Burney v. Costco Wholesale Corporation et al

Filing 28

MEMORANDUM ADOPTING IN PART AND MODIFYING IN PART 17 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. It is therefore ORDERED that Plaintiff's Motion to Remand, (Dkt. # 4 ), is GRANTED and the instant lawsuit is REMANDED to the 467 th Judicial District Court of Denton County, Texas. It is further ORDERED that Plaintiff's request for attorney fees is DENIED. It is further ORDERED that any relief not addressed herein is DENIED. The clerk of court is directed to immediately transmit this case to the 467th Judicial District Court of Denton County, Texas. The clerk of court shall close this case. Signed by District Judge Sean D. Jordan on 3/26/2024. (JMB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TINA BURNEY
v.
COSTCO WHOLESALE
CORPORATION, et al.

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CIVIL NO. 4:23-CV-94-SDJ-AGD

MEMORANDUM ADOPTING IN PART
AND MODIFYING IN PART REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the Report and Recommendation of the United
States Magistrate Judge (“Report”), this matter having been referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636. On March 6, 2024, the Report of the
Magistrate Judge, (Dkt. #17), was entered containing proposed findings of fact and
recommendation that Plaintiff’s Motion to Remand, (Dkt. #4), be granted.
The Court has conducted a de novo review of Defendants’ timely objections,
(Dkt. #23), and the portions of the Report to which Defendants specifically object.
Having done so, the Court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct, in part, and adopts, in part, the Magistrate Judge’s
Report as the findings and conclusions of the Court.
The Court modifies the Report as it relates to attorney fees. When a case is
remanded, the court may order the removing party to pay “just costs and any actual
expenses, including attorney’s fees, incurred as a result of the removal.” 28 U.S.C.
§ 1447(c). The Supreme Court has clarified that, absent unusual circumstances,
courts may award attorney’s fees under Section 1447(c) “only where the removing
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party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin
Cap. Corp., 546 U.S. 132, 141 (2005). This inquiry should take into consideration “the
desire to deter removals sought for the purpose of prolonging litigation and imposing
costs on the opposing party, while not undermining Congress’ basic decision to afford
defendants a right to remove as a general matter, when the statutory criteria are
satisfied.” Id. at 140.
Defendants’ confusion on improper joinder is evident from their response to
Plaintiff’s motion to remand, (Dkt. #6), objections, (Dkt. #23), and subsequent motion
related to attorney fees, (Dkt. #26). However, that does not make their basis for
seeking removal unreasonable. Nonetheless, the Court will endeavor to clear up their
confusion.
Texas law is clear that a corporate manager or agent can only be personally
liable if he or she owes the plaintiff an independent duty of care apart from the duty
owed by the employer. Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)
(“[I]ndividual liability arises only when the officer or agent owes an independent duty
of reasonable care to the injured party apart from the employer’s duty.”). Numerous
federal courts have applied Leitch and its progeny to find improper joinder when a
corporate defendant is joined with a store manager. E.g., Solis v. Wal–Mart Stores E.,
L.P., 617 F.Supp.2d 476, 480 (S.D. Tex. 2008) (store manager with no personal
involvement in creating dangerous condition owed no separate legal duty); Bourne v.
Wal–Mart Stores, Inc., 582 F.Supp.2d 828, 837 (E.D. Tex.2008) (same); McKinney v.
Home Depot, USA, Inc., 4:06-CV-0327-A, 2006 WL 2947324 (N.D. Tex. Oct.13, 2006)

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(same); Allen v. Home Depot U.S.A., 2004 WL 2270001 (W.D. Tex.2004) (same). All of
these cases pertain to store managers who were not alleged to have played any
personal role in creating the dangerous condition. Defendants rely on this principle
of Texas law in their improper joinder argument.
In this case, however, the inquiry does not end there because Plaintiff alleges
that Defendant Moen struck her with multiple shopping carts in the Costco parking
lot, causing her to fall and “fracture[] her pelvis and hip.” (Dkt. #2 ¶¶ 9, 11). She
further alleges that Moen was pushing the carts in a “reckless manner.” (Dkt. #2
¶ 14). Texas law 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”). Significantly, the Texas Supreme
Court has never cabined this principle to, for example, intentional torts. And in Leitch
itself the Texas Supreme Court gave the example of an employee whose negligence
(rather than an intentional tort) caused a car crash. The court noted that the driver,
although acting within the scope of his employment, was liable based on the personal
duty he owed to the public to drive with care. Leitch, 935 S.W.2d at 117; see also
Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (Tex. 1942) (“[I]f a party
negligently creates a dangerous situation it then becomes his duty to do something
about it to prevent injury to others if it reasonably appears or should appear to him
that others in the exercise of their lawful rights may be injured thereby.”).

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The Court further notes that Texas courts repeatedly 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”).
As a result, and as this Court has previously held, Texas law does not support
a blanket rule 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.
Perez v. Home Depot U.S.A., Inc., 4:19-CV-338, 2019 WL 6907025, at *2 (E.D. Tex.
Dec. 18, 2019). See also, e.g., 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).

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Because Plaintiff asserts that Defendant Moen personally and directly
participated in the events that caused Plaintiff’s injuries, under controlling Texas
precedent the Court cannot say with certainty that “there is absolutely no possibility
that the plaintiff will be able to establish a cause of action against the in-state
defendant in state court.” Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,
259 (5th Cir. 1995). That said, Defendants’ position on this issue of Texas tort law,
while ultimately a mistaken reading of applicable precedent, is not unreasonable and
cannot support an award of attorney fees.
It is therefore ORDERED that Plaintiff’s Motion to Remand, (Dkt. #4), is

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GRANTED and the instant lawsuit is REMANDED to the 467th Judicial District
Court of Denton County, Texas. It is further ORDERED that Plaintiff’s request for
attorney fees is DENIED.
It is further ORDERED that any relief not addressed herein is DENIED.
The clerk of court is directed to immediately transmit this case to the 467th
Judicial District Court of Denton County, Texas. The clerk of court shall close this
case.
So ORDERED and SIGNED this 26th day of March, 2024.

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SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE

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