandons a claim by failing to defend it in response to motions to dismiss and other dispositive pleadings.” McClelland v. Katy Ind. Sch. Dist., 63 F.4th 996, 1010 (5th Cir.) (citing Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006); Vela v. City of Houston, 276 F.3d 659, 679 (5th Cir. 2001); Magee v. Life Ins. Co. of N. Am., 261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003)), cert. denied, 144 S. Ct. 348 (2023); see Normore v. Dall. Ind. Sch. Dist., ––– F. Supp. 3d ––––, No. 3:18-CV-02506-E, 2023 WL 3937785, at *15 (N.D. Tex. June 9, 2023) (“When a plaintiff fails to defend a claim in response to a motion to dismiss or summary judgment motion, the claim is deemed abandoned.” (citing Black, 461 F.3d at 588 n.1; Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983))). Where a plaintiff withdraws or abandons her claim in response to a defendant’s motion for summary judgment, courts generally grant summary judgment to the defendant on the abandoned claim. See Ellis v. Klawonn, No. 4:21-CV-00977-SDJ-CAN, 2023 WL 3993043, at *4 (E.D. Tex. June 8, 2023) (concluding that summary judgment was proper on claims that the plaintiffs had “withdraw[n] (or otherwise abandon[ed])” (citing Newton v. State Farm Lloyds, No. 4:21-CV-00322-SDJ-CAN, 2022 WL 2195464, at *2 (E.D. Tex. May 17, 2022), adopted by No. 4:21-CV-322, 2022 WL 2195019 (E.D. Tex. June 17, 2022))); Hill v. Concho Res., Inc., 634 F. Supp. 3d 359, 362 (W.D. Tex. 2022) (granting summary judgment to the defendants on claims that the plaintiff sought to withdraw in his response to the defendants’ summary judgment motion). In the case at bar, Plaintiff has abandoned her claims against Just In Time, and Just In Time has met its burden of demonstrating that no genuine dispute of material fact exists as to these claims. Accordingly, Just In Time is entitled to summary judgment on Plaintiff’s negligent entrustment; negligent hiring; negligent training; and negligent supervision, retention, and monitoring claims.⁴ Only Plaintiff’s negligence claim against Bonini remains.

B. Plaintiff’s Negligence Claim Against Bonini

1. Plaintiff Is Not Entitled to a Continuance

*5 In her response, Plaintiff moves in the alternative to continue the court’s ruling on Defendants’ summary judgment motion. She fails to explain, however, why such a continuance is warranted. In fact, the only indications that Plaintiff seeks a continuance appear in the title of her response brief—“Plaintiff’s Response to Defendants’ Motion for Summary Judgment and Alternative Motion to Continue Ruling on the Same”—and in the statement in the Conclusion section of her brief that the court “should … alternatively continue the ruling on the [Defendants’] Motion.” Thus, in light of Plaintiff’s paucity of explanation or argument on this issue, a continuance is not warranted.

In this instance, Defendants did not file the pending summary judgment motion until a mere four days before the motions deadline set forth in the parties’ agreed Amended Scheduling Order (#15). Additionally, this case had been pending for over nine months at the time Defendants filed the current motion. Thus, Plaintiff has had ample opportunity to conduct discovery. Moreover, Plaintiff does not identify any basis for concluding that specified, discoverable facts exist or how such facts would influence the disposition of the instant motion.⁵ The court finds Plaintiff’s bare-bones request for a continuance insufficient to warrant a postponement of its ruling to allow additional time for discovery. Accordingly, Plaintiff’s request is denied.

2. Plaintiff Has Met Her Burden to Overcome Summary Judgment on Her Negligence Claim Against Bonini

Finally, Bonini requests that the court grant summary judgment on Plaintiff’s negligence claim against him. Under Texas law, a negligence claim consists of four essential elements:

(1) a legal duty owed to the plaintiff by the defendant;

(2) a breach of that duty;

(3) an actual injury to the plaintiff; and

(4) a showing that the breach was the proximate cause of the injury.

Eckhardt v. Qualitest Pharm., Inc., 751 F.3d 674, 681 (5th Cir. 2014) (quoting Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)); see Molina v. Home Depot USA, Inc., 20 F.4th 166, 169 (5th Cir. 2021); Milligan v. Home Depot USA, Inc., 809 F. App’x 217, 219 (5th Cir. 2020); Espinoza v. Cargill Meat Sols. Corp., 622 F.3d 432, 443 (5th Cir. 2010); Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); In re Oncor Elec. Delivery Co. LLC, 630 S.W.3d 40, 43 (Tex. 2021). “[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 178 (5th Cir. 2018) (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)); Elephant Ins. Co., LLC, 644 S.W.3d at 140 n.1 (quoting Greater Hous. Transp. Co., 801 S.W.2d at 525); Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). If the defendant owed no duty, he cannot be found liable for negligence. Allen, 907 F.3d at 180; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 542 n.19 (5th Cir. 2005); Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).

*6 “A duty is a ‘legally enforceable obligation to comply with a certain standard of conduct.’ ” Bauer v. Gulshan Enters., Inc., 617 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (quoting Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied)); San Benito Bank & Tr. Co. v. Landair Travels, 31 S.W.3d 312, 317 (Tex. App.—Corpus Christi 2000, no pet.); accord City of Houston v. Jenkins, 363 S.W.3d 808, 817 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). “A duty can be assumed by contract or imposed by law.” J.P. Morgan Chase Bank, N.A. v. Tex. Cont. Carpet, Inc., 302 S.W.3d 515, 530 (Tex. App.—Austin 2009, no pet.); see In re Wheeler, 612 F. App’x 763, 767 n.3 (5th Cir. 2015) (citing Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 223 (Tex. 2002) (Enoch, J., concurring)). Whether a duty exists “turns ‘on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.’ ” Austin v. Kroger Tex. L.P., 746 F.3d 191, 198 (5th Cir. 2014) (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010)); accord Bauer, 617 S.W.3d at 22; Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008). Of these factors, foreseeability of the risk is the dominant consideration. Martinez v. Walgreen Co., 935 F.3d 396, 402 (5th Cir. 2019) (“The Texas Supreme Court has ‘described foreseeability as the “foremost and dominant consideration” in the duty analysis’ ….” (quoting Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002))); see Boudreaux, 402 F.3d at 541; Greater Hous. Transp. Co., 801 S.W.2d at 525. Nevertheless, “foreseeability alone is not sufficient to justify imposition of a duty.” W. Hous. Airport, Inc. v. Millennium Ins. Agency, Inc., 349 S.W.3d 748, 754 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009)); accord HNMC, Inc. v. Chan, 637 S.W.3d 919, 966 (Tex. App.—Houston [14th Dist.] 2021, pet. granted); Gatten v. McCarley, 391 S.W.3d 669, 676 (Tex. App.—Dallas 2013, no pet.). “[M]ere knowledge of a dangerous situation imposes only a moral duty to warn or render aid, not a legal duty.” 53 Tex. Jur. 3D Negligence § 8 (2007).

In Texas, proof of negligence requires a showing of proximate cause. Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018); HMC Hotel Props. II Ltd. P’ship v. Keystone-Tex. Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005); Munoz v. City of Pearsall, 64 S.W.3d 119, 123 (Tex. App.—San Antonio 2001, no pet.) (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)). Proximate cause consists of two elements—cause in fact and foreseeability. Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 761 (5th Cir. 2019) (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299 S.W.3d 106, 122 (Tex. 2009)); Villafranca v. United States, 587 F.3d 257, 265 (5th Cir. 2009) (citing IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)); Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 518 (Tex. 2019); HMC Hotel Props. II Ltd. P’ship, 439 S.W.3d at 913. “The cause-in-fact element is satisfied by proof that (1) the act was a substantial factor in bringing about the harm at issue, and (2) absent the act (“but for” the act), the harm would not have occurred.” HMC Hotel Props. II Ltd. P’ship, 439 S.W.3d at 913 (citing Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 122); accord Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017); Knight Oil Tools, Inc. v. Rippy Oil Co., No. 10-18-00284-CV, 2021 WL 5235149, at *2 (Tex. App.—Waco Nov. 10, 2021, pet. denied). “[C]ause in fact is not established where the defendant’s negligence does no more than furnish a condition which makes the injuries possible.” Mason v. AMed-Health, Inc., 582 S.W.3d 773, 789-90 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (quoting IHS Cedars Treatment Ctr., 143 S.W.3d at 799); see Aguilar v. Morales, 545 S.W.3d 670, 680 (Tex. App.—El Paso 2017, pet. denied); Rodriguez v. Moerbe, 963 S.W.2d 808, 818 (Tex. App.—San Antonio 1998, pet. denied) (citing Union Pump Co., 898 S.W.2d at 776).

*7 “Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others.” Hulsey v. Attalla, No. 01-18-00180-CV, 2019 WL 3484082, at *5 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet.) (citing D. Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)); see Austin v. Kroger Tex., L.P., 864 F.3d 326, 333 (5th Cir. 2017); Elephant Ins. Co., LLC, 644 S.W.3d at 149 (quoting Bos, 556 S.W.3d at 303). It also requires that the injured party is “so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” City of Austin v. Anam, 623 S.W.3d 15, 18 (Tex. App.—Austin 2020, no pet.) (quoting Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 929 (Tex. 2015)). Foreseeability does not permit recollecting events and theorizing an extraordinary scenario where defendant’s actions caused the injury. Bos, 556 S.W.3d at 303; Massage Heights Franchising, LLC v. Hagman, ––– S.W.3d ––––, No. 14-22-00160-CV, 2023 WL 7029384, at *5 (Tex. App.—Houston [14th Dist.] Oct. 26, 2023, no pet. h.) (citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998)). Instead, the question “involves a practical inquiry based on common experience applied to human conduct.” Massage Heights Franchising, LLC, 2023 WL 7029384, at *5 (citing Read, 990 S.W.2d at 737); see Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992); City of Austin, 623 S.W.3d at 18. Notably, “[f]oreseeability of the ‘general danger’ is an essential part of the inquiry, but we must also evaluate the foreseeability of the specific danger—‘whether the injury to the particular plaintiff or one similarly situated could be anticipated.’ ” Elephant Ins. Co., 644 S.W.3d at 149 (quoting Bos, 556 S.W.3d at 303). Nevertheless, the precise series of events that produced the harm need not be foreseeable. See Martinez, 935 F.3d at 402 n.26 (“Texas courts have consistently held that foreseeability turns on the existence of general danger, not awareness of the exact sequence of events that produced the harm.” (quoting Austin, 864 F.3d at 333)); Univ. of Tex. M.D. Anderson Cancer Ctr., 578 S.W.3d at 519 (quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)).

Proximate cause is usually a mixed question of law and fact for the jury to determine. Cherry v. Tex. Dep’t of Crim. Just., 978 S.W.2d 240, 243 (Tex. App.—Texarkana 1998, no pet.) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex. 1987)); accord Houston v. SPX Corp., 582 F. App’x 372, 374 (5th Cir. 2014) (quoting Cave v. Tex. & Pac. Ry. Co., 296 S.W.2d 558, 560 (Tex. Civ. App.—Eastland 1956, writ ref’d n.r.e.)); Whitmire v. Terex Telelect, Inc., 390 F. Supp. 2d 540, 558 (E.D. Tex. 2005) (citations omitted); Forrest v. Vital Earth Res., 120 S.W.3d 480, 490 (Tex. App.—Texarkana 2003, pet. denied). Because “Texas courts usually consider proximate cause an issue for the jury,” Haargaard v. Harris County, No. 01-20672, 2002 WL 755304, at *2 (5th Cir. Apr. 11, 2002) (citing Boyd v. Fuel Distribs., Inc., 795 S.W.2d 266, 272 (Tex. App.—Austin 1990, writ denied)), “it has been said that summary judgment procedure is not well adapted to the disposition of negligence cases.” Whitmire, 390 F. Supp. 2d at 558 (citing Hennessy v. Perez, 725 S.W.2d 507, 509 (Tex. App.—Houston [1st Dist.] 1987, no writ)). “Nonetheless, proximate cause may be a question of law where the facts are conclusive.” Id. (citing Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 935 (Tex. App.—Texarkana 1997, pet. denied)). A plaintiff must establish proximate cause by probative evidence, not mere conjecture. Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir. 1997); see Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016); Arcides v. Rojas, 677 S.W.3d 154, 162 (Tex. App.—El Paso 2023, no pet.). “Proximate cause, however, like any other ultimate fact issue, may be established by circumstantial evidence.” Forrest, 120 S.W.3d at 490; see Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 169 (5th Cir. 2010) (“A jury may infer proximate cause from circumstantial evidence.” (citing Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 289 (5th Cir. 2007))). In some circumstances, “[e]ven if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiff’s injuries simply may be too attenuated to constitute legal cause.” Bos, 556 S.W.3d at 308 n.61 (quoting Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995)). “[A] lack of proximate cause may be established as a matter of law if the evidence is without material dispute and the circumstances are such that reasonable minds could not arrive at a different conclusion.” Phillips v. Tex. Dep’t of Crim. Just., 366 S.W.3d 312, 316 (Tex. App.—El Paso 2012, no pet.); see Rogers, 518 S.W.3d at 401 (“[A]lthough causation is typically a question of fact, it may be determined as a matter of law when reasonable minds could not arrive at a different conclusion.” (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 105 (Tex. 1977); Green v. McKay, 376 S.W.3d 891, 898 (Tex. App.—Dallas 2012, pet. denied))); Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

*8 Here, Bonini argues that he is entitled to summary judgment on Plaintiff’s negligence claim because Plaintiff has failed to produce any admissible evidence that Bonini breached a legal duty owed to her or that Bonini’s alleged breach proximately caused her injuries. Bonini asserts that, contrary to the allegations in Plaintiff’s petition, there is no evidence that Bonini “failed to control his vehicle’s speed,” “failed to operate his vehicle safely,” “failed to keep a proper lookout,” “failed to maintain a safe distance,” or acted in any other way “deemed negligent.” To support this argument, Bonini points out that Plaintiff conceded the following facts in her deposition testimony (#17-2): Plaintiff did not see that her vehicle was going to collide with Bonini’s tractor–trailer prior to the impact, Plaintiff is unaware of any actions that Bonini took before the impact, Plaintiff only saw Bonini at the time of the impact, and Plaintiff did not see Bonini do anything wrong. In addition, Bonini contends that Plaintiff has not adduced admissible evidence to support that any alleged negligence on Bonini’s part was a proximate cause of Plaintiff’s injuries. He notes that, in her Objection and Responses to Defendants’ First Set of Admissions, Plaintiff admitted that “no act or omission on the part of [Bonini] caused [her] to lose control of the vehicle [she was] driving before any physical contact occurred between [her] vehicle and the tractor–trailer operated by [Bonini].” Bonini emphasizes further that it is undisputed that the actions of the unknown motorist who recklessly moved into Plaintiff’s lane and caused her to “take evasive action” were the sole proximate cause and/or a contributing proximate cause of Plaintiff’s collision and injuries.

In response, Plaintiff contends that Bonini’s deposition testimony provides “more than a scintilla of evidence” that Bonini was driving negligently at the time of the collision and that his negligence was a proximate cause of Plaintiff’s injuries. In particular, Plaintiff focuses first on a portion of Bonini’s deposition where he confirms that, as a commercial driver, he “ideally” tries to avoid being “boxed in” by other vehicles by leaving himself an “out,” or the ability to shift to another lane to his right or left if needed. Bonini also agreed that, in situations where he does find himself boxed in, he will attempt to slow down to allow the vehicles that are beside him to pass him. Plaintiff next directs the court’s attention to Bonini’s discussion of the collision between his tractor–trailer and Plaintiff’s truck. Bonini testified that, during the thirty seconds leading up to the collision, “there [were] cars on the right and the left and there was nothing in front of [him],” clarifying that the nearest car in the lane ahead of him was over 150 feet away.⁶ Plaintiff thus argues that Bonini’s testimony provides evidence that Bonini breached his duty “to operate his commercial vehicle as a reasonably prudent truck driver”⁷ by “letting himself get boxed in on the right and left” and “failing to slow down ahead of the chain of events that led to the collision.”

*9 Similarly, Plaintiff maintains that Bonini’s testimony provides evidence that his negligence in failing to slow down to prevent himself from being “boxed in” was a proximate cause of Plaintiff’s injuries. Specifically, Plaintiff asserts that there is a “probability” that a collision would not have occurred if, in the moments leading up to the collision, Bonini had decreased his speed in order to avoid being “boxed in” by the vehicles on his right and left. Plaintiff points out that, in his testimony, Bonini confirmed that the vehicle in the lane to the left of him did not strike Plaintiff as her truck traveled perpendicularly across I-10. Thus, Plaintiff contends, there is a “probability” that a collision would not have occurred and Plaintiff’s injuries would not have resulted if Bonini had slowed down and not allowed himself to remain “boxed in” in the seconds before Plaintiff and Bonini’s eventual collision.

Viewing the evidence in the light most favorable to Plaintiff, the court concludes that Plaintiff has met her burden to produce “more than a scintilla” of admissible evidence such that a reasonable jury could find in her favor. Accordingly, summary judgment is not warranted with respect to Plaintiff’s negligence claim against Bonini.

III. Conclusion

In accordance with the foregoing, Defendants’ Motion for Summary Judgment (#17) is GRANTED in part and DENIED in part. Defendants’ motion is granted with regard to Plaintiff’s claims of negligent entrustment; negligent hiring; negligent training; and negligent supervision, retention, and monitoring against Just In Time. There remain no material facts in dispute, and Just In Time is entitled to judgment as a matter of law on all of Plaintiff’s claims against it based on these theories.

Defendants’ motion is denied with respect to Plaintiff’s negligence claim against Bonini. Genuine disputes of material fact exist, and Plaintiff, therefore, may proceed to trial on her negligence claim against Bonini.

All Citations

Slip Copy, 2024 WL 69062

Footnotes

Plaintiff is a citizen of Texas. According to Defendants’ Joint Notice of Removal (#1), Bonini “is a resident and citizen of the State of Florida or the State of North Carolina,” and Just In Time is a limited liability company whose sole member is a citizen of the Commonwealth of Pennsylvania. Additionally, Plaintiff’s petition seeks damages “in excess of $1,000,000.00.”
The court observes that, when discussing the legal standard for summary judgment, Plaintiff’s response cites only Texas cases, focusing in particular on the standard for “no evidence” summary judgment motions under Texas Rule of Civil Procedure 166a(i). Unlike Texas law, however, federal law does not recognize “no evidence” motions for summary judgment. See Fed. R. Civ. P. 56(a); see also Edwards v. Oliver, No. 3:17-cv-01208-M-BT, 2021 WL 881283, at *3 n.4 (N.D. Tex. Jan. 19, 2021) (explaining that, while “perhaps by ‘no evidence’ [the movant] refers to the Celotex [Corp. v. Catrett, 477 U.S. 317 (1986)] court’s construction of Rule 56,” “the Federal Rules of Civil Procedure set forth only one summary-judgment standard under Rule 56”), adopted by No. 3:17-cv-01208-M-BT, 2021 WL 873190 (N.D. Tex. Mar. 9, 2021); Shofner v. Shoukfeh, No. 5:15-CV-152-C, 2017 WL 3842349, at *4 (N.D. Tex. Apr. 18, 2017) (explaining that Celotex and its progeny “provide that a summary judgment movant may discharge its Rule 56 burden by pointing to evidence that is lacking in the record (evidence necessary to support a particular element or claim that the non-movant has failed to adduce) rather than providing its own evidence to conclusively disprove the non-movant’s claims”). At any rate, “[t]his Court’s analysis proceeds, as it must, under the federal standard.” Taylor v. Dolgencorp of Tex., Inc., No. 6:18-CV-00179-ADA, 2020 WL 1902540, at *2 (W.D. Tex. Jan. 7, 2020).
Plaintiff’s response does not explicitly mention her negligent retention or negligent monitoring allegations. The court notes, however, that Plaintiff’s petition groups her negligent supervision, negligent retention, and negligent monitoring allegations into one cause of action asserted against Just In Time. See Plaintiff’s Original Petition (#3) (“D. Defendant Just In Time Systems’s Negligent Supervision, Retention, and Monitoring.”). Thus, it appears that Plaintiff’s agreement to the dismissal of her negligent supervision claim necessarily encompasses the dismissal of her negligent retention and negligent monitoring allegations. At any rate, Plaintiff does not defend her negligent retention or negligent monitoring allegations in her response, rendering these claims unquestionably abandoned and subject to summary judgment in favor of Just In Time.
Notably, Plaintiff states that these claims should be “dismiss[ed].” To the extent that Plaintiff seeks to dismiss voluntarily her claims against Just In Time under Federal Rule of Civil Procedure 41(a)(2), her efforts are unavailing. See, e.g., Hill, 634 F. Supp. 3d at 362 (explaining that, where the plaintiff sought to withdraw certain claims in his response to the defendants’ motion for summary judgment, the plaintiff could “not unilaterally withdraw his claims to avoid a negative judgment” because under Rule 41(a)(2), “a plaintiff may not voluntarily dismiss a claim after a summary judgment motion has been filed without first receiving the Court’s consent”). Likewise, in the case at bar, Plaintiff has neither sought nor received the court’s consent for the dismissal of her claims against Just In Time. Accordingly, Plaintiff’s claims are not eligible for voluntary dismissal under Rule 41(a)(2).
The court notes that the Proposed Order (#18-4) attached to Plaintiff’s response brief includes the following statement: “Plaintiff’s Motion to Continue Ruling is GRANTED and the Court will take the issues back up after a currently unidentified defendant is identified and located.” The court infers that Plaintiff is referencing the unknown motorist who has been designated as a responsible third party in this case. Even if the court were inclined to consider Plaintiff’s passing reference to this detail in her proposed order, Plaintiff nevertheless fails to explain how such facts regarding the unknown motorist’s identity and location are discoverable and “susceptible of collection within a reasonable time frame.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). Indeed, neither Defendants nor Plaintiff appears to be aware of the unknown driver’s identity or any means of identifying him or her. See Defendants’ Unopposed Motion for Leave to Designate Responsible Third Party (#9) (“[T]he offender’s identities and whereabouts cannot be determined.”); Plaintiff’s Objection and Responses to Defendants’ First Set of Admissions (#17-1) (responding “Admit” to the following requests for admission: “Admit that you have no information regarding the identity of the operator of the vehicle which entered Plaintiff’s lane of travel at the time of the incident of August 23, 2022” and “Admit that you have no information which would allow you to identify the vehicle which entered Plaintiff’s lane of travel at the time of the incident of August 23, 2022.”).
Later in his deposition, Bonini testified that his only “out” in the time leading up to the collision was within his own lane, specifically responding, “That’s correct” when asked, “And so your only out would have been directly in front of you?” While Bonini went on to testify that, during the moments when Plaintiff’s truck was veering across I-10, he was “not sure” if “there [was] any traffic to [his] right,” he nevertheless confirmed that the right-hand lane was not a potential “out” for him, responding “I couldn’t—no. Nope,” when asked: “Was that, to the right, a potential out for you in that situation?” Bonini testified further that he could not have moved to the right-hand lane, even if that lane was clear in the seconds before the collision, because he “was 100 percent on the brakes at that point and … it was nothing going on at that point that made running that vehicle safe or a prudent decision.”
“Texas drivers have a ‘general duty to exercise ordinary care to avoid a foreseeable risk of harm to others.’ ” Obregon v. United States, No. 5:17-CV-30, 2018 WL 6179507, at *3 (S.D. Tex. Nov. 27, 2018) (quoting Williamson County v. Voss, 284 S.W.3d 897, 902 (Tex. App.—Austin 2009, no pet.)), aff’d, 791 F. App’x 458 (5th Cir. 2019); see Ciguero v. Lara, 455 S.W.3d 744, 748 (Tex. App.—El Paso 2015, no pet.); Tex. Dep’t of Transp. v. Pate, 170 S.W.3d 840, 847 (Tex. App.—Texarkana 2005, pet. denied) (referencing motorists’ “general duty to drive safely”); Adams v. Morris, 584 S.W.2d 712, 716 (Tex. Civ. App.—Tyler 1979, no writ) (explaining that a driver of a motor vehicle has a duty to exercise “the care a reasonably prudent person would exercise under like circumstances”).

End of Document

Blackburn v. Right Way Auto Transp., Inc., et al

United States District Court, E.D. Texas.

DEANDRIA BLACKBURN, Individually and as Next Friend of G.B., a Minor Child, Plaintiff,

RIGHT WAY AUTO TRANSPORT, INC., JOHN ERIC DEPEW, and LASHAY JAVON WHEELER, Defendants.

CIVIL ACTION NO. 1:23-CV-250

Filed 12/29/2023

MEMORANDUM AND ORDER

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

*1 Pending before the court is a Motion to Remand (#6) filed by Deandria Blackburn, Individually and as Next Friend of G.B., a Minor Child (“Plaintiff”).¹ Defendant Right Way Auto Transport, Inc. (“Right Way”) filed a Response (#9) on August 8, 2023. Having considered the motion, the submissions of the parties, the record, and the applicable law, the court is of the opinion that Plaintiff’s motion should be denied.

I. Background

Plaintiff originally filed suit in the 260th Judicial District Court of Orange County, Texas, on June 13, 2023. Plaintiff sued Right Way, John Eric Depew (“Depew”), and Lashay Javon Wheeler (“Wheeler”), relating to a motor vehicle collision that occurred on Wednesday, June 16, 2021, at approximately 3:35 p.m. in a construction zone on the westbound lane of Interstate Highway 10 (“I-10”) within the city limits of Orange, Orange County, Texas. The following operative facts are taken from the Original Petition (#3):

Defendant DEPEW was operating a red 2014 Peterbilt 388 tractor, with trailer in tow, in the inside lane of westbound I-10 when suddenly, and without warning, Defendant DEPEW failed to control the speed of the tractor–trailer and struck the rear of a white 2016 Freightliner Sprinter cargo van.

The force of the impact caused the cargo van to be pushed into the rear of a red 2014 Ford F-150.

Defendant DEPEW then drove the tractor–trailer to the outside lane, striking a grey 2017 Honda CR-V that was being driven by Defendant WHEELER. The passengers inside the Honda CR-V included Plaintiff and her minor child, G.B.

Next, Defendant WHEELER’S Honda CR-V moved to the inside lane and struck the Ford F-150.

Following impact, local authorities from the Texas Department of Public Safety and emergency personnel from Acadian Ambulance Service arrived on the scene. When EMS personnel began providing treatment to Plaintiff, she advised them she was experiencing pain in her lower abdomen and that she was twenty (20) weeks pregnant. In turn, Plaintiff and her minor child were immediately transported from the scene to the emergency room at Baptist Hospital’s [sic] of Southeast Texas in Beaumont, TX.

At all times in question, the 2014 Peterbilt 388 tractor was owned by Defendant RIGHT WAY and operated or otherwise under the control of Defendant DEPEW in the course and scope of his employment with Defendant RIGHT WAY and in furtherance of Defendant RIGHT WAY’s business interests.

*2 Upon information and belief, the 2017 Honda CR-V was deemed a total loss due to the force of the impact.

As a result of the actions and/or omissions of Defendants, Plaintiff and her minor child suffered serious bodily injuries and other damages, including Plaintiff’s early delivery of her child, for which she sues.

Citations were issued for each defendant on June 14, 2023.² On June 30, 2023, Right Way filed a Notice of Removal, indicating Right Way was served on June 19, 2023. At the time of filing the Notice of Removal, Right Way reported, as reflected on the state court docket, that Depew and Wheeler had not been served. Right Way argues removal is proper as (1) the amount in controversy exceeds the jurisdictional minimum and (2) diversity of citizenship exists between Plaintiff (a citizen of Louisiana) and Right Way and Depew (both citizens of Maryland). While Wheeler is also a citizen of Louisiana, Right Way argues Wheeler was improperly joined.

On July 7, 2023, Right Way filed an Answer to the Complaint (#4) and a Demand for a Jury Trial. Plaintiff filed the pending Motion to Remand on July 28, 2023. Depew then filed an Answer (#7), a Notice of Consent to Removal (#8), and a Demand for a Jury Trial, on August 8, 2023. Right Way then filed a Response in Opposition to the Motion to Remand on the same day. Wheeler has yet to make an appearance in this case.³ The motion is now ripe for review.

II. Analysis

A. Removal Jurisdiction

“Federal courts are courts of limited jurisdiction.” Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ___, 139 S. Ct. 1743, 1746 (2019) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); accord Gunn v. Minton, 568 U.S. 251, 256 (2013); Cleartrac, L.L.C. v. Lanrick Contractors, L.L.C., 53 F.4th 361, 364 (5th Cir. 2022); Williams v. Homeland Ins. Co. of N.Y., 18 F.4th 806, 816 (5th Cir. 2021); Gonzalez v. Limon, 926 F.3d 186, 188 (5th Cir. 2019). “They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377; accord Gonzalez, 926 F.3d at 188. The court “must presume that a suit lies outside [its] limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Gonzalez, 926 F.3d at 188 (quoting Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001)); accord Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 537 (5th Cir. 2017). In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 231-32 (2007); Atkins v. CB&I, L.L.C., 991 F.3d 667, 669 n.1 (5th Cir. 2021); Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 468 (5th Cir. 2020); Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 183 (5th Cir. 2018).

*3 When considering 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)); accord Mitchell v. Bailey, 982 F.3d 937, 940 (5th Cir. 2020); Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 611 (5th Cir. 2018); see 13E CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3602.1 (3d ed. 2013). “This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.” Leboeuf v. Hatle, No. 20-105, 2020 WL 1074952, at *1 (E.D. La. Mar. 6, 2020) (citing Roth v. Kiewit Offshore Servs., Ltd., 625 F. Supp. 2d 376, 382 (S.D. Tex. 2008)); accord Hernandez v. State Farm Lloyds, No. DR-16-CV-164-AM/CW, 2017 WL 8131570, at *2 (W.D. Tex. Sept. 19, 2017); Fort Worth & W. R.R. Co. v. Stevenson, No. 3:15-CV-0906-B, 2015 WL 3867906, at *1 (N.D. Tex. June 22, 2015). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)); see Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 395 (5th Cir. 2009).

“The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see 28 U.S.C. § 1441(a); Grace Ranch, L.L.C. v. BP Am. Prod. Co., 989 F.3d 301, 307 (5th Cir. 2021); Hoyt v. Lane Constr. Corp., 927 F.3d 287, 295 (5th Cir. 2019); Allen, 907 F.3d at 183. Because removal raises significant federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Valencia v. Allstate Tex. Lloyd’s, 976 F.3d 593, 595 (5th Cir. 2020); Settlement Funding, L.L.C., 851 F.3d at 536; Afr. Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014); Barker, 713 F.3d at 212. In short, any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (quoting Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S. 1229 (2000)); accord Allen, 907 F.3d at 183; Aftr. Methodist Episcopal Church, 756 F.3d at 793.

B. Diversity Jurisdiction

Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 28 U.S.C. §§ 1331, 1332; Home Depot U.S.A., Inc., 139 S. Ct. at 1746; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005); Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 258-59 (5th Cir. 2014). In order to determine whether jurisdiction is present in a removed action, the claims set forth in the state court petition are considered as of the date of filing and the date of removal. Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 594 (2013); Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570-71 (2004); Moss v. Princip, 913 F.3d 508, 514 (5th Cir. 2019); Ashford v. Aeroframe Servs., LLC, 907 F.3d 385, 386-87 (5th Cir. 2018); Flagg v. Stryker Corp., 819 F.3d 132, 137 (5th Cir. 2016). In removed cases where, as here, there is no suggestion that a federal question is involved, subject matter jurisdiction exists only if there is complete diversity among the parties and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332; Lincoln Prop. Co., 546 U.S. at 89; Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).

*4 Complete diversity requires that no plaintiff be a citizen of the same state as any defendant. Exxon Mobil Corp., 545 U.S. at 552; Lewis, 519 U.S. at 68; Moss, 913 F.3d at 514; Vaillancourt v. PNC Bank Nat’l Ass’n, 771 F.3d 843, 847 (5th Cir. 2014). “In cases removed from state court, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court.” Ashford, 907 F.3d at 386-87 (quoting Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)); see Grupo Dataflux, 541 U.S. at 570-71; Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). Furthermore, removal is appropriate only if none of the parties properly joined and served as a defendant is a citizen of the state in which the action was brought. Afr. Methodist Episcopal Church, 756 F.3d at 793; In re 1994 Exxon Chem. Fire, 558 F.3d at 391; Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (citing 28 U.S.C. § 1441(b)(2)).

C. Improper Joinder

In the case at bar, although there is no dispute that Plaintiff and Defendants Right Way and Depew are citizens of different states and that more than $75,000.00 is at issue, complete diversity may still be lacking because Plaintiff and Defendant Wheeler are citizens of Louisiana. Therefore, to establish the existence of diversity jurisdiction, Plaintiff must show that Wheeler was improperly joined as a defendant to this action. See Miciotto v. Hobby Lobby Stores, Inc., No. 21-30456, 2022 WL 3210686, at *2 (5th Cir. Aug. 9, 2022) (citing Hicks v. Martinrea Auto. Structures (USA), Inc., 12 F.4th 511, 514-15 (5th Cir. 2021)); Afr. Methodist Episcopal Church, 756 F.3d at 793; Mumfrey, 719 F.3d at 401; In re 1994 Exxon Chem. Fire, 558 F.3d at 384-85. In determining whether a defendant was improperly joined, the “focus of the inquiry must be on the joinder, not the merits of the plaintiff’s case.” Ticer v. Imperium Ins. Co., 20 F.4th 1040, 1045 (5th Cir. 2021) (quoting Hicks, 12 F.4th at 515); accord Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 200 (5th Cir. 2016); McDonal v. Abbott Lab’ys, 408 F.3d 177, 183-84 (5th Cir. 2005). The removing party bears the heavy burden of proving that a non-diverse defendant has been fraudulently joined to defeat diversity, either by showing (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Ticer, 20 F.4th at 1045; Foster v. Deutsche Bank Nat’l Tr. Co., 848 F.3d 403, 406 (5th Cir. 2017); accord Waste Mgmt. v. AIG Specialty Ins. Co., 974 F.3d 528, 533 (5th Cir. 2020); Alviar v. Lillard, 854 F.3d 286, 289 (5th Cir. 20170. There is no difference between the terms “improper joinder” and “fraudulent joinder” in the context of removal jurisdiction. See Hoyt, 927 F.3d at 303; Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir.), cert. denied, 544 U.S. 992 (2005).

A determination of improper joinder must be based on an analysis of the causes of action alleged in the petition at the time of filing and at the time of removal. Brown v. Wright Nat’l Flood Ins. Co., No. 20-30525, 2021 WL 2934730, at *4 (5th Cir. July 12, 2021) (explaining that “the plaintiff’s pleading that is to be considered in determining the existence of diversity jurisdiction is the one that is operative ‘at the time of … removal’ ” (quoting Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939))); Lassberg v. Bank of Am., N.A., 660 F. App’x 262, 266 (5th Cir. 2016); Borden, 589 F.3d at 171. Where the defendant maintains that federal jurisdiction is proper, the court must evaluate all the factual allegations in the plaintiff’s state court pleadings in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff, and then examine relevant state law and resolve all uncertainties in favor of the nonremoving party. Afr. Methodist Episcopal Church, 756 F.3d at 793; Barker, 713 F.3d at 212; Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). Furthermore, the “court must normally assume all the facts as set forth by the plaintiff to be true.” Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995) (quoting Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983), cert. denied, 464 U.S. 1039 (1984)); accord Cuevas v. BAC Home Loan Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011).

*5 While a court, when considering allegations of improper joinder, should refrain from pre-trying the case or conducting an evidentiary hearing, it may utilize a summary judgment-type procedure “that allows it to pierce the pleadings and examine affidavits and deposition testimony for evidence of fraud or the possibility that the plaintiff can state a claim under state law against a nondiverse defendant.” Jack v. Evonik Corp., 79 F.4th 547, 555 (5th Cir. 2023); Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311 (5th Cir. 2002); accord Smith v. Bank of Am. Corp., 605 F. App’x 311, 313-14 (5th Cir. 2015); Guillory v. PPG Indus., Inc., 434 F.3d 303, 309-10 (5th Cir. 2005). “Post-removal filings may not be considered, however, when or to the extent that they present new causes of action or theories not raised in the controlling petition filed in state court.” Martinez v. Pfizer Inc., 388 F. Supp. 3d 748, 765 (W.D. Tex. 2019) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir. 1999)); accord Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995). “[A]lthough the fraudulent joinder and Rule 12(b)(6) standards appear similar, the scope of the inquiry is different.” Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003).

A district court should ordinarily resolve claims of improper joinder by conducting a Rule 12(b)(6)-type analysis. Hicks, 12 F.4th at 515; McDonal, 408 F.3d at 183 n.6; see Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 205; Afr. Methodist Episcopal Church, 756 F.3d at 793 (“The federal court’s inquiry into the reasonable basis for the plaintiff’s state court recovery is a Rule 12(b)(6)-type analysis ….”); Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005) (“A motion to remand is normally analyzed with reference to the well-pleaded allegations of the complaint, which is read leniently in favor of remand under a standard similar to Rule 12(b)(6).”); Smallwood, 385 F.3d at 573. If a plaintiff can survive a Rule 12(b)(6)-type challenge, there is generally no improper joinder. Hicks, 12 F.4th at 515 (quoting Smallwood, 385 F.3d at 573); Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 208; Mumfrey, 719 F.3d at 401; Guillory, 434 F.3d at 309. Generally, the court should “limit itself to the contents of the pleadings, including the attachments thereto.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Nonetheless, the court may consider documents attached to a motion or an opposition to a motion when “the documents are referred to in the pleadings and are central to a plaintiff’s claims.” Brand Coupon Network, LLC v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).

“That said, there are cases, hopefully few in number, in which the plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Jack, 79 F.4th at 555; Smallwood, 385 F.3d at 573 (citing Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)); accord Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 205; Afr. Methodist Episcopal Church, 756 F.3d at 793. The summary inquiry is “appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” Jack, 79 F.4th at 555; Smallwood, 385 F.3d at 573-74. The court, however, must carefully distinguish an attack on the overall merits of the case from a showing that defendants were improperly joined in order to defeat diversity. Id. at 573; see Wright v. ANR Pipeline Co., 652 F. App’x 268, 271 (5th Cir. 2016) (stating that the improper joinder “inquiry does not concern the merits”); Gasch, 491 F.3d at 284 (“[A] meritless claim against an in-state defendant is not the equivalent of improper joinder.”).

*6 In the instant case, because Right Way does not claim actual fraud in Plaintiff’s recitation of jurisdictional facts, it must demonstrate that there is no possibility that Plaintiff could establish a cause of action against Wheeler. See Hicks, 12 F.4th at 515; Foster, 848 F.3d at 406; Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 205; Afr. Methodist Episcopal Church, 756 F.3d at 793; Mumfrey, 719 F.3d at 401. In other words, the court should find improper joinder if “there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Alviar, 854 F.3d at 289 (quoting Smallwood, 385 F.3d at 573 (rejecting all other phrasings)); see Hicks, 12 F.4th at 515; Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 205; Mumfrey, 719 F.3d at 401. “Nevertheless, ‘a mere theoretical possibility of recovery under local law will not preclude a finding of improper joinder.’ ” Gonzales v. Bank of Am., 574 F. App’x 441, 443 (5th Cir. 2014) (quoting Smallwood, 385 F.3d at 573 n.9); see Ayala v. Enerco Grp., Inc., 569 F. App’x 241, 245 (5th Cir. 2014); Bukowski v. Liberty Ins. Corp., No. SA-22-CV-0272-JKP, 2022 WL 1625173, at *2 (W.D. Tex. May 20, 2022); Grant v. Casas, No. 5:21-CV-05-DAE, 2021 WL 2792431, at *2 (W.D. Tex. Mar. 4, 2021). “If there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,’ then there is no [improper] joinder,” and the case must be remanded for lack of diversity. Great Plains Tr. Co., 313 F.3d at 312 (quoting Badon, 236 F.3d at 286); see Gray ex rel. Rudd v. Beverly Enters.-Miss., Inc., 390 F.3d 400, 402 (5th Cir. 2004); Smallwood, 385 F.3d at 589-90; Bukowski, 2022 WL 1625173, at *3. Additionally, if the court determines that “there is no reasonable basis for predicting that state law would allow recovery against the in-state defendant and that showing is equally dispositive of all defendants,” then remand is also proper. Smallwood, 385 F.3d at 576; Gasch, 491 F.3d at 283.

In assessing whether a plaintiff could possibly establish a claim against a non-diverse defendant, the court must apply the law of the state in which the action was brought—in this case, Texas. See Travis, 326 F.3d at 647; Hart v. Bayer Corp., 199 F.3d 239, 247 (5th Cir. 2000). “[W]hether the plaintiff has stated a valid state law cause of action depends upon and is tied to the factual fit between the plaintiff[’s] allegations and the pleaded theory of recovery.” Griggs, 181 F.3d at 701; see Burden, 60 F.3d at 218-21; Speiser v. AmGUARD Ins. Co., No. CV H-22-1595, 2022 WL 3349312, at *3 (S.D. Tex. Aug. 12, 2022). The United States Court of Appeals for the Fifth Circuit has held unequivocally that “[a] federal court must apply the federal pleading standard” when determining whether a plaintiff has a reasonable basis for recovery under state law. Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 208; see Waste Mgmt., Inc., 974 F.3d at 533. Furthermore, the Fifth Circuit instructs that, in the absence of a decision to “pierce the pleadings and conduct a summary inquiry,” the court must conduct a Rule 12(b)(6)-type analysis. Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 207-08; accord Hicks, 12 F.4th at 515; Waste Mgmt., Inc., 974 F.3d at 533. Specifically, the court must consider whether the plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its face” against the in-state defendant. Hicks, 12 F.4th at 515 (quoting Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 208); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Waste Mgmt., Inc., 974 F.3d at 533. If the plaintiff’s claim does not survive the Rule 12(b)(6) inquiry, the court must dismiss that party without prejudice as being improperly joined to defeat diversity jurisdiction. Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 209; Probasco v. Wal-Mart Stores Tex., L.L.C., 766 F. App’x 34, 36 (5th Cir. 2019); Alviar, 854 F.3d at 291; Sam v. Wells Fargo Bank, N.A., No. 4:15-CV-03194, 2016 WL 3002359, at *5 (S.D. Tex. May 20, 2016).

Here, Plaintiff alleges that the defendants are jointly and severally liable for Plaintiff’s damages under the doctrines of negligent entrustment, respondeat superior, negligence, gross negligence, negligence per se, and res ipsa loquitur. As to Wheeler, Plaintiff alleges theories of negligence, gross negligence, and res ipsa loquitur, specifically. Under Texas law, a negligence claim consists of four essential elements:

*7 (1) a legal duty owed to the plaintiff by the defendant;

(2) a breach of that duty;

(3) an actual injury to the plaintiff; and

(4) a showing that the breach was the proximate cause of the injury.

The only specific factual allegations relating to Wheeler’s involvement in the incident state that Wheeler’s Honda CR-V “moved” to the inside lane and struck the Ford F-150 after being struck by the tractor–trailer driven by Depew. Plaintiff then proceeds to allege that Wheeler failed to use ordinary care while operating the Honda CR-V, failed to drive the Honda CR-V entirely within a single lane in violation of Texas Transportation Code § 545.060, failed to keep a proper lookout while operating the Honda CR-V, failed to maintain proper control of the Honda CR-V, and failed to operate the Honda CR-V in accordance with the rules of the roadway established by federal, state, and local law. In response, Right Way argues that Plaintiff omits key facts that are essential in determining the propriety of joinder and provides the dashboard video download of the incident and the Texas Peace Officer’s Crash Report relating to the incident in support of its argument of improper joinder.⁴ As a result, the court may, in its discretion, pierce the pleadings and consider the extrinsic evidence. Jack, 79 F.4th at 555; Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 207; Great Plains Tr. Co., 313 F.3d at 311; accord Guillory, 434 F.3d at 309-10; Hornbuckle, 385 F.3d at 542; Travis, 326 F.3d at 648-49. “Certainly a court may choose to use either one of these two analyses, but it must use one and only one of them, not neither or both.” Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 207. The Fifth Circuit has cautioned, however, that “[w]hile the decision regarding the procedure necessary in a given case must lie within the discretion of the trial court, … a summary inquiry is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” Jack, 79 F.4th at 555; Smallwood, 385 F.3d at 573; accord Rosenbrock, 2016 WL 2756589, at *16. A court should only pierce the pleadings in “rare case[s]” where it is necessary to determine if there are any “discrete and undisputed facts that would preclude recovery from the non-diverse Defendant.” Pitzen v. Woods, No. 23-641, 2023 WL 3221969, at *3 (E.D. La. May 3, 2023); Lott v. Dutchman, 422 F. Supp. 2d 750, 755 (E.D. Tex. 2006); accord Armstrong v. Atlas-Telecom Servs.-USA, Inc., 562 F. Supp. 2d 812, 817 (E.D. Tex. 2007). This is just such a case.

*8 Plaintiff argues that it is “common knowledge that a passenger involved in a collision in Texas has a right to file a claim against the driver of the vehicle and a third-party driver when there is a genuine dispute of facts.” Plaintiff contends there is a genuine dispute as to whether Wheeler’s conduct caused and/or contributed to Plaintiff’s injuries. Plaintiff, however, omits key facts that preclude Plaintiff’s recovery against Wheeler. As shown in the video, Depew was traveling in the inside lane while Wheeler was driving in the outside lane. The video corroborates that there were no vehicles traveling immediately in front of or behind Wheeler in the outside lane, but shows that Depew’s tractor–trailer suddenly passed Wheeler and struck the rear of the vehicle traveling in front of him in the inside lane.⁵ The video confirms that Wheeler never left the outside lane until Depew maneuvered to the outside lane, striking the left rear panel of Wheeler’s vehicle with the tractor–trailer. It is this impact that caused Wheeler’s vehicle to move and strike one of the vehicles in the inside lane.⁶ Based on this evidence, there is no reasonable basis for any fault being assigned to Wheeler as a result of her vehicle being struck by Depew, who was driving a tractor–trailer and apparently failed to control his speed, which propelled Wheeler’s vehicle into the inside lane where it struck another vehicle.⁷ Jack, 79 F.4th at 556; Alviar, 854 F.3d at 289 (“[T]here is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state [or non-diverse] defendant.” (quoting Smallwood, 385 F.3d at 573 (rejecting all other phrasings))); see Hicks, 12 F.4th at 515; Int’l Energy Ventures Mgmt., L.L.C., 818 F.3d at 205; Mumfrey, 719 F.3d at 401. Plaintiff’s pleadings and Motion to Remand omit these key facts, and Plaintiff also offers nothing in response to refute the video evidence.⁸ In offering the video, Right Way appears to concede the fault of its alleged agent Depew and rely on an admission against interest in its analysis of the evidence; Right Way, however, would seem to have no motive to fabricate or exaggerate its own alleged negligence. The video directly contradicts any assertion that Wheeler breached a duty owed to Plaintiff. Specifically, the video refutes Plaintiff’s assertion that some action on Wheeler’s part caused and/or contributed to the accident and/or Plaintiff’s injuries and that of her minor child. “A court … need not rely on the plaintiff’s description of the facts where the record discredits that description but should instead consider ‘the facts in the light depicted by the videotape.’ ” Carnaby, 636 F.3d at 187; accord Rivens-Baker v. Riley, No. H-22-2462, 2023 WL 6130550 at *3 (S.D. Tex. Sept. 19, 2023) (summary judgment context).

In light of Right Way’s undisputed evidence that Wheeler did not act negligently after her car was suddenly struck in the left rear panel by a tractor–trailer, Right Way has demonstrated that Plaintiff has no possibility of recovery against Wheeler. Right Way has carried its burden of proving the improper joinder of Wheeler. The remaining parties are diverse, and this court has diversity jurisdiction over the state law claims. When a court has original subject matter jurisdiction over state law claims, the exercise of that jurisdiction is mandatory. The parties cannot waive or agree to destroy that original jurisdiction. Cuevas, 648 F.3d at 250 (citing Adair v. Lease Partners, Inc., 587 F.3d 238, 241 (5th Cir. 2009)).

III. Conclusion

*9 An evaluation of the relevant facts and controlling law reveals that this court has subject matter jurisdiction over this action. Although no federal question is presented, complete diversity of citizenship exists between the parties as Wheeler was improperly joined as a defendant in this case, and the amount in controversy exceeds $75,000.00. Therefore, this case was properly removed, and remand is not warranted. Accordingly, Plaintiff’s Motion to Remand (#6) is DENIED.

The CLERK OF COURT is instructed to RESTYLE this case and remove Wheeler as a named defendant.

SIGNED at Beaumont, Texas, this 29th day of December, 2023.

All Citations

Footnotes

To the extent Plaintiff’s counsel argues he did not promptly receive written notice of the Notice of Removal, the court finds this argument disingenuous. While counsel for Right Way relied on notice through electronic filing in filing the Notice of Removal, which was in error, counsel for Plaintiff concedes he received notice of the docketing of the state court petition in this action on the same day. This notice was sufficient to inform counsel for Plaintiff that the action had been removed. Furthermore, counsel for Plaintiff does not set forth any argument showing how Plaintiff was prejudiced by this error.
In Plaintiff’s Motion to Remand, Plaintiff states that Wheeler was served on June 15, 2023, and attaches as an exhibit the completed return. The state court records attached to the Notice of Removal, however, do not contain a return of service for any of the defendants, let alone this return.
Consent to or joinder in removal by Wheeler is unnecessary as an allegedly improperly joined defendant. Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868 (1993).
In the Notice of Removal, Right Way originally attached still picture frames taken from the video in support of its argument of improper joinder.
This vehicle then, in turn, struck the vehicle traveling two vehicles in front of Depew.
This is the same vehicle that was traveling two vehicles in front of Depew.
The Peace Officer’s Crash Report describes the accident as follows: Depew (Units #1 & #2) was traveling westbound on I-10 behind two other vehicles whose drivers were unidentified (Units #3 & #4). Wheeler (Unit #5) was driving in the outside lane. “Unit #1 failed to control their speed and struck the rear of Unit #3. Unit #3 was then pushed into the rear of Unit #4. Unit #1 then moved to the outside lane striking Unit #5 which caused Unit #5 to turn and strike Unit #4 on the passenger side.” As a public record, the police report is “presumed to be trustworthy and admissible; therefore, it is the burden of the party opposing admission to demonstrate a lack of trustworthiness.” Valentine v. Hodnett, No. 5:14-CV-72, 2015 WL 12942069, at *3 (S.D. Tex. Sept. 16, 2015), adopted by 2016 WL 806877 (S.D. Tex. Mar. 2, 2016); Bedford Internet Off. Space v. Travelers Ins. Casualty Co., 41 F. Supp. 3d 535, 544 (N.D. Tex. 2014); Ochoa v. Progressive Pipeling Constr., L.L.C, No. SA-13-CV-00122-FB, 2014 WL 12763124, at *2 (W.D. Tex. Sept. 12, 2014). Plaintiff does not challenge the narrative provided in the report or what the video depicts. Plaintiff, in fact, as previously stated, filed no reply to the response to the motion to remand. In any event, the court need not rely on the report; the video is dispositive. Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)) (“[A]lthough courts view evidence in the light most favorable to the nonmoving party, they give greater weight, even at the summary judgment stage to the facts evidenced from video recordings taken at the scene.”); accord Valderas v. Lubbock, 937 F.3d 384, 388 (5th Cir.), cert. denied, 140 S. Ct. 454 (2019).
According to Right Way, counsel for Plaintiff already has a copy of this video. Plaintiff, in fact, attached a still picture from the video in her Original Petition (#3). Notably, Wheeler has filed her own lawsuit against Right Way and Depew for injuries she sustained as a result of the same accident which is pending before the Honorable Michael J. Truncale. Debbie P. Wheeler, Individually and a/n/f to J.W., a minor, and Lashay Javon Wheeler vs. Right Way Auto Transport, Inc. and John Eric Depew, Civil Action No. 1:23-CV-234 (E.D. Tex.).

End of Document