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Betancourt v. Electrolux Home Care Products, Inc.
December 9, 2010
Unpublished Opinion

Betancourt v. Electrolux Home Care Products, Inc.

United States District Court, W.D. Texas, El Paso Division.

Jose BETANCOURT, Plaintiff,


ELECTROLUX HOME CARE PRODUCTS, INC., and Fren Nestor, Defendants.



Signed 12/09/2010

Attorneys & Firms

Oscar Mendez, Jr., Scherr & Legate, PLLC, El Paso, TX, for Plaintiff.

Jose Abelardo Howard-Gonzalez, Michael D. McQueen, Kemp Smith LLP, El Paso, TX, for Defendants.



*1 After Defendants Electrolux Home Care Products, Inc. and Fren Nestor removed the instant cause to federal court on the basis of diversity of citizenship, arguing that Defendant Nestor was improperly joined to prevent removal, Plaintiff Jose Betancourt filed a Motion to Remand the cause to state court, contending that because Plaintiff’s claims “arise under” the Texas workers’ compensation laws, they are not removable, that removal was untimely, and that Defendant Nestor was properly joined. As set forth more fully below, this Court recommends that Plaintiff’s Motion to Remand be GRANTED.


On May 25, 2010, Plaintiff Jose Betancourt filed a Petition in the 34th Judicial District Court in El Paso County, Texas, raising negligence claims against Defendants Electrolux Home Care Products and Fren Nestor. Docket Entry (D.E.) 21, Exh. 19. Plaintiff, an employee of Defendant Electrolux, argued that his supervisor, Defendant Nestor, required Plaintiff to load a trailer at a rapid pace, instructing him repeatedly to work more rapidly, and that as a result, Plaintiff suffered a heart attack two days later. Id. Plaintiff made several allegations of negligence against the Defendants, including but not limited to allegations that the Defendants negligently failed to furnish Plaintiff with a safe work place, failed to adequately supervise him, and failed to provide safety equipment. Id. Plaintiff alleged Defendant Electrolux failed to ensure a safe work place, and Plaintiff alleged Defendant Nestor was negligent in instructing Plaintiff to perform unsafe work, as well as failing to furnish adequate tools or equipment, to train Plaintiff properly, and to follow safe work practices. Id.

On September 2, 2010, Defendants filed a Notice of Removal on the basis of diversity jurisdiction, alleging that Defendant Nestor was improperly joined to prevent removal. D.E. 1. On October 1, 2010, Plaintiff filed a Motion to Remand, arguing that Defendant’s Notice of Removal was untimely filed, alleging that the claims were non-removable under 28 U.S.C. § 1445(c) as “arising under” the workers’ compensation laws, and disputing the Defendants’ contention that Defendant Nestor was improperly joined. D.E. 7. On October 14, 2010, Defendants filed their Response in Opposition to the Motion to Remand. D.E. 8. On October 28, 2010, Plaintiff filed its Reply to the Defendants’ Response in Opposition. D.E. 10. On October 29, 2010, the Honorable Philip Martinez referred Plaintiff’s Motion to Remand to this Court for the preparation of a Report and Recommendation. D.E. 11. On November 2, 2010, Defendants moved for permission to file a sur-reply, and the motion was opposed by the Plaintiff. D.E. 14, 17. By gavel order, Judge Martinez denied the Defendants’ request to file a sur-reply on November 18, 2010. On December 6, 2010, this Court ordered Defendants to immediately file the pleadings and other papers filed in the court below, as well as any other documents from the state court proceedings upon which their arguments were premised. D.E. 20. On December 9, 2010, the Defendants filed the required documents with the Clerk. D.E. 21. This Court now enters the instant Report and Recommendation, after fully considering the arguments and authorities presented by each of the parties.


A. Legal Framework.

*2 A case may be removed from state to federal court under 28 U.S.C. § 1441 as follows:

(a) ... [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending ...

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the States in which such action is brought.

See Richardson v. United Steel Workers of Am., 864 F.2d 1162, 1167 (5th Cir. 1989)(“The right to remove a case from state to federal court is based on the statutory grant of jurisdiction in 28 U.S.C. § 1441.”), cert. denied, 495 U.S. 946 (1990). In order for an action to be properly removed to federal court, the requirements of both 1441(a) and (b) must be satisfied. Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996). The removing party must show that federal jurisdiction exists and that removal is proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

A case will be remanded to state court if there was a defect in the removal procedures or where the federal court lacks subject matter jurisdiction. 28 U.S.C. 1447(c); see Burks v. Amerada Hess Corp., 8 F.3d 301, 303 (5th Cir. 1993). When considering a motion to remand, the burden is on the party who removes the action to establish that removal was proper. See Carpenter v. Wichita Falls Indep. Sch. Distr., 44 F.3d 362, 365 (5th Cir. 1995), citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921); Ablonetti v. GAF Corp.-Chem. Group, 520 F.Supp. 825, 827 (S.D. Tex. 1981). “This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the removal statute.” Albonetti, 520 F.Supp. at 827. Because removal jurisdiction raises significant federalism concerns, courts must construe the removal statutes “narrowly, with doubts resolved in favor of remand to the state court,” Jefferson Parish Hosp. Dist. No. 2 v. Harvey, 788 F.Supp. 282, 283-84 (E.D. La. 1992); see also Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 810 (1996) (recognizing that removal “determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system”); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107 (1941); Prescott v. Mem’l Med. Ctr.-Livingston, 2000 WL 532035 at *1 (E.D. Tex. 2000)(“Because federal courts are courts of limited jurisdiction, the removal statute is subject to strict construction.”). Again, if there is any doubt that a right to removal exists, “ambiguities are to be construed against removal.” Dardeau v. West Orange-Grove Consol. Indep. Sch. Dist., 43 F.Supp.2d 722, 730 (E.D. Tex. 1999); Samuel v. Langham, 780 F.Supp. 424, 427 (N.D. Tex. 1992).

B. Timeliness of the Notice of Removal.

*3 Plaintiff challenges the Defendants’ removal of the instant cause on the grounds that it was not timely filed. Defendants dispute Plaintiff’s assertion, arguing that the Notice was filed as soon as it became apparent that the amount in controversy was, in fact, greater than the jurisdictional threshold. Plaintiff counters by arguing first that the Original Petition triggered Defendants’ removal period, and alternatively, by advising the court that on July 20, 2010, he filed notices in state court of the intent to use certain records, which contained medical billing statements indicating the medical bills totaled more than $200,000. Plaintiff contends that if the Original Petition is not construed as triggering the time for removal, it is this latter date which should have triggered the time for filing removal. Defendants, on the other hand, argue that removal was not appropriate until Plaintiff responded to Defendants’ requests for admission, admitting that Plaintiff was seeking more than $75,000 from Defendants. The arguments of the parties require resolution as to when the pleadings or other paper provided the Defendants adequate notice that the amount in controversy exceeded the jurisdictional threshold warranting removal for diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a).

28 U.S.C. § 1446(b) provides as follows:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

1. The Original Petition.

Plaintiff’s first argument is that the Original Petition provided sufficient information for Defendants to determine that the amount in controversy exceeded $75,000. Although Plaintiff concedes that the Original Petition did not specify the amount of damages sought, he relies on the language in the Original Petition asserting that Plaintiff was seeking damages for past and future medical care, loss of income, past and future earning capacity, past and future pain and suffering, past and future impairment, and past and future mental anguish. He contends that these allegations triggered the 30 day period for filing the Notice of Removal.

The receipt of the initial pleading will trigger the 30-day time period “only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court.” Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992), cert. denied, 507 U.S. 967 (1993). When an initial pleading is indeterminate as to the amount in controversy, a defendant is not required to exercise due diligence in determining whether federal diversity jurisdiction exists. Chapman, 969 F.2d at 162-63. In Bosky v. Kroger Tex., LP, 288 F.3d 208, 210 (5th Cir. 2002), the Fifth Circuit discussed that its precedent held that “specific damage estimates that are less than the minimum jurisdictional amount, when combined with other unspecified damage claims, can provide sufficient notice that an action is removable so as to trigger the time limit for filing a notice of removal.” The issue is not whether Plaintiff is likely to recover more than the federal jurisdictional amount but whether the unspecified total amount sought by Plaintiff likely exceeds the federal jurisdictional amount. See Loque v. Allstate Ins. Co., 314 F.3d 776, 782 (5th Cir. 2002)(“[W]hen determining the amount in controversy for diversity purposes, ... the question ... is whether the complaint, fairly read, states a claim exceeding $75,000), cert. denied, 540 U.S. 812 (2003). Recognizing the holding in Bosky, this Court does not agree with Plaintiff that the Original Petition triggered the 30-day clock. The Original Petition does not contain any information as to the Plaintiff’s salary, the costs of medical treatment or any other information from which the Defendants could have ascertained the removability of the case; instead, had Defendants sought removal at that time, they would have been relying merely on supposition, instead of affirmative revelations by the Plaintiff. See Villasana v. Bed Bath & Beyond, Inc.,502 F.Supp.2d 528, 530 (W.D. Tex. 2007). This Court finds that the Original Petition did not start the 30-day time period for filing the Notice of Removal.

2. Other Paper.

*4 Plaintiff alternatively argues that the Defendant’s obligation to seek removal was triggered by his filing of two Notices indicating his intent to use certain records, attached to which are billing statements containing the actual amounts charged for the medical services Plaintiff received from Cardiology Care Consultants and Sierra Medical Center, along with the Plaintiff’s medical records. D.E. 7, Attachments A-1, A-2, A-3. In those records are billing statements reflecting that Cardiology Care Consultants charged Plaintiff $19,558.00 and Sierra Medical Center charged Plaintiff $191,550.82 for the medical care he received as a result of the heart attack which prompted the filing of the lawsuit. D.E. 7, Attachments A-1, A-2. These Notices were filed on July 20, 2010, and Defendants did not file their Notice of Removal until September 2, 2010, more than 30 days later. Defendants counter that the receipt of these records did not trigger the 30-day period because they were did not affirmatively establish that Plaintiff was, in fact, seeking damages in excess of the federal jurisdictional threshold. They claim this fact was not affirmatively established until August 11, 2010, when Plaintiff filed his responses to the Defendants’ requests for admissions and therein admitted he was seeking damages in excess of $75,000. D.E. 21, Exh. 3. Defendants also suggest that Plaintiff’s actions misled them as to the amount of controversy. Defendants contend that, after filing the Notices of Intent to Use Business Records, Plaintiff asked for an additional two weeks in order to respond to four requests for admission, all of which referred to the amount in controversy. Because the amount in controversy was the only issue that had to be addressed, Defendants contend it could not have been clear, at the time the Notices were filed, that Plaintiff indeed intended to seek more than $75,000 in damages. Id.

The resolution of this issue requires an interpretation of the second paragraph of 28 U.S.C. § 1446(b). As set forth above, the second paragraph requires removal to be filed “within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....” In Bosky, 288 F.3d at 211, the Fifth Circuit explained that the use of the term “setting forth” in the first paragraph of Section 1446(b) encompasses a broader range of information that can trigger the time limit for removal than the use of the term “ascertain” in the second paragraph. Relying on the definition for “ascertain” in Webster’s New College Dictionary, “to make certain, exact, or precise” or “to find out with certainty,” suggests that a greater level of certainty is required to support removability when removal is based on the defendant’s receipt of an “amended pleading, motion, order or other paper.” Bosky, 288 F.3d at 211. Therefore, the court held that the “affirmatively reveals on its face” standard applicable to consideration of whether the initial pleading triggers the 30-day clock is inapplicable when removal is predicated on the defendant’s receipt of an “amended pleading, motion, order or other paper.” Id. The court held that the “amended pleading, motion, order or other paper” must be “unequivocally clear and certain” to trigger the start of the time limitation. Id. The court noted that the application of this latter standard would not only promote judicial economy but also reduce the number of protective removals by defendants faced with an equivocal record and before the facts supporting removal can actually be proven by a preponderance of the evidence. Id. at 212.

For a document to be considered “other paper” sufficient to trigger removal, it must result from the voluntary act of a plaintiff giving the defendant notice of the changed circumstances which now support federal jurisdiction. Addo v. Globe Life and Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000). “[O]ther paper” can include a wide variety of documents, including but not limited to correspondence between the parties, deposition testimony, answers to interrogatories, discovery materials, and medical bills provided to the defendant. Addo, 230 F.3d at 761-62; Chambers v. Bielss, 2008 WL 5683483 at *4 (W.D. Tex. 2008)(unpublished).

Plaintiff correctly argues that Defendants could ascertain from the Notices of Intent to Use Business Records he filed in state court on July 20, 2009, that the amount in controversy exceeded the jurisdictional threshold. Indeed, a review of those documents reveals that they unequivocally establish that Plaintiff is seeking damages in excess of $75,000. These documents constituted “other paper from which it may first be ascertained that the case is one which is or has become removable.”1 As such, the filing of these notices triggered the 30-day time limitation, and because Defendants did not remove the instant case until after that 30-day time period elapsed, the case should be remanded to state court.2 See Addo, 230 F.3d at 761-62 (Fifth Circuit reversed district court’s conclusion that a demand letter from plaintiff’s attorney to defendant seeking damages in excess of $75,000 did not trigger the 30-day time limitation; Fifth Circuit held that the district court should have found the removal to have been untimely filed and remanded the case to state court); Garcia v. MVT Services, Inc., 589 F.Supp.2d 797 (W.D. Tex. 2008)(district court concluded that removal was untimely where the defendant was served with a demand letter seeking damages in excess of the jurisdictional threshold more than five months before filing the removal notice); Doss v. Albertson’s LLC, et al., Cause No. EP-07-CV162-PRM (W.D. Tex. 2007)(district court found removal untimely where the defendant was served more than 30 days prior with discovery which, after employing certain mathematical calculations, revealed that plaintiff was seeking damages in excess of jurisdictional threshold).

*5 In the event that the District Court disagrees with this court’s conclusion that the Notice of Removal was untimely filed, the court will address the remaining issues.

C. 28 U.S.C. § 1445(c).

Plaintiff argues that his claims “arise under” the workers’ compensation laws and that, as such, they are not removable. For the reasons set forth below, this Court disagrees with Plaintiff’s contention.

Under 28 U.S.C. § 1445(c), “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.” There is a “strong congressional policy that looks upon compensation cases--vitally important as they are to the victims of industrial disease and accident--as being of such a technical statutory form that they have little real business in federal court.” Kay v. the Homeland Indemnity Co., 337 F.2d 898, 901 (5th Cir. 1964). “Where the state court has been utilized by one of the parties in the state compensation machinery, the case should remain in the state court for its ultimate disposition.” Id. at 901-02. The Fifth Circuit has repeatedly read Section 1445(c) broadly and stressed its strong conviction that workers’ compensation cases have no business in federal court. See 197 F.3d 777, 781-82 (5th Cir. 1999), cert. denied, 531 U.S. 1036 (2000). The Fifth Circuit has instructed that the “arising under” standard of Section 1445(c) should be interpreted broadly and in a manner consistent with the standard for determining federal question jurisdiction under 28 U.S.C. § 1331. Jones v. Roadway Express, Inc., 337 F.Supp.2d 902 (W.D. Tex. 2004); 125 F.Supp.2d 209 (S.D. Tex. 2000); Smith v. Tubal-Cain Indust., Inc., 837 F.Supp. 212 (N.D. Tex. 1993), the Fifth Circuit recently called these decisions into doubt when it made its ruling in American International Specialty Lines Ins. Co. v. Rentech Steel, LLC, 406.033 of the Texas Labor Code provides that an employer who does not have workers’ compensation insurance coverage to recover damages for personal injury sustained by an employee in the course and scope employment is deprived of certain common law defenses while others remain available; it further recites the common law standard of proof. The Fifth Circuit began its analysis in Rentech Steel by noting that its review of the statute reveals that “on its face, [it] does no more than modify the defenses available at common law, and does not create a cause of action that usurps the common-law cause of action....” Id. at 564. The court relied on dicta in the Texas Supreme Court’s decision of Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000), which characterized “as common law rights” the rights of employees against non-subscribing defendants. Id. at 565. The Fifth Circuit then noted that “[t]his suggests that the right to bring a claim against a nonsubscriber for negligence remains what it has always been–a right arising under the common law.” Id. The court rejected the argument that the Kroger Co. court’s characterization of the Texas Workmen’s Compensation Act as “govern[ing]” lawsuits against nonsubscribers meant that the statute gave rise to those claims. Id. The Fifth Circuit’s conclusion was affirmed by its review of the history of the Act, which revealed that the Act was specifically amended to retain the common law rights of the employees of nonsubscribers amidst challenges to the constitutionality of the statute. Id. at 567-68. In concluding that an employee’s action against a non-subscribing employer arose from the common law, the court also analyzed the decisions of the Texas federal district courts that had considered the nature of such actions. Id. at 568-71. It spoke approvingly of those courts that had determined that negligence claims against non-subscribing employers exist independently of the Texas Workmen’s Compensation Act, even though, the Act limits the employers’ defenses. Id.; see e.g. Pyle v. Beverly Enterprises-Texas, Inc., Id.; see e.g. Smith, supra.; Figueroa, supra.; Dean, supra.; Illinois National, supra. While the careful analysis performed in Rentech Steel is not determinative of the issue at bar, it is, in fact, instructive. Given the Fifth Circuit’s holding in Patin v. Allied Signal, Inc., Id.; see Aranda v. Ins. Co. of North America, 748 S.W.2d 210, 213 (Tex. 1988); and see e.g., Izaguirre v. Texas Employer’s Ins. Ass’n, 749 S.W.2d 550, 553 (Tex.App.–Corpus Christi 1988, writ denied). Given this guidance from the Texas courts and applying federal laws of construction of removal provisions, the Fifth Circuit held that, at best, claims of bad faith and unfair dealing by insurance carriers in workers’ compensation cases were “related to” but did not “arise under” the workers’ compensation laws. Patin, 77 F.3d at 788.

While the Patin court made it clear that its decision was only guided by the interpretation of such claims by the Texas courts, its decision was premised upon its conclusion that such claims did not “arise under” the workers’ compensation laws, as interpreted under federal removal law. A determination of whether claims such as those before the court in the case at bar “arose under” the workers’ compensation laws must be made in a manner consistent with the standard for determining federal question jurisdiction. Jones, 931 F.2d at 1092. “[T]he presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)(internal quotation marks and citations omitted). Under the well-pleaded complaint rule, an action may not be removed to federal court unless the plaintiff’s complaint establishes the cause of action “arises under” federal law. Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997). “[A] suit arises under the law that creates the cause of action.” Jones, 931 F.2d at 1092. The “focus is on the source of the right of action.” Ehler v. St. Paul Fire and Marine Ins. Co., Id.; In re: Exxon Chemical Fire, 558 F.3d 378, 385 (5th Cir. 2009). Defendants have not asserted that there was any actual fraud in Plaintiff’s pleadings; instead, Defendants rely only on the second prong of the test to attempt to establish improper joinder.

Under this second prong, the court will consider whether the defendant has demonstrated 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. “[A]ll disputed questions of fact and all ambiguities in the state law must be resolved in favor of the plaintiff.” Grey v. Beverly Enters.-Miss., Inc., 390 F.3d 400, 405 (5th Cir. 2004). However, if a plaintiff has only a theoretical possibility of recovery under state law against a non-diverse defendant, a finding of improper joinder is not precluded. Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000). In order to determine whether a plaintiff has a reasonable basis for recovery against an in-state defendant, the court may conduct a Rule 12(b)(6) analysis.3 Smallwood, 385 F.3d at 573. In conducting this analysis, the court will review “the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. To warrant dismissal under Rule 12(b)(6), it must appear “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In making this determination, the court will accept all well-pleaded facts as true and view all reasonable inferences in a light most favorable to the plaintiff. Jones v. Greninger, 188 F.3d 322 (5th Cir. 1999). Where a plaintiff attempts to state multiple claims against in-state defendants, a finding that recovery is possible on even one of those claims, will require remand. Green v. Amerada Hess Corp., 707 F.2d 201, 208 (5th Cir. 1983), cert. denied, 464 U.S. 1039 (1984). Under Rule 12(b)(6), dismissal would not be warranted just because the court believes the plaintiff is not likely to prevail on the merits. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). “Even if it seems ‘almost a certainty to the court that the facts alleged cannot be proved to support the legal claim,’ the claim may not be dismissed so long as the complaint states a claim.’ ” Clerk v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986).

*8 In the Original Petition, Plaintiff alleges the Defendants were negligent by breaching their duty to Plaintiff in the following manners: (1) failing to furnish Plaintiff with a safe work place; (2) failing to furnish Plaintiff with adequate, necessary and suitable tools, appliances and equipment; (3) failing to properly train, educate, instruct and supervise Plaintiff’s co-workers in the performance of their duties; (4) failing to provide safety equipment; (5) failing to establish and enforce safety rules and regulations; (6) failing to use ordinary care in warning employees of the hazards of employment; (7) failing to use ordinary care in supervising and employee’s activities; (8) negligent layout of the work area and equipment; (9) failing to properly train, educate, instruct and supervise Plaintiff in the performance of his duties; (10) failing to adequately train, educate, or provide instructions and orders to persons; (11) failing to supervise properly; (12) failing to have a competent safety person and/or supervisor on the job-site; (13) failing to warn Plaintiff of the dangers; (14) failing to use reasonable care to prevent an employee from causing an unreasonable risk of harm to others; (15) failing to provide sufficient staff; (16) failing to provide proper safety manuals and instructions to employees responsible for safety; (17)-(18) negligence per se in violating certain OSHA standards; (19) other acts of negligence. D.E. 21, Exh. 19. As alternative allegations of negligence specifically against only Defendant Nestor, Plaintiff alleges Defendant Nestor: (1) failed to furnish Plaintiff with adequate, necessary and suitable tools, appliances and equipment; (2) failed to properly train Plaintiff in the performance of his duties; (3) instructed Plaintiff to perform unsafe work; (4) failed to follow safe work practices; and (5) other acts of negligence. Id.

Whether a plaintiff could possibly establish a claim against a non-diverse defendant is resolved by reference to state law. Hart v. Bayer Corp, 199 F.3d 239, 247 (5th Cir. 1999). In Leitch v. Hornsby, 835 S.W.2d 114 (Tex. 1996), the Texas Supreme Court held that corporate employees have no independent duty to furnish a safe workplace, and therefore, corporate employees cannot be held personally liable for the corporation’s failure to provide a safe place to work. The duty to use ordinary care in providing employees with a safe work place is a non-delegable duty owed by only by the employer. Leitch, 935 S.W.2d at 117-18. However, the Leitch court recognized that corporate employees may be held personally liable for their own acts of negligence; however, “individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer’s duty.” Leitch, 935 S.W.2d at 117. Likewise, the Texas Supreme Court has also held: “[a] corporation’s employee is personally liable for tortious acts which he directs or participates in during his employment;” even where the employee commits the tort while acting in the course of his employment. Leyendecker & Assoc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984).

In this case, Plaintiff raises numerous claims against Defendants Electrolux and Nestor jointly, all related to providing safety in the workplace. These claims all raise issues which relate to duties that are non-delegable under Texas law, they are duties owed only by Defendant Electrolux, and therefore, as to these claims, there is no reasonable basis for concluding the Plaintiff will be able to recover against Defendant Nestor. See Torres v. Trans Health Management, Inc., 509 F.Supp.2d 628 (W.D. Tex. 2006)(petition alleged identical acts of negligence against both employer and employer’s agent, and all were related to failing to provide a safe work environment; the district court therefore found that because the only duties alleged were non-delegable and relief could not be obtained against the agent, joinder of the agent was improper); Palmer v. Wal-Mart Stores, Inc., 65 F.Supp.2d 564, 567 (S.D. Tex. 1999)(plaintiff did not raise any claim that the managerial employee defendant of the corporate codefendant owed the plaintiff any independent duty of care, and all allegations made against the defendants related to failure to provide a safe workplace; therefore, managerial employee defendant was improperly joined).

However, Plaintiff also raises alternative claims only against Defendant Nestor. Not all of these claims allege the negligent failure to provide a safe work place. Instead, at least one of those allegations challenge Defendant Nestor’s personal actions in instructing Plaintiff to perform unsafe work. Because Plaintiff raises claims of personal acts of negligence performed by Defendant Nestor, it cannot be reasonably argued that Plaintiff has no chance of recovery against Defendant Nestor. See Guzman v. Cordero, 481 F.Supp.2d 787 (W.D. Tex. 2007)(defendants Wal-Mart and defendant Cordero, the Wal-Mart courtesy technician who inspected a vehicle, were sued after a vehicle roll-over where plaintiff lost control over vehicle after tire tread separated; district court found Cordero was properly joined because Plaintiff made allegations regarding Cordero’s personal and direct involvement in the conduct that was alleged to have resulted in plaintiff’s injuries); McCarter v, Rescar Undustries, Inc. 2010 WL 4722466 (S.D. Tex.)(unpublished)(joinder of train conductor who operated train when plaintiff sustained injuries was proper where the plaintiff made specific allegations against plaintiff that related to his individual duty to operate the train with reasonable care). Therefore, Defendants have failed to carry their burden of proving by clear and convincing evidence that the joinder of Defendant Nestor was improper. Because “the facts set out in plaintiff’s complaint, taken as true and drawing all reasonable inferences in the light most favorable to the plaintiff[ ], at least raise the possibility that [he] could succeed in establishing a claim against the in-state defendant, [Defendant Nestor], the defendant’s citizenship cannot be disregarded and diversity jurisdiction is absent.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 311 (5th Cir. 2002). And, because “any doubt as to the propriety of removal must be resolved ... in favor of remand,” this Court concludes that remand of the case at bar is required. In re Hot Head Inc., 477 F.3d 320, 323 (5th Cir. 2007).

E. Conclusion.

*9 For the foregoing reasons, this Court finds that the Notice of Removal was untimely filed, and that as a result, remand is required. Alternatively, the Court finds that although Plaintiff’s negligence claims are not rendered non-removable by 28 U.S.C. § 1445(c), Defendants have not met their burden of establishing that there is diversity of citizenship. Remand is warranted because this Court finds that Defendant Nestor was not improperly joined.


Based on the foregoing, it is recommended that the Plaintiff’s Motion to Remand the instant case be GRANTED.





This Court is sympathetic to the Defendants’ assertions regarding the actions of the Plaintiff in reference to the Defendants’ request for admissions. It is not clear why the Plaintiff required additional time in order to respond to requests for admission at issue where the Plaintiff had already filed the medical records with the state court. Defendants contend that Plaintiff may have been attempting to mislead the Defendants. Nevertheless, the Court has not found any authority that excuses the timely filing of a Notice of Removal where the Defendant erroneously relies on misleading tactics of this nature by the Plaintiff. Additionally, the plain language of Section 1446(b) requires the 30-day time period to begin when the defendant “first ascertained” the removability of the case. In this case, it is clear that the filing of the Notices was the “first” voluntary act of the Plaintiff giving the defendant notice that the threshold amount in controversy had been met. As such, the Defendants had an obligation not to ignore the information that readily demonstrated removability.


Defendants rely on Chambers, supra., in asserting that the medical records filed by Plaintiff were not sufficient to trigger the 30-day clock. In Chambers, the court rejected the plaintiff’s assertion that the submission to defendants of certain medical bills and other documents through the discovery process sufficiently triggered the 30-day time limit for removal, although the court did find that such documents could constitute “other paper” under Section 1446(b). This court finds that Chambers is inapposite to the circumstances presented herein because the documents referenced in Chambers did not clearly establish the plaintiff was seeking damages in excess of the jurisdictional limits. Also, although a careful search and review of the documents at issue in Chambers would have provided the defendant with the information necessary for removal, it was not obvious under the facts and circumstances that the jurisdictional limits were met. The Defendants, in the case at bar, were not required to comb through a wide variety or a voluminous number of documents in order to attempt to determine whether the amount in controversy exceeded the jurisdictional threshold. The documents at issue were filed in state court. And, the first document attached each custodian’s affidavit is the bill for services rendered. The first document contained within the medical records from Sierra Medical Center is a bill for more than $191,000. Given that Plaintiff alleged he was seeking, inter alia, damages for past and future medical care, this document alone clearly and unequivocally establishes the amount in controversy exceeds $75,000. Additionally, this Court finds the facts and circumstances of the instant case more closely related to those presented in Doss, supra. This court, therefore, finds that the Defendants’ Notice of Removal was not timely filed, and recommends that the matter be remanded to state court.


Likewise, the court may pierce the pleadings and review summary judgment-type evidence to determine whether a plaintiff has a reasonable possibility of recovery in state court. Smallwood, 385 F.3d at 573. However, the pleadings in this case do not lend themselves to this form of analysis, and furthermore, Defendants rely only on an assertion that a Rule 12(b)(6)-type of analysis requires a finding that Plaintiff does not have a reasonable possibility of recovery against Defendant Nestor.

End of Document