Harrison et al v. Darnas, Inc. et al
MEMORANDUM AND ORDER granting 20 MOTION for Leave to File Motion to Dismiss, denying 13 MOTION to Remand, denying as moot 10 MOTION to Dismiss (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BREANNA H HARRISON, et al,
DARNAS, INC., et al,
August 14, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-00931
MEMORANDUM & ORDER ON
MOTION TO REMAND AND MOTION TO DISMISS
Pending before the Court are Plaintiffs’ Motion to Remand (Doc. No. 13) and Defendant
Sarah Acevedo’s Motion to Dismiss (Doc. No. 10) and Motion for Leave to File Amended
Motion to Dismiss (Doc. No 20). After considering the motions, responses and replies thereto,
oral arguments, and the applicable law, the Court finds that it has subject matter jurisdiction over
this case and Ms. Acevedo should be dismissed as a defendant.
This is a wrongful death action. Plaintiffs Breanna Harrison and Cynthia Abner brought
this suit in state court on behalf of the estate of Marcus Harrison. Marcus Harrison suffered fatal
injuries after cargo fell from a tractor-trailer and collided with his truck.
In their original petition, Plaintiffs named as defendants: Dusniel Gonzalez, the driver
and operator of the tractor-trailer; Darnas, Inc., the owner of the tractor-trailer; and GEICO
Indemnity Company, the issuer of Mr. Harrison’s insurance policy. (Doc. No. 1-A.) In their first
amended original petition (FAOP), Plaintiffs also named as a defendant Sarah Acevedo, who
was involved in coordinating transportation of the load on the tractor-trailer that Mr. Gonzalez
was driving. (Doc. No. 1-B.)
Defendants filed a notice to remove this action on the basis of diversity jurisdiction. Mr.
Gonzalez and Darnas are both domiciled in Florida; GEICO is domiciled in Maryland. Although
Ms. Acevedo is a citizen of Texas (as are Plaintiffs), Defendants argue that Ms. Acevedo was
added as a defendant for the sole purpose of defeating diversity jurisdiction. (Doc. No. 1 ¶ 7.)
Ms. Acevedo has filed two partial motions to dismiss. First, she sought to dismiss the
allegations against her in the FAOP. (Doc. No. 10.) After the action was removed to federal
court, Plaintiffs filed an amended complaint. (Doc. No. 12.) Ms. Acevedo requested leave to
dismiss that complaint as well, as it pertains to her. (Doc. No. 20.) Plaintiffs have also filed an
additional third amended complaint. (Doc. No. 34.) Plaintiffs have not requested leave to file
either of these amended complaints.
A. Motion for Remand
“The district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
citizens of different states.” 28 U.S.C. § 1332(a)(1). “The removing party bears the burden of
establishing that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). Courts must strictly construe removal statutes in favor of remand and against
removal. Bosky v. Kroger Tex., L.P., 288 F.3d 208, 211 (5th Cir.2002). However, “[u]nder the
fraudulent joinder doctrine, ‘federal removal jurisdiction premised on diversity cannot be
defeated by the presence of an improperly joined non-diverse and/or in-state defendant.’” Cano
v. Scottsdale Ins. Co., No. CIV.A. H-10-3530, 2011 WL 5416320, at *2 (S.D. Tex. Nov. 7, 2011)
(quoting Salazar v. Allsate Texas Lloyd's, Inc., 455 F.3d 571, 574 (5th Cir.2006)).
B. Motion to Dismiss
“To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed
factual allegations,’ but must provide the plaintiff’s grounds for entitlement to relief—including
factual allegations that when assumed to be true ‘raise a right to relief above the speculative
level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). That is, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
663 (quoting Twombly, 550 U.S. at 570). The court should not evaluate the merits of the
allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable
claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.
A. Motion to Remand
Plaintiffs seek to remand this action to state court because the parties are not completely
diverse, as Plaintiffs and Ms. Acevedo are Texas citizens. Defendants counter that Ms. Acevedo
was joined fraudulently to avoid federal jurisdiction.
“To establish fraudulent joinder, the removing party must prove either that there has been
actual fraud in the pleading of jurisdictional facts, or that there is no reasonable possibility that
the plaintiff will be able to establish a cause of action against that party in state court. The
defendant must demonstrate that there is no possibility of recovery by the plaintiff against the
non-diverse defendant, that is, that there is no reasonable basis for the district court to predict
that the plaintiff might be able to recover against the non-diverse defendant.” Cano, 2011 WL
5416320, at *2 (citing Salazar, 455 F.3d at 574; Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568,
573 (5th Cir.2004) (en banc)). The burden rests on the Defendants to demonstrate that there is no
possibility of recovery against the non-diverse defendant. See Salazar, Inc., 455 F.3d at 574.
“[T]he inquiry into the validity of a complaint triggered by a motion to dismiss under
Rule 12(b)(6) is more searching than that permissible when a party makes a claim of fraudulent
joinder. Therefore, it is possible that a party is not fraudulently joined, but that the claim against
that party ultimately is dismissed for failure to state a claim upon which relief may be granted.”
Agyei v. Endurance Power Prod., Inc., 198 F. Supp. 3d 764, 772 (S.D. Tex. 2016) (quoting
Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992)).
Defendants have met their high burden to show fraudulent joinder. The Court looks to the
FAOP, the state court complaint on file at the time of removal. See Cavallini v. State Farm Mut.
Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995). The FAOP’s entire discussion of Ms. Acevedo is
contained in the following two paragraphs:
Plaintiffs HARRISON and ABNER, would show that Defendant
ACEVEDO is an agent and/or representative and/or employee of TransGo
Carriers, LLC and provides logistical support relating to drivers and trucking
companies that transport heavy equipment and other commodities.
Plaintiffs would show that Defendant ACEVEDO knew or should have
known that Defendant GONZALEZ was a dangerous, unsafe, inexperienced
driver and that Defendant ACEVEDO’s failure to employ a safe, experienced
driver was the proximate cause of the motor vehicle accident made subject this
cause of action.
(Complaint, Doc. No. 1-B at 5.) The complaint excludes Ms. Acevedo from the prayer for relief.
This scant language does not state a claim against Ms. Acevedo. The Court applies the
Texas state court “fair notice” pleading standard. “Texas is a notice pleading jurisdiction, and a
petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases
his claim.” In re Butt, 495 S.W.3d 455, 461–62 (Tex. App.—Corpus Christi-Edinburg, 2016)
(internal citation and quotation marks omitted). The Court shall “construe the pleadings liberally
in favor of the plaintiff, look to the pleader’s intent, and accept as true the factual allegations in
the pleadings to determine if the cause of action has a basis in law or fact.” Id. at 462. Even with
this lenient standard, Plaintiffs have failed to give “a statement in plain and concise language of
the plaintiff’s cause of action,” against Ms. Acevedo. Tex. R. Civ. P. 45.
Defendants have shown that there is no possibility of recovery against Ms. Acevedo,
based upon the facts alleged in the FAOP. Because the Court finds that Ms. Acevedo was
fraudulently joined, remand is inappropriate.
B. Motion to Dismiss
After the case was removed to federal court, Plaintiffs filed two amended complaints.
Both amended complaints name Ms. Acevedo as a defendant, and provide further information
about her role in the incident. The Court anticipates that, after its ruling on remand based on the
FAOP, Plaintiffs will want the Court to view either the second or third amended complaint as the
live pleading. Ms. Acevedo has sought to leave to file a motion to dismiss the second amended
complaint (Doc. No. 20), and noted that Plaintiffs did not similarly seek leave to amend their
Although Plaintiffs did not request leave, the Court assesses whether they should be
allowed to amend their complaint. Rule 15 of the Federal Rules of Civil Procedure states that
“leave [to amend] shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The
Court may deny such leave, however, upon a finding of “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party, [or] futility of amendment.” Price v. Pinnacle
Brands, Inc., 138 F.3d 602, 608 (5th Cir. 1998) (internal quotation marks omitted). The Court
finds that providing further detail about Ms. Acevedo, as Plaintiffs have done in their postremoval amended complaints, is futile.
In their third amended complaint (Doc. No. 34), Plaintiffs allege that Ms. Acevedo and
other defendants acted negligently in: employment, entrustment, and election of the driver of the
tractor-trailer, and the loading of cargo onto the trailer. (Doc. No. 34 ¶ 18.) As Ms. Acevedo was
not present while the trailer was loaded, her only potential negligent conduct would be
improperly directing the loading of equipment or failing to hire/broker a competent driver.
Plaintiffs argue that Ms. Acevedo can be held individually liable because she was directly
involved in selecting the carrier and driver of the load, and coordinating delivery of that load.
(Doc. No. 39.) But her direct actions are insufficient to create personal liability. The allegations
against Ms. Acevedo are the same as those against her employer, Somerset. (Doc. No. 34 ¶ 10,
13.) “[L]liability cannot be imposed on employees where the employer and the employees
committed the identical negligent acts or omissions.” In re Butt, 495 S.W.3d at 467 (citing Tri v.
J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)).
Ms. Acevedo’s direct conduct related to the incident occurred on behalf of her employer, and she
had no duty of care independent of her duty as a Somerset employee. See In re Butt, 495 S.W.3d
at 466–67 (dismissing allegations against individual employees when there was no “independent
duty of care either by virtue of their positions as apex corporate officials or as a result of their
This case is distinguishable from those cited by Plaintiffs. In Buchert v. Home Depot
U.S.A., Inc., the court held a forklift operator personally liable because he “owed an independent
duty to the general public in operating the forklift.” No. 6:16-CV-502-RWS-JDL, 2016 WL
6601664, at *3 (E.D. Tex. Sept. 23, 2016), report and recommendation adopted, No. 6:16-CV-
502-RWS-JDL, 2016 WL 6582010 (E.D. Tex. Nov. 7, 2016). In Betancourt v. Electrolux Home
Care Prod., Inc., the plaintiff alleged that a supervisor required the plaintiff to load a trailer at an
excessive pace that caused him to suffer a heart attack. No. EP-10-CV-320-PRM, 2011 WL
3678649, at *1 (W.D. Tex. Jan. 13, 2011). That court contemplated that a duty might apply to a
supervisor who was directly engaged in the activity which caused harm to the plaintiff. In both
cases, plaintiffs were able to show a personal duty (or possibility of one) beyond the employer’s
The Court does not find that Ms. Acevedo had any duties to the public independent of her
role as an agent of Somerset. See Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) (“The existence
of a legal duty is a question of law for the court to decide.”). Because Ms. Acevedo did not owe
an independent duty and all allegations against her are identical to those of her employer, she
cannot be held individually liable. The Court dismisses the allegations against Ms. Acevedo.
As Ms. Acevedo is no longer a defendant in this case, the Court retains jurisdiction over
the matter. The Court hereby DENIES Plaintiffs’ motion for remand (Doc. No. 13) and
GRANTS Defendant Acevedo’s motion for leave to file an amended motion to dismiss (Doc.
No. 20) and GRANTS said motion to dismiss. In light of Plaintiffs’ post-removal complaints,
the Court DENIES AS MOOT Defendants’ first motion to dismiss (Doc. No. 10). Plaintiffs may
amend the complaint within ten (10) days to reflect the dismissal of allegations against Ms.
IT IS SO ORDERED.
SIGNED at Houston, Texas on the 14th of August, 2017.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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