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Bebee v. Motorola Solutions, Inc.

United States District Court, S.D. Texas, Houston Division

March 29, 2017

SABINA BEBEE, et al, Plaintiffs,
v.
MOTOROLA SOLUTIONS, INC., et al, Defendants.

          ORDER AND OPINION

          MELINDA HARMON UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' Motion to Remand (Document No. 16). Defendant Motorola filed a Response (Document No. 20), and Plaintiffs filed a Reply. (Document No. 22). Having considered these filings, the facts in the record, and the applicable law, the Court will deny Plaintiffs' Motion.

         Background

         This case is one of several cases pending relating to a May 31, 2013 fire at the Southwest Inn in Houston, Texas (the “Motel Fire”). (Document No. 16 at 3). Plaintiff Bebee is the mother of a firefighter who died in the Motel Fire, and the other Bebee Plaintiffs are also acting on behalf of firefighters killed or injured in the Motel Fire. Id. Plaintiffs generally allege that defective Motorola radios used by the firefighters caused or contributed to their deaths and injuries. A summary of the relevant lawsuits is as follows:

Lawsuit 1 - Dowling v. Criterium Systems, Inc. was filed in May 2014 (11th Judicial District Court, Cause No. 2014- 25121). Dowling was a firefighter injured in the Motel Fire. (Document No. 16 at 3). The Bebee Plaintiffs intervened in June 2014 and May 2015. (Document Nos. 20-2 - 20-6).
Lawsuit 2 - Livesay v. Motorola Solutions, Inc. was filed in May 2015 (125th Judicial District Court, Cause No. 2015-31080). Livesay, also a firefighter, is not a party to this case. The Bebee Plaintiffs intervened in Livesay in January 2016 (Document No. 20-9), but that intervention was struck on February 15, 2016. (Document No. 20-11 at 2).
Lawsuit 3 - Sullivan v. Criterium Systems, Inc. was filed by the Bebee Plaintiffs in June 2015 (189th Judicial District Court, Cause No. 2015- 31233). (Document No. 20-7). The Bebee Plaintiffs moved to consolidate Dowling and Sullivan in June 2015. (Document No. 20-8).
Lawsuit 4 - Bebee (the removed case at issue).

         Plaintiffs originally filed this action on February 8, 2016 in the 11th Judicial District Court in Harris County, Texas. (Document No. 1-2, Plaintiffs' Original Petition; Document No. 20-13, Bebee Docket Sheet). On February 16, 2016, Plaintiffs filed a Motion in the Livesay litigation, asking the Court to consolidate Livesay and Bebee for discovery purposes. (Document No. 20-11). Defendant Motorola Solutions Inc. (“Motorola”), believing that consolidation into the second-filed case would be improper, then, on February 17, 2016, filed a Motion to Transfer and Consolidate in Dowling to consolidate all fire-related suits (suits 1, 2 and 4, above) into Dowling. (Document No. 16-11).[1] On February 22, 2016, the Bebee Plaintiffs served Motorola. (Document No. 20-1). On February 26, 2016, Motorola filed a reply in support of its consolidation motion in both Dowling and Bebee (both in the 11th District Court). (Document Nos. 20-12, 20-13). On February 29, 2016, the Dowling Court, the 11th District Court, heard Motorola's motion, but declined to transfer any of the cases. (Document No. 20-14, Hearing Transcript). On March 23, 2016, Motorola filed its Notice of Removal to this Court. (Document No. 1). Defendant Scott filed a Consent to Removal on March 24, 2016. (Document No. 4).

         In addition to Defendant Motorola, Plaintiffs have filed suit against two in-state defendants:[2] Access Data Supply, Inc. (“ADSI”) and CTS Consolidated Telecom Services, LLC (“CTS”). (Document No. 1-2). Plaintiffs' claims against all Defendants, including ADSI and CTS, allege (1) design marketing and product defect claims, (2) negligence, (3) gross negligence, and (4) breach of warranty. Id. at 8-10. Plaintiffs state that ADSI “engaged in marketing, servicing, and/or assisting in the provision and use of the Motorola products involved in the deaths and injuries to the plaintiffs alleged in this suit.” Id. at 3. Plaintiffs state that CTS “engaged in the marketing, servicing, provision and use of the Motorola products and advertising complained about in this case and contributing to the deaths and injuries of plaintiffs alleged in this suit.” Id. at 4. Plaintiffs state that both “Defendants ADSI and CTS agreed to serve as subcontractors to partner with the other defendants to market, integrate and provide processing and instructions regarding Motorola's defective radio system.” Id. at 7. The remainder of Plaintiffs' allegations do not mention ADSI or CTS specifically.

         Parties' Arguments

         Plaintiffs argue that Motorola waived service of process in the Bebee case, by filing its Motion to Transfer and Consolidate in the Dowling case. (Document No. 16 at 7). According to Plaintiffs, the filing of that motion waived service of process, and started the 30-day removal clock. Id. at 9. If the clock was started on the date the motion was filed (February 17, 2016), then Motorola's Notice of Removal (March 23, 2016) was not within the 30-day time period, and removal was improper. Motorola objects to this, insisting that the motion did not start the removal clock, because it was filed in another case. (Document No. 20 at 4). Furthermore, Motorola argues that the filing of a motion cannot constitute an appearance in a case, and therefore cannot waive service of process. Id. at 7.

         Defendant Motorola also argues that in-state Defendants ADSI and CTS have been improperly joined in this case, because “Plaintiffs both misstate and omit discrete facts in their Petition.” (Document No. 20 at 10-12). Motorola attaches evidence to its Response which it believes negates any possibility of liability on the part of Defendants ADSI and CTS, by demonstrating that neither CTS nor ADSI committed the acts alleged by Plaintiffs. Id. at 13. Therefore, “Motorola requests the court ...


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