United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
Honorable United States District Judge Fred Biery:
§ 1983 action, Plaintiffs Rogelio Carlos III and Myrna
Carlos assert Fourth and Fourteenth Amendment claims against
the City of San Antonio and individual officers Carlos
Chavez, Virgilo Gonzalez, James Ybarra, Mark Delgado, and
Detective John Doe (collectively, “the City
Defendants”) for injuries allegedly suffered by Mr.
Carlos during his arrest. After suing the City Defendants,
the Carloses joined Defendants National Neuromonitoring
Services, LLC, Neurodiagnostics and Neuromonitoring
Institute, Inc., South Texas Neuromonitoring, Maribel Gomez,
and William VanNess (collectively, “Neuromonitoring
Defendants”). The Carloses accuse the Neuromonitoring
Defendants of negligence in connection with medical treatment
Mr. Carlos received as a result of the injuries he alleges he
suffered during his arrest. Mr. Carlos is now paralyzed, and
he and his wife allege that the City Defendants and the
Neuromonitoring Defendants both contributed to his paralysis.
the Court are the Motions for Leave of Court to File Cross
Claims against Defendants National Neuromonitoring Services,
LLC, Neurodiagnostics and Neuromonitoring Institute, Inc.,
South Texas Neuromonitoring, Maribel Gomez, and William
VanNess filed by the City Defendants. See Dkt. Nos. 84, 97.
Also pending before the Court are the City Defendants'
Motions for Leave to Designate Responsible Third Parties.
Dkt. Nos. 85, 96. All pretrial matters in this § 1983
action have been referred to the undersigned for disposition,
pursuant to 28 U.S.C. § 636(b) as well as Western
District of Texas Local Rule CV-72 and Appendix C. See Dkt.
City Defendants are only potentially liable to the Carloses
on the Carloses § 1983 claims alleging violations of the
Carloses federal constitutional rights. The City Defendants,
however, invoke state law, namely Chapter 33 of the Texas
Civil Practice and Remedies Code, in connection with their
request for leave to assert cross-claims for contribution
against the Neuromonitoring Defendants. The City
Defendants' similarly invoke state law in support of
their request, in the alternative, to designate the
Neuromonitoring Defendants and non-party Dr. Bruggeman as
responsible third parties. Because the City Defendants
provide insufficient justification for applying Texas's
Chapter 33 in connection with the Carloses' § 1983
claims, their motions-as they are currently formulated-should
be DENIED. See Dkt. Nos. 84, 85, 96, & 97.
robust factual and procedural background for this matter is
provided in a prior report and recommendation, entered on
January 3, 2018. See Dkt. No. 120. For present purposes, it
is sufficient to discuss only a few salient facts beyond
those already mentioned above.
Neuromonitoring Defendants first appeared in this action in
September 2017, when they moved to dismiss all claims against
them for lack of jurisdiction. See Dkt. Nos. 73 & 75.
Those motions are still pending, although the undersigned has
recommended that they be denied. See Dkt. No. 120. With the
Neuromonitoring Defendants now parties to the litigation, the
City Defendants-invoking Texas law on contribution and
responsible-third-party practice-request leave to file
cross-claims seeking contribution from the Neuromonitoring
Neuromonitoring Defendants oppose the requested amendment on
two grounds. First, the Neuromonitoring Defendants argue that
the requested amendment would be futile in two ways. The
Court lacks jurisdiction over the City Defendants'
requested contribution cross-claims, they argue, in the same
way jurisdiction is allegedly lacking over the state-law
negligence claims in this case. This would then make the
requested amendment futile. The Neuromonitoring Defendants
next urge that amendment would be futile because claims
sounding in gross-negligence or seeking exemplary damages are
not subject to contribution under Texas law. Second, beyond
futility of amendment, the Neuromonitoring Defendants object
to the (un)timeliness of the City Defendants' motions for
leave to amend. The first objection on futility grounds is
misplaced, given the undersigned's recommendation on the
Neuromonitoring Defendants' motions to dismiss. See Dkt.
No. 120. The second futility objection is also off target
because the claims for which contribution is sought are
federal constitutional claims brought via § 1983; they
are not gross-negligence or punitive-damages claims. The
applicability of Chapter 33, however, is a helpful topic to
address, as discussed more below.
their part, the Neuromonitoring Defendants do not oppose the
City Defendants' alternative request to designate them as
responsible third parties. To be clear, the Neuromonitoring
Defendants assert in their Response that they would oppose
the designation request only to the extent the City
Defendants seek to designate them as responsible third
parties while the Neuromonitoring Defendants are defendants
in this action. See Dkt. Nos. 111, 113. The City Defendants
seek no such thing. See Dkt. No. 115. The Carloses, for their
part, have not objected or responded to either of the City
City Defendants' proposed cross-claims appear futile, and
so their request for leave to amend should be denied. The
City Defendants' motions assume-without reference to any
supporting authority-that Chapter 33 of the Texas Civil
Practice and Remedies Code applies in this § 1983 action
and could authorize cross-claims by the City Defendants
against the Neuromonitoring Defendants. It appears the Fifth
Circuit has never addressed whether and how Texas's
apportionment of responsibility scheme applies to federal
civil rights claims, and at least two federal district courts
in Texas have concluded it does not. The majority of courts
outside this circuit have also refused to allow a § 1983
defendant to utilize state contribution laws in similar
circumstances to those presented here.
Chapter 33 Likely Does Not Apply Under Its Own Terms. Chapter
33, by its own terms, applies only to “any cause of
action based in tort in which a defendant, settling person,
or responsible third party is found responsible for a
percentage of harm for which relief is sought.” Tex.
Civ. Prac. & Rem. Code 33.002(a) (emphasis added). A
“cause of action based on tort, ” according to
the Texas Supreme Court, “includes negligence, products
liability, and any other conduct that violates an applicable
legal standard, such as the tort aspect of an implied
warranty.” JCW Elecs., Inc. v. Garza, 257 S.W.3d 701,
705 (Tex. 2008). Accordingly, even assuming for
argument's sake that applying Chapter 33 in this case is
consistent with federal law (more on that below), Chapter 33
is likely inapplicable to the federal constitutional torts
alleged against the City Defendants here. See, e.g., Nunez v.
City of Corpus Christi, Tex., No. 2:12-CV-00092, 2013 WL
164045, at *1 (S.D. Tex. Jan. 14, 2013) (finding that
excessive force claims are federal claims, not Texas torts
and hence do not implicate Chapter 33); Moran v.
Summers, No. A-15-CA-769-SS, 2016 WL 1610611, at *2 n.2
(W.D. Tex. Apr. 20, 2016) (separately noting that “the
Court is not convinced § 1983 claims . . . are
‘based in tort' for purposes of 33.004”);
United States v. Cushman & Wakefield, Inc., 275
F.Supp.2d 763, 773 (N.D. Tex. 2002) (explaining that Chapter
33 “appears to apply only to actions based on common
law torts, and not to statutory causes of action”).
that this issue is not raised or briefed by the City
Defendants, let alone resolved by them, their motions seeking
to apply ...