Martinez v. Top Builder Corp., et al.
Filing
58
MEMORANDUM AND OPINION GRANTING MOTION TO REMAND granting 41 First MOTION to Remand. Case terminated on 07/27/2020. This case is remanded to the 157th Judicial District Court of Harris County, Texas.(Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)
Case 4:18-cv-01069 Document 58 Filed on 07/27/20 in TXSD Page 1 of 3
United States District Court
Southern District of Texas
ENTERED
July 27, 2020
David J. Bradley, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRENDA MARTINEZ,
Plaintiff,
vs.
TOPBUILD CORP et al,
Defendants.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO.
4:18-CV-01069
JUDGE CHARLES ESKRIDGE
MEMORANDUM AND OPINION
GRANTING MOTION TO REMAND
The motion to remand filed by Plaintiff Brenda Martinez is
granted. Dkt 41.
Martinez originally filed this wrongful death action in state
court against Defendants Top Builder Corp and Builder Services
Group Inc. Dkt 1-1. Martinez is a resident of Harris County,
Texas. Top Builder and Builder Services are Florida corporations
with principal places of business in Florida. They removed the
action based on diversity in April 2018. Dkt 1.
The procedural history of this case after removal is
somewhat unusual. Martinez filed a first amended petition in
July 2018. Dkt 4. She then filed a motion for leave to file a second
amended complaint in October 2018. Dkt 12. She there sought
to add Talasek Builders as a defendant. Neither Top Builder nor
Builder Services filed a response or otherwise opposed the
motion. Martinez then filed her second amended complaint in
May 2019 before receiving a ruling on her motion. Dkt 16. She
there identified Talasek as a company incorporated and doing
business in Texas. Id at 2. Top Builder and Builder Services again
did not oppose or move to strike the amended complaint. They
instead filed answers. Dkts 20, 23. Martinez then filed a third
Case 4:18-cv-01069 Document 58 Filed on 07/27/20 in TXSD Page 2 of 3
amended complaint in October 2019 without first seeking leave
to amend. Dkt 27.
This case was then reassigned to this Court. Dkt 29. At a
status conference in December 2019, the parties advised that
Martinez filed the third amended complaint with the consent of
all Defendants, including Talasek. The Court accepted the filing
of the second and third amended complaints based on the lack
of opposition and consent of the parties.
Martinez now seeks remand because the addition of Talasek
destroyed complete diversity. Dkt 41. The plain language of 28
USC § 1447(e) requires remand. It provides, “If after removal the
plaintiff seeks to join additional defendants whose joinder would
destroy subject matter jurisdiction, the court may deny joinder,
or permit joinder and remand the action to the State court.”
Having already permitted the joinder of a nondiverse defendant,
the Court no longer has subject-matter jurisdiction. The only
option is remand. Cobb v Delta Exports, Inc, 186 F3d 675, 677 (5th
Cir 1999).
Talasek has also filed a motion to dismiss Dkt 48. Top
Builder, Builder Services, and Talasek jointly urge the Court to
apply an improper-joinder analysis to determine whether
Martinez has asserted a valid claim against Talasek. See generally,
Dkt 49. But the Fifth Circuit holds, “The fraudulent joinder
doctrine does not apply to joinders that occur after an action is
removed.” Id at 678 (emphasis in original). The Cobb court
reasoned that, when a nondiverse defendant is named in an
original state court action to prevent removal, the diverse
defendant has no opportunity to contest joinder before it occurs
and must rely upon the fraudulent-joinder doctrine. A diverse
defendant by contrast can argue that a post-removal joinder is
improper before the court grants the plaintiff leave to amend. Ibid;
see also Cormier v Wal-Mart Stores, Inc, 2012 WL 394300, *2 (WD
La) (remanding and declining to conduct fraudulent-joinder
analysis where defendants didn’t oppose amendment adding
nondiverse party).
Top Builder and Builder Services had an opportunity to
contest joinder before it occurred. They didn’t. They failed to
oppose the attempt by Martinez to file her second amended
2
Case 4:18-cv-01069 Document 58 Filed on 07/27/20 in TXSD Page 3 of 3
complaint. And they flatly consented to the filing of the third
amended complaint—as did Talasek. It was not until Martinez
moved to remand for lack of complete diversity that they have all
now raised untimely objection to the amendments.
Talasek has already been joined to this action. Its presence
destroys subject-matter jurisdiction. Remand is required pursuant
to 28 USC § 1447(e).
The motion to remand is GRANTED.
This case is REMANDED to the 157th Judicial District Court
of Harris County, Texas.
The Clerk is ORDERED to provide a copy of this Order to
the District Clerk of the Harris County District Court.
SO ORDERED.
Signed on July 27, 2020, at Houston, Texas.
Hon. Charles Eskridge
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?