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At a Glance:
Ben v. R & L Carriers, Inc.
July 7, 2016
Unpublished Opinion

Ben v. R & L Carriers, Inc.

United States District Court,

N.D. Texas, Dallas Division.

Ben and Wendy Rodgers, Plaintiffs,


R & L Carriers, Inc., R & L Carriers Shared Services, LLC, and Hyster-Yale Group, Inc., Defendants.



Signed 07/07/2016

Attorneys & Firms

Kevin Albert Murray, Houston, TX, for Plaintiffs.

Jerry Fazio, Matthew Bruce Brower, Owen & Fazio PC, Brett Cornwell, Nowak & Stauch LLP, Clay Cosse, Wendy D. May, Hartline Dacus Barger Dreyer LLP, Dallas, TX, for Defendants.



*1 Before the Court is Plaintiffs’ Motion to Remand (Doc. 9). For the following reasons, the Court DENIES Plaintiffs’ Motion.



This case arises from injuries sustained by Plaintiff Ben Rodgers while employed by Defendants R & L Carriers, Inc. and R & L Carriers Shared Services, LLC (collectively, “R & L”). Doc. 1-5, Orig. Pet. & Req. for Disclosure 1–2. Allegedly, as Mr. Rodgers and a fellow employee were walking in R & L’s loading dock area, Mr. Rodgers was struck suddenly by a forklift, which was operated by an employee who was wearing earphones and listening to loud music. Doc. 1-20, Second Am. Orig. Pet. & Req. for Disclosure ¶ 4 [hereinafter Second Am. Pet.]. At the time of the incident, R & L did not subscribe to the Texas Workers’ Compensation Act (“TWCA”). Doc. 9, Pls.’ Mot. to Remand ¶ 2.

After sustaining his injuries, Mr. Rodgers, along with his wife, Wendy, (collectively, “the Rodgers”), sued R & L in Dallas County court for negligence, gross negligence, and negligence per se. Doc. 1-19, First Am. Orig. Pet. & Req. for Disclosure ¶¶ 4–6, 8–13. The Rodgers later joined Hyster-Yale Group, Inc. (“Hyster-Yale”) in the suit, bringing a products liability claim for the forklift’s alleged defects. Doc. 1-20, Second Am. Pet. ¶¶ 16–25. Hyster-Yale, with R & L’s consent, then removed the case to this Court under 28 U.S.C. § 1332, and Plaintiffs moved to remand, arguing that the TWCA precludes removal. Doc. 1, Def. Hyster-Yale Group, Inc.’s Notice of Removal 1, 4 [hereinafter Notice of Removal]; Doc. 9, Pls.’ Mot. to Remand ¶ 5. R & L responded, arguing that the claims do not arise under the TWCA and, thus, are removable. Doc. 11, Defs.’ Mem. in Opp’n to Pls.’ Mot. to Remand 1 [hereinafter Defs.’ Resp.]. Plaintiffs’ time for a reply having passed, their Motion is now ready for review.



A defendant may remove an action filed in state court to federal court if the case could have originally been filed in federal court. 28 U.S.C. § 1441(a). Federal subject matter jurisdiction is limited: federal courts may entertain only those cases involving a question of federal law or those where parties are of diverse citizenship. See id. §§ 1331–32. In diversity cases, the citizenship of each plaintiff must be diverse from the citizenship of each defendant, and the amount in controversy must exceed $75,000. Id. § 1332. The party invoking federal jurisdiction has the burden of establishing it. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

Congress has deemed certain actions to be “nonremovable.” See 28 U.S.C. § 1445. Of particular import in the instant action, “[a] civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.” Id. § 1445(c) (emphasis added). The TWCA provides, in part, “that in an action against a nonsubscribing employer for personal injuries or death sustained by an employee, the employer may not rely upon certain common law defenses, and the employee must prove negligence.” Pyle v. Beverly Enters.-Tex., Inc., 826 F. Supp. 206, 209 (N.D. Tex. 1993) (citation omitted).



*2 The issue here is whether the Rodgers’ negligence, gross negligence, and negligence per se1 claims “arise under” the TWCA, as any action arising under that statute is not removable. See 28 U.S.C. § 1445(c). The Rodgers argue that “a nonsubscriber claim under the Texas workers’ compensation laws cannot be removed.” Doc. 9, Pls.’ Mot. to Remand ¶ 12. R & L, on the other hand, contends that “nonsubscriber negligence/gross negligence claims ... arise under the common law and are removable.” Doc. 11, Defs.’ Resp. 7. R & L is correct.

This Court has ruled “that an employee’s negligence (and gross negligence) claims against a nonsubscribing employer do not ‘arise under’ the TWCA.” Morris v. Home Depot U.S.A., Inc., No. 3:10-CV-2289-B, 2011 WL 711047, at *3 (N.D. Tex. Feb. 28, 2011). Rather, “they arise under Texas common law.” Id. Other courts have since agreed. See, e.g., Muse v. Kroger Tex., L.P., No. 3:14-CV-3225-N, 2015 WL 11022866, at *1 (N.D. Tex. Mar. 3, 2015); Rodriguez v. Home Depot U.S.A., Inc., No. EP-14-CV-175-PRM, 2014 WL 10183558, at *2 n.3 (W.D. Tex. Sept. 11, 2014). Therefore, the Rodgers’ negligence and gross negligence claims do not arise under the TWCA and, thus, are removable.

The same is true of their negligence per se claim. While an action arising under the TWCA is, indeed, not removable, the Rodgers’ negligence per se claim does not arise under that statute. See 28 U.S.C. § 1445(c). “A suit arises under the law that creates the cause of action.” Ehler v. St. Paul Fire & Marine Ins. Co., 66. F.3d 771, 772 (5th Cir. 1995) (quoting Jones v. Roadway Express Inc., IV.


For the reasons stated above, the Court DENIES Plaintiffs’ Motion to Remand (Doc. 9).




Neither party specifically addresses negligence per se. Because the negligence per se claim is one of the nonsubscriber claims, the Court must address whether it arises under the TWCA.


Plaintiffs reside in and are citizens of Texas. Doc. 1, Notice of Removal 2. “Defendants are citizens of other states—Delaware, Ohio, and South Carolina—and not of Texas.” Id.


“The maximum damages sought are $35,000,000.” Id. at 4.