ROBIN WARD VIRGINIA SAIZ v. VRP TRANSPORTATION INC VRP TRANSPORTES DE MEXICO DE DE (2023)

ORDER

On this day, the Court considered Plaintiffs' Motion for Remand (“Motion”), ECF No. 3. For the reasons set forth below, the Motion is GRANTED.

I. BACKGROUND

On January 26, 2023, Plaintiffs Robin Ward and Virginia Saiz filed the Original Petition, ECF No. 1-2, in the 346th District Court of El Paso County, Texas. Plaintiffs assert state common law negligence claims against Defendant VRP Transportation (“VRP USA”) or, alternatively, against Defendant VRP Transportes de Mexico (“VRP Mexico”), for damages suffered in a collision between Plaintiffs' vehicle and a tractor-trailer allegedly controlled by one of the Defendants. See Pl.'s 2d Am. Pet. (“Pet.”) ¶¶ 29–44 (asserting claims against VRP USA), ECF No. 1-4; id. ¶¶ 45–66 (asserting claims against VRP Mexico in the alternative).

Plaintiffs allege that on September 20, 2022, they were in a vehicle stopped at the intersection of Lee Trevino Drive and Rojas Drive in El Paso, Texas. Pet. ¶ 22. To the right of Plaintiffs' vehicle, in the right-turn lane, was a tractor-trailer that had a white cab with green fenders. Pet. ¶ 23. As the tractor-trailer turned right, its trailer “collided with and scraped the side of Plaintiffs' vehicle.” Pet. ¶ 24. After hitting Plaintiffs' vehicle, the tractor-trailer left the scene of the collision without stopping. Pet. ¶¶ 32(h), 48(h); Mot. 3; see also VRP USA Resp. Ex. 5, at 2, ECF No. 10-5 (El Paso Police Department crash report). Plaintiffs, however, followed it and took photographs. Mot. 3; VRP USA Resp. Ex. 5, at 2. Plaintiffs allege the tractor-trailer is owned by one of the Defendants, based on their photographs of the vehicle that hit them and photographs they obtained of similar tractor-trailers—which also have white cabs with green fenders—parked at VRP USA's place of business in El Paso. Pet. 7–8; Mot. 3–4.

On July 13, 2023, VRP Mexico removed the case based on diversity jurisdiction under 28 U.S.C. § 1332(a)(2), which requires “complete diversity” of citizenship between opposing parties, in that they must be citizens of different states or countries. Notice Removal ¶ 1, ECF No. 1; 28 U.S.C. § 1332(a)(2). In the Notice of Removal, VRP Mexico argued that, although Plaintiffs and VRP USA are all citizens of Texas, the Court should find complete diversity exists under § 1332(a)(2) because VRP USA is an improperly joined party. Id. Plaintiffs responded by filing the Motion, arguing that the case should be remanded to state court because VRP USA was properly joined as a defendant and thus the Court cannot assert diversity jurisdiction over the case. Mot. 1–2. Both Defendants timely responded to the Motion, VRP USA Resp., ECF No. 10; VRP Mexico Resp., ECF No. 11, and Plaintiff timely filed a Reply, ECF No. 12.

II. DISCUSSION

A. Standard

A defendant may remove to federal district court any state court civil action over which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). A party can challenge the propriety of a removal by attempting to remand the case back to state court. Id. § 1447(c). Remand must be granted if a defect in subject matter jurisdiction is shown. Id.

Removal deprives a state court of the opportunity to adjudicate a case properly before it, “rais[ing] significant federalism concerns.” See Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365–66 (5th Cir. 1995), abrogated on other grounds by Rivet v. Regions Bank of La., 522 U.S. 470 (1998)). For that reason, federal courts must strictly construe removal statutes and resolve doubts about removal in favor of remand. Id. at 281–82 (citations omitted); see also Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 339 (5th Cir. 2014) (citing Gasch, 491 F.3d at 281–82). When a party moves to remand, the burden is on the removing party to establish “that federal jurisdiction exists and that removal was proper.” Wolf v. Deutsche Bank Nat'l Tr. Co. ex rel. Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App'x 205, 207 (5th Cir. 2018) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).

B. Analysis

Plaintiffs argue that because Plaintiffs and VRP USA are all citizens of Texas for purposes of diversity jurisdiction, there is not complete diversity of citizenship between parties and the case must be remanded to state court. Mot. 1–2. Defendants, however, argue that VRP Mexico owns the tractor-trailer that allegedly hit Plaintiffs' vehicle and that both companies are independently owned and operated—thus, VRP USA cannot be liable for Plaintiffs' damages. VRP USA Resp. 9–11; VRP Mexico Resp. 5. Consequently, Defendants ask the Court to dismiss VRP USA as improperly joined, which would restore complete diversity of citizenship, obviating the need for remand. VRP USA Resp. 19; VRP Mexico Resp. 6.

The doctrine of improper joinder allows a removing defendant to prove that a plaintiff improperly joined a nondiverse defendant to a lawsuit, thereby justifying dismissal of the nondiverse defendant and restoring complete diversity. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572–74 (5th Cir. 2004). Because this doctrine is but a “narrow exception to the rule of complete diversity ․ the ‘burden of demonstrating [improper] joinder is a heavy one.’ ” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005) (alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999)). That heavy burden rests on the defendant alleging improper joinder. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).

To establish improper joinder, the removing defendant must establish either “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the [nondiverse] party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)). The second basis of improper joinder, inability to establish a cause of action, requires courts to “conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.” Id. (citations omitted). At core, this Rule 12(b)(6)-type analysis asks whether “there is no possibility of recovery by the plaintiff against an in-state defendant.” Id. Courts use the federal pleading standard when conducting this analysis. Int'l Energy Ventures Mgmt. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016).

When conducting a Rule 12(b)(6) analysis, the court must accept well-pleaded facts as true and view them in a light most favorable to the plaintiff. Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Though a complaint need not contain “detailed” factual allegations, a plaintiff's complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011).

If a complaint has sufficiently alleged a state-law claim against a nondiverse defendant, the district court may additionally make a “summary inquiry” into whether there are “discrete and undisputed facts that would preclude [the] plaintiff's recovery against the in-state defendant.” Smallwood, 385 F.3d at 573–74. Defendants here do not argue that Plaintiffs' joinder of VRP USA was actually fraudulent. Rather, they argue Plaintiffs have misstated or omitted discrete facts in the Petition that, when considered, preclude Plaintiffs' recovery from VRP USA. VRP USA Resp. 8–17; VRP Mexico Resp. 4–6.

1. Plaintiffs have sufficiently alleged that VRP USA was negligent.

Although Defendants' primary argument is not that Plaintiffs' Petition, on its face, fails to state a claim for relief, the Court must examine the sufficiency of the allegations before considering whether it should conduct a summary inquiry, as Defendants request. See VRP Mexico Resp. 4; Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 220 (5th Cir. 2018). To state a negligence claim under Texas law, a plaintiff must allege: “(1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach.” Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)). “The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (citations omitted). In Texas, a “person operating a motor vehicle on the public roads” has a duty to “do so in a careful, prudent manner with due regard to the rights of others on the road.” Wilson v. Penguin Trucking, Inc., No. H-19-2580, 2019 WL 5296590, at *2 (S.D. Tex. Oct. 18, 2019) (quoting Cleaver v. Dresser Indus., 570 S.W.2d 479, 485 (Tex. Civ. App. 1978)).

Plaintiffs allege VRP USA is vicariously and directly liable for damages caused by its employee—the tractor-trailer driver who hit Plaintiffs' vehicle—who negligently “fail[ed] to keep a proper lookout, fail[ed] to maintain his lane, and fail[ed] to stop at the scene of the collision.” Mot. 8–9. Stated differently, Plaintiffs allege that (1) the tractor-trailer driver had a duty to drive his vehicle in a prudent manner, Pet. ¶¶ 30–31; (2) the driver breached this duty in various ways when he hit Plaintiffs' vehicle, a breach that either VRP Mexico or VRP USA is directly and vicariously liable for, Pet ¶¶ 32, 37–41, 48, 53–63; and (3) this breach caused damages, Pet. ¶¶ 67–71. Pleading in the alternative, as Plaintiffs do here, is allowed under Texas law. See Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007). In the context of the Motion to Remand, the Court finds Plaintiffs have sufficiently stated a claim against VRP USA.¹ See Wilson, 2019 WL 5296590, at *2.

2. Defendants have not carried their heavy burden of establishing that Plaintiffs' negligence claim against VRP USA is incognizable.

Rather than attack the sufficiency of the Petition's allegations, Defendants argue the Petition omits a discrete fact material to Plaintiffs' claims—namely, the tractor-trailer was owned by VRP Mexico and its driver was employed by VRP Mexico, rather than VRP USA. VRP USA Resp. 13–15; VRP Mexico Resp. 4–5. If this is true, then Plaintiffs' negligence claim against VRP USA would fail as a matter of law because neither VRP USA nor its driver was operating a vehicle on a public road and thus VRP USA did not have a duty towards Plaintiffs. VRP USA Resp. 13–15; VRP Mexico 4–5; cf. Duarte v. St. Paul Fire & Marine Ins. Co., No. EP-14-CV-305-KC, 2016 WL 4257752, at *6 (W.D. Tex. Mar. 29, 2016) (citing Hatcher v. Mewbourn, 457 S.W.2d 151, 153 (Tex. Civ. App. 1970))).

Because the identity of the company that owned and operated the tractor-trailer that allegedly hit Plaintiffs' vehicle is a discrete issue that could preclude Plaintiffs from recovering against VRP USA, the Court finds it appropriate to “pierce the pleadings” and conduct a summary inquiry. See Smallwood, 385 F.3d at 573. Courts should only pierce the pleadings to examine facts “that easily can be disproved if not true,” such as whether “the in-state doctor defendant did not treat the plaintiff patient, the in-state pharmacist defendant did not fill a prescription for the plaintiff patient, [or] a party's residence was not as alleged.” Id. (citing Irby, 326 F.3d at 648–49). Whether VRP USA owned a tractor-trailer with a white cab and green fenders falls into the same class of narrow and easily discernible fact disputes.

To establish that VRP USA did not own the tractor-trailer that allegedly hit Plaintiffs' vehicle, Defendants rely on two sworn statements. VRP USA Resp. Ex. 6 (“Cardenas Aff.”), ECF No. 10-6; VRP Mexico Resp. Ex. A (“Gonzalez Decl.”), ECF No. 11-1. Plaintiffs, for their part, offer a photograph of the tractor-trailer that hit them—which has a white cab with green fenders—and photographs of similar tractor-trailers parked at VRP USA's place of business. Mot. ¶¶ 5–6; Pet. ¶¶ 25–26.

First, VRP Mexico provides a Declaration made by Elizabeth Gonzalez, an employee in the company's compliance department. Gonzalez Decl. ¶ 2. Ms. Gonzalez states she is “personally familiar and knowledgeable with the matters discussed” in the declaration. Id. She states that based on the “colors and markings on the tractor,” VRP Mexico “owns, operates, and controls” the tractor-trailer pictured in Plaintiffs' petition. Id. ¶ 3. Ms. Gonzalez further states that “tractors owned by [VRP USA] (which is a completely different and separately run U.S.-based company) are all white in color without any green fenders.” Id. ¶ 4. And Ms. Gonzalez attests that “only drivers employed by [VRP Mexico] drive its tractor-trailers,” and that VRP USA's employees “do not drive [VRP Mexico's] vehicles.” Id. ¶ 5.

Second, VRP USA relies on an Affidavit from Adriana Cardenas. Cardenas Aff. Ms. Cardenas is identified as “a person who is duly qualified and authorized in all respects to make this Affidavit on behalf of [VRP USA].” Id. at 1. Ms. Cardenas does not otherwise state what her connection to VRP USA is, but she attests that every statement made “in th[e] Affidavit is within [her] personal knowledge.” Id. ¶ 2. Ms. Cardenas states, based on her review of the photographs in the Petition, “that at no time” did VRP USA “ever own or control the subject tractor-trailer depicted in Plaintiffs' [Petition] that allegedly struck Plaintiffs' vehicle.” Id. ¶ 3. Ms. Cardenas further attests “that at no time, including on September 20, 2022, did [VRP USA] ever employ, direct, or control, in any capacity, the driver of the subject tractor-trailer.” Id. ¶ 4.

“An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge.” Fed. R. Civ. P. 56(c)(4). Rule 56 applies equally to a summary inquiry conducted in the context of a motion to remand. See, e.g., Cormie's Grocery & Deli, Inc. v. Colony Ins. Co., No. CV 12-562, 2012 WL 2906634, at *5 & n.7 (W.D. La. July 16, 2012). It is insufficient for an affiant to merely claim that factual assertions contained in an affidavit are based on personal knowledge. Molden v. E. Baton Rouge Par. Sch. Bd., No. CV 14-00351, 2017 WL 1173932, at *3 (M.D. La. Mar. 28, 2017). Rather, an “affidavit must contain information that would allow the court to conclude that the averments are made on personal knowledge.” Thomas v. Atmos Energy Corp., 223 F. App'x 369, 374 (5th Cir. 2007) (“Affidavits asserting personal knowledge must include enough factual support to show the affiant possesses that knowledge.” (quoting El Deeb v. Univ. of Minn., 60 F.3d 423, 428 (8th Cir. 1995))).

Examining first the Gonzalez Declaration, Ms. Gonzalez does not establish that she has personal knowledge enabling her to make factual assertions about VRP USA's tractors. If the companies are “completely different and separately run,” id. ¶ 4, as Ms. Gonzalez asserts, it is unclear how she could know that VRP USA does not own any white tractor cabs with green fenders, see id. Ms. Gonzalez works in VRP Mexico's compliance department, id. ¶ 2, and thus presumably has knowledge of VRP Mexico's fleet. But she provides no basis for the Court to find that her role with VRP Mexico qualifies her to make factual assertions about the composition of VRP USA's fleet, especially considering the two VRP entities are “completely different and separately run.” See id.

Additionally, Ms. Gonzalez does not provide a factual basis for her assertion that “[t]he driver of the tractor-trailer” that allegedly hit Plaintiffs' vehicle “would have necessarily been an employee of” VRP Mexico. Id. ¶ 5. Of course, the work Ms. Gonzalez does in the compliance department could reasonably be expected to provide her with personal knowledge of VRP Mexico's policies on whether VRP USA's drivers can drive VRP Mexico's vehicles. But even the best policy can be broken, and Ms. Gonzalez provides no information showing she verified that no VRP USA drivers were, in fact, driving a VRP Mexico vehicle on the day in question. This concern—that a VRP USA driver could have driven a VRP Mexico vehicle—is not merely theoretical, in light of Plaintiffs' photographs showing at least two tractor-trailers with white cabs and green fenders parked at VRP USA's place of business. Mot. ¶ 6; Pet. ¶ 26. Because those tractor-trailers purportedly belong to VRP Mexico, Gonzalez Decl. ¶¶ 3–4, there is some evidence that the two companies share a parking yard. Considering this close, unexplained connection between the companies, the Court cannot conclude “there is no possibility” that a VRP USA driver was driving a VRP Mexico tractor-trailer on the day in question. Smallwood, 385 F.3d at 573.

Turning to the Cardenas Affidavit, Ms. Cardenas does not state what her relationship with VRP USA is, other than that she is an “Authorized Representative” of the company. See Cardenas Aff. 3. The Affidavit provides no other context for how Ms. Cardenas acquired personal knowledge of the facts contained therein. See generally id. And the Affidavit's factual assertions are threadbare: Ms. Cardenas simply states that VRP USA did not “own or control the subject tractor-trailer,” id. ¶ 3, and VRP USA did not employ “the driver of the subject tractor-trailer,” id. ¶ 4. In sum, the Affidavit is bereft of facts that might allow the Court “to conclude that the averments are made on personal knowledge.” Thomas, 223 F. App'x at 374; see Bright v. Ashcroft, 259 F. Supp. 2d 494, 499 (E.D. La. 2003) (stating affidavits “will not suffice if [the] claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping” (quoting Cooper Cameron Corp. v. U.S. Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002))).

To prove improper joinder, Defendants bear the “heavy burden” of demonstrating “that there is no possibility of recovery by the plaintiff against an in-state defendant.” Smallwood, 385 F.3d at 573–74. The Affidavit and Declaration provided by Defendants do not satisfy that burden: They leave unanswered questions about (1) the affiants' bases for making assertions; (2) why VRP Mexico's affiant makes factual assertions about the composition of VRP USA's fleet; and (3) the precise relationship between two companies that, per Plaintiffs' photographs, are interrelated enough to share a parking yard. See Reply ¶¶ 2–3 (making similar points); cf. Garcia v. Ford Motor Co., No. 12-CV-181, 2013 WL 12137090, at *7 n.7 (S.D. Tex. May 10, 2013) (stating that while an affidavit's factual allegations arguably created “an inference” of improper joinder, the affiant did not demonstrate personal knowledge supporting those allegations and thus the “factual ambiguity must be resolved in favor of remand”). The Court consequently finds the Declaration and Affidavit do not demonstrate there is no possibility that Plaintiffs could recover from VRP USA. Wilson, 2019 WL 5296590, at *3 (“While the report and affidavit are evidence in [the nondiverse defendant's] favor, they are not dispositive with regard to the factual questions the court or possibly a jury will have to decide in this case.”). Therefore, VRP USA was properly joined, the parties are not completely diverse, and the Court lacks subject-matter jurisdiction under the only asserted basis, 28 U.S.C. § 1332(a)(2).

III. CONCLUSION

For the foregoing reasons, the Motion, ECF No. 3, is GRANTED, and the case is IMMEDIATELY REMANDED to the 346th District Court of El Paso County, Texas.

IT IS FURTHER ORDERED that VRP Mexico's pending Motion to Dismiss, ECF No. 14, is DENIED as moot.

IT IS FURTHER ORDERED that VRP Mexico's pending Motion to Strike, ECF No. 18, is DENIED as moot.

The Clerk shall close the case.

SO ORDERED.

FOOTNOTES

1.   This is not a ruling on the merits of VRP Mexico's 12(b)(6) Partial Motion to Dismiss, ECF No. 14, which seeks dismissal of Plaintiffs' gross negligence claims. Id. at 2. The Court only finds, for purposes of remand, that the Petition states a general negligence claim against VRP USA.