United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER OF REMAND
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is a motion to remand filed by Plaintiffs
Walter Clinton Wilson and Susan Wilson. Dkt. 7. After
considering the motion, response, reply, original petition,
and applicable law, the court is of the opinion that the
motion to remand should be GRANTED.
case is about a vehicle accident involving three vehicles.
Dkt. 1 (notice of removal); Dkt. 1-7 (original state court
petition). The Wilsons contend that on or about May 14, 2019,
they were traveling south on Beltway 8 North in Harris
County, Texas, when a truck owned and operated by defendant
Penguin Trucking, Inc. (“Penguin”), driven by
defendant Wayne Richard Wente, changed lanes in an unsafe
manner and collided with their vehicle, a Lexus. Dkt. 1-7.
They further contend that defendant Michael Cameron Daniel
was negligent in failing to turn his vehicle, a truck, right
or left to avoid the collision. Id. The Wilsons
filed their complaint against Penguin, Wente, and Daniel in
the 189th District Court in Harris County, Texas.
and Wente removed the case to this court. Dkt. 1. According
to the petition, the Wilsons are citizens of Montgomery
County, Texas, Penguin is a foreign company with its offices
based in Elgin, Illinois, Wente resides in Mont Dora,
Florida, and Daniel resides in Houston, Texas. Dkt. 1-7. The
damages sought are in excess of $1, 000, 000. Id.
Penguin and Wente contend that removal is proper because
Daniel was improperly joined and that, without Daniel in the
case, diversity jurisdiction exists. Dkt. 1. They argue that
Daniel was improperly joined because Daniel was an innocent
driver who was traveling within his lane prior to the
accident and could not have avoided the accident.
Id. They contend that there is no reasonable
possibility that the Wilsons will recover against Daniel and
that his joinder was an improper attempt to defeat federal
Wilsons move to remand, arguing that this is a
straightforward car crash case involving three vehicles and
that it is the jury's responsibility to determine which
parties were negligent. Dkt. 7.
and Wente argue in their response that Wente's affidavit
establishes that the initial impact was between his
tractor-trailer rig and the Lexus sedan driven by Mr. Wilson.
Dkt. 12. They contend that Wente's affidavit exonerates
Daniel, who they contend did nothing to cause the initial
impact and could not have steered clear of the accident.
Id. They argue that the Wilsons have provided no
evidence that would provide a reasonable basis for their
claim that Daniel did something that caused the accident.
reply, the Wilsons argue that the proper standard for
determining if joinder is proper is whether the complaint is
sufficient to state a claim against the allegedly improperly
joined defendant, and that here their petition sufficiently
states a claim against Daniel. Dkt. 13. They point out that
there is no requirement that a party have a sworn affidavit
in order to have a possibility of recovery in a personal
injury case. Id. Moreover, they note that Penguin
and Wente do not deny that Daniel's truck crashed into
the Wilsons' car and caused damage. Id. They
additionally argue that even if the court were to pierce the
pleadings and conduct a summary inquiry, Penguin and Wente
cannot meet their heavy burden of showing Daniel was
improperly joined. Id.
defendant may remove a civil action to federal court if that
court would have had original jurisdiction over the case. 28
U.S.C. § 1441(a). The burden of proving federal
jurisdiction rests on the removing party. De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Penguin
and Wente contend that the court has diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a). For diversity
jurisdiction, the amount in controversy must exceed $75, 000
and complete diversity must exist between all parties. 28
U.S.C. § 1332(a). Penguin and Wente recognize that
Daniel is not a diverse defendant, but they contend that
Daniel is improperly joined. Dkt. 1.
Fifth Circuit has “recognized two ways to establish
improper joinder: ‘(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. Ill. Cent. R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)
(quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th
Cir. 2003)). Penguin and Wente do not assert actual fraud, so
the court considers only the second method. Therefore, to
prevent remand, Penguin and Wente must demonstrate that
“there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against
the in-state defendant.” Id.
are two ways for a court to predict whether a plaintiff might
be able to recover against an in-state defendant. First, the
court can conduct a Rule 12(b)(6)-type inquiry by reviewing
the complaint to determine if it states a claim against the
in-state defendant. Id. In making this
determination, the court applies the federal pleading
standard. Int'l Energy Ventures Mgmt., L.L.C. v.
United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir.
2016). To survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Gines v.
D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937
(2009). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. If the
court finds that the claim has been insufficiently pled, the
court should dismiss the improperly joined defendant without
prejudice for lack of jurisdiction. Lopez v. United Prop.
& Cas. Ins. Co., No. 3:16-CV-0089, 2016 WL 3671115,
at *5 (S.D. Tex. July 11, 2016) (Hanks, J.) (explaining that
dismissal without prejudice is appropriate because the court
lacks subject matter jurisdiction over the claim against the
non-diverse defendant and, therefore, cannot render a
decision on the merits).
a defendant could demonstrate that the plaintiff has
“misstated or omitted discrete facts that would
determine the propriety of joinder.”
Smallwood, 385 F.3d at 573-74. In that case, the
court can “pierce the pleadings” in a summary
inquiry to “identify the presence of discrete and
undisputed facts [in the entire record] that would preclude
plaintiff's recovery against the in-state