Parker v. Bill Melton Trucking, Inc. et al

Filing 9

MEMORANDUM OPINION AND ORDER: The plaintiff's Motion to Remand is DENIED. Both parties' claims for attorneys' fees are DENIED. (Ordered by Senior Judge A. Joe Fish on 10/9/2015) (twd)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BRIANNA PARKER,
Plaintiff,
VS.
BILL MELTON TRUCKING, INC,
ET AL.,
Defendants.

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CIVIL ACTION NO.
3:15-CV-2528-G

MEMORANDUM OPINION AND ORDER
Before the court is the motion of the plaintiff, Brianna Parker (“Rev. Parker”),
to remand this case to the state court from which it was previously removed (docket
entry 4). For the reasons set forth below, the motion is denied.
I. BACKGROUND
This case arises out of a motor vehicle accident in Dallas County, Texas. See
Plaintiff’s Original Petition (“Petition”) ¶¶ 7-17, attached to Defendants’ Notice of
Removal (“Notice”) (docket entry 1). On May 22, 2013, Rev. Parker was driving her
automobile under the Interstate Highway 30 overpass in Dallas, Texas when three
forklifts toppled onto her vehicle. Id. ¶¶ 12-14. The forklifts were being towed on a
flatbed trailer behind a Freightliner tractor that was driven by defendant Edward

Thacker (“Thacker”) on behalf of Bill Melton Trucking Inc. (“Melton Trucking”). Id.
¶¶ 10, 12.
On April 22, 2015, Rev. Parker filed this suit against Melton Trucking and
Thacker in the 298th Judicial District Court of Dallas County, Texas, to recover
damages resulting from the collision. See Notice at 1. On July 30, 2015, the
defendants removed the case to this court on the basis of diversity of citizenship. Id.
at 2-3. On August 5, 2015, Rev. Parker moved to remand this case to the state court,
arguing that removal was improper because Thacker did not consent to removal. See
Plaintiff Brianna Parker’s Motion to Remand and Brief in Support (“Motion”) at 3-6
(docket entry 4). Rev. Parker does not dispute that the amount in controversy
exceeds $75,000 or that diversity of citizenship exists. See generally Motion.
Therefore, the only issue before the court is whether the defendant Edward Thacker
consented to removal.
II. ANALYSIS
A. Legal Standard for Remand
Title 28 U.S.C. § 1441(a) permits removal of “any civil action brought in a
State Court of which the district courts of the United States have original
jurisdiction.” Under this statute, “[a] defendant may remove a state court action to
federal court only if the action could have originally been filed in the federal court.”
Aaron v. National Union Fire Insurance Company of Pittsburg, Pennsylvania, 876 F.2d

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1157, 1160 (5th Cir. 1989), cert. denied, 493 U.S. 1074 (1990). Removal jurisdiction
must be strictly construed, however, because it “implicates important federalism
concerns.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see also
Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988). Furthermore,
“any doubts concerning removal must be resolved against removal and in favor of
remanding the case back to state court.” Cross v. Bankers Multiple Line Insurance
Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992) (Means, J.); Healy v. Ratta, 292
U.S. 263, 270 (1934). The burden of establishing federal jurisdiction is on the party
seeking removal. Frank, 128 F.3d at 921-22; Willy, 855 F.2d at 1164.
There are two principal bases upon which a district court may exercise removal
jurisdiction: (1) the existence of a federal question and (2) complete diversity of
citizenship among the parties. See 28 U.S.C. §§ 1331, 1332. The court can properly
exercise jurisdiction on the basis of diversity of citizenship if the parties are of
completely diverse citizenship and the case involves an amount in controversy of at
least $75,000. See 28 U.S.C. § 1332(a).
Typically, whether an action should be remanded to state court must be
resolved by reference to the plaintiff’s pleading at the time of removal. State of Texas
v. Alliance Employee Leasing Corporation, 797 F. Supp. 542, 544 (N.D. Tex. 1992)
(Solis, J.). If the court can make this determination by reference to the plaintiff’s

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complaint alone, the court need not go further. Id. However, should a district court
need to go beyond the pleadings to assess the propriety of removal, it may do so. Id.
As a general rule, claims filed in state court against multiple defendants cannot
be removed to federal court unless all defendants consent to the removal. Farias v.
Bexar County Board of Trustees for Mental Health Mental Retardation Services, 925 F.2d
866, 871 (5th Cir. 1991), cert. denied, 502 U.S. 866 (1991). This unanimous consent
rule is applicable in cases of diversity of citizenship jurisdiction as well as cases of
federal question jurisdiction. Id. There are, however, several exceptions to the
unanimity rule. Removing defendants need not obtain consent from nominal or
unnecessary defendants, see Farias, 925 F.2d at 871, or from defendants who have
not been served at the time of removal, see Jones v. Houston Independent School District,
979 F.2d 1004, 1007 (5th Cir. 1992).
B. Application of Law to the Present Dispute
Here, the removing defendant, Melton Trucking, alleges that Thacker’s
consent was not required because Thacker was not properly served at the time of
removal. See Defendant’s Response to Motion to Remand and Brief in Support
(“Response”) at 6-10.
1. Consent of Removing Parties
Although Melton Trucking argues that Thacker’s consent is not required
because he has not been properly served, the court does not reach this issue. Texas

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courts have concluded that a deceased individual is not a proper party to a suit and
cannot be joined if the suit is filed after his or her death.* Adamson v. Blackmar, 546
S.W.2d 698, 703 (Tex. Civ. App.--Austin 1977, no writ) (quoting M.T. Jones Lumber
Co. v. Rhoades, 17 Tex. Civ. App. 665, 675, 41 S.W. 102, 105 (Galveston 1897, writ
ref’d)); Baker v. Stephenson, 174 S.W. 970, 971 (Tex. Civ. App.--San Antonio 1915,
no writ). Under Texas law, the procedural remedy of scire facias allows a suit to
continue against the deceased individual’s administrator, executor, or heir after a
suggestion of death has been entered into the record. TEX. R. CIV. P. 152. However,
scire facias has not been issued in this case for an administrator, executor, or heir to
appear and defend the lawsuit on behalf of Thacker, and Thacker himself is not a
proper party because he is deceased. See Futrell v. State & County Mutual Insurance
Company, No. 05:95-CV-01052, 1996 WL 479555, at *4 (Tex. App.--Dallas Aug. 19,
1996, no writ); Adamson, 546 S.W.2d at 703.
Therefore, his consent is not needed to remove the case to federal court. See
Breitling v. LNV Corporation, 86 F. Supp. 3d 564, 570 (N.D. Tex. 2015) (Lynn, J.);
Adamson, 546 S.W.2d at 703. Because complete diversity exists between the parties,
and the amount in controversy is greater than $75,000, this case was properly
removed to federal court. See 28 U.S.C. § 1332(a).

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The defendants are citizens of Arkansas. Arkansas law also provides
that a deceased individual is not a proper party to a suit. Null v. Easley, No. 4:09-CV0296-Y, 2009 WL 3853765, at *2 (N.D. Tex. Nov. 18, 2009) (Means, J.).
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2. Timeliness of Removal
Since Melton Trucking is a nonresident of Texas and the suit grew out of a
motor vehicle collision in Texas, service of process was made on upon the Chair of the
Texas Transportation Commission as the agent for service of process for Melton
Trucking. TEX. CIV. PRAC. & REM. CODE ANN. § 17.062 (West 1985). Both parties
agree that Melton Trucking first received a copy of the Citation and Original Petition
on July 2, 2015. Motion at 2; Response at 2. Because the timeline for removal
begins to run with actual receipt by the defendant, Melton Trucking, and not with
the receipt by the statutory agent, the case was properly removed within the 30 day
removal window. Baum v. Avado Brands, Inc., No. 3:99-CV-0700-G, 1999 WL
1034757, at *2 (N.D. Tex. Nov. 12, 1999) (Fish, J.) (citing Kurtz v. Harris, 245
F. Supp. 752, 754 (S.D. Tex. 1965)).
III. CONCLUSION
For the reasons stated above, the plaintiff’s motion to remand is DENIED.
Both parties’ claims for attorneys’ fees are DENIED.
SO ORDERED.
October 9, 2015.

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A. JOE FISH
Senior United States District Judge

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