Escareno et al v. CETCO Energy Services Company LLC et al

Filing 14

ORDER OF REMAND granting in part and denying in part 7 Opposed MOTION to Remand. The motion for remand is granted - this action is remanded to the County Court at Law No. 3, Nueces County, Texas. The motion is denied in part with respect to pltffs' request for sanctions. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

December 08, 2015
David J. Bradley, Clerk

SAMUEL ESCARENO, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-00419
§
CETCO ENERGY SERVICES
§
COMPANY, LLC; aka CETCO OILFIELD §
SERVICES COMPANY, LLC, et al,
§
§
Defendants.
§
ORDER REMANDING CASE
Plaintiffs filed this wrongful death action on August 20, 2015, in the County Court
at Law No. 3, Nueces County, Texas. D.E. 1-5. Plaintiffs alleged negligence, negligence

per se, and negligent entrustment against Defendants, based on a collision between a
motorcycle and two tractor-trailers. Plaintiffs served Defendant CETCO Energy Services
Company LLC a/k/a and d/b/a CETCO Oilfield Services Company LLC (CETCO) on
August 31, 2015. D.E. 1-2. CETCO, with the consent of Defendant John Aaron Trahan
(D.E. 1-16), timely filed its Notice of Removal (D.E. 1) on September 30, 2015.
CETCO predicates its removal on this Court’s diversity jurisdiction pursuant to 28
U.S.C. § 1332, alleging that Plaintiffs fraudulently joined non-diverse Defendant, Alex
Jacob Alvarado (Alvarado). There is no dispute that, without Alvarado, the citizenship of
the parties is diverse and the minimum amount in controversy is satisfied. Before the
Court is Plaintiffs’ Motion for Remand and for Sanctions (D.E. 7), arguing that CETCO
cannot satisfy the heavy burden of demonstrating that Alvarado was fraudulently joined.
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On a motion to remand, “[t]he removing party bears the burden of showing that
federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “Any ambiguities are construed against
removal because the removal statute should be strictly construed in favor of remand.” Id.
The strict construction rule arises because of “significant federalism concerns.” See
generally, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941).
“The party seeking removal bears a heavy burden of proving that the joinder of the
in-state party was improper.” Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574
(5th Cir. 2004) (en banc).

The removing party proves improper joinder by

demonstrating: (1) actual fraud in the pleading of jurisdictional facts; or (2) the inability
of the plaintiff to establish a cause of action against the non-diverse defendant in state
court. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006)
(citing Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)); see also Boone v. Citigroup,
Inc., 416 F.3d 382, 388 (5th Cir. 2005). Only the second method is at issue here.
The motion to remand must be granted unless “there is absolutely no possibility
that the plaintiff will be able to establish a cause of action against the non-diverse
defendant in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir.
1999). CETCO argues that it has met its burden by virtue of a surveillance video
recording of the collision, submitted as an exhibit with its removal and in response to the
motion for remand. Plaintiffs challenge that video on the basis that it fails to include
more footage prior to the collision, appears to be altered or spliced, and does not always
display the counter in the top left corner showing the elapsed time on the video.
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After reviewing the video and without resolving the challenges to its authenticity
or accuracy (questions of fact construed in favor of the non-removing party), the Court
concludes that the video, alone, does not negate any possible cause of action against
Alvarado. CETCO’s burden is not to show that Plaintiffs have insufficient evidence to
support their claims but that the law or evidence conclusively negates any claim. Travis
v. Irby, 326 F.3d 644, 650 (5th Cir. 2003). On this record, Plaintiffs’ claims have not
been negated.
For the foregoing reasons, the Court GRANTS IN PART the motion for remand
and REMANDS this action to the County Court at Law No. 3, Nueces County, Texas, the
court from which it was removed. The motion is DENIED IN PART with respect to
plaintiffs’ request for sanctions.
ORDERED this 8th day of December, 2015.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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