United States District Court, S.D. Texas, Laredo Division.

DAVID SILVA, Plaintiff,

v.

SM3 LOGISTICS EXPRESS, SA DE CV, BENJAMIN CORTEZ VELEZ, and BONIFACIO VERASTEGUI MEZA, Defendants.

Civil No. 5:23-CV-00034

|

Filed 03/31/2024

ORDER GRANTING REMAND

Diana Song Quiroga United States Magistrate Judge

*1 The Court rules on Plaintiff Silva’s Motion to Remand, Dkt. No. 3, pursuant to the parties’ consent to proceed before a magistrate judge. Dkt. Nos. 7, 9. There is a reasonable basis to predict that Silva, a Texan, might be able to recover against Defendant Meza, his fellow Texan, in the Texas state courts: Silva’s claim in the alternative against Meza might be viable there, and those courts might allow Silva to proceed against Meza so long as Meza not raise the waiver and exclusivity provisions of the Texas Workers’ Compensation Act. Therefore, Meza’s joinder was proper and shall prevent the Court from exercising diversity jurisdiction of this negligence action. Silva’s Motion shall be granted, and this case remanded.

I. Background

This much is undisputed. See Pl.’s First Am. Original Pet. ¶¶ 7–21, Dkt. No. 1-2; Pl.’s Mot. Remand ¶ 3, Dkt. No. 3; Defs.’ Resp. Opp’n ¶ 1, Dkt. No. 4. At about 5:29 PM on March 16, 2022, a tractor-trailer and a Dodge Ram 5500 pickup truck collided in Laredo, Texas. The tractor-trailer was driven by Defendant Benjamin Cortez Velez (“Velez”), a citizen of Mexico, in the course and scope of his employment by Defendant SM3 Logistics Express, SA de CV (“SM3”), a Mexican corporation. The pickup truck was driven by Defendant Bonifacio Verastegui Meza (“Meza”), a citizen of Texas. Plaintiff David Silva (“Silva”), also a citizen of Texas, was in the passenger seat of the pickup truck. Silva and Meza both worked for non-party JC & 4N’S LLC, which carried workers’ compensation insurance. Pl.’s Dep. 19, 36, Dkt. No. 1-7; Coverage Verification, Dkt. No. 1-8. Their boss at JC & 4N’S LLC, non-party Juan Jose Medeles, owned the pickup truck. Pl.’s Dep. 12, Dkt. No. 1-7.

Silva sued Defendants in Texas state court, alleging negligence and seeking damages on various theories of medical and physical injury and resultant lost wages and earning capacity. Pl.’s First Am. Original Pet. ¶¶ 22–34, Dkt. No. 1-2. Defendants all answered there. Dkt. No. 1-4 (Velez and SM3); Dkt. No. 1-5 (Meza, without mentioning workers’ compensation, and cross-claiming against Velez and SM3). Velez and SM3, without Meza’s consent, removed the action to this Court under 28 U.S.C. § 1441, invoking its diversity jurisdiction under § 1332. Dkt. No. 1. In their Notice of Removal, Velez and SM3 explained that Silva’s and Meza’s shared Texan citizenship should not defeat diversity because Meza was improperly joined. ¶ 19, Dkt. No. 1. Now, in his Motion to Remand, Silva urges, to the contrary, that Meza is a proper defendant and that, as a Texan sued by a Texan, his joinder destroys complete diversity. Dkt. No. 3.

Velez and SM3 argue that Meza’s joinder in this negligence action was improper on two grounds. The first is that Silva himself does not blame Meza for the tractor-trailer collision; at his deposition, he testified that Meza “didn’t do anything wrong” to contribute to it, and he was surprised to learn that he had named Meza as a defendant. Pl.’s Dep. 48, Dkt. No. 1-7. This, argue Velez and SM3, shows that his claim against Meza was not well pleaded. Defs.’ Notice Removal ¶ 25, Dkt. No. 1; Defs.’ Resp. Opp’n ¶¶ 12–17, Dkt. No. 4. Silva retorts that his claim in the alternative against Meza—i.e., that to any extent Velez and SM3 are not liable for the collision, Meza must be—was well pleaded under the Texas Rules of Civil Procedure. Pl.’s Mot. Remand ¶¶ 8–15, Dkt. No. 3.

*2 Velez’s and SM3’s second ground is that Silva cannot sue Meza, his co-employee, for his work-related injuries because, under §§ 406.034(a) and 408.001(a) of the Texas Workers’ Compensation Act, Tex. Labor Code tit. 5, his exclusive remedy is recovery of workers’ compensation benefits. Defs.’ Notice Removal ¶ 26, Dkt. No. 1; Defs.’ Resp. Opp’n ¶¶ 20–23, Dkt. No. 4. The parties dispute two aspects of this.

The first is whether, even if §§ 406.034(a) and 408.001(a) could shield Meza from liability, Silva may proceed against Meza so long as Meza not raise them as an affirmative defense. For his part, Meza’s only contribution to this briefing is his Advisory, “Even if the exclusivity provision found under 408.001 of the Texas Labor Code applied to Meza, he does not wish to raise this defense.” ¶ 3, Dkt. No. 16. The other parties vehemently contest the import of his abnegation. Velez and SM3 insist it makes no difference. By their telling, the Texas state courts would never allow an employee to sue his co-employee for work-related injuries, whether or not the co-employee minded defending the suit, unless he previously had opted out of workers’ compensation coverage, because failing to opt out waived his right of action against the co-employee and divested the courts of jurisdiction. Defs.’ Resp. Meza’s Advisory ¶¶ 12–18, Dkt. No. 17. JC & 4N’S LLC carried workers’ compensation insurance, Coverage Verification, Dkt. No. 1-8, and no one asserts that Silva opted out of it, so, according to Velez and SM3, there is no possibility that Silva could recover against Meza in the Texas state courts. Defs.’ Resp. Meza’s Advisory ¶ 17, Dkt. No. 17. But Silva sees a way: Those courts might treat §§ 406.034(a) and 408.001(a) as an affirmative defense, and, so long as Meza, the only party whom they might avail there, not raise them, nor could anyone else. Pl.’s Resp. Defs.’ Resp. Meza’s Advisory ¶¶ 3.2–3.5, Dkt. No. 18.

The other aspect is whether the Act should apply here at all, which hinges on whether, under §§ 401.011(12), 406.031(a)(2), Silva and Meza were acting within the course and scope of their employment at the time of the tractor-trailer collision. To show they were, Velez and SM3 adduce transcripts of Silva’s deposition, Dkt. No. 1-7, in which he testified that he and Meza did not spend time together outside work, id. at 36; that he typically worked twelve hours per day, starting about 5:00 AM or 6:00 AM each day, and between sixty and seventy hours per week, id. at 19, 21; that he was working the day of the collision, id. at 21; that the pickup truck involved in the collision was the only one available for work that day, id. at 34; and that, after he woke up around 6:30 AM that morning, “we went to the office, got the company truck, drove to the yard, got the haul truck, drove to Zapata, Texas to—we did the job, and went back to Laredo to the yard, dropped the haul truck, and that was when we were going towards the office, and the accident occurred.” Id. at 32. Pushing back, Silva says that, at the same deposition, he testified that he was paid “with a 1099 as an independent contractor” and that, “even though that’s where [he went] to work, that’s kind of who [he referred] to as [his] boss, [he was] not an actual employee.” Pl.’s Mot. Remand ¶ 16, Dkt. No. 3 (quoting id. at 77–78). He also points to Meza’s admission that, “on March 16, 2022, [Meza was] not acting in the course and scope of [Meza’s] employment when the accident made the basis of this suit occurred.” Id. (quoting Meza’s Objs. Resps. to SM3’s Req. Admis. ¶ 6, Dkt. No. 3-6).

*3 All the above, except Meza’s express disavowal of § 408.001(a), Advisory ¶ 3, Dkt. No. 16, was discovered by authority of the Texas state court before removal.

II. Statement of Law

A. Improper Joinder

An action may only be removed to federal court where the removing party can show federal jurisdiction of it. 28 U.S.C. § 1441; Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Any ambiguity is construed in favor of remand. Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986). Where, as here, the party invokes diversity jurisdiction, he must show the requisite amount in controversy and complete diversity between the parties. § 1332; In re Levy, 52 F.4th 244, 246 (5th Cir. 2022).

Here, Silva seeks over $1,000,000, satisfying the amount-in-controversy requirement. Pl.’s First Am. Original Pet. ¶ 34, Dkt. No. 1-2. But diversity is incomplete, and the action should be remanded, if Silva, a Texan, properly joined Meza, also a Texan, as a defendant. Whereas if Meza’s joinder was improper, the Court may disregard his citizenship, dismiss the claims against him, and exercise diversity jurisdiction of the remaining action. Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc).

The burden of showing improper joinder is heavy. See Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011). “The focus of the inquiry must be on the joinder, not the merits of the plaintiff’s case.” Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc); see Parks v. N.Y. Times Co., 308 F.2d 474, 478 (5th Cir. 1962). Improper joinder “can be established in two ways: (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.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (5th Cir. 1999)). The first of these means “outright fraud” in the allegations bearing on federal jurisdiction, e.g., naming a non-existent Texan or dissembling that a non-Texan were Texan. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981).

The second tests “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently 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 (citing Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000) (rejecting argument “that any mere theoretical possibility of recovery under local law—no matter how remote or fanciful—suffices to preclude removal”)). “This is an Erie problem in part, but only part…. [T]he question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved.” Badon, 236 F.3d at 285–86 (quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)); see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938). The Court resolves “any ambiguities in the current controlling substantive law in plaintiff’s favor.” Fields v. Pool Offshore, Inc., 182 F.3d 353, 357 (5th Cir. 1999) (quoting Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995)).

*4 Joinder was typically proper where a claim “can survive a Rule 12(b)(6) challenge.” Smallwood, 385 F.3d at 573. But where a plaintiff “has misstated or omitted discrete facts that would determine the propriety of joinder,” the Court “may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Id. (citing Badon, 224 F.3d at 389). In such a case, the Court may consider “summary judgment-type evidence such as affidavits and deposition testimony.” Griggs, 181 F.3d at 700 (quoting Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995)). If this leaves any reasonable basis to predict that a claim could prevail under state law, absent outright fraud, the Court must find joinder to have been proper. See Badon, 236 F.3d at 286 & n.4; B., Inc., 663 F.2d at 549 n.8, 551 n.14.

In Travis v. Irby, 326 F.3d 644 (5th Cir. 2003), a Mississippian plaintiff sued several out-of-staters and a Mississippian engineer in state court after her son was killed at a railroad crossing. 326 F.3d at 646. She claimed the engineer was negligent but, in response to some interrogatories, stated she did “not possess the facts supporting said allegations at this time,” and the out-of-staters removed the suit to federal court. Id. at 649. The district court found the plaintiff had “failed to present any evidence” against her fellow Mississippian, found his joinder improper, and denied remand. Id. Vacating, the Fifth Circuit concluded that the district court had failed to consider the plaintiff’s responses “in the context of the entire record, the status of discovery, and [ ] resolving all ambiguities in [her] favor.” Id. at 649. The plaintiff’s other responses were ambivalent, discovery was ongoing, and the out-of-staters “did not point to any evidence that would negate [the engineer’s] fault as alleged in the complaint.” Id. at 650. The district court should have required them to “put forward evidence that would negate a possibility of [the engineer’s] liability,” not just point out the plaintiff’s shortcomings, so the Fifth Circuit instructed that the case be remanded to state court. Id.

In Flagg v. Stryker Corp., 819 F.3d 132 (5th Cir. 2016) (en banc), a Louisianian plaintiff sued some out-of-staters and some Louisianian medical providers in state court after a botched toe surgery. 819 F.3d at 134. The out-of-staters removed the suit to federal court, arguing that the medical providers were improperly joined because, as all the parties agreed, the plaintiff’s claims against them were premature under the Louisiana Medical Malpractice Act. Id. at 135–36. The district court dismissed the medical providers and exercised jurisdiction of the remaining action. Id. at 135. A Fifth Circuit panel thought it important that the Act was waivable and would have held prematurity under an administrative, rather than comprehensive, statutory scheme insufficient to undermine a plaintiff’s possibility of recovery. Flagg v. Stryker Corp., 801 F.3d 456 (5th Cir. 2015). But, sitting en banc, the Fifth Circuit held that the availability of waiver was “irrelevant” because the Act was not waived “in this case” and, rejecting the panel’s administrative-comprehensive distinction, adopted a “bright-line rule: if a statute requires the plaintiff to exhaust his administrative remedies before filing suit, we enforce that statutory mandate as written.” 819 F.3d at 138 n.21, 139 (citing Melder v. Allstate Corp., 404 F.3d 328 (5th Cir. 2005), and Holder v. Abbott Laboratories, Inc., 444 F.3d 383 (5th Cir. 2006)). The panel majority, now dissenting, would have distinguished merits defenses from jurisdictional bars, but their prevailing colleagues observed that they had “consistently found improper joinder where a non-jurisdictional affirmative defense (such as statute of limitations) conclusively bars the plaintiff’s claims against the non-diverse defendant…. The critical fact is that, under state law, [the plaintiff] had no reasonable possibility of recovery on an unexhausted claim.” Id. at 139 n.32 (citing Boone v. Citigroup, Inc., 416 F.3d 382, 391 (5th Cir. 2005), and Bell v. Texaco, Inc., 493 Fed. App’x 587, 592 (5th Cir. 2012)). Because there was “no doubt that the state court would have been required to dismiss” the medical providers—the claims against them were “doomed to dismissal”—the Fifth Circuit affirmed the district court’s order. Id. at 138, 140.

B. Texas Pleadings in the Alternative

*5 In Texas, a petition should contain “a short statement of the cause of action sufficient to give fair notice of the claim involved.” Tex. R. Civ. P. 47. The allegations in it ought to be true—or, at least, not false within the pleader’s knowledge. 2 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 7:10 (2d ed. updated Feb. 2024) (citing Boyd v. Beville, 44 S.W. 287, 290 (Tex. 1898)). The petition shall be presumed to have been “filed in good faith” and “construed so as to do substantial justice.” Tex. R. Civ. P. 13, 45. “A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses…. A party may also state as many separate claims or defenses as he has regardless of consistency ….” Tex. R. Civ. P. 48; see 2 McDonald & Carlson, Texas Civil Practice § 7:9 (“The Texas courts traditionally have evidenced a liberal attitude toward alternative pleading.”).

C. The Texas Workers’ Compensation Act

Since 1913, the Texas Workers’ Compensation Act, Tex. Labor Code tit. 5, has permitted a covered employee injured on the job to recover his medical expenses and lost wages without establishing common-law liability. See Tex. Labor Code § 406.031; Mo-Vac Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 124 (Tex. 2020). “In exchange, the Act prohibits employees from seeking common-law remedies from their employers by making workers’ compensation benefits an injured employee’s exclusive remedy.” Mo-Vac Serv. Co., Inc., 603 S.W.3d at 124 (quoting TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72–73 (Tex. 2016)). “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” § 408.001(a). Unless an employee opts out of coverage in writing within five days of starting work, he waives his “right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment.” § 406.034(a); but see § 417.001(a) (“An employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers’ compensation benefits under this subtitle.”). These waiver and exclusivity provisions are “essential to the Act’s continued success,” Mo-Vac Serv. Co., Inc., 603 S.W.3d at 125, enabling employers “to spread the risk through reasonable insurance premiums” and balancing the interests of employers and employees. Id. (quoting Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985)).

The Supreme Court of Texas has treated these as giving rise to an affirmative defense that an employer or co-employee must plead and prove. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018); Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 240 (Tex. 2012); W. Steel Co. v. Altenburg, 206 S.W.3d 121, 122 (Tex. 2006); Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005); Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 137 (Tex. 2003); Exxon Corp. v. Perez, 842 S.W.2d 629, 630–31 (Tex. 1992) (interpreting predecessor code). Cf. Bell v. Humble Oil & Ref. Co., 181 S.W.2d 569 (Tex. 1944) (posture unclear). The state courts of appeals impose this burden on defendant employers and co-employees as a matter of course. See, e.g., Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex. App. 2005) (“Because an employer’s status as a subscriber to workers’ compensation is an affirmative defense, the duty is on the employer/defendant—not the employee/plaintiff—to plead and prove such facts. Tex. R. Civ. P. 94.”).¹ Where a claim or defense calls for a determination committed by the Act to the Texas Department of Insurance, Division of Workers’ Compensation, the state courts might consider themselves to lack subject-matter jurisdiction of it. Cf. Univ. of Tex. Rio Grande Valley v. Oteka, No. 13-22-00063-CV, 2023 WL 413587, at *3 (Tex. App. Jan. 26, 2023) (“[W]hether any type of claim is within the exclusive jurisdiction of the Division depends on whether it is based on a claimant’s entitlement to benefits.” (citing Berry Contracting, L.P. v. Mann, 549 S.W.3d 314, 320 (Tex. App. 2018))), with Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69, 74 (Tex. App. 2018) (“[T]he determination of whether an employee was in the course and scope of her employment at the time of the alleged injury is a matter within the initial, exclusive jurisdiction of the DWC.” (citing Henry v. Dillard Dep’t Stores, Inc., 70 S.W.3d 808, 809 (Tex. 2002))).

*6 The Act defines “course and scope of employment” as

an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place; ….

§ 401.011(12). This closely tracks the traditional principles of respondeat superior, including the special-mission exception to the coming-and-going rule. See Cameron Int’l Corp. v. Martinez, 662 S.W.3d 373, 376 (Tex. 2022); Painter, 561 S.W.3d at 131–32, 136; Robinson v. Cox, No. 02-19-00370-CV, 2020 WL 7063289, at *3 (Tex. App. Dec. 3, 2020).

III. Discussion

A. The Court Shall Pierce the Pleadings

The arguments here turn on what the pleadings did not disclose: Silva’s disbelief of his own claim against Meza, Pl.’s Dep. 45–48, Dkt. No. 1-7, Meza’s refusal to raise his own affirmative defense, Advisory ¶ 3, Dkt. No. 16, and the facts that, at the time of the tractor-trailer collision, Meza, Silva’s coworker, was driving a truck owned by their boss from “the yard,” a workplace, to “the office,” another workplace, on a workday. Pl.’s Dep. 12, 21, 32, Dkt. No. 1-7. The parties rely extensively on evidence like depositions and admissions. See Defs.’ Notice Removal ¶¶ 25–26, Dkt. No. 1 (citing Pl.’s Dep., Dkt. No. 1-7, and Coverage Verification, Dkt. No. 1-8); Pl.’s Mot. Remand ¶ 16, Dkt. No. 3 (citing Pl.’s Dep., Dkt. No. 1-7, and Meza’s Objs. Resps. to SM3’s Req. Admis. ¶ 6, Dkt. No. 3-6); Defs.’ Resp. Opp’n ¶¶ 20–21, Dkt. No. 4 (citing Pl.’s Dep., Dkt. No. 1-7, and Coverage Verification, Dkt. No. 1-8). The Court shall pierce the pleadings to consider these “discrete and undisputed facts.” Smallwood, 385 F.3d at 573–74 & n.12 (citing Travis, 326 F.3d at 647–48).²

B. Silva’s Disbelief of His Own Claim in the Alternative Against Meza Did Not Make Meza’s Joinder Improper

*7 At his deposition, Silva testified that Meza “didn’t do anything wrong” to contribute to the tractor-trailer collision here, and he was surprised to learn that he had named Meza as a defendant. Pl.’s Dep. 48, Dkt. No. 1-7. But Meza’s Texan citizenship is unchallenged, so his joinder was not a product of outright fraud in the pleading of jurisdictional facts. See Irby, 326 F.3d at 647; B., Inc., 663 F.2d at 549 n.8, 551 n.14. And Texas condones alternative, hypothetical, and inconsistent claims, Tex. R. Civ. P. 48, the details of which a plaintiff need not personally grasp. Cf. Tex. R. Civ. P. 13, 45, 47, 57; 2 McDonald & Carlson, Texas Civil Practice §§ 7:9, 10, 20. Here, Silva’s pleading gave “fair notice” of his claim against Meza. Tex. R. Civ. P. 47; see Pl.’s First Am. Original Pet. ¶ 29, Dkt. No. 1-2 (“Pleading in the alternative, if the jury believes all or part of Defendant Velez’s story then Defendant Verastegui Meza would be negligent ….”). Notwithstanding his personal disbelief of it, the claim might lead to recovery in the Texas state courts. See Smallwood, 385 F.3d at 573.

In Travis, the plaintiff stated, in response to some interrogatories, that she did “not possess the facts supporting” her allegations against her fellow Mississippian. 326 F.3d at 649. Here, similarly, Silva testified that Meza “didn’t do anything wrong.” Pl.’s Dep. 48, Dkt. No. 1-7. In Travis, the Fifth Circuit held it error to find improper joinder while discovery was continuing unless the out-of-staters “put forward evidence that would negate a possibility of [the Mississippian’s] liability.” Id. at 650. Here, Silva might yet find support for his claim against Meza, so his mere lack of it at this stage cannot show Meza’s joinder to have been improper.

C. Silva Might Be Allowed to Proceed Against Meza so Long as Meza Not Raise the Waiver and Exclusivity Provisions of the Texas Workers’ Compensation Act

The words of the Act’s waiver and exclusivity provisions lend themselves to Velez’s and SM3’s argument that they totally bar an employee’s unexcepted claim for his work-related injuries. See Tex. Labor Code § 408.001(a) (“exclusive remedy”); § 406.034(a) (“waives the employee’s right of action”); § 417.001(a) (“may seek damages”). But the Supreme Court of Texas has explained, at least twice, that these give rise to an affirmative defense to be pleaded and proved. See Garza, 161 S.W.3d at 475 n.10; Exxon Corp., 842 S.W.2d at 630–3. So far as this Court can tell, that court has assumed as much in every case in which the provisions reached it, see Painter, 561 S.W.3d at 130; Port Elevator-Brownsville, 358 S.W.3d at 240; W. Steel Co., 206 S.W.3d at 122; Wingfoot Enters., 111 S.W.3d at 137, except perhaps one from the halcyon days before procedural postures were recited. See Bell, 181 S.W.2d 569. The state courts of appeals routinely impose on employers and co-employees the burden of pleading and proving the Act’s waiver and exclusivity provisions. See supra note 1 and accompanying text. Language happening not to mention this burden in one supreme court case, where the employer’s “status as a nonsubscriber to workers’ compensation [was] uncontroverted,” is inapposite. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 175 (Tex. 2012). And the nascent conversation among the courts of appeals ascribing jurisdictional strength to the provisions, entirely in cases where an employer did raise the defense, see Univ. of Tex. Rio Grande Valley, 2023 WL 413587, at *1; Berrelez, 562 S.W.3d at 71–72, cannot upset Texas’ general policy of requiring that these provisions be pleaded and proved affirmatively. See Badon, 236 F.3d at 285–86; Fields, 182 F.3d at 357.

A party may plead and prove his own affirmative defense. See Tex. R. Civ. P. 94 (“In pleading to a preceding pleading, a party shall set forth affirmatively … any … matter constituting an avoidance or affirmative defense.”); 2 McDonald & Carlson, Texas Civil Practice §§ 9:44–46. The Court is not aware of, and the parties do not suggest, any exception to this precept, and it seems possible, at least, that the state courts would not find one for Velez and SM3. See Badon, 236 F.3d at 285–86; Fields, 182 F.3d at 357. Those courts might treat the Act’s waiver and exclusivity provisions as an affirmative defense for Meza to raise, or not raise, by his own lights. See Smallwood, 385 F.3d at 573. This should not be taken for a prediction that the Texas state courts “would or even probably would actually so hold …. [The Court] may well tend to believe that the probabilities ultimately favor” those courts treating the provisions as a total bar to Silva’s claim against Meza. Badon, 236 F.3d at 286. The Court holds only that so long as Meza not raise the provisions, even if they could shield him, the Texas state courts might allow Silva to proceed against him. See Smallwood, 385 F.3d at 573. The Court need not decide, therefore, whether the provisions, if raised, actually would shield him. See Advisory ¶ 3, Dkt. No. 16 (“[Meza] does not wish to raise this defense.”).

*8 In Flagg, the plaintiff failed to exhaust his administrative remedies against his fellow Louisianians, who did not waive the exhaustion requirement, so his claims were “doomed to dismissal.” 819 F.3d at 140. Here, by contrast, Meza wishes to waive his affirmative defense, and the Court doubts whether the Texas state courts would be required to dismiss Silva’s claim against him. Advisory ¶ 3, Dkt. No. 16. The Flagg majority announced a “bright-line rule” of enforcing exhaustion requirements but made clear that the “critical fact [was] that, under state law, [the plaintiff] had no reasonable possibility of recovery on an unexhausted claim.” Id. at 139 & n.32. Here, Meza’s abnegation removes this fact and leaves open such a possibility.

The Court appreciates that this leaves two out-of-staters to litigate against a Texan, all but certainly in cahoots with their codefendant, his fellow Texan, in the Texas state courts. “The cry of out-of-state interests seeking to escape local courts and local plaintiffs seeking to avoid more distant justice is in fact an old and recurring song,” but “principles of comity and federalism” demand “that a state court is to be trusted to handle the suit unless the suit satisfies the removal requirements.” Smallwood, 385 F.3d at 576. For now, the Court has no more jurisdiction than to remand this case to the state court from which it was removed. See 28 U.S.C. § 1446(b)(3), (c)(1); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492–94 (5th Cir. 1996) (discussing successive removals); D&J Invs. of Cenla, L.L.C. v. Baker Hughes, No. 1:23-CV-00508, 2024 WL 268443 (W.D. La. Jan. 9, 2024) (ditto), report and recommendation adopted, No. 1:23-CV-00508, 2024 WL 263952 (W.D. La. Jan. 24, 2024).³

IV. Conclusion and Order

Velez and SM3 do not show that Meza’s joinder was improper, so the Court cannot exercise diversity jurisdiction of this action. See 28 U.S.C. §§ 1332, 1441; Smallwood, 385 F.3d at 574. Silva’s Motion to Remand, Dkt. No. 3, is GRANTED, and this case REMANDED to the 111th Judicial District Court of Webb County, Texas. See § 1447(c). The Clerk of Court is DIRECTED to mail a certified copy of this Order to the clerk of that court. See id.

IT IS SO ORDERED.

Signed this March 31, 2024, at Laredo, Texas.

Footnotes
1	See also Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 162–63 (Tex. App. 2019); Reveles v. OEP Holdings, LLC, 574 S.W.3d 34, 37 (Tex. App. 2018); Lockhart Contracting Servs., Inc., 499 S.W.3d 48, 53 (Tex. App. 2016); Hand & Wrist Ctr. of Houston, P.A. v. SGS Control Servs., Inc., 409 S.W.3d 743, 753 (Tex. App. 2013); Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765 (Tex. App. 2013); Synergy Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843, 845 (Tex. App. 2012); Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App. 2011); AMS Const. Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d 30, 42 (Tex. App. 2011); Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App. 2010); Phillips v. Am. Elastomer Prod., L.L.C., 316 S.W.3d 181, 187 (Tex. App. 2010); Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 668 (Tex. App. 2008); Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 617 (Tex. App. 2006); Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex. App. 2005); Coco v. Port of Corpus Christi Auth., 132 S.W.3d 689, 691 (Tex. App. 2004) (interpreting borrowed servant doctrine); Montemayor v. Chapa, 61 S.W.3d 758, 762 (Tex. App. 2001); Brown Servs., Inc. v. Fairbrother, 776 S.W.2d 772, 775–76 (Tex. App. 1989) (interpreting predecessor code).
2	It must be unusual to look beyond the pleadings to determine whether a party, neither consenting to removal nor moving for remand, was required to plead an affirmative defense, which it did not plead, in state court. Some older statements of the Fifth Circuit, read on their surface, cast doubt on the proposition. See Griggs, 181 F.3d at 700; Cavallini, 44 F.3d at 263. The Court has reviewed these and concludes that they do not preclude piercing the pleadings here. The Griggs and Cavallini courts held that a removing party may not, after removal, add new claims to its pleadings to resist remand. Here, Velez and SM3 only purport to show that Silva’s claim against Meza, as pleaded in state court, could not have prevailed there. Cf. DeLaGarza v. Trafigura Trading LLC, No. 2:17-CV-188, 2017 WL 4250404, at *3 n.1 (S.D. Tex. Sept. 26, 2017). In any event, the Fifth Circuit later adopted the expansive Smallwood “phrasing of the required proof and reject[ed] all others,” 385 F.3d at 573, and the Flagg court held broadly enough to approve cognizance, in the right case, of an unpleaded affirmative defense. See 819 F.3d at 139 n.32 (“The critical fact is that, under state law, Flagg had no reasonable possibility of recovery on an unexhausted claim.”).
3	Accordingly, the Court shall not consider Meza’s Motion for Leave to File Amended Answer. Dkt. No. 16.