Isabel Riso, et.al. v. KLX Energy Services, et.al.
Filing
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ORDER GRANTING 4 Motion to Remand to back to State Court (218th District Court, Atascosa County, Texas.Signed by Judge David A. Ezra. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ISABEL RISO and JOSE ROCHA,
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Plaintiffs,
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v.
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COREY LEE BOYCE and KLX
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ENERGY SERVICES, LLC F/K/A
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BEA LOGISTICS SERVICES, LLC, §
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Defendants.
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________________________________ §
CV NO. 5:15-cv-227-DAE
ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND
Before the Court is a Motion for Remand filed by Plaintiffs Isabel
Riso, individually, and Jose Rocha, individually (collectively, “Plaintiffs”). (Dkt.
# 4.) Pursuant to Local Rule 7(h), the Court finds this matter suitable for
disposition without a hearing. For the reasons that follow, the Court GRANTS
Plaintiffs’ Motion to Remand (Dkt. # 4).
BACKGROUND
On or about March 28, 2014, Plaintiffs were involved in a vehicular
accident allegedly caused by Defendant Corey L. Boyce (“Boyce”). (Dkt. # 1-3 at
5.) Defendant KLX Energy Services, LLC (“KLX”) was Boyce’s employer, as
well as the owner of the vehicle driven by Boyce, at the time of the incident. (Id.)
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On February 18, 2015, Plaintiffs filed a petition in state court, alleging
negligence claims against Boyce and KLX (collectively, “Defendants”). (Id. at 4.)
Plaintiffs seek compensatory damages for medical care, loss of earning capacity,
and physical pain, suffering, and disfigurement. (Id. at 5.) On February 24, 2015,
KLX was served via certified mail (id. at 1), and on March 13, 2015, KLX filed its
answer (Dkt. # 1-4). On March 6, 2015, Boyce was served via personal delivery.
(Dkt. # 4-1 at 4.) Boyce has yet to file an answer to the Petition.
On March 24, 2015, Defendant KLX removed the action to federal
court, invoking the Court’s diversity jurisdiction. (Dkt. # 1 at 1–2.) On April 23,
2015, Plaintiffs filed the instant Motion to Remand. (Dkt. # 4.) On May 4, 2015,
the Court granted KLX an extension of time to file its response to Plaintiff’s
Motion to Remand, and ordered that a response be submitted no later than May 29,
2015. Defendants have thus far failed to respond.
LEGAL STANDARD
“It is axiomatic that the federal courts have limited subject matter
jurisdiction and cannot entertain cases unless authorized by the Constitution and
legislation.” Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). Accordingly, a
defendant may only remove a case over which the district court has original
jurisdiction, either because of diversity of citizenship or the existence of a federal
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question. 28 U.S.C. § 1441(a); Halmekangas v. State Farm Fire & Cas. Co., 603
F.3d 290, 295 (5th Cir. 2010).
On a motion to remand, the removing party bears the burden of
establishing that one of these bases of jurisdiction exists and that the removal was
not procedurally defective. BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466,
470 (5th Cir. 2012); Shearer v. Sw. Serv. Life Ins. Co., 516 F.3d 276, 278 (5th Cir.
2008). Diversity jurisdiction exists where the amount in controversy exceeds
$75,000 and there is complete diversity of citizenship between the parties. 28
U.S.C. § 1332(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008).
Because removal jurisdiction implicates federalism concerns, “[a]ny
doubts regarding whether removal jurisdiction is proper should be resolved against
federal jurisdiction.” African Methodist Episcopal Church v. Lucien, 756 F.3d
788, 793 (5th Cir. 2014) (internal quotation marks omitted) (quoting Acuna v.
Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)); Frank v. Bear Stearns &
Co., 128 F.3d 919, 922 (5th Cir. 1997).
DISCUSSION
Plaintiffs argue that the Court must remand the case to state court for
two reasons: (1) the removal was procedurally defective because Boyce did not
consent to the removal, and (2) the Court lacks subject matter jurisdiction because
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there is no complete diversity between the parties. (Dkt. # 4 at 2.) Because
Defendants have failed to file a response, the Court has the authority to grant the
motion as unopposed. See W.D. Tex. Civ. R. 7(e)(2). However, in the interest of
thoroughness, the Court addresses Plaintiffs’ arguments.
I.
Whether Removal was Procedurally Defective
Consistent with 28 U.S.C. § 1446(b)(2)(A), the Fifth Circuit has held
that all properly joined and served defendants must either provide their signature in
the removal petition or timely file a written consent to the removal. Powers v.
United States, 783 F.3d 570, 576 (5th Cir. 2015). If such consent is not timely
obtained, the removal is procedurally defective and the case must be remanded
unless the party who failed to sign the Notice of Removal or file written consent is
a “nominal” party—a party who is neither necessary nor indispensable to proving
the cause of action. Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992); Farias v.
Bexar Cnty. Bd. of Trs. for Mental Health Mental Retardation Servs., 925 F.2d
866, 871 (5th Cir. 1991).
Here, Boyce did not join in the Notice of Removal. (Dkt. # 1.)
Although KLX alleges in its Notice of Removal that Boyce had not been served at
the time this case was removed, the record shows that Boyce was properly served
eighteen days prior to removal and was therefore subject to § 1446(b)(2)(A)’s
consent requirement. (Dkt. # 4-1, Ex. A at 4.) Nonetheless, neither Boyce nor an
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attorney acting on his behalf filed a written statement consenting to the removal.
(Dkt. # 1; Dkt. # 6.) Since Boyce is a necessary party to the suit, his failure to
consent renders the removal procedurally defective. 1
II.
Remand Based on Lack of Complete Diversity
In the alternative, Plaintiffs argue that the case should be remanded
because it lacks complete diversity. (Dkt. # 4.) It is undisputed that Plaintiffs are
citizens of Atascosa County, Texas (Dkt. # 1-3 at 4; Dkt. # 4 at 2), and that KLX is
a Delaware company and citizen of Florida (Dkt. # 1 ¶ 7). However, Plaintiffs and
KLX disagree as to the citizenship of Boyce. While Plaintiffs argue that Boyce is
a citizen of Washington County, Texas (Dkt. # 1-3 at 4; Dkt. # 4 at 2), KLX
contends Boyce is a citizen of Indiana County, Pennsylvania (Dkt. # 1 ¶ 7).
It is an established rule that diversity jurisdiction exists only where
there is complete diversity between the parties. Vaillancourt v. PNC Bank, N.A.,
771 F.3d 843, 847 (5th Cir. 2014). Furthermore, even where complete diversity
exists, “if any defendant is a citizen of the state in which the action is brought,” 28
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Plaintiffs’ cause of action arises out of the vehicular incident involving Plaintiffs
and Boyce. (Dkt. # 1-3 at 5.) Without Boyce—the alleged “direct tortfeasor”—
Plaintiffs would be unable to recover a full judgment. Evert v. Finn, No. CIV.A.
98-3293 N, 2000 WL 135847, at *5–7 (E.D. La. Feb. 4, 2000) (where the
defendant in question was necessary because the plaintiffs could not obtain a full
recovery in the event of his dismissal as a party to the suit). Accordingly, Boyce is
a necessary party.
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U.S.C. § 1441(b) forbids the removal of the case to federal court. Getty Oil Corp.,
841 F.2d at 1258.
For purposes of determining whether parties are diverse, a person’s
citizenship is generally synonymous with his domicile. Coury, 85 F.3d at 249.
Domicile is established as soon as it becomes evident that a party has a fixed
residence in a state and intends to remain there. Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989). The factors that courts consider when
determining a party’s domicile include “the places where the litigant exercises civil
and political rights, pays taxes, owns real and personal property, has driver’s and
other licenses, maintains bank accounts, belongs to clubs and churches, has places
of business or employment, and maintains a home for his family.” Coury, 85 F.3d
at 251.
All of the evidence available indicates that Boyce is domiciled in
Texas. Boyce’s certified record with the Texas Department of Public Safety lists
his address as 709 Sabine St., Brenham, Washington County, Texas (Dkt. # 4-3,
Ex. C at 2), the location where he received service of process for this suit (Dkt.
# 4-1, Ex. A at 4). Boyce’s Texas driver’s license (Dkt. # 4-2, Ex. B at 2), which
was first issued in 2012 and renewed on January 27, 2015 (Dkt. # 4-3, Ex. C at 2),
also lists the Brenham address as his place of residence. According to Washington
County tax records, Boyce’s family has resided in and paid taxes for the
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aforementioned property since 2012. (Dkt. # 4-4, Ex. D at 2–4.) KLX’s
conclusory allegation—unsupported by any evidence—that Boyce is a citizen of
Pennsylvania is insufficient to dispute the evidence. See Getty Oil Corp., 841
F.2d at 1259 (citing Ill. Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 (5th
Cir. 1983) (holding that jurisdiction must be based upon objective facts and not
“established argumentatively or by mere inference”)).
In sum, the evidence shows that Boyce has been continuously present
in Texas since at least 2012 and, given that presence and his familial and property
presence in the state, intends to remain in Texas indefinitely. For jurisdictional
purposes, Boyce was therefore a Texas citizen at the time the petition was filed in
state court and at the time of removal. See Dulfer v. Seton Healthcare, Inc., No. A11-CV-911-LY, 2012 WL 6212833, at *2 (W.D. Tex. Dec. 13, 2012) (finding that
the plaintiff was domiciled in Texas because, among other facts, she owned and
paid taxes on a Texas property, received her mail and correspondence at that
address, and maintained a Texas driver’s license); PaDRE Nterprises, Inc. v. Rhea,
No. 4:11-CV-674, 2012 WL 1072845, at *2 (E.D. Tex. Mar. 29, 2012) (finding
that the defendant was domiciled in Iowa where defendant possessed various Iowa
licenses, including a driver’s license issued in 2009 and not expiring until 2014).
Because KLX shares the same citizenship as Plaintiffs and is a citizen
of the state in which the case was filed, there is no complete diversity in this case.
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Accordingly, even if the removal had not been procedurally defective, remand is
nevertheless required because the Court lacks subject matter jurisdiction. See Jim
Hood ex rel. Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 92 (5th Cir. 2013)
(holding that defendants carried the burden of showing that subject matter
jurisdiction existed because removal statutes are interpreted as favoring remand).
CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to
Remand (Dkt. # 4) and REMANDS the case to state court.
IT IS SO ORDERED.
DATED: San Antonio, Texas, June 22, 2015.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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