Opinion
Civil Action No: SA-03-CA-0922-XR.
December 13, 2004
ORDER
On this date the Court considered Plaintiffs' motion for reconsideration (docket nos. 50 52). Plaintiffs first argue for consideration of the Court's decision to grant summary judgment in favor of the government on the basis of borrowed servant liability. As expressed in the Court's amended Order of December 7, 2004, the evidence establishes that the military resident at issue, Dr. York, was the borrowed servant of the University of Texas Health Science Center. UT, the supervising institution, had the right to control his duties. The cases cited by Plaintiff, all prior to St. Joseph's Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002), do not establish the contrary. As established by Wolff, once a court finds that another entity had the right of control under the Texas borrowed servant doctrine in a situation such as the present, the employer institution is not liable for the actions of the borrowed servant.
Plaintiffs also argue that the Court should reconsider its ruling as to the remand of this case to the state court. Plaintiffs argue that remand would be a manifest hardship to Plaintiffs and point to the Fifth Circuit case of Garcia v. U.S., 88 F.3d 318 (5th Cir. 1996), as forbidding a district court in the present situation to remand the case. Garcia required the district court to maintain jurisdiction in a situation in which the district court determined that certification by the Attorney General of a government employee acting in the course and scope of his employment was erroneous. Id. at 324. In the present case, the Court has found that the certification was not erroneous and that the government employee was acting in the course and scope of his employment. See Jones v. Gahn, 246 F. Supp.2d 622, 628-29 n. 3 (S.D. Tex. 2003). The Court finds that the reasoning in Garcia was not meant to apply to the present case, in which there was no cause of action against the United States, even though the government employee was acting in the course and scope of his employment. Application of Garcia would "at the very least . . . approach the limit, if . . . not cross the line" in defining the scope of Article III jurisdiction to "a claim that does not implicate federal law in any way." Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 441 (1995) (Souter, J., dissenting); Garcia, 88 F.3d at 327 (Garza, J., concurring). Additionally, "upon the state court's receipt of [the remand order], the federal court is without power to vacate the order to remand, even if it becomes persuaded that the order was erroneous." 14C CHARLES ALAN WRIGHT, ARTHURR. MILLER, EDWARDH. COOPER, FEDERAL PRACTICE PROCEDURE § 3739, at 494 (3d ed. 1998); Browning v. Navarro, 743 F.2d 1069 (5th Cir. 1984).
Plaintiff's motion for reconsideration (docket nos. 50 52) are DENIED.