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Wagner v. Fedex Freight, Inc.

United States District Court, N.D. Texas, Lubbock Division

April 17, 2018

TANDI WAGNER and KRISTI RAMIREZ, Plaintiffs,
v.
FEDEX FREIGHT, INC., Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          GORDON BRYANT, JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiffs 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.

         Pursuant 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 explained below.

         I. Background

         On 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.

         On 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.

         On 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.

         II. Legal Standard

         Under 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).

         Courts 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)).

         III. Discussion

         Plaintiffs 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 burden.

         A. Plaintiffs' claim for gross negligence does not "arise under" the TWCA for the purposes of 28 U.S.C. § 1445(c).

         Plaintiffs 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.

         1.The plain language of § 408.001(b) demonstrates that Plaintiffs' claim does not "arise under" the TWCA.

         Plaintiffs' Original Petition asserts a single cause of action for gross negligence against Defendant. Plaintiffs never cite to the TWCA in their Petition;[1] 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 follows:

(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 employee.
(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 gross negligence.
(c) In this section, "gross negligence" has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.
* * *

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.

         Plaintiffs 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.

         A brief examination of the history of the Texas Constitution, the Texas Wrongful Death Act, [2] and the TWCA further supports this construction.

         2.The history of the Texas Wrongful Death Act, Texas Constitution, and TWCAdemonstrates that Plaintiffs' ...


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