United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
JEFFERY VINCENT BROWN UNITED STATES DISTRICT JUDGE.
before the Court is plaintiffs James Bennett and Vera
Bennett's Amended Motion to Remand, Dkt. 14. After
considering the motion, the response, the reply, the
pleadings, and the applicable law, the Court grants the
26, 2017, the Bennetts filed the underlying action in the
23rd Judicial District Court of Brazoria County, Texas,
against Vernor Material & Equipment Co., Inc. (a Texas
corporation), seeking damages from an accident involving a
backhoe front loader at the Olin Freeport B Plant in Freeport
which resulted in the death of Darrel Bennett. Dkt. 1-1.
August 2, 2018, Plaintiffs filed their First Amended
Petition, adding three defendants: CNH Industrial America,
LLC (a Delaware company); United Rentals, Inc. (a Delaware
corporation); and United Rentals (North America), Inc. (a
Delaware corporation with its principal place of business in
Connecticut). See Dkt. 1-2. On April 8, 2019, the
Bennetts nonsuited United Rentals, Inc. Dkt. 1-3. Then, on
August 3, 2019, the Bennetts filed a Second Amended Petition,
removing CNH and Vernor as parties to the lawsuit.
See Dkt. 1-4.
August 9, 2019-over two years after the Bennetts initially
filed suit- United Rentals (North America), Inc. (hereafter
“Defendant”) removed the case to this Court based
on diversity jurisdiction. Dkt. 1; see 28 U.S.C.
§§ 1332, 1441. Defendant contends its notice of
removal is timely because Defendant removed this case
“as soon as practicable and within thirty (30) days of
service of Plaintiffs' Second Amended Petition.”
Dkt. 1 at 4.
August 27, 2019, the Bennetts filed the instant Amended
Motion to Remand,  arguing Defendant's removal is
untimely under 28 U.S.C. § 1446(c). That same day, the
Court set an expedited briefing schedule because trial in the
state court action is set for November 12, 2019. The
Bennetts' argument for remanding this case is relatively
straight-forward; removal is not permitted more than one year
after the commencement of an action unless the plaintiffs
acted in bad faith in order to prevent a defendant from
removing the action. Therefore, because the Bennetts did not
act in bad faith, and because Defendant removed this action
more than one year after the Bennetts initiated the
state-court action, removal is untimely. Dkt. 14 at 1-2.
issue of bad faith, the Bennetts contend that they filed
their Second Amended Petition the day after receiving
CNH's settlement payment. Id. at 3-4. Although
not mentioned until their reply briefing, the Bennetts
mediated their claims against both CNH and Vernor on June 18,
2019, reaching a settlement agreement that same day.
See Dkt. 17 at 5. The Bennetts also point towards
the complexity of their settlement process with Vernor, which
involved a bench trial on the issue of whether the
decedent's son was a dependent at the time of his death
and, therefore, entitled to workers' compensation death
benefits. Dkt. 14 at 4. According to the Bennetts, “a
major part of [their] settlement [with Vernor] was a waiver
of both past and future subrogation of workers[']
compensation carrier's interest.” Id.
response focuses on when the Bennetts settled their claims
against Vernor--the party whose presence defeated complete
diversity and prohibited removal. Defendant argues that the
Bennetts executed and exchanged settlement documents with
Vernor on July 18, 2019, citing in support e-mails between
the Bennetts' and Vernor's counsel--both dated July
18, 2019--in which counsel for each party represents that a
signed settlement release is attached. Dkt. 16 at 3 (citing
Defendant's Exs. 6 and 7). Defendant also directs the
Court's attention to a letter from Vernor's counsel
to the Bennetts' counsel, also dated July 18, 2019, which
states that a settlement check is enclosed. Id.
(citing Ex. 1). According to the post office's tracking
service, the letter was delivered to the Bennetts'
counsel's office on July 22, 2019--twelve days before the
Bennetts filed their Second Amended Petition. Id.
(citing Defendant's Ex. 3).
their reply, the Bennetts elaborate on why they did not
dismiss Vernor earlier from the suit. Some of the more
salient reasons are: (1) Vernor initially failed to respond
to requests for admissions; (2) before amending their
petition for the first time, the Bennetts attempted to
mediate the dispute with Vernor; (3) the Brazoria County
district judge was unavailable for an unspecified amount of
time for personal reasons; and (4) the second mediation
between with CNH and Vernor (i.e., the successful
mediation) did not occur until June 18, 2019--sixteen days
before the Bennetts filed their Second Amended Petition. Dkt.
17 at 4-5. Plaintiffs also provide additional information
regarding the previously mentioned bench trial concerning
whether the decedent's son was a dependent at the time of
his death. Notably, the trial occurred months before the
Bennetts' second attempt at mediation and resulted in a
verdict in the Bennetts' favor that was “still
subject to appeal while the [the Bennetts] awaited funding of
the settlements from [CNH and Vernor].” Id. at
action that has been removed to federal court, a district
court is required to remand the case to state court if, at
any time before final judgment, it determines that it lacks
subject matter jurisdiction. See 28 U.S.C. §
1447(c). When considering a motion to remand, “[t]he
removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.”
Barker v. Hercules Offshore Inc., 713 F.3d 208, 212
(5th Cir. 2013) (quoting Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).
In evaluating a motion to remand, courts should bear in mind
that “removal statutes are to be construed strictly
against removal and for remand.” Eastus v. Blue
Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996).