Rodgers et al v. R & L Carriers Inc et al

Filing 12

MEMORANDUM OPINION AND ORDER: The Court DENIES Plaintiffs' Motion to Remand (Doc. 9 ). (Ordered by Judge Jane J Boyle on 7/7/2016) (bdb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BEN and WENDY RODGERS,

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Plaintiffs,
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v.
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R & L CARRIERS, INC., R & L §
CARRIERS SHARED SERVICES, LLC, §
and HYSTER-YALE GROUP, INC.,
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Defendants.
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CIVIL ACTION NO. 3:16-CV-0998-B

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Remand (Doc. 9). For the following reasons, the
Court DENIES Plaintiffs’ Motion.
I.
BACKGROUND
This case arises from injuries sustained by Plaintiff Ben Rodgers while employed by
Defendants R & L Carriers, Inc. and R & L Carriers Shared Services, LLC (collectively, “R & L”).
Doc. 1-5, Orig. Pet. & Req. for Disclosure 1–2. Allegedly, as Mr. Rodgers and a fellow employee were
walking in R & L’s loading dock area, Mr. Rodgers was struck suddenly by a forklift, which was
operated by an employee who was wearing earphones and listening to loud music. Doc. 1-20, Second
Am. Orig. Pet. & Req. for Disclosure ¶ 4 [hereinafter Second Am. Pet.]. At the time of the incident,
R & L did not subscribe to the Texas Workers’ Compensation Act (“TWCA”). Doc. 9, Pls.’ Mot.
to Remand ¶ 2.
After sustaining his injuries, Mr. Rodgers, along with his wife, Wendy, (collectively, “the
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Rodgers”), sued R & L in Dallas County court for negligence, gross negligence, and negligence per
se. Doc. 1-19, First Am. Orig. Pet. & Req. for Disclosure ¶¶ 4–6, 8–13. The Rodgers later joined
Hyster-Yale Group, Inc. (“Hyster-Yale”) in the suit, bringing a products liability claim for the
forklift’s alleged defects. Doc. 1-20, Second Am. Pet. ¶¶ 16–25. Hyster-Yale, with R & L’s consent,
then removed the case to this Court under 28 U.S.C. § 1332, and Plaintiffs moved to remand,
arguing that the TWCA precludes removal. Doc. 1, Def. Hyster-Yale Group, Inc.’s Notice of
Removal 1, 4 [hereinafter Notice of Removal]; Doc. 9, Pls.’ Mot. to Remand ¶ 5. R & L responded,
arguing that the claims do not arise under the TWCA and, thus, are removable. Doc. 11, Defs.’
Mem. in Opp’n to Pls.’ Mot. to Remand 1 [hereinafter Defs.’ Resp.]. Plaintiffs’ time for a reply having
passed, their Motion is now ready for review.
II.
LEGAL STANDARD
A defendant may remove an action filed in state court to federal court if the case could have
originally been filed in federal court. 28 U.S.C. § 1441(a). Federal subject matter jurisdiction is
limited: federal courts may entertain only those cases involving a question of federal law or those
where parties are of diverse citizenship. See id. §§ 1331–32. In diversity cases, the citizenship of each
plaintiff must be diverse from the citizenship of each defendant, and the amount in controversy must
exceed $75,000. Id. § 1332. The party invoking federal jurisdiction has the burden of establishing
it. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
Congress has deemed certain actions to be “nonremovable.” See 28 U.S.C. § 1445. Of
particular import in the instant action, “[a] civil action in any State court arising under the
workmen’s compensation laws of such State may not be removed to any district court of the United
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States.” Id. § 1445(c) (emphasis added). The TWCA provides, in part, “that in an action against a
nonsubscribing employer for personal injuries or death sustained by an employee, the employer may
not rely upon certain common law defenses, and the employee must prove negligence.” Pyle v. Beverly
Enters.-Tex., Inc., 826 F. Supp. 206, 209 (N.D. Tex. 1993) (citation omitted).
III.
ANALYSIS
The issue here is whether the Rodgers’ negligence, gross negligence, and negligence per se1
claims “arise under” the TWCA, as any action arising under that statute is not removable. See 28
U.S.C. § 1445(c). The Rodgers argue that “a nonsubscriber claim under the Texas workers’
compensation laws cannot be removed.” Doc. 9, Pls.’ Mot. to Remand ¶ 12. R & L, on the other
hand, contends that “nonsubscriber negligence/gross negligence claims . . . arise under the common
law and are removable.” Doc. 11, Defs.’ Resp. 7. R & L is correct.
This Court has ruled “that an employee’s negligence (and gross negligence) claims against
a nonsubscribing employer do not ‘arise under’ the TWCA.” Morris v. Home Depot U.S.A., Inc., No.
3:10-CV-2289-B, 2011 WL 711047, at *3 (N.D. Tex. Feb. 28, 2011). Rather, “they arise under
Texas common law.” Id. Other courts have since agreed. See, e.g., Muse v. Kroger Tex., L.P., No.
3:14-CV-3225-N, 2015 WL 11022866, at *1 (N.D. Tex. Mar. 3, 2015); Rodriguez v. Home Depot
U.S.A., Inc., No. EP-14-CV-175-PRM, 2014 WL 10183558, at *2 n.3 (W.D. Tex. Sept. 11, 2014).
Therefore, the Rodgers’ negligence and gross negligence claims do not arise under the TWCA and,
thus, are removable.

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Neither party specifically addresses negligence per se. Because the negligence per se claim is one of
the nonsubscriber claims, the Court must address whether it arises under the TWCA.

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The same is true of their negligence per se claim. While an action arising under the TWCA
is, indeed, not removable, the Rodgers’ negligence per se claim does not arise under that statute. See
28 U.S.C. § 1445(c). “A suit arises under the law that creates the cause of action.” Ehler v. St. Paul
Fire & Marine Ins. Co., 66. F.3d 771, 772 (5th Cir. 1995) (quoting Jones v. Roadway Express Inc., 931
F.2d 1086, 1092 (5th Cir. 1991)). Here, the Rodgers’ negligence per se claim is based upon federal
safety regulations, not the TWCA. See Doc. 1-20, Second Am. Pet. ¶¶ 5–7, 10–14. Therefore, their
negligence per se claim does not arise under the TWCA, so it is removable.
Accordingly, removal was proper, as the parties are otherwise completely diverse2 and the
amount in controversy exceeds $75,000.3 See 28 U.S.C. § 1441; Doc. 1, Notice of Removal 1–4.
IV.
CONCLUSION
For the reasons stated above, the Court DENIES Plaintiffs’ Motion to Remand (Doc. 9).

SO ORDERED.
DATED: July 7, 2016.

_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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Plaintiffs reside in and are citizens of Texas. Doc. 1, Notice of Removal 2. “Defendants are citizens
of other states—Delaware, Ohio, and South Carolina—and not of Texas.” Id.
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“The maximum damages sought are $35,000,000.” Id. at 4.

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