Opinion
Civil Action No. 3:04-CV-0915-B.
October 28, 2004
MEMORANDUM ORDER
Before the Court are Plaintiff's Motion for Leave to Amend to Join Additional Parties and Plaintiff's Motion to Remand, both filed by "joint submission" on June 28, 2004. For the reasons that follow, the Court DENIES both motions.
Pursuant to ¶ 5 of Judge Buchmeyer's May 10, 2004 Scheduling Order, Plaintiff, as the movant, was required to initially serve the other parties with a copy of her motions rather than file them with the Court. Instead, Plaintiff filed the motions on June 1, 2004 and filed them again on June 28 by "joint submission." Because the timing of Plaintiff's filings is relevant to the issues presented in her motions, for purposes of this order the Court deems Plaintiff's motions as filed on June 1, 2004.
Additionally, in her joint submission materials Plaintiff noted that Defendants failed to respond to her motions by June 21, 2004 as required by the Scheduling Order and Local Rule 7.1(e). While it is true that the docket does not reflect that any responses were filed by that date, Defendant Onsite Companies, Inc. filed an opposition to Plaintiff's motions on June 25, 2004, which, though untimely, has been considered by the Court in its determination of Plaintiff's motions.
I. Issue
Plaintiff seeks leave to join two individuals, William Meeks and Jay McCormick, as defendants in this case to assert claims of negligence against them. Because McCormick, like Plaintiff, is a Texas citizen, his joinder would necessarily destroy diversity jurisdiction. Defendant Onsite Companies, Inc. ("Onsite") argues that Plaintiff's attempted joinder is a deliberate attempt to defeat this Court's diversity jurisdiction and urges the Court to deny Plaintiff's motions.
II. Facts
Plaintiff alleges that her deceased husband, Alejandrino Covarrubias, was electrocuted and killed on November 8, 2001 while working on a wiring job at the South Plains Mall in Lubbock, Texas. (Pl.'s Mot. Leave ¶ 1). Covarrubias was an Onsite employee. ( Id. at ¶ 4). Plaintiff initially filed this suit against Aqualine Resources, Inc. ("Aqualine") and Onsite in the 14th Judicial District of Dallas County on November 7, 2003. ( Id. at Ex. A). At some point, Plaintiff claims to have discovered that Covarrubias's son had filed an earlier suit in the 162nd Judicial District of Dallas County on behalf of all wrongful death beneficiaries (hereinafter, the "Wrongful Death case") against Aqualine and Onsite and the two individuals Plaintiff seeks to join here, Meeks and McCormick. ( Id. at ¶ 6 Ex. E). Plaintiff attempted to secure agreement from Aqualine and Onsite to consolidate the two cases in the 162nd Judicial District, but was apparently unsuccessful. ( Id. at ¶ 7). Onsite removed Plaintiff's state court case to federal court on April 29, 2004, and Aqualine filed its notice of consent to removal the next day on April 30, 2004.
Upon removal, this case was originally assigned to Judge Buchmeyer. Pursuant to Special Order No. 3-244, the case was transferred to this Court's docket on July 19, 2004.
III. Analysis
To be entitled to leave, Plaintiff must show that the joinder of Meeks and McCormick is appropriate under both the federal joinder rules and 28 U.S.C. § 1447(e). The Fifth Circuit has "rejected the rigid distinction between the post-removal joinder of indispensable parties under [Federal Rule of Civil Procedure] 19 and post-removal joinder of permissive parties under [Rule] 20." Holcomb v. Brience, Inc., 2001 WL 1480756, at *2 (N.D. Tex. Nov. 20, 2001) (citing Hensgens v. Deere Co., 833 F.2d 1179, 1181 (5th Cir. 1987). Regardless of whether Meeks and McCormick are indispensable parties, the Court finds that they are at least permissive parties because the claims asserted against them arise out of the same transactions or occurrences as are involved in the claims against the present Defendants and deal with common questions of law and fact. FED.R.CIV.P. 20; McNeel v. Kemper Cas. Ins. Co., 2004 WL 1635757, at *2 (N.D. Tex. July 21, 2004).Where a plaintiff seeks to join additional non-diverse defendants post-removal, the Court may use its discretion to either deny joinder, or permit joinder and remand the action to the state court. 28 U.S.C. § 1447(e) (1994); Hensgens, 833 F.2d at 1182. Although section 1447(e) does not delineate standards by which a district court's discretion should be guided, the Fifth Circuit's decision in Hensgens, decided before section 1447 (e)'s adoption, enumerates several factors that should be considered when engaging in post-removal joinder determinations. Id.; Holcomb, 2001 WL 1480756, at *2. Those factors are:
(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction;
(2) whether the plaintiff has been dilatory in asking for the amendment;
(3) whether the plaintiff will be significantly injured if the amendment is not allowed; and
(4) any other factors bearing on the equities.
Doleac v. Michalson, 264 F.3d 470, 474 (5th Cir. 2001). Each of these factors will be addressed in turn.
First, the Court looks to the degree to which Plaintiff seeks to join Meeks and McCormick simply to thwart federal jurisdiction. Hensgens, 833 F.2d at 1182. As Onsite points out in its response, Plaintiff filed an amended petition in state court on January 15, 2004, in which reference is made to the Wrongful Death case, where both Meeks and McCormick are named defendants. Thus, at latest, Plaintiff knew of the existence of Meeks and McCormick and their respective alleged involvement with the events leading to Covarrubias's death on January 15, 2004. Yet Plaintiff did not seek to add those individuals as defendants until filing her motion for leave to join additional parties on June 1, 2004, almost five months after filing her amended state court petition on January 15, 2004 and a little over a month after Defendants removed the action to federal court on April 29, 2004. The temporal proximity between Defendants' removal and Plaintiff's sudden effort to add defendants, one of which is non-diverse, arouses the Court's suspicion as to Plaintiff's motivations. Holcomb, 2001 WL 1480756, at *2. By all appearances, Plaintiff's zeal to add Meeks, and especially McCormick, is fueled by her desire to escape federal jurisdiction.
Plaintiff contends that she did not seek to join Meeks and McCormick in the state case because she had been attempting to secure agreement with opposing counsel to consolidate her case with the Wrongful Death case. (Pl.'s Mot. Leave 4). Plaintiff refers to two letters sent to Defendants' counsel on January 15, 2004 and February 10, 2004 in which she indicates her desire to consolidate the two cases and her intention to file a motion to transfer and/or consolidate once Onsite appeared. (Pl.'s Mot. Leave at Exs. F, G). Onsite appeared on March 12, 2004, yet it does not appear from the record that Plaintiff filed a motion to consolidate before Onsite removed the case to federal court almost a month and a half later on April 29, 2004. Plaintiff's dilatoriness in moving to add Meeks and McCormick as defendants or to move to consolidate the two companion cases while this case was in state court indicates that her present motion is motivated largely by jurisdictional concerns.
Plaintiff maintains, however, that she seeks to join defendants, not to divest this Court of jurisdiction, but rather because joinder is required by Texas law, citing Dennis v. Gulf C. S.F. Ry. Co., 224 S.W.2d 704 (Tex. 1949). In Dennis, the Texas Supreme Court held that "[i]n an action [for damages for injuries resulting in death], while there may be many persons entitled to share in the damages recovered, still only one suit may be brought therefor, and the rights of all parties to recover damages must be adjudicated in that suit." Id. at 705. In its response, Onsite contends that Dennis simply held that "all persons who are beneficiaries under the Act must join as plaintiffs in a single wrongful death action or that any wrongful death suit must allege that it is prosecuted on behalf of all such beneficiaries." (Onsite's Resp. 7).
Under Texas law, all wrongful death beneficiaries, or any one of them, may bring suit, but where suit is brought by less than all beneficiaries, it must appear that the suit was brought for the benefit of all beneficiaries. TEX. CIV. PRAC. REM. CODE ANN. § 71.004; Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 849 (Tex.App.-San Antonio 1997, writ denied). The provision of the Wrongful Death Act requiring that one wrongful death suit should be maintained either by all beneficiaries, or by one or more on behalf of all others, was intended to protect defendants from being subjected to multiple suits arising out of the same claim. Id. Whether this suit is subject to dismissal in light of the Wrongful Death case brought by Covarrubias's son, which was brought for the benefit of all wrongful death beneficiaries, is not presently before the Court. (Pl.'s Mot. Leave, Ex. E). For now, the Court finds that Plaintiff has failed to show that Texas law mandates the joinder of potential defendants Meeks and McCormick to this diversity case.
Even if Plaintiff's position that all potential defendants should be joined in one suit were correct, the suit that they should be joined to is the first-filed Wrongful Death case which has been brought for the benefit of all wrongful death beneficiaries and where Meeks and McCormick are already named defendants.
Second, the Court must evaluate whether and to what degree Plaintiff engaged in dilatory conduct. Hensgens, 833 F.2d at 1182. Although the celerity with which Plaintiff moved for leave to join additional defendants following Defendants' removal militates against Plaintiff with respect to the first Hensgens factor, it cuts in her favor with respect to the second. Because this case was removed on April 29, 2004, and Plaintiff moved for leave just over a month later, the Court cannot say that Plaintiff has been dilatory in seeking the amendment, at least since this case has been in federal court.
As discussed in the Court's analysis of the first Hensgens factor, however, Plaintiff's effort to join defendants did not come until nearly seven months after she filed her original state court petition.
Next, the Court must assess whether Plaintiff will be harmed if she is not permitted to join Meeks and McCormick as defendants. Id. Onsite argues that Plaintiff will not be prejudiced by the denial of her motion because Plaintiff's wrongful death claim against McCormick has already lapsed. The statute of limitations for an action for an injury resulting in death is two years. TEX. CIV. PRAC. REM. CODE ANN. § 16.003(b). The action accrues upon the death of the injured person. Id. Because Covarrubias died on November 8, 2001 (Pl.'s Mot. Leave 1), Plaintiff was required to have filed suit against Meeks and McCormick on or before November 8, 2003. Although Plaintiff filed her original petition in state court on November 7, 2003, within the two-year limitations period, she did not seek to add Meeks and McCormick as defendants until June 1, 2004, well after the limitations period had expired. Thus, Plaintiff's claims against Meeks and McCormick are time-barred under Texas law, and Plaintiff cannot suffer prejudice from not being permitted to assert time-barred claims.
Under Texas law, an amended pleading adding a party ordinarily does not relate back to the date of the original pleading. Kirkpatrick v. Harris, 716 S.W.2d 124, 125 (Tex.App. — Dallas 1986, no writ).
Additionally, it is unlikely that Meeks and McCormick could be held individually liable under these facts. Plaintiff alleges in her proposed Second Amended Complaint that Meeks and McCormick were Aqualine's site supervisors for a job crew that was performing electrical work at the South Plains Mall. (Pl.'s Proposed Sec. Am. Orig. Compl. ¶ 16). Plaintiff complains that Meeks and McCormick were absent from the job site when Covarrubias was electrocuted, having gone to a nearby Denny's for coffee. ( Id. at ¶ 11). Plaintiff also complains that Covarrubias's co-workers were not trained in CPR or first aid. ( Id. at ¶ 12). Plaintiff further alleges that Meeks and McCormick failed to adequately train Covarrubias to perform the lighting work that he was engaging in when he was electrocuted. ( Id. at ¶ 16).
Under Texas law, "[a] corporate agent can be liable to others, including other company employees, for his or her own negligence. However, individual liability arises only when the agent owes an independent duty of reasonable care to the injured party apart from the employer's duty." Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). To explain what it meant by an "independent duty," the Leitch Court used the example of a corporate agent who negligently causes an automobile accident while in the course and scope of his employment. Id. In such a case, the agent would be individually liable for his own negligent conduct because one has an "independent duty" to operate an automobile in a non-negligent manner. Id.
Here, Plaintiff has failed to argue or allege that either Meeks or McCormick had an independent duty to supervise Covarrubias, to provide a safe workplace, or to adequately train employees, apart from their duties arising in the course and scope of employment. Id. at 117-18 (holding that corporate agents cannot be held individually liable for failing to provide proper safety equipment and a safe work environment to subordinate employee). Therefore, because of the unlikelihood that Plaintiff can successfully hold Meeks and McCormick individually liable for negligence, the Court finds that any prejudice Plaintiff would suffer from having her motion for leave to join them as defendants denied is minimal. See Bueno v. Cott Beverages, Inc., 2004 WL 1124927, at *3 (W.D. Tex. March 15, 2004) (applying Leitch and finding that plaintiff failed to allege that individual manager of company for whom he was performing welding work owed an independent duty of care to him apart from duty owed by manager's company).
The Court is proceeding upon the assumption that Meeks and McCormick are corporate agents of some corporate entity and were not working at the site in their individual capacities. Plaintiff alleges that they were "Aqualine's site supervisors" (Pl.'s Proposed Sec.Am.Orig. Compl. ¶ 16), but it is unclear whether they were Aqualine employees. Plaintiff notes in her motion for leave that the employment relationships between the defendants is unsettled. (Pl.'s Mot. Leave 4). If Meeks and McCormick were not corporate agents, the Court's analysis under Leitch would be inapplicable; however, the Court's decision reached today would not be altered.
Finally, the Court analyzes any miscellaneous factors which bear on the equities. Hensgens, 833 F.2d at 1182. The Court is mindful of Plaintiff's concern that if her motion for leave, and hence her motion to remand, were denied, parallel suits would be proceeding in state and federal court which could lead to inconsistent results. But the Court must balance that danger against the diverse defendants' interest in retaining the federal forum. Id. Because the application of the Hensgens factors weighs against joinder, the Court finds that Plaintiff's motions for leave to join Meeks and McCormick and to remand should consequently be denied.
IV. Conclusion
For the reasons described in this order, it is ORDERED that Plaintiff's motion for leave to join Meeks and McCormick as defendants is DENIED. Accordingly, Plaintiff's motion to remand is also DENIED.
SO ORDERED.