Opinion
PE:23-CV-00026-DC-DF
01-17-2024
KELLI DAWN PLAINTIFF DEFOREST, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JEREMY EDWARD PLAINTIFF DEFOREST AND ON BEHALF OF THE BENEFICIARIES OF THE ESTATE OF JEREMY EDWARD PLAINTIFF DEFOREST DECEASED; Plaintiff DeForest, v. WPX ENERGY PERMIAN, LLC, MICHAEL MCGEE, DEVON ENERGY CORPORATION, WPX INC, ARCHROCK, INC, ARCHROCK GP, LLC, ARCHROCK PARTNERS, LP, ARCHROCK SERVICES, LP, ARCHROCK GENERAL PARTNERS, LP, ARCHROCK PARTNERS LEASING, LLC, ARCHROCK PARTNERS OPERATING, LLC, ARCHROCK SERVICES LEASING, LLC, SHIRLEY BUCHANAN, Defendants.
HONORABLE DAVID COUNTS, U.S. DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE
DAVID B. FANNIN UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is Kelli Dawn DeForest's (“Plaintiff DeForest”) Opposed Motion to Remand to State Court (“Motion to Remand”) (Doc. 9), Defendant WPX Energy Permian's (“Defendant WPX”) Objection and Opposed Motion to Strike and Request in the Alternative Leave to File Sur-Reply (“Motion to Stike”) (Doc. 16). This matter is before the undersigned Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636 and Appendix C of the Local Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the Court Recommends that Plaintiff DeForest's Motion to Remand be DENIED IN PART AND GRANTED IN PART. (Doc. 9).
I. Background
Plaintiff DeForest originally filed this case in the 143rd Judicial District Court of Reeves County, Texas on June 23, 2022. (Doc. 1-10 at 1). This case arises from a workplace accident that occurred on December 11, 2020, resulting in the death of Plaintiff DeForest's husband, Jeremy Edward DeForest (“Decedent”). Decedent was an employee of Defendant Archrock Services, LP at the time of his death. (Doc. 1 at 3). Archrock Services, LP subscribes to the Texas Workers Compensation system. Id. Defendant WPX owned the compressor station where the accident occurred. Id. at 4. The station contained three compressors: Compressor #1, Compressor #2, and Compressor #3. (Doc. 1-10 at 8).
On the morning of the accident, Decedent and Defendant Michael McGee (“Defendant McGee”) were to replace the packaging on Compressor #3. Id. On arrival, Compressor #1 and Compressor #3 were operating. Id. Compressor #2 was not operating. Id. Defendant McGee shut down Compressor #3 and started Lock-Out-Tag-Out (“LOTO”). Id. LOTO was required to depressurize Compressor #3. Id. Decedent started to remove a valve cap from Compressor #3 when Defendant McGee brought Compressor #2 online. Id. At this point, the valve cap Decedent was removing ejected, striking Decedent in the back of his head. Id. An Occupational Health Safety Administration (“OSHA”) report revealed the accident resulted from the Archrock Defendants' failure to provide proper oversight and ensure employees implemented safety training. Id. at 8-9.
Plaintiff DeForest, a Texas resident, initially sued thirteen defendants. Pertinent here, Plaintiff DeForest sued eight Archrock corporate entities, collectively called the “Archrock Defendants.” Id. at 1. All Archrock Defendants have their principal offices in Harris County, Texas. Id. at 2-4. Plaintiff DeForest also sued Defendant Shirley Buchanan (“Defendant Buchanan”), a resident of Texas and former employee of Archrock Services, LP. (Docs. 1 at 5). Plaintiff DeForest alleges Defendant Buchanan provided OSHA training and other safety training to Decedent, Defendant McGee, and the Archrock Defendants. (Doc. 1-10 at 8).
Plaintiff DeForest's Original Petition alleges Defendant Buchanan provided training to “Archrock.” (Doc. 1-10 at 8).
On August 19, 2022, Plaintiff DeForest voluntarily dismissed Defendants Devon Energy Corporation and WPX Energy, Inc. (misnomered WPX, Inc.). (Doc. 1 at 2). Plaintiff DeForest then voluntarily dismissed Defendant Buchanan. Defendant WPX received Plaintiff DeForest's Notice of Nonsuit as to Defendant Buchanan four days after the one-year anniversary of the state action, on June 27, 2023. (Doc. 10 at 1). Thirty days later, on July 27, 2023, Defendant WPX removed this case to the Western District of Texas based on diversity jurisdiction. (Doc. 1 at 1).
In response, Plaintiff DeForest filed this Motion to Remand on August 8, 2023, contending Defendant WPX's removal was untimely, and even if timely, complete diversity does not exist. (See Doc. 9). Further, Plaintiff DeForest argues this case arises under the Texas Workers' Compensation statute, and therefore 28 U.S.C. § 1445(c) mandates remand. Id. at 8-9. Defendant WPX filed a Response on August 21, 2023, to which Plaintiff DeForest filed a Reply on August 28, 2023. (Docs. 13, 15). On September 7, 2023, Defendant WPX moved to strike the Reply and alternatively requested leave to file a sur-reply. (Doc. 16). Plaintiff DeForest filed a Response in Opposition to the Motion to Strike on September 14, 2023. (Doc. 18). These matters are thus ripe for disposition.
II. Legal Standard
“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A federal court therefore “cannot entertain cases unless authorized by the Constitution and legislation.” Coury v. Prot, 83 F.3d 244, 248 (5th Cir. 1996). As a result, a defendant may only remove a case if the district court has original jurisdiction through either diversity of citizenship or existence of a federal question. WMS, LLC v. Allied Prop. & Cas. Ins. Co., 244 F.Supp.3d 567, 570 (W.D. Tex. 2017). If removed, however, a party may move to remand. Hill Country Villas Townhome Owners' Assoc., Inc. v. Everest Indem. Ins. Co., No. 19-CV-0936, 2020 WL 373375, at *2 (W.D. Tex. Jan. 23, 2020) (citing 28 U.S.C. § 1447(c)).
“On a motion to remand, the removing party bears the burden of establishing that one of the bases of [federal] jurisdiction exists, and that the removal was not procedurally defective.” WMS, 244 F.Supp.3d at 570. To establish federal jurisdiction through diversity of citizenship, the amount in controversy must exceed $75,000 and the parties must be completely diverse. 28 U.S.C. § 1332(a). “But removal based on diversity is precluded ‘if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'” Williams v. Homeland Ins. Co. of N.Y., 18 F.4th 806 (5th Cir. 2021) (citing 28 U.S.C. § 1332(a)(1)). Any doubt as to whether removal was proper should be resolved in favor of remand. WMS, 244 F.Supp.3d at 570; Villalobos v. Hudson Ins. Co., No. 22-CV-00010, 2022 WL 4594029, at *3 (W.D. Tex. Sept. 29, 2022) (citing 28 U.S.C. § 1447(c)).
III. Discussion
Plaintiff DeForest moves to remand this case to state court. (Doc. 9). She contends Defendant WPX's removal was untimely under 28 U.S.C. § 1446(c)(1), and this Court lacks subject matter jurisdiction. Id. As to this Court's subject matter jurisdiction, Plaintiff DeForest argues complete diversity does not exist, and even if complete diversity does exist, the action arises under the Texas Workers' Compensation Act (TWCA), thus preventing removal under 28 U.S.C. § 1445(c). Id. at 8, 10-11. Defendant WPX counters that removal was timely under § 1446(c)(1) because Plaintiff DeForest joined Defendant Buchanan in bad faith and § 1445(c) does not apply. (Doc. 13 at 4-6). Defendant WPX further argues that Plaintiff DeForest improperly joined the Archrock Defendants, and their removal from the action results in complete diversity. (Doc. 13 at 8-13).
For the reasons explained below, the Court finds § 1445(c) inapplicable, and therefore the case is removable. However, the Court finds removal untimely and no complete diversity. Thus, the undersigned RECOMMENDS Plaintiff DeForest's Motion to Remand be DENIED IN PART AND GRANTED IN PART.
A. This Case Does Not Arise Under the Texas Workers' Compensation Act
Plaintiff DeForest's claims do not arise under the TWCA. Plaintiff DeForest argues 28 U.S.C. § 1445(c) bars removal of this action to federal court and mandates remand. (Doc. 9 at 8). Section 1445(c) prohibits the removal of any civil action arising under state workers' compensation laws to federal district court. 28 U.S.C. § 1445(c). Plaintiff DeForest contends her claims arise from § 408.001(b) of the Texas Labor Code therefore arising under the TWCA. (Doc. 9 at 8-9). Thus, Plaintiff DeForest's argument turns on whether a claim brought under § 408.001(b) of the Texas Labor Code qualifies as a claim arising under the TWCA. If so, then § 1445(c) mandates remand to state court. Clifford v. Abell Elevator Int'l, Inc, No. 18-CV-00191, 2018 WL 6220122, at *3 (W.D. Tex. Aug. 27, 2018).
This Court answered this exact question in Clifford v. Abell Elevator Int'l. In Clifford, the Court looked to the legislative history of the TWCA and the language of § 408.001. Id. The Court found that the TWCA “limit[s] an injured or deceased employee from suing outside of its framework, with the notable exception of claims for gross negligence by the heirs of a deceased employee.” Id. Section 408.001(b) gives life to the gross negligence exception in that it preserves the pre-TWCA right of a plaintiff to “see[k] exemplary damages in wrongful death cases involving allegations of gross negligence.” Id. at *4. In other words, § 408.001 does not create a cause of action for gross negligence but places such an action outside the TWCA framework. Id. Since the TWCA “preserves rather than creates” the cause of action, this Court in Clifford held that claims brough under § 408.001 do not “arise under” the TWCA, and therefore § 1445(c) does not preclude removal. Id.
That said, Plaintiff DeForest directs the Court to consider Talamantes v. Chromalloy Gas Turbine Corp., No. 08-CV-0583, 2008 WL 5061644, at *4 (W.D. Tex. Nov. 25, 2008), R. & R. adopted, No. 08-CA-583, 2008 WL 11334015 (W.D. Tex. Dec. 17, 2008). (Doc. 15 at 2-3). In Talamantes, this Court rejected the argument presented above that § 408.001(b) preserves rather than creates a cause of action and found that § 1445(c) mandated remand. Id. at *3-4. In the years since Talamantes was decided, however, federal and Texas state courts have rejected the Talamantes Court's holding. See, e.g., Wagner v. FedEx Freight, Inc., 315 F.Supp.3d 916, 921- 31 (N.D. Tex. 2018) (providing a detailed explanation with state and federal case law); Rush Truck Cntrs. of Tex., L.P. v. Mendoza, 676 S.W.3d 821, 835 (Tex. App.-El Paso 2023, pet. filed) (“[N]either Article 16, § 26 of the Texas Constitution, nor § 408.001(b) of the Texas Labor Code, alone or in conjunction create an independent cause of action[.]”). The reasoning of these cases applies here.
The Court finds a claim under § 408.001(b) does not arise under the TWCA and thus § 1445(c) does not mandate remand. As a result, the Court RECOMMENDS Plaintiff DeForest's Motion to Remand be DENIED as to the argument that the case is non-removable under § 1445(c).
B. This Court Lacks Diversity Jurisdiction
Finding § 1445(c) does not mandate remand, the Court turns to whether it has diversity jurisdiction. As mentioned above, a defendant may remove a civil case to federal court based on diversity jurisdiction. WMS, 244 F.Supp. At 570. That said, to remove a case based on diversity, the removing party must demonstrate that all diversity jurisdiction prerequisites contained in 28 U.S.C. § 1332 are satisfied. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004). As such, diversity jurisdiction requires complete diversity and an amount in controversy greater than $75,000. Williams, 18 F.4th at 812.
The parties do not dispute that the amount in controversy exceeds $75,000.
Once the prerequisites for diversity jurisdiction are met, the defendant has 30 days from receipt of the initial pleading to file a notice of removal. 28 U.S.C. § 1446(b)(1). If the initial pleading does not provide grounds for removability, the defendant may remove the action within 30 days from receiving an “amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3); Lara v. Mahony, No. DR: 21-CV-056, 2022 WL 17732703, at *3-4 (W.D. Tex. July 18, 2022). This second 30-day opportunity for removal is known as the “other paper” exception. Springman v. Diamondback E & P, LLC, No. 23-CV-00014, 2023 WL 6461246, at *3 (W.D. Tex. Oct. 4, 2023), R. & R. adopted, No. 23-CV-00014, 2023 WL 6960380 (W.D. Tex. Oct. 19, 2023).
The “other paper” exception, however, is subject to the judicially created “voluntary-involuntary rule.” Lara, 2022 WL 17732703, at *3-4; Odar v. Felix Energy Holdings II LLC, No. PE:21-CV-00079, 2022 WL 1115407, at *6 (W.D. Tex. Apr. 12, 2022), R. & R. adopted, No. PE:21-CV-079, 2022 WL 1514644 (W.D. Tex. May 13, 2022). Under the voluntary-involuntary rule, when joinder of nondiverse defendants prevents removal, a case becomes removable only through the plaintiff's voluntary dismissal or nonsuit of the nondiverse defendants. Hoyt v. Lane Constr. Corp., 927 F.3d 287, 295 (“‘Where the case is not removable because of joinder of defendants,' only ‘the voluntary dismissal or nonsuit by [the plaintiff] of a party or the parties defendant' can convert a nonremovable case into a removable one.”). And to complicate matters, “the voluntary-involuntary rule is itself subject to a judicially created exception for improper joinder.” Id. (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918)). When a non-diverse defendant is improperly joined to defeat diversity jurisdiction, the doctrine of improper joinder renders the voluntary-involuntary rule inapplicable. Id.
Underlying all the exceptions mentioned above is the one-year rule. 28 U.S.C. § 1446(c)(1). Under the one-year rule, when a district court has original jurisdiction through diversity of citizenship, the defendant has only one year from the start of the state action to remove the case to federal court. Id. But an exception to the one-year rule applies when a plaintiff acts in bad faith to prevent removal. Hoyt, 927 F.3d 287 at 292. Thus, for a district court to determine the propriety of removal based on diversity jurisdiction, the court must consider all the above rules and exceptions.
Here, Defendant WPX removed this case based on diversity jurisdiction. (Doc. 1 at 6). The case was removed more than one year after the start of the state action, and complete diversity does not exist. (Docs. 1 at 7; 9 at 4, 11; 13 at 3). In other words, for Defendant WPX to bear its burden of establishing diversity jurisdiction, it must clear two hurdles: timeliness of removal and complete diversity. Accordingly, Defendant WPX contends that (1) removal was timely because Plaintiff DeForest acted in bad faith as to Defendant Buchanan; and (2) complete diversity exists because the eight nondiverse Archrock Defendants are improperly joined. (Doc. 1 at 4-6). The Court evaluates both arguments below.
a. Does Bad Faith Make Removal Timely?
No clear standard for determining “bad faith” exists in the Fifth Circuit. See, e.g., Levias v. State Farm Mut. Auto. Ins. Co., No. 21-CV-2628, 2022 WL 3081199, at *3 (W.D. La. June 29, 2022), R. & R. adopted, No. 21-CV-02628, 2022 WL 3050393 (W.D. La. Aug. 2, 2022); Manley v. Daimler AG, No. 22-CV-2634, 2023 WL 4275004, at *4 (N.D. Tex. June 29, 2023); Guerrero v. C.R. England, Inc., No. 23-CV-00053, 2023 WL 3480903, at *2 (S.D. Tex. May 16, 2023); Brueckner v. Hertz Corp., No. 20-CV-00334, 2023 WL 7130865, at *3 (S.D. Tex. Oct. 30, 2023). That said, the Fifth Circuit provided some guidance in Hoyt, instructing courts to look at the plaintiff's past actions and ask whether those actions were taken to prevent removal. 927 F.3d at 293. “[C]ourts in the Fifth Circuit [also] focus their [bad faith] inquir[ies] on whether the plaintiff's conduct indicates manipulation of the removal statue.” Manley, 2023 WL 4275004, at *4 (providing string cite); Brown v. Home Depot U.S.A., Inc., No. A-17-CA-00733, 2017 WL 4316104, at *2 (W.D. Tex. Sept. 28, 2017). A defendant bears a high burden to show the plaintiff acted in bad faith to prevent removal, and courts are reluctant to find bad faith “without ‘clear and convincing' proof.” Chong v. Sunrise Rests., LLC, No. EP-22-CV-00365, 2023 WL 2612612, *5 (W.D. Tex. Mar. 23, 2023); Manley, 2023 WL 4275004, at *4 (quoting Boney v. Lowe's Home Cntr. LLC, No. 19-CV-1211, 2019 WL 5579206, *2 (N.D. Tex. Oct. 29, 2019)).
In Hoyt, the Fifth Circuit also clarified that the “equitable tolling” standard that applied pre-2011 amendment to 28 U.S.C. § 1446(c) does not apply for “bad faith.” Guerrero, 2023 WL 3480903, at *2. The equitable tolling exception articulated in Tedford provided that “section 1446's one-year limitation was subject to exceptions where a strict application of the rule would be inequitable.” Bennett v. United Rentals (N. Am.), Inc., No. 3:19-CV-00270, 2019 WL 5293544, at *3 (S.D. Tex. Oct. 18, 2019). Even so, decisions that apply the “equitable-tolling exception may still inform this Court's decision under the bad-faith standard because, in most cases where there was bad-faith conduct on the part of the plaintiff, equity will have demanded tolling the one-year limitation period.” Id. (citing Solaijia Eners. LLC v. Amguard Ins. Co., CV H-10-0929, 2019 WL 2329832, at *2 (S.D. Tex. May 31, 2019).
Defendant WPX did not bear its high burden of showing Plaintiff DeForest acted in bad faith as to Defendant Buchanan. Defendant WPX wants this Court to believe bad faith exists because: (1) Plaintiff DeForest dismissed her claims against Defendant Buchanan four days after the one-year deadline; (2) Plaintiff DeForest sought only interrogatories from Defendant Buchanan; (3) Plaintiff dismissed Defendant Buchanan without receiving any consideration; and (4) Plaintiff DeForest's claims as to Defendant Buchanan were baseless. (Docs. 1 at 4-5; 13 at 3). It argues these facts “are very similar” to those in Hoyt, and therefore bad faith exists. (Doc. 1 at 4). The Court is unpersuaded.
The parties do not dispute that Plaintiff DeForest's voluntary nonsuit of Defendant Buchanan was an “other paper.”
In Hoyt, the plaintiff sued three defendants in state court: two non-diverse defendants and one diverse defendant. 927 F.3d at 291. The state court entered a “take nothing” judgment in favor of one non-diverse defendant. Id. The plaintiffs then waited until one year and two days after the suit began to dismiss the only remaining non-diverse defendant. Id. at 292. The Fifth Circuit concluded “the Hoyts kept [the non-diverse defendant] in the case for one purpose and one purpose only-to prevent removal during § 1446(c)'s one-year removal period. Two days after accomplishing that purpose, the Hoyts dismissed [the non-diverse defendant] for free.” Id. In reaching this conclusion, the Fifth Circuit looked in part to the expiration of the one-year deadline and the half-hearted pursuit of weak claims against the only non-diverse defendant. Id.
Conversely, Defendant Buchanan was one of nine non-diverse defendants in this case. (See Doc. 1-10 at 2-6). On her dismissal, eight non-diverse defendants, collectively the Archrock Defendants, were still parties to the litigation. And one of those eight non-diverse defendants was Archrock Services, LP, Decedent's employer. (Doc. 1 at 3). As a result, at no point, with or without Defendant Buchanan, did complete diversity exist.
In this case, a lack of complete diversity creates serious doubt as to whether Plaintiff DeForest improperly joined Defendant Buchanan to engage in forum manipulation. Defendant WPX fails to explain why Plaintiff DeForest would use Defendant Buchanan for forum manipulation when Plaintiff DeForest assumed it properly sued Decedent's nondiverse employer. (Doc. 9 at 7). Defendant WPX's argument requires the Court to assume Plaintiff DeForest knew Defendant WPX was waiting for Defendant Buchanan's dismissal so it could remove this case to federal court-despite no complete diversity-and argue all eight Archrock Defendants were improperly joined under the federal pleading standard. The number of assumptions this Court must accept to find bad faith demonstrates Defendant WPX did not meet its high burden.
Plaintiff DeForest brought her claims in state court under Texas law. Texas state law requires only a notice pleading.
Bad faith requires a case-by-case analysis. Carter, 2023 WL 5002458, at *2. Looking at this case, the Court finds doubt as to Plaintiff DeForest's bad faith. This doubt requires remand. See Villalobos, 2022 WL 4594029, at *3 (citing 28 U.S.C. § 1447(c)). Accordingly, the undersigned RECOMMENDS that Plaintiff DeForest's Motion to Remand be GRANTED as to the claims of untimely removal under 28 U.S.C. § 1446(c)(1).
b. Does Improper Joinder Create Diversity Jurisdiction?
Despite finding removal untimely, the Court considers the second hurdle to its jurisdiction: Does this Court sit in diversity? As discussed above, Plaintiff DeForest's voluntary dismissal of Defendant Buchanan initiated removal, but complete diversity does not exist with or without Defendant Buchanan. (Docs. 1 at 7; 9 at 11). Plaintiff DeForest and the eight Archrock Defendants are all citizens of Texas. (Doc. 1 at 2-3). Defendant WPX, however, asks this Court to disregard the eight Archrock Defendants' citizenship, contending the Archrock Defendants were improperly joined. (Doc. 1 at 2-3).
It is not disputed that Plaintiff DeForest's voluntary nonsuit as to Defendant Buchanan was an “other paper.”
It is not disputed that all Archrock Defendants have their principal place of business in Harris County, Texas. (Doc. 1-10 at 2-4).
Under the doctrine of improper joinder, a district court may disregard the citizenship of a non-diverse defendant if the removing party shows either: (1) actual fraud in the pleading of jurisdictional facts; or (2) [that] the plaintiff is unable to establish a cause of action against the non-diverse defendant in state court. Odar, 2022 WL 1115407, *8 (quoting Williams, 18 F.4th at 812). A party removing a case to federal court on a claim of improper joinder bears a “heavy burden of proving joinder is improper.” Smallwood, 385 F.3d at 576; see also Villalobos, 2022 WL 4594029, at *11. Here, only the second method of improper joinder applies. (Docs. 1 at 8; 9 at 15).
The second method of improper joinder requires the Court to consider “whether the [removing] defendant has demonstrated that there is no possibility of recovery by the plaintiff against the in-state defendant.” Villalobos, 2022 WL 4594029, at *12 (quoting Graves v. Decca Consulting, No. PE:20-CV-00021, 2020 WL 10317466, at *2 (W.D. Tex. June 11, 2020)). In Smallwood, the Fifth Circuit clarified that no possibility of recovery means “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.” 385 F.3d at 573. A court may conduct this analysis in one of two ways. First, the court may use a Federal Rule 12(b)(6)-type analysis. Villalobos, 2022 WL 4594029, at *12. Second, and only in rare instances where “a plaintiff has stated a claim but has misstated or omitted discrete facts that would determine the propriety of joinder,” the district court may “pierce the pleadings and conduct a summary inquiry.” Id. (quoting Smallwood, 385 F.3d at 573). A district court has discretion to choose the analysis to apply, but the 12(b)(6)-type analysis is preferred. Id.; Villalobos, 2022 WL 4594029, at *12.
Here, Defendant WPX contests the sufficiency of Plaintiff DeForest's Original Petition to state a claim against the Archrock Defendants. (Docs. 1 at 9; 9 at 12). Since the sufficiency of Plaintiff DeForest's pleading is disputed, the Court finds the Rule 12(b)(6)-type analysis appropriate. Under the 12(b)(6)-type analysis, “courts look initially at the allegations in the complaint to determine whether the complaint states a claim under state law against the defendant.” Christianson Air Conditioning & Plumbing, LLC v. NIBCO, No. A-17-CV-16, 2017 WL 11207257, *3 (W.D. Tex. June 15, 2017), R. & R. adopted, No. 17-CV-16, 2017 WL 11207258 (W.D. Tex. July 7, 2017). If a plaintiff survives the 12(b)(6) challenge, there is no improper joinder. Wilkins v. Arthur J. Gallagher & Co., No. MO-10-CV-40, 2010 WL 11652141, at *3 (W.D. Tex. May 12, 2010), R. & R. adopted, No. MO-10-CV-040, 2010 WL 11652 (W.D. May 27, 2010)).
Previously, it was unclear whether the federal pleading standard or the state pleading standard applied in an analysis for improper joinder. NIBCO, 2017 WL 11207257, at *3. Seizing on this discrepancy, Plaintiff DeForest asks the Court to apply the Texas pleading standard, arguing that application of the federal pleading standard would punish Plaintiff DeForest for a properly pleaded petition in state court. (Doc. 9 at 12 ⁋ 34). The Fifth Circuit clarified in Int'l Energy Ventures Mgmt., LLC v. United Energy Grp., Ltd., that the Rule 12(b)(6)-type analysis requires application of the federal pleading standard. 818 F.3d 193, 204 (5th Cir. 2016). Thus, the federal pleading standard applies.
Defendant WPX argues that even under the Texas fair notice pleading standard, Plaintiff DeForest's Original Petition does not state a claim against the Archrock Defendants. (Doc. 13 at 10). Since federal pleading standards govern, the Court does not determine whether Plaintiff DeForest's Original Petition satisfies Texas pleading standards.
The Court now applies the federal pleading standard to Plaintiff DeForest's claims against the Archrock Defendants to determine whether the Archrock Defendants were improperly joined. The Court must consider whether Plaintiff DeForest pleaded “enough facts to state a claim to relief that is plausible on its face.” Int'l Energy Ventures Mgmt., LLC, 818 F.3d at 208 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true all well-pleaded facts in the plaintiff's complaint and view those facts in a light most favorable to plaintiff. See Raj v. La State Univ., 714 F.3d 322, 329-30 (5th Cir. 2013) (citing Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012)).
Further, “Rule 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a).” Marc Ellman, MD., P.A. v. MD Office LLC, No. EP-12-CV-29, 2022 WL 980640, at *2 (W.D. Tex. Mar. 31, 2022). Rule 8 “requires pleadings to include ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” Lasslett v. Tetra Tech, Inc., No. 13-CV-072, 2015 WL 13805125, at *1 (W.D. Tex. Feb. 20, 2015), R. & R. adopted, No. DR-13-CV-072, 2015 WL 13805181 (W.D. Tex. Sept. 30, 2015). Under Rule 8, “a plaintiff must include enough facts to give a defendant fair notice of the claims against it.” Id. (citing Twombly, 550 U.S. at 555). A complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
Defendant WPX argues that Plaintiff DeForest fails to state a claim as to any one of the eight Archrock entities because they are collectively called the “Archrock Defendants.” Plaintiff DeForest refers to the eight Archrock entities as the “Archrock Defendants” for the entirety of the Original Petition. (See Doc. 1-10). The only time Plaintiff DeForest lists each Archrock Defendant individually is in the statement of parties where Plaintiff DeForest identifies each Archrock Defendant as having its principal offices in Harris County, Texas. (Doc. 1-10 at 2-4). Plaintiff DeForest also refers to the Archrock Defendants and all other defendants collectively as “Defendants” when asserting the two causes of action. (See Doc. 1-10).
Courts in and outside this Circuit routinely dismiss claims under Rule 12(b)(6) when pleadings group defendants together. See Rowland v. Sw. Correctional, LLC, 20-CV-00847, 2021 WL 4206409, at *13 (E.D. Tex. Aug. 17, 2021), R. & R. adopted, No. 20-CV-847, 2021 WL 4191433 (E.D. Tex. Sept. 15, 2021); Del Castillo v. PMI Holdings N. Am. Inc., No. 14-CV-03435, 2016 WL 3745953, at *13 (S.D. Tex. 2016); see also Lasslett, 2015 WL 13805125, at *3. That said, “[n]othing in Rule 8 prohibits collectively referring to multiple defendants where the complaint alerts defendants that identical claims are asserted against each defendant.” Lasslett, 2015 WL 13805125, at *3 (citing Hudak v. Berkley Grp., Inc., No. 13-CV-00089, 2014 WL 354676, at *4 (D. Conn. Jan. 23, 2014)). And at least one court in this district has found claims against a group of related entities to survive a 12(b)(6) motion to dismiss. Marc Ellman, MD., P.A., 2022 WL 980640, at *4 (“Plaintiffs' do not make conclusory or nonspecific claims against a group of unrelated companies; they make specific claims against a group of linked entities.”).
Here, Plaintiff DeForest brings identical claims of negligence and gross negligence against all eight Archrock entities, and it is fully evident that Plaintiff DeForest attributes the same conduct to all Archrock Defendants. See Lasslett, 2015 WL 13805125, at *3. Moreover, Plaintiff DeForest's factual allegations separate the Archrock Defendants' conduct from conduct attributable to other Defendants. For example, she alleges the “Archrock Defendants failed to ensure that employees were implementing the training they received and utilizing LOTO and Valve Cap Installation Procedure during spot checks in the field.” (Doc. 1-10 at 8). She also alleges that the “Archrock Defendants['] energy control procedures did not clearly and specifically outline the scope, purpose, authorization, rules, and techniques to be utilized for the control of hazardous energy,” and “that Archrock was not effectively communicating its procedures to employees[.]” Id. at 8-9. Thus, despite the collective use of “Archrock Defendants,” Plaintiff DeForest's Original Petition alerts the Archrock entities that identical claims are asserted against each Archrock Defendant. See Hudak, 2014 WL 354676, at *4; Lasslett, 2015 WL 13805125, at *3.
Nonetheless, Defendant WPX directs the Court's attention to Del Castillo, but the Court finds this case distinguishable. In Del Castillo, the plaintiffs brought negligence, gross negligence, and negligence per se claims against two groups of defendants, the PMI defendants and the Pemex defendants. 2016 WL 3745953, at *13. The PMI defendants collectively referred to PMI Holdings and three other PMI entities. Id. at n.24. The Pemex defendants collectively referred to four Pemex subsidiaries. Id. at n.25. Importantly, “[n]early all” factual allegations for negligence in the plaintiff's complaint were directed at the Pemex defendants. Id. PMI Holdings then moved to dismiss the claims against it. Id. The Southern District of Texas found that “the [plaintiffs'] allegations [did not] delineate between the actions of the ‘PMI defendants' and the actions of the ‘Pemex defendants.'” The court then dismissed the claims against PMI Holdings, holding that “lumping together multiple defendants without identifying [which entity was] responsible for which acts d[id] not satisfy the requirements of Rules 8(a)(2) and 12(b)(6).” Id. Here, in contrast, Plaintiff DeForest directs nearly all her factual allegations to the Archrock Defendants. Unlike in Del Castillo, Plaintiff DeForest identifies all Archrock entities as responsible for the acts alleged. In sum, the Court finds that Plaintiff DeForest's grouping of the eight Archrock entities as the “Archrock Defendants” survives a 12(b)(6)-type analysis. As a result, the Archrock Defendants are not improperly joined, and their citizenship is considered for diversity. The Court therefore finds complete diversity does not exist. Accordingly, the undersigned RECOMMENDS that Plaintiff DeForest's Motion to Remand be GRANTED as to the grounds that complete diversity does not exist.
IV. Motion to Strike
Plaintiff DeForest filed a reply brief to Defendant WPX's opposition to Plaintiff DeForest's Motion to Remand. (Doc. 15). Defendant WPX then moved to strike the following paragraphs and exhibits from the reply brief: Paragraph I.1; Paragraphs III.3-4; Paragraph VI.14; a Job Hazard Assessment; additional pages from Defendant McGee's deposition; OSHA findings; a 2021 Mitigation Plan; Decedent's W-4; and an internet page. (Docs. 15 at 2, 3-3, 9). The Court did not consider the paragraphs or pieces of evidence cited in Defendant WPX's Motion to Strike. As a result, it is ORDERED that the Motion to Strike is MOOT.
Defendant WPX misnumbered V.14 as V.15.
V. Recommendation and Conclusion
Based on the above reasoning, the Magistrate Judge recommends:
• Plaintiff DeForest's claims do not arise under the Texas Workers' Compensation Act. Accordingly, the undersigned RECOMMENDS that Plaintiff DeForest's Motion to Remand pursuant to 28 U.S.C. § 1445(c) be DENIED.
• Plaintiff DeForest did not act in bad faith as to Defendant Buchanan. Accordingly, the undersigned RECOMMENDS that Plaintiff DeForest's Motion to Remand as to the claims of untimely removal pursuant to 28 U.S.C. § 1446(c)(1) be GRANTED.
• Plaintiff DeForest did not improperly join the Archrock Defendants. Accordingly, the undersigned RECOMMENDS that Plaintiff DeForest's Motion to Remand as to the claims of no complete diversity pursuant to 28 U.S.C. § 1332 be GRANTED.
Further, it is ORDERED that Defendant WPX's Motion to Strike is MOOT. It is so ORDERED.
Instructions for Service and Right to Appeal/Object
In the event that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested . Pursuant to 28 U.S.C. § 636(b), any party who desires to object to this report must serve and file written objections within fourteen (14) days after being served with a copy unless the time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court and serve the objections on the Magistrate Judge and on all other parties. A party's failure to file such objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, a party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).