Gooch v. Packaging Corp. of America, Inc. et al
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
August 14, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
JOE GOOCH, Individually and
as Personal Representative
of the ESTATE OF JODY LYNN
PACKAGING CORP. OF AMERICA,
INC. and ELITE SPECIALTY
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1673
MEMORANDUM OPINION AND ORDER
On June 5, 2017, defendant, Packaging Corporation of America,
removed this action from the 129th Judicial District
Court of Harris County,
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
Entry No. 9).
("Plaintiff's Motion to Remand,
Plaintiff's Motion to Remand
( "PCA' s
Docket Entry No.
Inc.'s Opposition to
Defendant Elite Specialty Welding,
After considering the Plaintiff's Motion to Remand,
Defendant Packaging Corporation of America,
LLC's Opposition to
the state court pleadings,
law, the court concludes that Plaintiff's Motion to Remand should
Factual and Procedural Background
background of this case as follows:
12. An explosion occurred at approximately 11 am CST on
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.
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
Plaintiff is the father of the decedent, Jody Lynn Gooch. 2
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  .").
On April 25, 2017, plaintiff filed an action in state court
individually and as
Estate of Jody Lynn
PCA and Elite Specialty Welding,
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 ,
14 4 6 .
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
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
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
alleges that when Jody Lynn Gooch died he was "working for Elite
" [u] nder
Plaintiff's Original Petition, Exhibit 3
Removal, Docket Entry No. 1-3, pp. 5-7 ~~ 15-29.
Notice of Removal, Docket Entry No. 1, p. 2
Id. a t 3
Id. at 3
Id. at 4 ~ 14.a (citing Plaintiff's Original Petition, Docket
Entry No. 1-3 at 4 ~ 12).
compensation is the exclusive remedy available to an employee or
legal beneficiary against
the employer or an agent of
employer for an employee's death or work-related injury." 8
Smallwood v. Illinois Central R. Co., 385 F.3d 568, 573 (5th Cir.
(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
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
[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
Plaintiff's Motion and remand this case to Texas State
Court . 10
Citing Texas Labor Code
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")
Notice of Removal, Docket Entry No. 1, p. 4
Plaintiff's Motion to Remand, Docket Entry No.
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
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,
claims against Elite Specialty constitute improper joinder;
. without Elite Specialty,
this case is properly removed." 12
PCA explains that
Plaintiff's Motion is fundamentally flawed and should be
among other things,
misapplied§ 408.00l(b) to his case.
"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
[A] s Plaintiff is unable to avoid the
Id. at 4.
PCA's Opposition, Docket Entry No. 10, pp. 1-2.
exclusivity of worker's compensation .
. he has no
claim against Elite Specialty to be determined by any
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
plaintiff's motion to remand joining PCA's opposition. 14
A defendant has the right to remove a case to federal court
See Manguno v. Prudential Property and Casualty
Insurance Co., 276 F.3d 720, 723 (5th Cir. 2002)
(citing 28 U.S.C.
The removing party bears the burden of establishing that
determine whether there is removal jurisdiction, the claims in the
state court petition are considered as they existed at the time of
(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.
jurisdiction based on
diversity of citizenship "where the matter in controversy exceeds
Elite Specialty's Opposition, Docket Entry No. 11.
the sum or value of $75,000, exclusive of interest and costs, and
1332 (a) (1) .
there must be complete
Mississippi Power Co., 376 F. 3d 344, 353
(5th Cir. 2004)
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."'
(quoting Harrison v. Prather, 404 F.2d
267, 272 (5th Cir. 1968)).
There is no dispute that the matter in
the value of
$75, 000, 15
diversity exists between the plaintiff and PCA,
or that Elite
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.
. ") .
Id. at 2 ~ 3 ("Defendant
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.").
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 ) . " ) .
The Fifth Circuit has recognized two ways for the removing
party to establish improper joinder for the purpose of defeating
(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
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."
if a plaintiff can survive a Rule 12(b) (6) challenge, there is no
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.
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
Plaintiff's Motion to Remand, Docket Entry No. 9, p. 1.
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).
Plaintiff argues that the claims he
Elite Specialty are not
§ 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."
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
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
Id. at 4-6.
See Cooper Industries LLC v. American International
Specialty Lines Insurance Co., 350 F. App'x 876, 877-78 (5th Cir.
("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;"
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
Two of those cases,
Cowen and Callis,
claims brought by widows and surviving children.
F. Supp. at 1205 ("Plaintiffs, the surviving spouse and children of
Thomas J. Cowen.
."); Callis, 932 F. Supp. at 169
Callis's surviving wife and children.
other two cases on which plaintiff relies, Wyble and Smith, neither
identify the relationship between the plaintiffs and the decedents,
408.001(b) 's reach beyond "surviving spouses"
"heirs of the body."
See Wyble, 17 F. Supp. 2d at 644 ("The [Texas
surviving spouse or heir's cause of action against an employer
whose gross negligence or intentional act causes the employee's
(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,
surviving family is entitled to seek exemplary damages for the
death of an employee caused by the employer's gross negligence or
Because Plaintiff's Original Petition alleges that he is the
decedent's father, and because the section of the Texas Labor Code
negligence and exemplary damages against his son's employer, Elite
does not apply to parents of the deceased employee,
there is no reasonable possibility that plaintiff will be able to
the court concludes
that plaintiff has
joined Elite Specialty as a defendant in this action and that Elite
Specialty's presence does not destroy diversity jurisdiction.
For the reasons explained in
II, above, the court concludes
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,
United States Courthouse,
515 Rusk Avenue,
SIGNED at Houston, Texas, on this 14th day of August, 2017.
UNITED STATES DISTRICT JUDGE
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