Opinion
Civil Action No. 3:03-CV-00515-L.
June 30, 2003.
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff's Motion to Remand, filed March 26, 2003, and Defendant Texas Instruments Incorporated's Motion for Leave to File Supplemental Brief, filed April 25, 2003. After considering the parties' motions and the applicable law, the court grants Plaintiff's Motion to Remand and denies Defendant Texas Instruments Incorporated's Motion for Leave to File Supplemental Brief for the reasons herein stated.
I. Factual and Procedural Background
On January 9, 2003, Daniel Rodriguez ("Plaintiff") brought this action in Court No. 1 in Dallas County, Texas against Brooks Pri-Automation, Inc. ("PRI"), Texas Instruments, Inc. ("TI"), and Onsite Companies, Inc. d/b/a Aerotek Contract Engineering ("Aerotek"), alleging claims for negligence, premises liability, negligent activity, and strict products liability. Specifically, Plaintiff alleges he was injured by an automation robot that was designed, manufactured, sold, and installed by PRI at TI's manufacturing facility in Dallas, Texas. Aerotek assisted with the installation, and Brycon Construction ("Brycon"), a company hired by Aerotek or PRI, employed Plaintiff on January 14, 2002. Plaintiff worked with Aerotek employee Kip Towns ("Towns") to complete the installation of the robot.
Plaintiff alleges that he and Towns were not furnished with communication devices while installing the robot in the elevator shaft and, as result, they had to yell up and down the three-story elevator shaft to communicate with each other. Plaintiff crawled into the elevator shaft to yell instructions at Towns. As he crawled out of the shaft, Towns engaged the robot, and it ascended at a high rate of speed towards Plaintiff, who was unable to stop the robot, because there was no emergency stop inside the shaft. To avoid the robot, Plaintiff attempted to hang onto the side of the elevator shaft with his left hand, and as he was holding on, the gears of the robot ran over his left thumb, severing it at the lower knuckle. Plaintiff was transported to Baylor Medical University Hospital in Dallas, Texas. As result of the injury, he suffered nerve damage, numbness, pain and impairment in his left hand.
On March 11, 2003, TI removed the action to this court on the basis of diversity jurisdiction, alleging that Plaintiff fraudulently joined TI solely to defeat diversity jurisdiction. TI maintains that Plaintiff has no possibility of recovery against it, because TI did not retain supervisory control over the project or the manner in which PRI, Brycon, Aerotek or the other independent contractors and subcontractors performed their work, except for retaining the right to start or stop the work, inspect progress and receive reports, and inspect the job-site to ensure that TI's safety guidelines were being followed. On March 26, 2003, Plaintiff filed a motion to remand, contending that TI's conclusory statements that it was fraudulently joined are insufficient to carry its burden of establishing fraudulent joinder. On April 25, 2003, TI moved for leave to file a supplemental brief and affidavit to address Plaintiff's contentions. Plaintiff's Motion to Remand and TI's Motion for Leave to File Supplemental Brief are now before the court.
II. Plaintiff's Motion to Remand
Defendants removed this case to federal court, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). According to his First Amended Petition, Plaintiff is a resident of Colorado. PRI and Aerotek are both foreign corporations. PRI's principal place of business is Massachusetts, and Aerotek's principal place of business is Maryland. TI is a Texas Corporation, whose principal place of business is Texas. Despite the lack of complete diversity between the parties, TI maintains that removal was proper, because it was fraudulently joined by Plaintiff for the purpose of defeating diversity jurisdiction. Plaintiff, on the other hand, argues that TI is a proper defendant to this action and has failed to meet its burden of establishing that removal was proper.
A. Fraudulent Joinder Standard
As the party wishing to invoke federal jurisdiction by alleging fraudulent joinder, TI bears "the heavy burden" of establishing that it was joined by Plaintiff to defeat diversity of citizenship jurisdiction. To establish fraudulent joinder, TI must prove: "(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 Lloyd's, 181 F.3d 694, 698 (5th Cir. 1999). Since TI does not assert fraud by Plaintiff, it must prove that Plaintiff has not set forth any valid state law cause of action against it. In addressing this issue, the district court determines whether a plaintiff has "any possibility of recovery against the party whose joinder questioned." Id. at 648 (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002). The "any possibility" test requires that "there must at least be arguably a reasonable basis for predicting that state law would allow recovery in order to preclude a finding of fraudulent joinder." Id. at 329 n. 25 (quoting Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n. 4 (5th Cir. 2002) (emphasis in original); see also Great Plains Trust, 313 F.3d at 312 ("If there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved, then there is no fraudulent joinder."). "This possibility, however, must be reasonable, not merely theoretical." Id. When considering whether a nondiverse defendant has been fraudulently joined to defeat diversity of citizenship jurisdiction, courts may "pierce the pleadings" and consider "summary judgment-type evidence such as affidavits and deposition testimony." Cavallini v. State Farms Mut. Auto Ins. Co., 44 F.3d 256,263 (5th Cir. 1995). All disputed questions of fact and ambiguities in the controlling state law, however, must be resolved in favor of the nonremoving party. Travis, 326 F.3d at 649. Furthermore, "[a]ny doubts concerning removal must be resolved against removal in favor of remanding the case back to state court." Brock v. Provident Am. Ins. Co., 144 F. Supp.2d 652, 656 (N.D. Tex. 2001). Accordingly, the court must determine whether Plaintiff's state law claims against TI are viable. If there is a reasonable possibility that Plaintiff can recover on any these claims, the case must be remanded.
B. Analysis
Plaintiff brought claims against TI for premises liability, strict products liability, and negligence.
1. Premises Liability
With respect to his premises liability claim, Plaintiff alleged that: he was an "invitee" on TI's premises, the condition of the robot and the elevator shaft imposed an unreasonable risk of harm; TI had actual or constructive knowledge of the dangerous condition but failed to exercise reasonable care to eliminate or reduce the risk caused by the condition; and Plaintiff's injury was proximately caused by the condition. The parties agree that Plaintiff was an independent contractor at the time of the incident.
"Generally, a premises owner does not have a duty to ensure that an independent contractor safely performs his work." Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999). In cases such as these, there are two types of premises defects: "(1) defects existing on the premises when the independent contractor entered; and (2) defects the independent contractor created by its work activity." Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). Plaintiff appears to assert that TI is subject to liability under both categories. See Plaintiff's First Amended Petition ¶¶ 6.2-6.5. It is clear from the facts alleged by Plaintiff, however, that this is not a premises defect that existed on the premises when the independent contractor entered; rather, this case involves an injury caused by an activity conducted on the premises. It therefore falls under the second category of premises defects.
Dow dealt with a general contractor's duty to an independent contractor; however, the court in Koch made clear that cases considering the duties of premises owners and general contractors can be used interchangeably since the duties owed are the same.
Under the second category of premises defects, an owner or occupier generally has no duty to see that an independent contractor performs work in a safe manner. Id. (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). When an owner or occupier exercises some control over an independent contractor's work, however, it may be liable unless it exercises reasonable care in supervising the independent contractor's activity. Id. For liability to attach, the owner or occupier's role "must be more than a general right to order the work to start or stop, to inspect progress or receive reports." Id.
A party can prove right to control in two ways: (1) "by evidence of a contractual agreement that explicitly assigns the premises owner a right to control"; or (2) "in the absence of a contractual agreement, by evidence that the premises owner actually exercised control over the manner in which the independent contractor's work was performed." Koch, 11 S.W.3d at 155. In the present case, Plaintiff raises both arguments. Since the main issue of contention seems to be whether TI exercised contractual control of the premises, the court addresses this issue first.
2. Contractual Right to Control
A contract may impose control upon a party thereby creating a duty of care. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). "If the right of control over work details has a contractual basis, the circumstance that no actual control was exercised will not absolve the general contractor of liability." Id. "It is the [contractual] right of control, and not the actual exercise of control, which gives rise to a duty to see that an independent contractor performs work in a safe manner." Id. For an owner or occupier to be liable for an independent contractor's acts, it must have the right to control the means, methods, or details of the independent contractor's work. Dow, 89 S.W.3d at 606. The control must also "relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done." Id. (quoting Elliott-Williams Co., 9 S.W.3d at 804). Whether a contract gives a right of control is generally a question of law for the court to decide. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001).
As Plaintiff points out in his reply, TI did not address the issue of control by contract in its response to Plaintiff's Motion to Remand. TI therefore moved for leave to file a supplemental brief to address the issue. In its proposed supplemental brief, TI contends that it did not retain control by contract and requests that the court "pierce the pleadings" to determine whether Plaintiff has a valid claim under state law. For support that it did not retain contractual control, TI attached the affidavit of Wesley S. Alost ("Alost"), an attorney for TI. In his affidavit, Alost states in pertinent part that he reviewed the parties' contract and:
found [no] provision in the contract documents which grants TI the type of control necessary to create liability. . . . I have located contract provisions which require the independent contractors to adhere to TI's safety regulations and corporate standard procedures and practices, as well as all applicable Federal and state safety regulations. However, I have not found any provision in the contract documents which gives TI control over the day-to-day activities of the independent contractors other than the right to order the work to start or stop or to inspect the progress of the work or to receive reports.
Alost's Affidavit ¶¶ 2-3.
In response, Plaintiff objected to the filing of the supplemental brief and affidavit, contending that the statement by TI's legal counsel is nothing more than a legal conclusion, which is insufficient to establish that TI did not retain control by contract. The court agrees. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) ("Removal . . . cannot be based simply upon conclusory allegations."). TI's proposed supplemental brief and affidavit offer no evidence that tend to establish that TI did not retain contractual control. As stated previously, the issue of whether TI retained control by contract is a legal question for the court. Without the contract, however, the court has no way of making this determination. The court therefore denies Defendant Texas Instruments Incorporated's Motion for Leave to File Supplemental Brief, because it would still reach the same result even if it considered the supplemental brief for purposes of deciding Plaintiff's Motion to Remand, as the contract in question is not a part of the record.
In its motion for leave to supplement, TI suggests that Plaintiff had the burden of reviewing the contract, which TI "tendered to Plaintiff s counsel on numerous occasions, both prior to and after TI filed its response," and coming forward with evidence that TI retained contractual control. As Plaintiff notes, however, and the court agrees, it is not Plaintiff's burden, but instead TI's burden, to establish that Plaintiff has no reasonable possibility of recovery on its premises liability and other claims. TI states that it did not attach a copy of the contract with its motion for leave to supplement, because "the contract documents contain trade secrets and other proprietary information and because the contract documents are so voluminous."
The court finds this statement disingenuous since TI acknowledged that it has already produced the contract for Plaintiff to review on "numerous occasions." Moreover, Defendant could have moved that the contract be placed under seal, and the court would have done so. Finally, the affidavit is a clear violation of Local Rule 83.15, because Alost is an attorney in the case, who seeks to offer his own testimony on a contested matter. The affidavit is thus inadmissable. The court therefore determines that TI not only failed to demonstrate that it did not retain the contractual right of control, but also failed to meet its heavy burden of establishing that Plaintiff has no possibility of recovery against TI on its premises liability claim. Accordingly, Plaintiff's Motion to Remand is granted. Having determined that TI failed to meet its burden with respect to Plaintiff's premises liability claim, the court need not address whether Plaintiff has any possibility of recovery against TI under its remaining claims for strict liability and negligence.
III. Conclusion
For the reasons herein stated, the court determines that TI failed to meet its burden. A reasonable possibility exists that Plaintiff will be able to recover on his premises liability claim against TI in state court, and therefore no fraudulent joinder is present. TI's citizenship thus cannot be ignored for purposes of determining subject matter jurisdiction, and its presence in this action destroys the complete diversity of citizenship necessary for subject matter jurisdiction. Since complete diversity is lacking, the court does not have subject matter jurisdiction. The case must therefore be remanded to state court. Accordingly, Plaintiffs' Motion for Remand is granted; Defendant Texas Instruments Incorporated's Motion for Leave to File Supplemental Brief is denied; and the case is remanded to Court No. 1 in Dallas County, Texas. The clerk of the court is directed to effect the remand pursuant to the usual procedure. The parties shall bear their own respective costs.