Canales v. Stryker Corp. et al

Filing 19

ORDER DENYING 10 Motion to Remand to State Court. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DOLORES CANALES,
Plaintiff,
v.
DURENE MICHAUX, STRYKER
CORP., STRYKER SALES CORP., and
ZIMMER US, INC.,
Defendants.

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1:18-CV-507-RP

ORDER
Before the Court is Plaintiff Dolores Canales’s (“Canales”) Motion to Remand, (Dkt. 10),
and the response filed by Defendants Durene Michaux (“Michaux”), Stryker Corporation and
Stryker Sales Corporation (together, “Stryker”), and Zimmer US, Inc. (“Zimmer”) (collectively,
“Defendants”), (Dkt. 12). Having considered the parties’ submissions, the record, and the applicable
law, the Court will deny Canales’s motion.
I. BACKGROUND
Canales filed this action in the 419th Judicial District Court of Travis County, Texas on May
24, 2018. (Orig. Pet., Dkt. 1-1). Canales alleges that she was injured during a spinal surgery when the
surgeon tried to cut one of Stryker’s 1 rods with one of Zimmer’s cutters; the cutter shattered and
Canales was paralyzed. (Id. at 4). Michaux is a Stryker sales representative who was allegedly present
for the surgery. (Id.). Canales asserts a negligence claims against Michaux for (1) failing to ensure that
the appropriate instruments were used during the surgery and (2) failing to warn the surgeon about
using the Zimmer cutter. (Id. at 5). Defendants removed the case to this Court on June 18, 2018, on
the basis of this Court’s diversity jurisdiction. (Not. Removal, Dkt. 1, at 2–5).

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Stryker contends that it is not a proper defendant. (Resp. Mot. Remand, Dkt. 12, at 1 n.1).

Michaux is a Texas resident; she is the only defendant who is a Texas citizen for
jurisdictional purposes. (Orig. Pet., Dkt. 1-1, at 3; Not. Removal, Dkt. 1, at 3). 2 Canales seeks
remand under 28 U.S.C. § 1441(b)(2), which bars removal if any properly served defendant is a
citizen of the state in which the action is brought. (Mot. Remand, Dkt. 10, at 2). Defendants oppose
remand because they believe Michaux is improperly joined, rendering her citizenship irrelevant for
jurisdictional purposes. (Not. Removal, Dkt. 1, at 5–6; Resp. Mot. Remand, Dkt. 12). The only
question, therefore, is whether Michaux was properly joined as a defendant. The Court agrees with
Defendants that Michaux is improperly joined.
II. LEGAL STANDARDS
“[T]he improper joinder doctrine constitutes a narrow exception to the rule of complete
diversity.” Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011). To establish
improper joinder, the removing party has the “heavy” burden, id., to demonstrate either: “(1) actual
fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of
action against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573
(5th Cir. 2004). Only the doctrine’s second prong is before the Court here. (Not. Removal, Dkt. 1, at
5–6; Resp. Mot. Remand, Dkt. 12).
Under the second prong of the improper joinder doctrine, a defendant must establish “that
there is no possibility of recovery by the plaintiff against an in-state defendant,” which means “that
there is no reasonable basis for the district court to predict that the plaintiff might be able to recover
against an in-state defendant.” Smallwood, 385 F.3d at 573. A court evaluates the reasonable basis of
recovery under state law by “conduct[ing] a Rule 12(b)(6)-type analysis” or “pierc[ing] the pleadings

A defendant may remove any civil action from state court to a district court of the United States that has original
jurisdiction. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions that are between citizens
of different states and involve an amount in controversy in excess of $75,000, exclusive of interest and costs. 28 U.S.C. §
1332(a). Diversity jurisdiction “requires complete diversity— if any plaintiff is a citizen of the same State as any
defendant, then diversity jurisdiction does not exist.” Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016). No party
disputes that this Court has diversity jurisdiction if Michaux’s citizenship is not considered.

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and conduct[ing] a summary inquiry.” Id.; see also Int’l Energy Ventures Mgmt., L.L.C. v. United Energy
Grp., Ltd., 818 F.3d 193, 207 (5th Cir. 2016) (stating that a court may use either analysis, but it must
use one and only one). The Court agrees with Defendants that a Rule 12(b)(6)-type analysis is
appropriate here. (See Resp. Mot. Remand, Dkt. 12, at 10) (arguing that Canales’s petition fails to
state a claim against Michaux).
In conducting a 12(b)(6)-type analysis, federal pleading standards apply. Int’l Energy Ventures,
818 F.3d at 207. Accordingly, a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although “detailed factual allegations” are not necessary, a plaintiff must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. The statements in the complaint must be sufficiently detailed to “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id.
The party seeking removal “bears the burden of establishing that federal jurisdiction exists
and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002). The removal statute must “be strictly construed, and any doubt about the propriety of
removal must be resolved in favor of remand.” Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278,
281–82 (5th Cir. 2007); see also Hood ex rel. Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 84 (5th
Cir. 2013) (“Any ambiguities are construed against removal and in favor of remand to state court.”).
A district court must remand a case to state court if, at any time before final judgment, it determines
that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c).

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III. DISCUSSION
Defendants argue that Canales fails to state a claim against Michaux because Michaux owed
no duty to Canales. (Resp. Mot. Remand, Dkt. 12, at 5–9). “[A] negligence finding against an
individual does not automatically result in individual liability when the individual was acting as the
agent or employee of a corporation.” Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005). In such cases,
“individual liability arises only when the officer or agent owes an independent duty of reasonable
care to the injured party apart from the employer’s duty.” Leitch v. Hornsby, 935 S.W.2d 114, 117
(Tex. 1996). There is no dispute that Michaux was acting as a Stryker employee during the surgery.
(Orig. Pet., Dkt. 1-1, ¶ 23). The question, therefore, is whether she owed Canales an independent
duty of care apart from Stryker’s. “The existence of a legal duty is a question of law for the court to
decide, and that determination is made from the facts surrounding the occurrence in question.” Tri,
162 S.W.3d at 563 (quotation marks and citation omitted).
Canales alleges that Michaux “undertook duties to [Canales] when she participated in
[Canales’s] surgery and breached these duties when she failed to ensure that the surgeon used
appropriate instruments as part of [Canales’s] surgery and failed to warn the surgeon about using
[Zimmer’s] surgical rod cutter during the procedure.” (Mot. Remand, Dkt. 10, at 4). Even as Canales
conceptualizes it, Michaux’s duty arises out of her status as a Stryker employee. Canales does not
argue that Michaux would have had a duty to warn the surgeon about the instruments used if she
had been a private person unaffiliated with either Stryker or Zimmer. And sensibly so; if there were
surgical attendants present during Canales’s procedure, the Court has been shown no authority that
would impose on them a duty to warn the surgeon about the risks associated with a particular
manufacturer’s product. See Firestone Steel Products Co. v. Barajas, 927 S.W.2d 608, 615 (Tex. 1996)
(finding that a party who did not design, manufacture, or sell the product in question had no duty to
the complainant). By contrast, an employee who causes an accident may be held individually liable
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along with his or her employer because the employee “owes a duty of reasonable care to the general
public regardless of whether the auto accident occurs while driving for the employer.” Leitch, 935
S.W.2d at 117. For this reason, courts have repeatedly held that sales representatives are improperly
joined when plaintiffs assert failure-to-warn claims against them. See Walton v. 3M Co., No. CIV.A.
H-13-1164, 2013 WL 3816600, at *2 (S.D. Tex. July 22, 2013) (holding that the sales representative
“did not have an independent duty to warn” and finding that the sales representative was improperly
joined); Morrow v. Wyeth, No. CIV.A. B-05-209, 2005 WL 2621555, at *4 (S.D. Tex. Oct. 13, 2005)
(finding that defendant sales representatives “had no duties separate from those of the Corporate
Defendants and therefore cannot be liable for negligence or for failure to warn,” and remanding for
improper joinder). Michaux had no duty to Canales separate from Stryker’s. She therefore cannot be
held liable for negligence based on a failure to warn. See Centeq Realty, Inc. v. Segler, 899 S.W.2d 195,
197 (Tex. 1995) (“The plaintiff must establish both the existence and the violation of a duty owed to
the plaintiff by the defendant to establish liability in tort.”). Accordingly, Canales fails to state a claim
for relief against Michaux, who is improperly joined. Disregarding her citizenship, the Court finds
that it has jurisdiction over this action and that remand is improper.
IV. CONCLUSION
For these reasons, IT IS ORDERED that Plaintiffs’ Motion for Remand, (Dkt. 10), is
DENIED.
SIGNED on September 21, 2018.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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