Mesina v. Walgreen's

Filing 9

ORDER DENYING 8 Motion for leave to designate responsible third party. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARIA MESINA,
Plaintiff,
vs.
WALGREEN’S,
Defendant.

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No. SA:15–CV–054–DAE

ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE
RESPONSIBLE THRID PARTY
Before the Court is a Motion for Leave to Designate Responsible
Third Party filed by Defendant Walgreen Co. (“Defendant”). (Dkt. # 8.) Pursuant
to Local Rule CV-7(h), the Court finds this matter suitable for disposition without
a hearing. After reviewing the Motion, for the reasons that follow, the Court
DENIES Defendant’s Motion for Leave to Designate Responsible Third Party.
(Dkt. # 8.)
BACKGROUND
Plaintiff Maria Mesina’s (“Plaintiff”) Original Complaint alleges that
on or about March 6, 2014, she was shopping at the Walgreen’s store located at
1581 Austin Highway in San Antonio, Texas, when an unidentified African
American assailant entered the store and attempted to grab Plaintiff’s purse. (Dkt.
# 1-1 ¶ 7.) Plaintiff states that she then fell to the ground clutching her purse, and
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that the assailant proceeded to jump on top of her and strike her several times.
(Id.) Plaintiff alleges that the contents of her purse spilled onto the floor, and that
the assailant grabbed $300.00 in cash and fled the store. (Id.)
Plaintiff filed her Original Complaint in the 225th Judicial District
Court of Bexar County, Texas on December 12, 2014. (Dkt. # 1-1.) On
January 23, 2015, Defendant filed its Notice of Removal, invoking this Court’s
diversity jurisdiction. (Dkt. # 1.) On January 26, 2015, Defendant filed an
Original Answer. (Dkt. # 2.) On April 27, 2015, Defendant filed the instant
Motion for Leave to Designate Responsible Third Party, seeking to leave to
designate the unknown “John Doe” assailant as a responsible third party in this
action. (Dkt. # 8.) On the same day, Defendant filed an Amended Answer. (Dkt.
# 7.) Plaintiff did not file a response to Defendant’s Motion.
DISCUSSION
Defendant seeks leave to designate the unknown John Doe assailant as
a responsible third party in this action. (Dkt. # 8 at 1.) Texas Civil Practice and
Remedies Code § 33.004 is part of the proportionate responsibility statute that
governs the allocation of responsibility in tort cases under Texas law. See Tex.
Civ. Prac. & Rem. Code §§ 33.001–33.004. The statute permits a trier of fact,
when apportioning liability, to consider the relative fault of the defendants as

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compared to other responsible third parties that are not party to the suit. 1 See Tex.
Civ. Prac. & Rem. Code § 33.003(a); JCW Electronics, Inc. v. Garza, 257 S.W.3d
701, 702 (Tex. 2008). A person designated as a responsible third party faces no
liability based on a finding of fault; the sole purpose of designation is to properly
assess the liability of the plaintiffs and defendants. See Tex. Civ. Prac. & Rem.
Code § 33.004(i).
Section 33.011(6) defines a responsible third party as:
[A]ny person who is alleged to have caused or contributed to causing
in any way the harm for which recovery of damages is sought,
whether by negligent act or omission, by any defective or
unreasonably dangerous product, by other conduct or activity that
violates an applicable legal standard, or by any combination of these.
Tex. Civ. Prac. & Rem. Code § 33.011(6). If, within sixty days of filing the
defendant’s original answer, the defendant alleges in an answer filed with the court

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Because a finding of fault against a person designated as a responsible third party
does not impose liability on that person and cannot be used in any other proceeding
as a basis to impose liability, the statute is not a joinder statute and does not
conflict with any procedural mechanisms that would join a party to a suit in federal
court. E.g., Sulak v. Am. Eurocopter Corp., 901 F. Supp. 2d 834, 840–41 (N.D.
Tex. 2012) (distinguishing designation of responsible third parties under § 33.004,
which determines liability as “a substantive question based on the facts the
applicable law” from impleading a third-party defendant, which is a “pure
procedural inquiry” that mandates the application of federal procedural rules).
Accordingly, state law properly governs the designation of responsible third parties
in this diversity action. E.g., Withers v. Schneider, 13 F. Supp. 3d 686, 688 (E.D.
Tex. 2014) (holding that Ҥ 33.004 exists to allow proper allocation of fault among
both the named defendants and those persons designated as responsible third
parties, rather than to govern the procedures by which third-parties may be brought
into the case as Rule 14 does”).
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that an unknown person committed a criminal act that was a cause of the loss or
injury that is the subject of the lawsuit, the court must grant the defendant’s motion
for leave to designate that individual as a responsible third party if:
(1) the court determines that the defendant has pleaded facts sufficient
for the court to determine that there is a reasonable probability that the
act of the unknown person was criminal;
(2) the defendant has stated in the answer all identifying
characteristics of the unknown person, known at the time of the
answer; and
(3) the allegation satisfies the pleading requirements of the Texas
Rules of Civil Procedure.
Id. § 33.004(j). Section 33.004(j) sets forth the “sole avenue for designating
unknown third parties.” Estate of Figueroa v. Williams, No. V-05-56, 2007 WL
2127168, at *2 (S.D. Tex. July 23, 2007); see also In re Unitec Elevator Servs. Co.,
178 S.W.3d 53, 61 (Tex. App. 2005). The designation of an unknown third party
must satisfy the enumerated requirements of § 33.004(j) even absent an objection.
Fisher v. Halliburton, Nos. H-05-1731, H-06-1168, H-061971, 2009 WL 1098457,
at *5 (S.D. Tex. Apr. 23, 2009).
Defendant argues that it has met each of the requirements of
§ 33.004(j), and that the Court must consequently grant its Motion to designate the
unknown John Doe as a responsible third party. (Dkt. # 8 at 2.) However, the
Court notes that Defendant’s Motion relies on information included in its Amended
Answer, which was filed more than sixty days after its Original Answer. Although
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Defendant admitted in its Original Answer that an unknown assailant approached
Plaintiff and took money from her purse, its allegation that John Doe committed a
criminal act that was the cause of Plaintiff’s injury is included only in Defendant’s
Amended Answer. Furthermore, Defendant’s Original Answer contains no
description of John Doe; again, that information is included only in the Amended
Answer.
As explained above, § 33.004(j) requires that the necessary
information be pled in an answer filed with the court within sixty days after the
defendant files its original answer. In re Unitec, 178 S.W.3d at 61 (“[W]e find that
the statute clearly and unambiguously requires a defendant seeking to designate an
unknown person as a responsible third party, based on the person’s commission of
criminal acts causing the loss or injury that is the subject of the lawsuit, to file an
answer containing such allegations no later than sixty days from filing its original
answer.”). Defendant filed its Original Answer on January 26, 2015. (Dkt. # 2.)
Thus, Defendant was required to file an answer containing the requisite allegations
by March 27, 2015. Defendant filed its Amended Answer on April 27, 2015.
(Dkt. # 7.) Because Defendant failed to file an answer containing the requisite
allegations within sixty days after filing its Original Answer, the Court finds that
Defendant is precluded from designating John Doe as a responsible third party.
See id. (finding that defendants were precluded from designating unknown vandals
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as responsible third parties because they did not file an answer containing the
required allegations until well after sixty days after filing their original answer).
CONCLUSION
For the reasons stated above, the Court hereby DENIES Defendant’s
Motion for Leave to Designate Responsible Third Party. (Dkt. # 8.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, May 7, 2015.

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David Alan Ezra
Senior United States Distict Judge

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