Hoyt et al v. The Lane Construction Corporation

Filing 10

MEMORANDUM OPINION AND ORDER: The court ORDERS that plaintiffs' 5 Emergency Motion to Remand be, and is hereby, denied. (Ordered by Judge John McBryde on 10/5/2017) (tln)

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NORTHERN DISTRICT OF TEXAS

FILED

IN THE UNITED STATES DISTRICT CpURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

OCT -5 2011
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LINDSEY HOYT, INDIVIDUALLY,
AND INDEPENDENTLY AS
ADMINISTRATOR OF THE ESTATE OF
JEFFERY HOYT AND AS NEXT FRIEND
OF JOEL HOYT, EVAN HOYT, AND
KATIE HOYT, ET AL.,
Plaintiffs,

vs.
THE LANE CONSTRUCTION
CORPORATION,
Defendant.

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CLERK, U.S. DISTRICT COURT
" By----;:;-=--D-Iy

NO. 4:17-CV-780-A

MEMORANDUM OPINION AND ORDER
Came on for consideration the emergency motion of
plaintiffs, Lindsey Hoyt, individually and independently as
Administrator of the Estate of Jeffery Hoyt and as next friend of
Joel Hoyt, Evan Hoyt, and Katie Hoyt, and Patrick Hoyt and Mary
Hoyt, to remand. The court, having considered the motion, the
response of defendant, The Lane Construction Corporation, the
reply, the record, and applicable authorities, finds that the
motion should be denied.
I.

Background
On September 20, 2016, plaintiffs filed their original
petition in the 271"t Judicial District Court of Wise County,
Texas, naming The Lane Construction Corporation ("Lane"), Storm

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Water Management, Inc.

("Storm"), and C.E.N. Concrete

Construction Co., Inc.

("C.E.N.") as defendants. Plaintiffs

alleged that their husband and father,

Jeffery Hoyt, was killed

when his automobile slid off a highway into a pool of water
created due to construction activities of defendants.'
On September 27, 2017, Lane filed its notice of removal,
bringing the action before this court. According to Lane, the
action became removable as a result of the state court's having
granted summary judgment in favor of C.E.N. on May 17, 2017, and
the plaintiffs' voluntary dismissal of Storm on September 22,
2017.

(The action was nonremovable when it was filed because both

C.E.N. and Storm are Texas citizens.)
Lane acknowledges that the notice of removal was filed more
than one year after the case was originally filed, but argues
that plaintiffs acted in bad faith to prevent r,ane from removing
the case prior to the one year deadline. Specifically, Lane says
that plaintiffs delayed filing their nonsuit of Storm to thwart
removal. Lane argues that the removal deadline should be
equitably tolled as was done in Lawson v. Parker Hannifin Corp.,
No. 4:13-CV-923-0, 2014 WL 1158880 (N.D. Tex. Mar. 20, 2014).

'It appears that the petition has twice been amended and additional plaintiffs, the parents of
Jeffery Hoyt, added.
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II.

Ground of the Motion
Plaintiffs urge that the action must be remanded to state
court because the notice of removal was filed more than one year
after plaintiffs commenced the action. 28 U.S.C.

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1446 (c) (1).

III.

Applicable Law
Under 28 U.S.C.

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1441(a), a defendant may remove to federal

court any state court action of which the federal district court
would have original jurisdiction.' "The removing party bears the
burden of showing that federal subject matter jurisdiction exists
and that removal was proper."
Ins. Co., 276 F.3d 720,

723

Manguno v. Prudential Prop. & Cas.

(5th Cir. 2002)

(citations omitted).

"Moreover, because the effect of removal is to deprive the state
court of an action properly before it, removal raises significant
federalism concerns .

. which mandate strict construction of

the removal statute." Carpenter v. Wichita Falls Indep. Sch.
Dist., 44 F.3d 362, 365-66 (5th Cir. 1995). Any doubts about
whether removal jurisdiction is proper must therefore be resolved

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The removal statute provides, in pertinent part, that: [A]ny civil action brought in a State court
of which the district comts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district comt of the United States for the district and division
embracing the place where such action is pending. 28 U.S.C. § 144l(a) (emphasis added).
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against the exercise of federal jurisdiction. Acuna v. Brown &
Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
When removal is based on diversity of citizenship, the
notice must be filed within one year after commencement of the
action,

•unless the court finds that the plaintiff has acted in

bad faith in order to prevent a defendant from removing the
action." 28 U.S.C. § 1446(c) (1). As plaintiffs note, some courts
have described§ 1446(b) (1) as codifying the possibility of
equitable tolling recognized by the Fifth Circuit in Tedford v.
Warner-Lambert Co., 327 F.3d 423

(5th Cir. 2003). See, e.g.,

Fruge v. Burlington Resources Oil & Gas Co., LP, No. 2:14-CV2382, 2015 WL 4134992, at *2 (W.D. La. July 7, 2015); Gonzales
South Tex. Elec. Corp. v. Jeffrey C. Stone,
2014 WL 7172437, at *3 n.4

Inc., No. H-14-2216,

(S.D. Tex. Dec. 12, 2014).
IV.
Analysis

Plaintiffs admit that they filed their nonsuit as to Storm
after the one-year anniversary of the filing of their original
petition. They argue that there were strategic reasons for the
last-minute filing of the nonsuit, but the affidavit they rely on
is conclusory. The timing of the alleged discussions with Storm
and of strategy sessions regarding trial is suspiciously absent.
And, the evidence submitted by Lane shows that plaintiffs knew

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months beforehand that the evidence would not support the claims
against Storm. Contrary to plaintiffs' allegation, Lane has not
asserted that Storm is partially responsible for plaintiffs'
injuries; rather, Lane simply invoked chapter 33 of the Texas
Civil Practice & Remedies Code "to the extent necessary.• Doc. 11 at Page ID 749 (page 743 of 854). Importantly, Lane has not
asserted any claims against Storm.
Plaintiffs further argue that this is "precisely the type of
dilatory removal the statute is intended to prevent.• Doc. 5 at
4. The record reflects, however that Lane filed its notice of
removal five days after plaintiffs nonsuited Storm. Nonsuit on
the eve of trial is a reason to toll the one-year removal period.
Lawson, 2014 WL 1158880, at *5-6; Shiver v. Sprintcom, Inc., 167
F. Supp. 2d 962, 963-64

(S.D. Tex. 2001). This is not a case like

those cited by plaintiffs where the defendant could have removed
well before the deadline for doing so. See Vielma v. ACC Holding,
Inc., No. EP-12-CV-501-KC, 2013 WL 3367494 (W.D. Tex. Apr. 16,
2013) (removability revealed on face of plaintiff's petition);
Sanchez v. American Motorists Ins. Co., No. 1:12-CV-31, 2012 WL
2122194

(S.D. Tex. Jun 11, 2012) (where defendant had eleven days

in which to file a notice of removal before the deadline ran but
failed to do so) .

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V.
Order
The court ORDERS that plaintiffs' emergency motion to remand
be, and is hereby, denied.
SIGNED October 5, 2017.

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