United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
D.JORDAN, UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On November 12, 2019, the Magistrate Judge entered
proposed findings of fact and recommendation (the
“Report”) (Dkt. #28) that Plaintiff Yolanda
Perez's (“Plaintiff”) Motion to Remand (Dkt.
#8) be granted. Defendant Home Depot U.S.A, Inc. (“Home
Depot”) filed objections to the Report (the
“Objections”) (Dkt. #29), and Plaintiff filed a
response to the Objections (the “Response”) (Dkt.
#31). The Court has made a de novo review of the
Objections and Response and is of the opinion that the
findings and conclusions of the Magistrate Judge are correct,
and the Objections are without merit as to the ultimate
findings of the Magistrate Judge. The Court hereby adopts the
findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court.
case arises out of a workplace injury suit filed in the 429th
Judicial District Court of Collin County, Texas, Cause No.
429-01839-2019 (the “Petition”). (Dkt. #1). The
Petition was filed on April 3, 2019, asserting a cause of
action for negligence against Home Depot and Defendant Cory
Brunnert (“Brunnert”). (Dkt. #2).
Depot removed this action on May 8, 2019, asserting that
Brunnert was improperly joined in the suit. (Dkt. #1).
Plaintiff filed the instant Motion to Remand. (Dkt. #8). In
the Report, the Magistrate Judge found that Brunnert was not
improperly joined. See (Dkt. #28). Thus, the
Magistrate Judge recommended this case be remanded to state
court. See id.
Depot objects to the Magistrate Judge's Report on the
grounds that Plaintiff has not pled that Brunnert owed her an
independent duty of care, making him an improperly joined
party. See (Dkt. #29 at 2). Plaintiff argues she has
pled enough to establish a possibility of recovery against
Brunnert, and therefore, Home Depot has not met its burden to
prove improper joinder. See (Dkt. #31 at 2).
case is removed to federal court, the removing party has the
burden of proof to establish a federal court's
jurisdiction. Gasch v. Hartford Accident & Indem.
Co., 491 F.3d 278, 281 (5th Cir. 2007). Courts are
required to strictly construe the removal statute in favor of
remand and against removal. 28 U.S.C. § 1447; In re
Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007).
“When assessing whether diversity jurisdiction exists,
a court must disregard non-diverse citizenship of an
improperly joined defendant.” Doucet v. State Farm
Fire and Cas. Co., 2009 WL 3157478, at *4 (E.D. Tex.
Sept. 25, 2009) (citing Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 572-73 (5th Cir. 2004) (en banc)).
defendant may establish improper joinder either by showing
(1) actual fraud in the plaintiff's pleading of
jurisdictional facts or (2) the plaintiff's inability to
establish a cause of action against the non-diverse
defendant(s) in state court. Smallwood, 385 F.3d at
571 n.1, 573. Regarding the second method of establishing
improper joinder, a court must ask “whether the
defendant has demonstrated there is no possibility
of recovery by the plaintiff against an in-state defendant,
which stated differently means that there is no reasonable
basis for the district court to predict that the plaintiff
might be able to recover against an in-state
defendant.” Id. at 573 (emphasis added);
see also Int'l Energy Ventures Mgmt., L.L.C. v.
United Energy Grp., Ltd., 818 F.3d 193, 200-08 (5th Cir.
Depot argues that Plaintiff's allegation that Brunnert
personally participated in the negligent act causing her
injury is not enough to support a claim against him.
See (Dkt. #29 at 2). Home Depot misconstrues Texas
law, which has long recognized that “[a]
corporation's employee is personally liable for tortious
acts which he directs or participates in during his
employment.” Leyendecker & Assocs., Inc. v.
Wechter, 683 S.W.2d 369, 375 (Tex. 1984); see also
Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002)
(“a corporate agent is personally liable for his own
fraudulent or tortious acts”). Texas courts have found
that an independent duty of reasonable care exists when an
“employee personally creates a dangerous situation that
causes injury.” In re Butt, 495 S.W.3d 455,
466 (Tex. App.-Corpus Christi 2016, no pet.) (citing San
Benito Bank & Trust Co. v. Landair Travels, 31
S.W.3d 312, 219 (Tex. App.-Corpus Christi 2000, no pet.));
see also McIntosh v. Copeland, 894 S.W.2d 60, 63
(Tex. App.-Austin 1995, writ denied) (endorsing the viability
of claims against a hospital employee for “negligent
acts committed in the scope of his employment”).
Texas law does not support the blanket rule proposed by Home
Depot that an employee cannot be sued for any direct act of
negligence causing injury when the employee is acting within
the scope of his employment. See, e.g.,
Alexander v. Lincare, Inc., Civ. A. No.
3:07-CV-1137-D, 2007 WL 4178592, at *3 (N.D. Tex. Nov. 27,
2007) (collecting Texas cases allowing claims of negligence
against employees for acts undertaken within the scope of
employment that have caused injury); Garrison v. The
Sherwin-Williams Co., No. 4:10cv128, 2010 WL 2573973, at
*5 (E.D. Tex. June 1, 2010), recommendation adopted
by 2010 WL 2573963 (stating that, “If the
corporate employee is only indirectly involved in the alleged
negligence, then the Court will not impose an individual duty
on the employee, however if the involvement is directly
related to the alleged negligence, a question of fact exists
as to whether the corporate employee owes an individual duty
to a plaintiff.”); Guzman v. Cordero, 481
F.Supp.2d 787, 790 (W.D. Tex. 2007) (finding a possible
breach of an independent duty of care by an employee when he
was personally involved in providing allegedly negligent
inspection services to the plaintiff).
Plaintiff alleged in her Petition that Brunnert personally
“dropped a box of heavy merchandise on Plaintiff
causing Plaintiff to fall and suffer severe injuries, ”
and federal courts are required to resolve all ambiguities in
controlling state law in favor of the plaintiff, the
Magistrate Judge properly found that Plaintiff has a
possibility of recovery against Brunnert under Texas law.
See (Dkt. #2 at 2-3). Therefore, Home Depot's
objections are overruled.