Nieto et al v. Roadrunner Transportation Services, Inc. et al
Filing
17
MEMORANDUM OPINION AND ORDER granting 7 Motion to Remand. Thus, the Court REMANDS this case to the 193rd Judicial District Court of Dallas County, Texas. The Court ORDERS Defendants to pay to Plaintiffs $2,500 to offset fees and costs justly incurred as a result of the removal. (Ordered by Judge Barbara M.G. Lynn on 10/30/2012) (skt)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARIA G. NIETO, Individually and as Next
Friend of LESLIE NIETO and ALEJANDRO
NIETO, JR., Minors, OFELIA ZAVALA,
MARIA ZAVALA, and ISIDORO ZAVALA,
Plaintiffs,
v.
ROADRUNNER TRANSPORTATION
SERVICES, INC. and IVAN THOMAS,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
No. 3:12-cv-02681-M
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion to Remand [Docket Entry #7], filed by Plaintiffs Maria G.
Nieto, individually and as next friend of minors Leslie Nieto and Alejandro Nieto, Jr., Ofelia
Zavala, Maria Zavala, and Isidoro Zavala (collectively “Plaintiffs”). For the reasons stated
below, the Motion is GRANTED.
I.
BACKGROUND
Plaintiffs filed a Petition in the 193rd Judicial District Court of Dallas County, Texas on
April 27, 2012, and served Defendant Roadrunner Transportation Services, Inc. (“Roadrunner”)
on May 9, 2012.1 In their Petition, Plaintiffs alleged that Defendant Ivan Thomas (“Thomas”)
negligently operated his tractor-trailer, causing it to hit Plaintiff Ofelia Zavala’s vehicle, which in
turn collided with Plaintiff Maria G. Nieto’s vehicle. Plaintiffs further alleged that Thomas was
intoxicated at the time of the accident and that his actions constituted “gross negligence”
entitling them to exemplary damages. Plaintiffs also asserted that Thomas’s employer,
1
Neither party indicates when Plaintiffs served Defendant Thomas.
Page 1 of 5
Roadrunner, was vicariously liable for his actions.
On July 12, 2012, Thomas asserted his Fifth Amendment privilege against selfincrimination in response to an interrogatory seeking information about what intoxicating
substances he had consumed before the accident. Roadrunner removed the case under 28 U.S.C.
§ 1332 on August 7, 2012 [Docket Entry #1], and Plaintiffs moved to remand on September 5,
2012.
II.
LEGAL STANDARD
A party may remove any state court action in which the federal court would have original
jurisdiction. 28 U.S.C. § 1441(a). One seeking removal, however, must do so within thirty days
of being served with the initial pleading, summons, or the first document from which “it may
first be ascertained that the case is one which is or has become removable.” 28 U.S.C.
§ 1446(b)(2)(B), (b)(3). Moreover, “[t]he removing party bears the burden of showing that
federal subject matter jurisdiction exists and that removal was proper.” Manguno v. Prudential
Prop. Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2001).
In order to assess the amount in controversy necessary to establish diversity jurisdiction,
courts typically look to the face of the plaintiff’s state court petition. Manguno, 276 F.3d at 723.
If a petition does not allege specific damages that exceed the jurisdictional threshold of $75,000,
the removing party must prove by a preponderance of the evidence that the claim, in fact, meets
the jurisdictional amount. Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638–39 (5th Cir.
2003). Potential exemplary damages are to be considered in determining whether the amount in
controversy meets the threshold. U.S. Fire Ins. Co. v. Villegas, 242 F.3d 279, 284 (5th Cir.
2001); Century Assets Corp. v. Solow, 88 F. Supp. 2d 659, 661 (E.D.Tex. 2000).
Page 2 of 5
III.
A.
ANALYSIS AND CONCLUSION
Remand
Plaintiffs advance three arguments in support of remand: (1) Roadrunner’s Notice of
Removal, filed 90 days after Plaintiffs served Roadrunner with their Petition, was untimely, (2)
Roadrunner failed to show that the amount in controversy exceeds the jurisdictional threshold of
$75,000; and (3) Roadrunner failed to allege its state of incorporation, thus precluding a finding
of complete diversity. Because the Court finds the untimeliness of the removal to be dispositive,
it declines to address the remaining two grounds for remand.
It is undisputed that Defendants filed their Notice of Removal more than thirty days after
being served with Plaintiffs’ Petition. Nonetheless, Defendants maintain that their Notice was
timely because Plaintiff’s Petition failed to trigger the thirty-day removal deadline. Defendants
argue that Thomas’s privilege assertion exposed Defendants to liability for exemplary damages,
and only then did the potential value of the claim exceed the jurisdictional threshold of $75,000
and establish grounds for removal. Accordingly, the issue is not whether the Petition in fact
established the requisite amount in controversy for federal jurisdiction, but whether Thomas’s
privilege assertion converted the Petition from one that was not removable to one that was. The
Court determines that it did not.
Texas law clearly provides that exemplary damages are available to plaintiffs that plead
damages proximately caused by “gross negligence.” Tex. Civ. Prac. & Rem. Code § 41.003.
Plaintiffs in this case expressly pled “gross negligence” and “exemplary damages” in their
original Petition, and alleged that Thomas “recklessly” drove his truck “while intoxicated under
the influence of alcohol and/or drugs.” (Notice of Removal Ex. 6)
Defendant argues, however, that the Petition did not make clear whether Plaintiffs sought
Page 3 of 5
to punish Thomas for taking prescription medicine, or for consuming alcohol or illicit drugs.
According to Defendants, the former is less reprehensible and would not establish a basis for an
award greater than $75,000. On the other hand, Defendants argue, “[c]ommon experience
dictates that when the Fifth Amendment privilege is asserted on an exemplary damages question,
the threshold amount for federal jurisdiction is satisfied.” (Defs.’ Resp. 4)
The Court is not convinced by this unsubstantiated proposition; Defendants have not
shown that the amount in controversy here meets the jurisdictional threshold only if Plaintiffs
based their exemplary damages claim on Thomas’s consumption of alcohol or illicit substances.
Even if the Court were so persuaded, however, nothing about Thomas’s privilege assertion
converts Plaintiffs’ claim into one necessarily based on intoxication from alcohol or illicit drugs.
The interrogatory that Thomas refused to answer asked which “intoxicating beverages, . . .
drugs[,] or medications” he had consumed before the accident. (Notice of Removal 4) (emphasis
added)
Thomas’s privilege assertion may affect the likelihood that Plaintiffs actually recover
exemplary damages, but it does not affect the amount that the claim puts in controversy. Thus,
Defendants’ thirty-day period to remove started when Plaintiffs served the state court Petition on
May 9, 2012, not when Thomas served his interrogatory answer. The period expired June 8,
2012. Roadrunner’s removal, filed August 7, 2012, is untimely. Thus, the Court REMANDS
this case to the 193rd Judicial District Court of Dallas County, Texas.
B.
Fees and Costs
Plaintiffs also move for the attorney’s fees and costs associated with this Motion to
Remand. The Court GRANTS Plaintiffs’ request.
The removal statute authorizes courts to require a party who improperly removes a case
Page 4 of 5
to pay the “just costs and any actual expenses, including attorney’s fees, incurred as a result of
the removal.” 28 U.S.C. § 1447(c). In determining whether to award fees, courts are to consider
“whether the defendant had objectively reasonable grounds to believe the removal was legally
proper.” Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000).
Here, Defendants’ removal was not timely, and there was no objectively reasonable basis
to believe that it was. The proposition that Thomas’s privilege assertion transformed this case
from one that was not removable into one that was does not have a reasonable basis in law or
fact. Thus, the Court ORDERS Defendants to pay to Plaintiffs $2,500 to offset fees and costs
justly incurred as a result of the removal.
SO ORDERED.
October 30, 2012.
_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS
Page 5 of 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?