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Carlos, v. Chavez

United States District Court, W.D. Texas, San Antonio Division

June 20, 2018

ROGELIO CARLOS III, MYRNA CARLOS, Plaintiffs,
v.
CARLOS CHAVEZ, VIRGILIO GONZALEZ, JAMES YBARRA, MARK DELGADO, CITY OF SAN ANTONIO, SAN ANTONIO POLICE DEPARTMENT, DETECTIVE JOHN DOE, NATIONAL NEUROMONITORING SERVICES, LLC, NEURODIAGNOSTICS AND NEUROMONITORING INST., INC., SOUTH TEXAS NEUROMONITORING, WILLIAM VANNESS, MARIBEL GOMEZ, Defendants.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.

         To the Honorable United States District Judge Fred Biery:

         In this § 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.

         Before 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. No. 82.

         The 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.

         I. Background

         A 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.

         The 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 Defendants.

         The 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.

         For 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 Defendants' motions.

         II. Analysis

         The 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.

         Texas's 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”).

         Given that this issue is not raised or briefed by the City Defendants, let alone resolved by them, their motions seeking to apply ...


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