Air Liquide Mexico S. de R.L. de C.V. et al v. Hansa Meyer Global Transport USA, LLC et al
Filing
46
MEMORANDUM OPINION AND ORDER granting 18 MOTION to Remand. This action is remanded to the 284th District Court of Montgomery County, Texas. Deadlines terminated; Case terminated on 8/7/2015. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
AIR LIQUIDE MEXICO S. de R.L.
de C. V. and AIR LIQUIDE PROCESS
AND CONSTRUCTION, INC.,
plaintiffs,
v.
HANSA MEYER GLOBAL TRANSPORT
USA, LLC,
Defendant,
v.
CONTRACTORS CARGO COMPANY;
TRAILBLAZER PILOT CAR SERVICES,
LLC; CLAUDE JOSEPH KIMMEL d/b/a
FREEDOM PILOT CAR SERVICES;
CHARLES VAN KIRK d/b/a SLINGSHOT
PILOT CAR SERVICES, INC.;
TALLERES WILLIE, INC.; BERNARDO
AINSLIE; FELIX NINO LEIJA;
WHEELING EQUIPMENT COMPANY,
INC.; and GEORGE ORTIZ,
Defendants.
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CIVIL ACTION NO. H-1S-0557
MEMORANDUM OPINION AND ORDER
This case arises out of a collision between a train and a
$1 million piece of
refinery equipment en route
Mexico by way of Magnolia, Texas.
de R. L.
de C. V.
from India to
Plaintiffs Air Liquide Mexico S.
and Air Liquide Process and Construction,
("Air Liquide" or "Plaintiffs")
Inc.
contracted with defendant Hansa
Meyer Global
Transport USA,
transportation of
LLC
Plaintiffs'
("Hansa Meyer")
to coordinate
Hansa Meyer in turn
equipment.
contracted with other parties, including Contractors Cargo Company
("Contractors Cargo"),
While in
to do the actual transporting.
transit the equipment was struck by a train at a grade crossing.
This litigation followed.
Plaintiffs brought various
state-law claims
against
Hansa
Meyer in the 284th District Court for Montgomery County, Texas,
under Cause No. 14-03-2522.1
Hansa Meyer then filed a third-party
petition against Contractors Cargo Company ("Contractors Cargo")
and eight other third-party defendants,
responsible
49 U.S.C.
removed
§
for
14706
pursuant
the
damage
to
alleging that they were
Plaintiffs'
(the "Carmack Amendment,,).2
to
28
U. S. C.
§
1441,
No.
18).
§
Motion to Remand
For the reasons stated below,
under
Contractors Cargo
invoking
jurisdiction over Carmack claims under 28 U.S.C.
before the court is Plaintiffs'
equipment
this
court's
1337. 3
Pending
(Docket Entry
Plaintiffs'
Motion to
1Plaintiffs' Original Petition, Exhibit D to Third Party
Defendant Contractors Cargo Company's Notice of Removal, Docket
Entry No. 1-5.
2Defendant/Third Party Plaintiff, Hansa Meyer Global Transport
USA, LLC's First Amended Third Party Petition ("First Amended
Third-Party Petition"), Exhibit PP to Third Party Defendant
Contractors Cargo Company's Supplemental Notice of Removal, Docket
Entry No.6-I.
3Third Party Defendant Contractors Cargo Company's Notice of
Removal, Docket Entry No.1.
-2-
Remand will be granted, and this case will be remanded to the 284th
District Court for Montgomery County, Texas. 4
Analysis
Except as otherwise expressly provided by Act of Congress, the
"defendant or defendants H in a civil action brought in state court
may remove the action to federal court if the action is one over
which the
district
jurisdiction.
courts
28 U.S.C.
§
of
the
1441(a).
United States
have
original
The court "must presume that
a suit lies outside [its] limited jurisdiction, and the burden of
establishing federal jurisdiction rests on the party seeking the
federal forum.
H
(5th Cir. 2001).
the
removing
Howery v. Allstate Ins. Co.,
916
Therefore, if a plaintiff moves to remand a case,
party
jurisdiction exists
Prudential Prop.
243 F.3d 912,
&
bears
the
burden
and
that
removal
Cas.
Ins.
Co.,
of
showing
was
proper.
276 F.3d 720,
that
federal
Manguno v.
723
(5th Cir.
4Plaintiffs filed a separate state court lawsuit against the
third-party defendants in this case in the 125th District Court of
Harris County, Texas, under Cause No. 2015-02168-7.
Contractors
Cargo removed that action to the Southern District of Texas, where
it is pending before Judge Ewing Werlein, Jr.
See Defendant
Contractors Cargo Company's Notice of Removal, Case No. H-14-211,
Docket Entry No.1.
Judge Werlein denied Plaintiffs' motion to
remand that case.
See Memorandum and Order, Case No. H-14-211,
Docket Entry No. 38.
After removing the present action to this
court, Contractors Cargo moved to consolidate the two federal
cases.
See Third Party Defendant Contractors Cargo Company's
Motion to Consolidate, Case No. H-14-211, Docket Entry No. 77.
Judge Werlein denied that motion.
See Order, Case No. H-14-211,
Docket Entry No. 92.
-3-
2002).
Because removal jurisdiction raises significant federalism
concerns,
such
Coastal Corp.,
jurisdiction
is
855 F.2d 1160,
narrowly
1164
construed.
(5th Cir.
Willy v.
"[D]oubts
1988).
regarding whether removal jurisdiction is proper should be resolved
Acuna v. Brown & Root Inc.,
against federal jurisdiction."
200
F.3d 335, 339 (5th Cir. 2000).
Plaintiffs argue that Contractors Cargo,
defendant,
has
no
right
of
removal
under
as a
28
third-party
U.S.C.
144l. 5
§
Contractors Cargo argues that "because the Fifth Circuit permits
removal by third party defendants under certain circumstances,"
removal was proper.6
However, Contractors Cargo's briefing of this
issue neither identifies those "certain circumstances" nor makes
any showing as to their applicability in this case.
Because
"defendant
or
1441(a)
§
limits
defendants,"
the
right
the
removal
and
of
removal
statute
to
is
the
to
be
strictly construed, third-party defendants have no right of removal
under
2014
§
WL
1441 (a) .
3543716,
Alattar v.
at
*3
Sano Holdings,
(S.D.
Tex.
July
Inc., No. H-14-266,
17,
2014);
see
also
5See Plaintiff's Motion to Remand, Docket Entry No. 18,
pp. 18-23; Plaintiff's Reply to Third-Party Defendant Contractors
Cargo Company's Response to Motion to Remand, Docket Entry No. 33,
pp. 16-20. Because this procedural issue is dispositive, the court
need not address the parties' substantive arguments regarding the
Carmack Amendment's applicability to the claims at issue.
6Contractor[s] Cargo Company's Response in Opposition to
Plaintiffs' Motion to Remand and Brief in Support ("Contractors
Cargo's Response"), Docket Entry No. 21, p. 15.
-4-
14C Charles Alan Wright,
§
3730 (4th ed.)
et al.,
Federal Practice and Procedure
("Nor can third-party defendants brought into the
state action by the original defendant exercise the right to remove
claims to the federal court
. ,,) .
.
Nevertheless,
the Fifth
Circuit has been in the minority in recognizing a narrow exception
under § 1441 (c) when a third-party complaint states a "separate and
independent claim."
See Carl Heck Engineers,
Inc. v.
Lafourche
Parish Police Jury, 622 F.2d 133, 135-36 (5th Cir. 1980).
Heck was decided prior to Congress's amendment of
statute in 2011.7
the
However,
removal
Because the 2011 amendment deleted the "separate
and independent claim"
language from
§
1441 (c) ,8 it is doubtful
7The version of § 1441(c) construed in Heck, which has been
amended several times since then, read as follows:
Whenever a separate and independent claim or cause of
action, which would be removable if sued upon alone, is
joined with one or more otherwise non-removable claims or
causes of action, the entire case may be removed and the
district court may determine all issues therein, or, in
its discretion, may remand all matters not otherwise
within its original jurisdiction.
See Heck, 622 F.2d at 135 (quoting 28 U.S.C.
8The current version of
(c)
§
§
1441(c)).
1441(c) reads in relevant part:
Joinder of Federal law claims and State law claims.-(1)
If a civil action includes-(A) a claim arising under the Constitution,
laws, or treaties of the United States (within
the meaning of section 1331 of this title),
and
(continued ... )
-5-
whether the exception recognized in Heck survives. 9
both versions of
joined with a
§
1441{c)
nonremovable
Furthermore,
require that the removable claim be
claim.
Contractors
identified a nonremovable claim in this case. 10
Cargo has
not
To the contrary,
Contractors Cargo argues that all of the claims in this case,
including Plaintiffs' state-law claims against Ransa Meyer,
"come
within the scope of the Carmack Amendment and are in reality based
on federal law."l1
Nevertheless, for the sake of completeness, even
assuming that Heck is still good law and that
8 ( •••
§
1441{c) applies,
continued)
a claim not within the original or
supplemental jurisdiction of the district
court
or
a
claim that
has
been made
nonremovable by statute, the entire action may
be removed if the action would be removable
without the inclusion of the claim described
in subparagraph (B)
(B)
(2)
Upon removal of an action described in
paragraph (I), the district court shall sever from
the action all claims described in paragraph (I) (B)
and shall remand the severed claims to the State
court from which the action was removed.
9There also is no indication that the 2011 amendment has
rendered all third-party claims removable. "Had Congress intended
to permit removal by third-party defendants, it could have amended
§
1441{a)
to clarify the definition of
'the defendant or
defendants' or added additional language to § 1441{c) specifying
that removal under that subsection is available to parties other
than original defendants. It did not."
Mut. Pharm. Co., Inc. v.
Goldman, No. 12-0815, 2012 WL 2594250, at *2 (E.D. Pa. July 3,
2012); accord Noland v. Energy Res. Tech., Inc., No. G-12-0330,
2013 WL 177446, at *6 (S.D. Tex. Jan. 16, 2013) (Costa, J.).
lOContractors Cargo quotes the amended § 1441 (c), but then
refers only to Hansa Meyer's Carmack claim.
See Contractors
Cargo's Response, Docket Entry No. 21, p. 16.
11Id. at 11-12 (internal quotation marks and citation omitted) .
-6-
Contractors Cargo has not shown that it has a right of removal in
this case.
A federal claim is separate and independent if it involves an
obligation distinct from the nonremovable claims in the case.
American Fire & Casualty Co. v. Finn,
71 S. Ct. 534,
540
See
(1951)
("[W]here there is a single wrong to plaintiff, for which relief is
sought, arising from an interlocked series of transactions, there
is no separate and independent claim or cause of action under
§
1441(c) .").
party
To be "separate and independent" a claim by a third-
plaintiff
against
a
third-party
"unrelated to the main claim,"
independent
of
defendant
so long as
[the main claim]
that
need
not
be
"sufficiently
judgment
a
it is
in an action
between those two parties alone can be properly rendered."
See
Heck, 622 F.3d at 136.
Under Heck and its progeny, "[w]hile a third-party demand for
contractual indemnity is generally considered to be separate and
independent
from
an
original
state
law
third-party indemnity claim based on
Noland,
2013
WL
177446
at
*6.
As
cause
joint
this
of
action,
liability is
court
has
a
not."
explained,
"a third-party action for contribution and indemnity may constitute
a separate and independent claim for purposes of
§
1441(c) if the
third-party complaint seeks indemnity based on a separate legal
obligation owed by the third-party defendant to the third-party
plaintiff."
Kinder
Morgan
Gujarat Stahl Rohren Ltd.,
Louisiana
752 F.
-7-
Pipeline
Supp.
2d 772,
LLC
779
v.
WeI spun
(S.D.
Tex.
2010)
(Lake, J.) .12
"If, however, the third-party complaint seeks
indemnity based on an allegation that the third-party defendant's
actions caused the plaintiff's injuries, there is no separate and
independent cause of action."
Id.
Hansa Meyer's Third Party Petition states that it sues the
third-party defendants "pursuant to the Carmack Amendment" because
"[they]
are
Plaintiffs'
responsible
damages"
the
and "because
collision
[they]
in
question
and
failed to deliver the
in the same good order and condition as when
[equipment]
tendered to
for
[them]
" 13
Hansa Meyer also seeks contribution "as
allowed by and provided for by Section 33.016 of the Texas Civil
Practices and Remedies Code.,,14
These claims are not separate and
independent from Air Liquide's claims in the original suit; they
are intertwined with Air Liquide's claims against Hansa Meyer, rely
on the same set of facts,
Liquide.
and pertain to a single wrong to Air
These claims may essentially be indemnity claims,
but
neither the Third Party Petition nor Contractors Cargo's briefing
12Congress amended § 1441(c)
in 1990 and limited its
application to federal question claims under § 1331. See Judicial
Improvements Act of 1990, PL 101-650, December 1, 1990, 104 Stat
5089. Even if the exception in Heck still applies, it is no longer
relevant in diversity cases.
Therefore, an indemnity claim that
sounds in contract would still have to invoke federal question
jurisdiction to be removable.
Kinder Morgan, 752 F. Supp. 2d at
782.
13First Amended Third-Party Petition, Exhibit PP to Third Party
Defendant Contractors Cargo Company's Supplemental Notice of
Removal, Docket Entry No.6-I, p. 4 (emphasis added) .
-8-
identifies
Meyer.
an
independent
legal
obligation to
indemnify Hansa
Hansa Meyer merely alleges that the third-party defendants'
actions
caused Air
Liquide's
injuries.
Such
claims
are
not
separate and independent for purposes of the exception recognized
in Heck.15
Conclusions and Order
The court
establish that
concludes
removal
that
Contractors Cargo has
in this
case was proper.
failed
to
Accordingly,
Plaintiff's Motion to Remand (Docket Entry No. 18) is GRANTED, and
this
action
is
REMANDED
Montgomery County, Texas. 16
to
the
284th
District
Court
of
Because of the unsettled nature of the
15Hansa
Meyer's
Third
Party
Petition
also
alleges
"alternatively and/or additionally" that, should the Carmack
Amendment not apply to Hansa Meyer's claims against Contractors
Cargo, then Contractors Cargo breached its contract with Hansa
Meyer "due to [Contractors Cargo's] failure to provide proper
equipment and properly trained and staffed motor carriers."
(Docket Entry No.6-I, pp. 4-5)
Contractors Cargo's Notice of
Removal and briefing rely solely on Hansa Meyer's federal Carmack
claims for removal jurisdiction.
Contractors Cargo has not
identified this alternative state-law claim as a basis for removal,
shown how it might properly be characterized as a federal question
claim under § 1331, or established that it falls within the
exception in Heck. Contractors Cargo has not met its burden with
respect to any of Hansa Meyer's claims.
16Because Judge Werlein denied Contractors Cargo's Motion to
Consolidate in Civil Action No. H-14-211, and because this case
will be remanded to state court, the pending Motion to Realign the
Parties, Docket Entry No. 25, filed by several third-party
defendants in this case, is moot.
With respect to the potential
effects of a realignment on removability, Contractors Cargo has not
argued for realignment as a cure for removal, and in fact it
appears to have opposed the motion to realign. See Certificate of
Conference, Docket Entry No. 26, p. 1. More importantly, courts in
(continued ... )
-9-
law at issue in this case, the court also concludes that an award
of attorney's fees under 28 U.S.C.
§
1447 (c)
is not warranted. 17
Accordingly, Plaintiffs' request for attorney's fees and costs is
DENIED.
The Clerk will promptly deliver a copy of this Memorandum
Opinion and Order to the District Clerk of Montgomery County,
Texas.
SIGNED at Houston, Texas, on this 7th day of August, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
16 ( ... continued)
the Fifth Circuit
"'have seriously questioned whether the
procedural mechanism of realignment can be used to support
removal. "'
Alattar, 2014 WL 3543716, at *4 (quoting Salge v.
Buchanan, No. C-07-212, 2007 WL 1521738, at *4 (S.D. Tex. May 24,
2007) (collecting cases)).
The court is not inclined to employ
creative solutions to the removability issues in this case.
17See, e.g., Alattar, 2014 WL 3543716 at *4; Haulmark Services,
Inc. v. Solid Group Trucking. Inc., No. H-14-0568, 2014 WL 5768685,
at *6 (S.D. Tex. Nov. 5, 2014).
-10-
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