United States District Court, N.D. Texas, Lubbock Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
BRYANT, JR. UNITED STATES MAGISTRATE JUDGE
Tandi Wagner and Kristi Ramirez (Plaintiffs) filed a Motion
to Remand (ECF No. 8), to which Defendant FedEx Freight, Inc.
has filed its response. ECF No. 9. Plaintiffs have also filed
a reply. ECF No. 10.
to 28 U.S.C. § 636(b) and a standing order of reference
(see ECF No. 5), United States Chief District Judge
Barbara M. G. Lynn referred this case to the United States
Magistrate Judge for pretrial management. In accordance with
the order of reference, the undersigned issues the following
findings of fact and conclusions of law, and
RECOMMENDS that the United States District
Court deny Plaintiffs' Motion to Remand for the reasons
October 31, 2017, Plaintiffs filed their Original Petition
and Jury Demand in the 72nd District Court of Lubbock County,
Texas. Def.'s Notice of Removal, App., at 2-6 (ECF No.
1-1) [hereinafter Pls.' Original Pet.]. Through their
Petition, Plaintiffs allege that Defendant's gross
negligence proximately caused the death of their father,
Michael Merton. Id. at 2-3. Specifically, Plaintiffs
claim that on October 17, 2017, Merton was working inside an
airplane owned and operated by Defendant, when he was crushed
and killed. Id. at 3-5. Plaintiffs seek an award of
exemplary damages for Defendant's alleged gross
negligence. Id. at 4-5.
November 20, 2017, Defendant timely removed the case to this
court, asserting federal jurisdiction under 28 U.S.C.
§§ 1332 and 1441. Def.'s Notice of Removal, at
1-2 (ECF No. 1). Defendant contends that the court possesses
diversity jurisdiction because Plaintiffs are citizens of the
State of Texas, Defendant is an Arkansas corporation with its
principal place of business in Tennessee, and the amount in
controversy exceeds $75, 000. Id.
October 17, 2017, Plaintiffs timely filed the instant Motion
to Remand, arguing that because their claim for gross
negligence arises under Texas's workers' compensation
laws- specifically, Texas Labor Code § 408.001(b)-this
action is non-removable under 28 U.S.C. § 1445(c).
Pls.' Mot. to Remand, at 2 (ECF No. 8). In response,
Defendant argues that Plaintiffs did not plead a cause of
action pursuant to Texas Labor Code § 408.001 in their
Original Petition; thus, their claim cannot "arise
under" Texas's workers' compensation laws.
Def.'s Resp., at 2-A (ECF No. 9). Defendants
further contend that even if Plaintiffs pleaded a cause of
action under the Texas Labor Code, § 408.001(b) does not
create an independent cause of action for gross negligence,
but instead merely saves or preserves a pre-existing one
under the Texas Wrongful Death Act. Id. at 4. As a
result, Plaintiffs' claim for gross negligence does not
"arise under" Texas's workers' compensation
laws and is properly removable. Id. at 4-9. In their
reply, Plaintiffs acknowledge they could have pleaded their
claim more clearly, but reiterate that they solely seek
exemplary damages for Defendant's gross negligence under
§ 408.001(b), which "creates a potential for
recovery" after Section 408.001(a) "kill[ed] all
other causes of action against subscribers" Pls.'
Reply, at 2 (ECF No. 10). For this same reason, Plaintiffs
argue their claim could not arise under the wrongful death
statute because it only authorizes a claim where the injured
individual, had he lived, would have been entitled to bring
an action. Id. Citing several federal district court
opinions for further support, Plaintiffs assert that §
408.001(b) creates a cause of action for the recovery of
exemplary damages, and their claim therefore "arises
under" Texas's workers' compensation laws and is
non-removable. Id. at 4-9.
28 U.S.C. § 1441(a), "[e]xcept as otherwise
expressly provided by Act of Congress, " a defendant may
remove to federal court an action filed in state court if the
action could have originally been filed in the federal forum.
Thus, a civil action is removable to federal court under
§ 1441(a) unless another congressional provision
prohibits such removal. See Sherrod v. Am. Airlines,
Inc., 132 F.3d 1112, 1118 (5th Cir. 1998).
strictly construe § 1441 "because a defendant's
use of that statute deprives a state court of a case properly
before it and thereby implicates important federalism
concerns." Frank v. Bear Stearns & Co., 128
F.3d 919, 922 (5th Cir. 1997) (citing Carpenter v.
Wichita Falls Indep. Sch. Dist., AA F.3d 362, 365 (5th
Cir. 1995)). The removing party therefore bears the burden of
establishing that the court possesses federal jurisdiction
and that removal is proper. See, e.g., Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002) (citing several cases for support); St.
Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250,
1253 (5th Cir. 1998) (citing Gaitor v. Peninsular &
Occidental S.S. Co., 287 F.2d 252, 253-54 (5th Cir.
1961)); see also Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 397 (5th Cir. 1998) (citing several
cases for support) (noting that "when faced with a
motion to remand, it is the defendant's burden to
establish the existence of federal jurisdiction over the
controversy"). To determine whether removal jurisdiction
exists, a court must consider the claims in a plaintiffs
state court petition as they exist at the time of removal.
See Beneficial Nat 7 Bank v. Anderson, 539
U.S. 1, 6 (2003); Manguno, 276 F.3d at 723 (citing
Cavallini v. State Farm Mut. Auto Ins. Co., AA F.3d
256, 264 (5th Cir. 1995)). "Any ambiguities are
construed against removal because the removal statute should
be strictly construed in favor of remand."
Manguno, 276 F.3d at 723 (citing Acuna v. Brown
& Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
contend that their claim for gross negligence "arises
under" § 408.001(b) of the Texas Workers'
Compensation Act (TWCA) and is therefore non-removable under
§ 1445(c). Pls.' Mot. to Remand, at 1-3. Defendant,
on the other hand, maintains that "§ 408.001(b)
does not create an independent cause of action, but rather
acts to save a pre-existing cause of action for wrongful
death under that separate statute." Def.'s Resp., at
8. As the removing party, Defendant bears the burden of
demonstrating that Plaintiffs' claim does not "arise
under" the TWCA for the purposes of 28 U.S.C. §
1445(c). See, e.g., Manguno, 276 F.3d at 723. As
discussed below, the court finds that Defendant has met its
Plaintiffs' claim for gross negligence does not
"arise under" the TWCA for the purposes of 28
U.S.C. § 1445(c).
move to remand this case under 28 U.S.C. § 1445(c),
which provides that "[a] civil action in any State court
arising under the workmen's compensation laws of such
State may not be removed to any district court of the United
States." For the purposes of § 1445(c), "[a]
suit arises under the law that creates the cause of
action." Jones v. Roadway Express, Inc., 931
F.2d 1086, 1092 (5th Cir. 1991) (internal quotations omitted)
(quoting Lowe v. Ingalls Shipbuilding, 723 F.2d
1173, 1178 (5th Cir. 1984)) (defining § l445(c)'s
"arising under" standard in the same way the court
has defined it in 28 U.S.C. § 1331); but see Gomez
v. O'Reilly Auto. Stores, Inc., 283 F.Supp.3d 569,
572 (W.D. Tex. 2017) (noting that "wholesale application
of the case-law construction of § 1331 to §
1445(c), " as the Fifth Circuit has so instructed,
"gives rise to several difficulties"). Federal law,
as opposed to state law, governs the construction of the term
"arising under" in § 1445(c). Jones,
931 F.2d at 1092. The Fifth Circuit has generally stated that
courts should interpret the "arising under"
standard expressed in § 1445(c) broadly, "in order
to further Congressional intent toward maintaining state
court jurisdiction over worker's compensation cases filed
in state court." Sherrod, 132 F.3d at 1118
(citing Jones, 931 F.2d at 1092); see Patin v.
Allied Signal, Inc., 11 F.3d 782, 787 (5th Cir.
1996) (citing Jones, 931 F.2d at 1092) ("We
begin by reiterating a basic rule of this circuit that the
'arising under' standard expressed in § 1445(c)
should be interpreted broadly and in a manner consistent with
our interpretation of that standard under § 1331, which
governs federal question jurisdiction.");
Jones, 931 F.2d at 1092 ("Because Congress
intended that all cases arising under a state's
workers' compensation scheme remain in state court, we
believe that we should read section 1445(c) broadly to
further that purpose."). Despite such jurisprudential
imperatives favoring remand, the court finds that the claim
asserted herein falls outside § l445(c)'s reach, and
that Plaintiffs' Motion to Remand should be denied.
plain language of § 408.001(b) demonstrates that
Plaintiffs' claim does not
"arise under" the TWCA.
Original Petition asserts a single cause of action for gross
negligence against Defendant. Plaintiffs never cite to the
TWCA in their Petition; they acknowledge, however, that
"[a]t all times relevant to the events made the basis
for this suit, Defendant was a 'subscriber' to
workers' compensation insurance coverage in accordance
with the Texas Labor Code .. .." Pls.' Original
Pet., at 3. Texas Labor Code § 408.001 provides as
(a) Recovery of workers' compensation benefits is the
exclusive remedy of an employee covered by workers'
compensation insurance coverage or a legal beneficiary
against the employer or an agent or employee of the employer
for the death of or a work-related injury sustained by the
(b) This section does not prohibit the recovery of exemplary
damages by the surviving spouse or heirs of the body of a
deceased employee whose death was caused by an intentional
act or omission of the employer or by the employer's
(c) In this section, "gross negligence" has the
meaning assigned by Section 41.001, Civil Practice and
* * *
Tex. Lab. Code Ann. § 408.00l(a)-(c) (West 2015). In
other words, an employee who is injured or killed on the job
and is covered by workers' compensation insurance cannot
seek recovery from an employer other than through the
remedies and procedures provided by the TWCA. §
408.001(a); see also Patterson v. Mobil Oil Co., 335
F.3d 476, 480 (5th Cir. 2003) ("Under Texas's
[workers' compensation] scheme, employees covered by
subscriber-purchased policies receive compensation on a
no-fault basis, and, in exchange, subscribing employers
benefit from an exclusive remedy provision."). Section
408.001 (b) does not prohibit the recovery of exemplary
damages, however, by the surviving spouse or heirs of a
deceased employee whose death was caused by the
employer's intentional act or gross negligence.
argue that § 408.001(b) creates an independent cause of
action for gross negligence, thus requiring a finding that
their claim arises under the TWCA. Pls.' Reply, at 5, 9.
The statute is notably silent as to whether a gross
negligence claim originates under the TWCA or from some other
source of law. See Tex. Lab. Code Ann. §
408.001(b); see also Poljanec v. Home Depot U.S.A.
Inc., No. SA-14-CV-318-XR, 2014 WL 2050946, at *2 (W.D.
Tex. May 19, 2014) ("[I]f the cause of action came from
the statute one would expect the statute to say so.").
The plain language of § 408.001(b), however, suggests
that the TWCA merely preserves-rather than creates-a cause of
action for gross negligence. Instead of conferring upon a
potential plaintiff the right to sue for gross negligence,
§ 408.001(b) simply provides that a surviving spouse and
heirs are not prohibited from recovering exemplary damages
for the wrongful death of an employee. See §
408.001(b) ("This section does not prohibit the
recovery of exemplary damages . . . ." (emphasis
added)); see Ross v. Union Carbide Corp., 296 S.W.3d
206, 214 (Tex. App.- Houston [14th Dist] 2009, pet. denied)
(en banc). The most natural reading of the statute is that
§ 408.001(b) assumes a right to sue for wrongful death
already exists-i.e., it does not confer an independent cause
of action for exemplary damages upon a plaintiff, but instead
preserves a tort claim that arises elsewhere.
examination of the history of the Texas Constitution, the
Texas Wrongful Death Act,  and the TWCA further supports this
history of the Texas Wrongful Death Act, Texas Constitution,
and TWCAdemonstrates that