Acord et al v. Young Again Products, Inc. et al

Filing 24

ORDER entered DENYING 23 MOTION for Reconsideration of 22 Status Conference.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN ACORD, et al.,
Plaintiffs,
VS.
YOUNG AGAIN PRODUCTS, INC.,
et al.,
Defendants.

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CIVIL ACTION NO. H-11-3591

ORDER
For the reasons stated on the record during the court’s April 26, 2012 status conference, this
court denied the plaintiffs’ motion to remand based on the improper joinder of defendant McClure
and granted, with prejudice and without leave to amend, the defendants’ motion to dismiss all
defendants but defendant Young Again Products, Inc. based on the Texas qualified-immunity
doctrine. (Docket Entry No. 22). The plaintiffs have moved for reconsideration of those rulings.
(Docket Entry No. 23). According to the plaintiffs, this court applied the incorrect standard for a
motion to remand and incorrectly refused to follow other district-court opinions. (See id., at ¶¶ 4–5).
This court applied long-established Fifth Circuit precedent governing motions to remand
removed cases in which an in-state defendant asserts improper joinder. See, e.g., Cuevas v. BAC
Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011); Smallwood v. Ill. Cent. R.R. Co., 385
F.3d 568, 573 (5th Cir. 2004) (en banc). To “predict[] whether a plaintiff has a reasonable basis of
recovery under state law. . . . [t]he court may conduct a Rule 12(b)(6)-type analysis[.]” Smallwood,
385 F.3d at 573. The court did just that and followed long-established Texas law that attorneys have
“‘qualified immunity’ from civil liability, with respect to non-clients, for actions taken in connection
with representing a client in litigation.” Dixon Fin. Servs., Ltd. v. Chang, 325 S.W.3d 668, 673

(Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also, e.g., Finserv Cas. Corp. v. Settlement
Funding, LLC, 724 F. Supp. 2d 662 (S.D. Tex. 2010). All of the plaintiffs’ causes of action against
the attorney defendants, including against the lone nondiverse defendant, are based on actions taken
in connection with representing their client, Young Again Products. Finserv—a thorough and wellreasoned 2010 opinion by Judge Lake—is directly on point. The cases cited by the plaintiffs are not.
The plaintiffs’ motion for reconsideration, (Docket Entry No. 23), is denied.
SIGNED on May 29, 2012, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge