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Austin Mayes v. The Home Depot U.S.A., Inc.
December 23, 2015
Unpublished Opinion

Austin Mayes v. The Home Depot U.S.A., Inc.

United States District Court, S.D. Texas.

AUSTIN MAYES, Plaintiff,



CIVIL ACTION NO. 4:15-CV-02390


Signed 12/23/2015

Attorneys & Firms

Robert Leroy Woods, Attorney at Law, Marrick Armstrong, Armstrong Legal PLLC, Houston, TX, for Plaintiff.

Jason R. Bernhardt, Winstead, PC, Houston, TX, Scott F. Courtney Jr., Winstead PC, Austin, TX, for Defendant.


Stephen Wm Smith, United States Magistrate Judge

*1 Before the Court is Plaintiff Austin Mayes’s motion to remand this negligence action against Defendant Home Depot, his former employer. Dkt. 3. Mayes contends that removal is barred by 28 U.S.C. § 1445(c) because this case arises under the Texas Workers’ Compensation Act (TWCA). Home Depot filed a response in opposition. Dkt. 5. The parties consented to magistrate jurisdiction. Dkt. 14. After reviewing the briefing and the law, the Court denies the motion.


Mayes claims that he injured his wrist and forearm lifting a stack of tiles during the course of his employment by Home Depot. Mayes was eventually terminated and filed suit in Harris County Civil Court at Law No. 4, alleging negligence on the part of Home Depot. Home Depot removed the case to this Court on diversity grounds.


A civil action brought in state court may be removed to federal court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). Federal courts have original jurisdiction over actions between citizens of different states where the matter in controversy exceeds the value of $75,000. 28 U.S.C. § 1332(a)(2). The party seeking removal bears the burden of demonstrating that removal to federal court was proper. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

Congress has prohibited the removal of “[a] civil action in any State court arising under the workmen’s compensation laws of such State.” 28 U.S.C. § 1445(c). The Fifth Circuit has held that “arising under” in the context of § 1445(c) shares the same definition as “arising under” in the context of federal question jurisdiction under § 1331—that is, “[a] suit arises under the law that creates the cause of action.” Jones v. Roadway Express, Inc., 406.033. That section, however, does not expressly create a cause of action against a non-subscribing employer. Instead, § 406.033 operates to deprive nonsubscribers of certain defenses in a suit to recover damages for personal injuries sustained during the course of employment.

The Fifth Circuit has not directly addressed the issue presented here, but a 2010 decision all but held that § 406.033 does not create a cause of action. See Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel, LLC, CONCLUSION

For these reasons, the Court denies the motion to remand this case to state court.

Signed at Houston, Texas, on December 23, 2015.