Gooch v. Packaging Corp. of America, Inc. et al

Filing 15

MEMORANDUM OPINION AND ORDER denying 9 MOTION to Remand (Joint Discovery/Case Management Plan due by 8/29/2017. Initial Conference set for 9/8/2017 at 02:00 PM in Courtroom 9B before Judge Sim Lake.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
August 14, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOE GOOCH, Individually and
as Personal Representative
of the ESTATE OF JODY LYNN
GOOCH,
Plaintiff,

v.
PACKAGING CORP. OF AMERICA,
INC. and ELITE SPECIALTY
WELDING, LLC,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION NO. H-17-1673

MEMORANDUM OPINION AND ORDER

On June 5, 2017, defendant, Packaging Corporation of America,
Inc.

("PCA

11

removed this action from the 129th Judicial District

),

Court of Harris County,
No. 2017-27526

Texas,

where it was pending under Case

(Docket Entry No. 1).

Pending before the court is

Plaintiff's Motion to Remand Based on Improper Removal by Packaging
Corp.

of America,

Entry No. 9).

Inc.

("Plaintiff's Motion to Remand,

Plaintiff's Motion to Remand
10),

( "PCA' s

Motion

Docket Entry No.

to

11),

Remand

("Elite

Inc.'s Opposition to

Opposition,

Defendant Elite Specialty Welding,

Plaintiff's

Docket

After considering the Plaintiff's Motion to Remand,

Defendant Packaging Corporation of America,

No.

11

11

Docket Entry

LLC's Opposition to

Specialty's

the state court pleadings,

Opposition,

11

and applicable

law, the court concludes that Plaintiff's Motion to Remand should
be denied.

I.
Plaintiff's

Factual and Procedural Background

state

court

petition

describes

the

factual

background of this case as follows:
12. An explosion occurred at approximately 11 am CST on
Wednesday,
February
gth
at
the
PCA
DeRidder
Containerboard Mill owned by Packaging Corporation of
America. The facility was located in DeRidder, LA . . .
Jody Lynn Gooch was a contractor working for Elite
Specialty Welding, LLC at the time of the explosion.
Elite Specialty Welding is principally located in Texas
and hired decedent Jody Gooch in Texas. He was killed in
the blast along with two other men . . . while they were
engaged in contract work at the DeRidder facility.
13.
It is presently unclear exactly what the cause of
the blast was, but both the United States Chemical Safety
Board ( "CSB") and OSHA are invest [igat] ing the blast.
The preliminary results from the CSB indicate that a 30
foot tall tank exploded killing Jody Lynn Gooch. It also
intimates that welding or "hot work" was being performed
and it is likely that the Defendants failed to assure the
workers that the equipment being worked on had been
purged, blocked or otherwise "cleared" of any potential
combustible materials. The Defendant PCA is no stranger
to such tragedies and had a similar incident for possibly
similar reasons only a few years ago which resulted in
fatalities. 1
Plaintiff is the father of the decedent, Jody Lynn Gooch. 2

1

Plaintiff's Original Petition, Jury Demand and Request for
Disclosure ("Plaintiff's Original Petition"), Exhibit 3 to Notice
of Removal, Docket Entry No. 1-3, p. 4 ~~ 12-13.
Id. at 6 ~ 21. See also Plaintiff's Motion to Remand, Docket
Entry No. 9, p. 1 ("The welder's father and named plaintiff, Joe
Gooch filed this suit in Harris County, Texas, alleging negligence
and gross negligence against both the facility owner (PCA) and also
against his son's employer Elite Specialty Welding, LLC [] .").
2

-2-

On April 25, 2017, plaintiff filed an action in state court
individually and as
Gooch,

representative of

against defendants,

("Elite Specialty"),

the

Estate of Jody Lynn

PCA and Elite Specialty Welding,

LLC

for negligence and gross negligence seeking

damages for the wrongful death of Jody Lynn Gooch. 3
On June 5, 2017, PCA filed a Notice of Removal pursuant to 28
U. S . C.

§§

13 3 2 ,

14 41 ,

and

14 4 6 .

Asserting

that

"[t]here

is

complete diversity of citizenship between the plaintiff and PCA,
which are the only two properly pleaded parties," 4 and that "the
matter in controversy exceeds

the

sum or value of

$75, 000. 00,

exclusive of interests and costs, " 5 PCA argues that Elite Specialty
was improperly joined because
plaintiff cannot establish a cause of action against
Elite Specialty, which is the only potential non-diverse
party.
Specifically, plaintiff has no cause of action
against Elite Specialty in the state proceeding because
he has no grounds to assert tort claims when his sole and
exclusive remedy is under the applicable workers'
compensation statutes. 6
Citing

Texas

Labor

Code

§

408.001 (a)

and

asserting

plaintiff

alleges that when Jody Lynn Gooch died he was "working for Elite
Specialty," 7

PCA

argues

that

" [u] nder

Texas

law,

3

Plaintiff's Original Petition, Exhibit 3
Removal, Docket Entry No. 1-3, pp. 5-7 ~~ 15-29.
4

Notice of Removal, Docket Entry No. 1, p. 2

5

Id. a t 3

CT
11

Id. at 3

~

~

Notice

of

8•

6

to

worker's

13.

7

4.

Id. at 4 ~ 14.a (citing Plaintiff's Original Petition, Docket
Entry No. 1-3 at 4 ~ 12).
-3-

compensation is the exclusive remedy available to an employee or
his

legal beneficiary against

the employer or an agent of

employer for an employee's death or work-related injury." 8

the

Citing

Smallwood v. Illinois Central R. Co., 385 F.3d 568, 573 (5th Cir.
2004)

(en bane), cert. denied, 125 S. Ct. 1825 (2005), PCA argues:
As plaintiff has no tort remedy against Elite Specialty,
there is no reasonable basis for recovery against Elite
Specialty in the state proceeding and, thus, joinder is
improper because there is an "inability of the plaintiff
to establish a cause of action against the non-diverse
party in state court." 9
II.

Plaintiff's Motion to Remand

On July 5, 2017, plaintiff filed Plaintiff's Motion to Remand
in which he contends that this action should be remanded to state
court because
[p]laintiff seeks to recover exemplary damages based on
Elite Defendant's gross negligence in a Texas Court,
which is precisely the type of claim and venue that both
the Texas Workers Compensation Act and Texas Courts have
unequivocally recognized as proper.
Texas law is
squarely in favor of remand where exemplary damages based
on gross negligence are sought against a Defendant
employer.
Accordingly,
this
Court
should grant
Plaintiff's Motion and remand this case to Texas State
Court . 10
Citing Texas Labor Code

§

408.00l(b);

Wyble v.

E.I.

DuPont de

Nemours & Co., 17 F. Supp. 2d 641 (E.D. Tex. 1998); Callis v. Union
Id. at 4 ~ 14.b. See also id. at ~ 14.c-d (making the same
argument based on Louisiana law); and Plaintiff's Motion to Remand,
Docket Entry No. 9, pp. 6-7 (asserting that "Texas law applies
regarding the issue of Remand")
8

9

Notice of Removal, Docket Entry No. 1, p. 4

10

~

14.e.

Plaintiff's Motion to Remand, Docket Entry No.
-4-

9, pp. 1-2.

Carbide Chemical and Plastics Corp., 932 F.Supp. 168, 171-72 (S.D.
Tex. 1996); Cowen v. Mobil Oil Corp., 901 F. Supp. 1204, 1206 (E.D.
Tex. 1995); and Smith v. Atlantic Richfield Co., 927 S.W.2d 85, 88
(Tex. App. -Houston [1st Dist.] 1996), plaintiff argues that this
action should be remanded because there is no dispute that Elite
Specialty is a non-diverse party, and because
[a]s a matter of law, a wrongful death cause of action
for gross negligence does exist under the Texas Workers'
Compensation Act . . . [and a] surviving spouse or family
member of a deceased worker [may] bring[] a claim for
exemplary damages
against
an employer
for
gross
11
negligence.
On July 24,

2017, PCA filed PCA's Opposition to plaintiff's

motion to remand arguing that Plaintiff's Motion to Remand should
be denied because "Plaintiff's claims against Elite Specialty are
exclusively limited to worker's compensation and,

therefore,

the

claims against Elite Specialty constitute improper joinder;

and

. without Elite Specialty,

this case is properly removed." 12

PCA explains that
Plaintiff's Motion is fundamentally flawed and should be
denied because,
among other things,
Plaintiff has
misapplied§ 408.00l(b) to his case.
Specifically, the
"savings clause" does not apply to Plaintiff's case
because Plaintiff is not among the persons entitled to
bring claims under § 408.001 (b) . Specifically, Plaintiff
is the decedent worker's father and § 408.00l(b) only
allows recovery of exemplary damages by the surviving
spouse or heirs of the body of a deceased employee.
Plaintiff therefore cannot rely on the "savings clause"
to plead around the exclusivity of worker's compensation
remedy.
[A] s Plaintiff is unable to avoid the

11

Id. at 4.

12

PCA's Opposition, Docket Entry No. 10, pp. 1-2.
-5-

exclusivity of worker's compensation .
. he has no
claim against Elite Specialty to be determined by any
Texas court.
Accordingly, Plaintiff has improperly
joined Elite Specialty and PCA is and was entitled to
remove this action under 28 U.S.C. []§ 1332(c) and§ 1441
based on the undisputed diversity of citizenship between
Plaintiff and PCA. 13
On

July

25,

2017,

Elite

Specialty

filed

its

opposition

to

plaintiff's motion to remand joining PCA's opposition. 14
A.

Removal Standard

A defendant has the right to remove a case to federal court
when

federal

jurisdiction exists

properly followed.

and

the

removal

1441) .

a

state

is

See Manguno v. Prudential Property and Casualty

Insurance Co., 276 F.3d 720, 723 (5th Cir. 2002)
§

procedure

(citing 28 U.S.C.

The removing party bears the burden of establishing that
court

suit

is

removable

to

federal

court.

To

determine whether there is removal jurisdiction, the claims in the
state court petition are considered as they existed at the time of
removal.

Id.

(citing Cavallini v. State Farm Mutual Auto Ins. Co. ,

44 F.3d 256, 264 (5th Cir. 1995)).

Doubts about the propriety of

removal are to be resolved in favor of remand.
B.

Diversity Jurisdiction
Improperly Joined.

A federal

court

has

Exists

Because

subject matter

Id.
Elite

Specialty

is

jurisdiction based on

diversity of citizenship "where the matter in controversy exceeds

14

Elite Specialty's Opposition, Docket Entry No. 11.
-6-

the sum or value of $75,000, exclusive of interest and costs, and
is
§

between

citizens

1332 (a) (1) .

diversity

Under 28

between

of

different

U.S. C.

plaintiffs

§

and

1332

Curtiss,

7 U.S.

(3

28

u.s.c.

there must be complete

defendants.

Mississippi Power Co., 376 F. 3d 344, 353
Strawbridge v.

States."

McLaughlin

(5th Cir. 2004)

Cranch)

267

(1806)).

v.

(citing
"'The

concept of complete diversity requires that all persons on one side
of the controversy be citizens of different states than all persons
on the other side."'

Id.

(quoting Harrison v. Prather, 404 F.2d

267, 272 (5th Cir. 1968)).

There is no dispute that the matter in

controversy here

exceeds

the value of

$75, 000, 15

diversity exists between the plaintiff and PCA,
Specialty

is

a

citizen

of

Texas

and

its

16

that

complete

or that Elite

presence

precludes

diversity jurisdiction if it was properly joined. 17

Plaintiff's Original Petition, Docket Entry No. 1-3, p. 3 ~ 8
("Plaintiff seeks damages in excess of $75, 000.00 exclusive of
interest and cost.
. ") .
15

Id. at 2 ~ 3 ("Defendant
PAC .
is a Delaware
Corporation with its Principal Place of Business located in
Illinois . . . "). See also Notice of Removal, Docket Entry No. 1,
p. 2 ~ 5 ("Plaintiff resides in and is a citizen of Texas.").
16

Plaintiff's Original Petition, Docket Entry No. 1-3, p. 3 ~ 4
("Defendant, [Elite Specialty,] is a Delaware Corporation with its
Principal Place of Business located in Texas at 1411 Preston
Ave.[,] Pasadena, TX 77503 . . . "). See also Plaintiff's Motion to
Remand, Docket Entry No. 9, p. 1 & n.1 ("Elite Specialty Welding,
LLC is a resident of Texas, has its headquarters in Texas, and one
of the members of the LLC is a Texas resident. The citizenship of
a limited liability company is determined by the citizenship of all
of its members.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1 0 8 0 ( 5th Ci r . 2 0 0 8 ) . " ) .
17

-7-

1.

Applicable Law

The Fifth Circuit has recognized two ways for the removing
party to establish improper joinder for the purpose of defeating
diversity jurisdiction:

(1) by proving that there has been actual

fraud in the pleading of jurisdictional facts,

or (2) by proving

that there is no reasonable possibility that the plaintiff will be
able to establish a cause of action against the non-diverse party
in state court.

See Smallwood, 385 F.3d at 573.

way is at issue here.

Only the second

In determining whether there is a reasonable

possibility the plaintiff will be able to establish a cause of
action against

a

defendant

under

state

law

courts

conduct

"a

Rule 12(b) (6)-type analysis, looking initially at the allegations
of the complaint to determine whether the complaint states a claim
under state law against the in-state defendant."

Id.

"Ordinarily,

if a plaintiff can survive a Rule 12(b) (6) challenge, there is no
improper joinder."

Id.

The petition as filed in the state court

at the time of removal controls the inquiry.

McLaughlin, 376 F.3d

at 353; Cavallini, 44 F.3d at 264.
2.

Application of the Law to the Alleged Facts

Plaintiff's Motion to Remand acknowledges that plaintiff is
the father of the decedent, Jody Lynn Gooch, that the decedent was
employed by Elite Specialty, and that plaintiff's claims arise from
the

decedent's

18

death

while

on

the

job

for

Elite

Specialty. 18

Plaintiff's Motion to Remand, Docket Entry No. 9, p. 1.
-8-

Plaintiff's Motion to Remand also acknowledges that claims against
a decedent's employer are generally barred by§ 408.001(a) of the
Texas Labor Code, which provides:
Recovery of workers'
compensation benefits is the
exclusive remedy of an employee covered by workers'
compensation insurance coverage or a legal beneficiary
against the employer or an agent or employee of the
employer for the death of or a work-related injury
sustained by the employee. 19
Texas Labor Code§ 408.001(a).
has

asserted against

because

they

are

Plaintiff argues that the claims he

Elite Specialty are not

subject

to

the

savings

barred,
clause

however,
found

in

§ 408.001(b) of the Texas Labor Code, which provides:
This section does not prohibit the recovery of exemplary
damages by the surviving spouse or heirs of the body of
a deceased employee whose death was caused by an
intentional act or omission of the employer or by the
employer's gross negligence. 20
Texas Labor Code § 408.001(b).
The savings clause provided by§ 408.001(b) of the Texas Labor
Code applies only to specific plaintiffs, i.e.,

(1) a "surviving

spouse;" and ( 2) "heirs of the body of a deceased employee."

Under

well settled Texas law the phrase "heirs of the body" as used in
§ 408.001(b) does not include parents, and a parent's claims for
exemplary

damages

and

gross

negligence

19

cannot

be

saved

by

Id. at 3 ("Defendants cite [] one provision of TEX. LAB. CODE
§ 408.001, which relates to the recovery of workers compensation
benefits, but neglects to draw attention [to] the fact that other
pertinent portions of the statute directly contradict Defendant's
argument.").
20

Id. at 4-6.
-9-

§

408.001(b).

See Cooper Industries LLC v. American International

Specialty Lines Insurance Co., 350 F. App'x 876, 877-78 (5th Cir.
2009)

(per curiam)

include parents.").

("Under Texas law,

'heirs of the body' do not

See also Galvan v. Public Utilities Board, 778

S.W.2d 580, 584 (Tex. Civ. App. -Corpus Christi 1989)
settled that parents are not heirs of the body.")

("It is well

(citing Winnt v.

International & G.N. Ry. Company, 11 S.W. 907, 907-908 (Tex. 1889)
(considering the question,

"[W] hether any person not within the

class of persons designated by section 26, art. 16, of the state
constitution can maintain a

suit for the recovery of exemplary

damages for the death of a person caused by the willful act or
omission or gross negligence of a

corporation or company;"

and

concluding that the rule in Texas is that "the right to maintain an
action for the recovery of exemplary damages for the death of a
person caused by the willful act, omission, or gross neglect of a
corporation or company, etc., is confined to the class of persons
who, by the terms of the constitution, are designated as entitled
to maintain such action; namely, the surviving husband or wife, or
heirs of the body, of the deceased, and not to the parent.").
The cases cited in the Plaintiff's Motion to Remand do not
hold otherwise.

Two of those cases,

Cowen and Callis,

claims brought by widows and surviving children.

involved

See Cowen,

901

F. Supp. at 1205 ("Plaintiffs, the surviving spouse and children of

Thomas J. Cowen.

. deceased.

."); Callis, 932 F. Supp. at 169

-10-

("Plaintiffs,

Callis's surviving wife and children.

•

II )

The

•

other two cases on which plaintiff relies, Wyble and Smith, neither
identify the relationship between the plaintiffs and the decedents,
nor expand

§

408.001(b) 's reach beyond "surviving spouses"

"heirs of the body."
Workers'

and

See Wyble, 17 F. Supp. 2d at 644 ("The [Texas

Compensation

Act]

TWCA

specifically

provides

for

a

surviving spouse or heir's cause of action against an employer
whose gross negligence or intentional act causes the employee's
death.")

(citing Smith, 927 S.W.2d at 88 ("We hold as a matter of

law the cause of action for exemplary damages provided for in
section 408.001 (b)

of the Labor Code is still viable,

and the

surviving family is entitled to seek exemplary damages for the
death of an employee caused by the employer's gross negligence or
intentional act.").
Because Plaintiff's Original Petition alleges that he is the
decedent's father, and because the section of the Texas Labor Code
that

plaintiff

argues

allows

him

to

assert

claims

for

gross

negligence and exemplary damages against his son's employer, Elite
Specialty,

does not apply to parents of the deceased employee,

there is no reasonable possibility that plaintiff will be able to
establish

a

Accordingly,

claim

against

Elite

the court concludes

Specialty

in

state

that plaintiff has

court.

improperly

joined Elite Specialty as a defendant in this action and that Elite
Specialty's presence does not destroy diversity jurisdiction.

-11-

III.

Conclusions

For the reasons explained in
that

PCA

has

carried

jurisdiction exists,

its

and

II, above, the court concludes

§

burden

that

of

this

proving

case was

that

diversity

properly removed.

Accordingly, Plaintiff's Motion to Remand Based on Improper Removal
by Packaging Corp. of America, Inc.

(Docket Entry No. 9) is DENIED.

The Joint Discovery/Case Management Plan is due August 29,
2017, and the initial pretrial and scheduling conference will be
held on Friday, September 8, 2017, at 2:00p.m., in Courtroom 9-B,
9th Floor,

United States Courthouse,

515 Rusk Avenue,

Houston,

Texas 77002.
SIGNED at Houston, Texas, on this 14th day of August, 2017.

UNITED STATES DISTRICT JUDGE

-12-