Justo Ramos, et al v. Roberto Nunez Beltran, et al

Filing 24

ORDER GRANTING 10 Motion for Leave to Designate Responsible Third Parties; MOOTING 11 Motion for Leave to File. Signed by Judge Robert Pitman. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JUSTO ISABEL RAMOS and JOSE
ROBERTO CAPETILLO,
Plaintiffs,
v.
ROBERTO NUNEZ BELTRAN and
JOSE VERDIN,
Defendants.

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5:15-CV-1042-RP

ORDER
Before the Court is the above-entitled action. On September 23, 2016, Defendants filed a
Motion for Leave to Designate Responsible Third Parties. (Dkt. 10). Having reviewed all related
pleadings, the relevant law, and the factual record, the Court hereby GRANTS Defendants’ motion.
I. Background
The instant action arises from a motor vehicle collision. (Pls.’ Original Pet., Dkt. 1-3, at 2).
Plaintiffs brought suit in September of 2015. (Id. at 1; Defs.’ Notice Removal, Dkt. 1, at 1).
Defendants removed the action to federal court in November of 2015.
Defendants filed the instant motion on September 23, 2016, alleging that Plaintiffs were
employed by G&F Oilfield Services (“G&F”); that Plaintiffs were acting in the course and scope of
that employment when the accident in question occurred; and that Plaintiff Capetillo was charged
with driving while intoxicated prior to seeking work with G&F. (Defs.’ Mot. Leave Designate, Dkt.
10, at 1–2). The motion also alleges that Defendant Beltran, who was operating Defendant Verdin’s
tractor at the time of the accident, was forced into the oncoming lane by a passing water pipe truck.
(Id. at 2–3). As such, the motion seeks leave to designate both G&F and the unidentified driver of
the water pipe truck (“Driver”) as responsible third parties.
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Plaintiffs filed their Response to Defendants’ motion on October 13, 2016, (Dkt. 12),
exceeding both the fifteen-day deadline provided in the Texas Civil Practice & Remedies Code and
the seven-day deadline provided by Local Rule CV-7(e)(2). Tex. Civ. Prac. & Rem. Code §33.004(f);
W.D. Tex. Local Rule CV-7(e)(2). 1 In their Response, Plaintiffs argue that Plaintiff Capetillo had a
valid license on the date of the accident; that the previous suspension of Mr. Capetillo’s license is
factually irrelevant to the current suit and that granting leave to designate G&F as a responsible third
party would therefore be “frivolous”; that Defendants failed to provide more than a scintilla of
evidence that the potential third party Driver existed; and that designating the Driver as a
responsible third party would be “confusing.” (Pls.’ Resp., Dkt. 12, at 3–6).
II. Standard of Review
Defendants removed this action to federal court alleging jurisdiction based on diversity of
citizenship. (Defs.’ Notice Removal, Dkt. 1, ¶ 7). In diversity cases, courts apply federal procedural
and evidentiary rules and the substantive laws of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938). Federal district courts sitting in Texas have repeatedly held that § 33.004 of the Texas
Civil Practice and Remedies Code is substantive law. See, e.g., Withers v. Schneider Nat’l Carriers, Inc.,
13 F.Supp.3d 686 (E.D. Tex. 2014); Viceroy Petroleum, LP v. Tadlock Pipe & Rentals, Inc., No. 5:14-CV6-DAE, 2014 WL 5488422, at *3 (W.D. Tex. 2014).
Pursuant to Texas Civil Practice and Remedies Code § 33.004(a), “a defendant may seek to
designate a person as a responsible third party by filing a motion for leave to designate . . . on or
before the 60th day before the trial date unless the court finds good cause to allow the motion to be
filed at a later date.” Tex. Civ. Prac. & Rem. Code § 33.004(a). The Court then “shall grant leave to
designate the named person as a responsible third party unless another party files an objection to the
motion for leave on or before the 15th day after the motion is served.” Id. § 33.004(f). However, if
On the same day Plaintiffs filed their Response, Defendants filed a motion urging the Court to grant their requested
relief pursuant to § 33.004(f) of Texas’s Civil Practice and Remedies Code. (Defs.’ Mot. Enter Order, Dkt. 11).

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an objection to the motion for leave is timely filed, the court may deny leave to designate the
proposed responsible third parties if the objecting party establishes that the defendant did not plead
sufficient facts concerning the alleged responsibility of the party to satisfy the pleading requirements
of the Texas Rules of Civil Procedure. Id. § 33.004(g).
II. Discussion
As Defendants note in their Motion to Enter Order, (Dkt. 11), Plaintiffs did not respond to
Defendants’ Motion for Leave to Designate until well after the fifteen-day deadline provided by
§ 33.004(f). As such, Defendants’ Motion for Leave to Designate must be granted. The Court notes,
however, that Plaintiffs also failed to meet the standards of § 33.004(g). Plaintiffs argued that
granting Defendants’ Motion for Leave to Designate would be “frivolous” or “confusing,” not that
Defendants did not plead sufficient facts concerning the alleged responsibility of the party to satisfy
the pleading requirements of the Texas Rule of Civil Procedure.
IV. Conclusion
For the reasons stated herein, the Court hereby GRANTS Defendants’ Motion for Leave to
Designate, (Dkt. 10). As such, IT IS HEREBY ORDERED that Defendants’ Motion to Enter
Order, (Dkt. 11), is deemed MOOT.

SIGNED on December 20, 2016.

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ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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