United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
before the court is plaintiffs Estate of Shelley Mott,
deceased, Stephanie Smith, Hiram Mott, and Glenda Mott's
(“Plaintiffs”) motion to remand. Dkt. 5; Dkt. 6.
Defendant FCA U.S. LLC (“FCA US”) responded. Dkt.
10. Defendants Fabtech Industries, Inc. and Wisch Motors,
Inc. d/b/a Bayshore Chryler (“Bayshore”) joined
the response. Dkt. 12; Dkt. 26. Plaintiffs replied. Dkt. 13.
FCA U.S. filed a surreply. Dkt. 15. Having considered the
motion, response, reply, surreply, and applicable law, the
court is of the opinion that the motion to remand (Dkt. 5)
should be DENIED.
case arises from a car crash on July 16, 2015, that resulted
in the death of Shelley Mott. Dkt. 1. There have been three
lawsuits related to this incident. First, in June 2017,
Plaintiffs brought suit against the dealer that sold the
truck to Shelley Mott, as well as additional defendants, in
Texas state court. Dkt. 10-1; Dkt. 10-2. Plaintiffs did not
include present defendants Bayshore or FCA US. Id.
Second, in July 2017, Plaintiffs brought suit against FCA
U.S. and other defendants in California state court. Dkt.
10-3. Bayshore was not a named defendant. Id. The
case was removed from California state court to a federal
bankruptcy court. See Dkt. 13 at 1, Dkt. 13-1 at
2-3. The bankruptcy court dismissed all negligence claims
against FCA U.S. and remanded the remainder of the case to
state court. Dkt. 13-1 at 2-3. Third, in September 2018,
Plaintiffs sued FCA U.S. and Bayshore, among other
defendants, for several causes of action, including
negligence and strict products liability, in the 152nd
Judicial District Court of Harris County, Texas. Dkt. 1-2.
FCA U.S. removed the case to this court on diversity grounds.
Dkt. 1. Plaintiffs now move to remand the case, arguing that
the defendants intentionally and fraudulently removed the
case from state court. Dkt. 5.
threshold matter, the parties disagree about whether there is
complete diversity. The parties dispute whether Bayshore, a
non-diverse defendant, was improperly joined for the purposes
of defeating this court's diversity jurisdiction.
28 U.S.C. § 1441, a defendant may remove an action from
state court to federal court if the district would have had
original jurisdiction over that action. Federal courts have
original jurisdiction where there is complete diversity of
citizenship among the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332. However, a case may
be removed despite a non-diverse defendant if the non-diverse
defendant was improperly joined for the purpose of destroying
diversity. Hornbuckle v. State Farm Lloyds, 385 F.3d
538, 542 (5th Cir. 2004). The burden to establish improper
joinder falls on the party that asserts it. Travis v.
Irby, 326 F.3d 644, 649 (5th Cir. 2003).
establish improper joinder, a party must demonstrate:
“(1) actual fraud in the pleading of jurisdictional
facts, or (2) inability of the plaintiff to establish a cause
of action against the non-diverse party in state
court.” Smallwood v. Illinois Cent. R.R. Co.,
385 F.3d 568, 573 (5th Cir. 2004). Here, FCA U.S. argues that
Plaintiffs cannot establish a cause of action against
Bayshore because the statute of limitations to bring a claim
against Bayshore has expired. Dkt. 10 at 6-9. Plaintiffs
counter that the discovery rule applies to toll the statute
of limitations. Dkt. 5 at 12. The discovery rule tolls the
running of the statute of limitations until the plaintiff
discovers, or through the exercise of reasonable diligence
should discover, the nature of the injury. Id.
Plaintiffs argue that the discovery rule applies, the Texas
Supreme Court has explicitly held that the discovery rule
does not apply to actions resulting in death. Moreno v.
Sterling Drug, Inc., 787 S.W.2d 348, 350 (Tex. 1990).
Texas law unambiguously provides that in actions resulting in
death, “a person must bring suit not later than two
years after the cause of action accrues. . . The cause of
action accrues on the death of the injured person.”
Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b) (West).
Plaintiffs argue that the court should disregard this
“absolute rule” because Moreno is
restricted to its facts and does not overrule prior law. Dkt.
13 at 4. Plaintiffs are mistaken. The Moreno court
squarely considered the issue: whether the discovery rule
applied to the wrongful death statute of limitations. 787
S.W.2d at 349. Moreno is not restricted to its facts
but rather is on-point law for the court to follow.
rely on Nelson v. Krusen, 687 S.W.2d 918 (Tex.
1984), to argue that courts have disregarded absolute rules
“when there is an undiscoverable situation.” Dkt.
13 at 4. However, the Texas Supreme Court considered
Nelson in Moreno and explained that
Nelson and Moreno was distinguishable.
Moreno, 787 S.W.2d at 357. Nelson involved
the birth of a child with a genetic disease after a doctor
represented to the parents that the mother was not a carrier
of the disease. Nelson, 678 S.W.2d at 919. The
Moreno court explained that Nelson was
distinguishable, inter alia, because while the
injury in Nelson did not manifest until after the
statute of limitations, in Moreno, the
“injury-i.e. death-was immediately
known.” Moreno, 787 S.W.2d at 357.
also argue that the alleged fraudulent concealment defers a
cause of action's accrual. Dkt. 13 at 4-6. However, to
prove fraudulent concealment, Plaintiffs must
“establish an underlying wrong, and that ‘the
defendant actually knew the plaintiff was in fact wronged,
and concealed that fact to deceive the plaintiff.”
BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67
(Tex. 2011) (quoting Earle v. Ratliff, 998 S.W.2d
882, 888 (Tex.1999)). They must also establish that their
reliance on the misinformation is reasonable. Id. at
68. Plaintiffs have not met their burden. The court
understands Plaintiffs' briefing to argue that Bayshore
concealed evidence of its involvement with the truck involved
in the car crash. Dkt. 13 at 6. Plaintiffs argue that there
was fraudulent concealment because Bayshore swore to give the
complete records of the truck involved in the accident but
those records do not show that Bayshore ever performed
maintenance work on the truck. Dkt. 5 at 11. However, the
original purchaser of the truck testified that Bayshore had
performed some work on the truck. Id. While this
evidence addresses the first element regarding an underlying
wrong, Plaintiffs fail to ...