Opinion
CIVIL ACTION NO. 4:19-0024
04-04-2019
Lawrence BERRY, Danielle Berry, Raquel Berry, and McKinley Berry, Plaintiffs, v. ADT SECURITY SERVICES, INC., and Nick Marcoulier, Defendants.
MEMORANDUM AND ORDER
This personal injury lawsuit was referred to United States Magistrate Judge Dena Palermo pursuant to 28 U.S.C. § 636(b)(1)(B) by Order of Referral of All Matters [Doc. # 9] dated February 8, 2019. On April 4, 2019, Judge Palermo issued a Report and Recommendation [Doc. # 19], recommending that this Court deny Plaintiffs' Motion to Remand [Doc. # 8]. The deadline for objections to the Report and Recommendation has expired without any objections being filed. Since there are no objections, the Court has not made a de novo review of this matter. See 28 U.S.C. § 636(b)(1). The Court finds that the Magistrate Judge's Report and Recommendation is well founded, and that the Magistrate Judge's recommended disposition should be adopted. It is therefore
ORDERED that the Report and Recommendation [Doc. # 19] is ADOPTED as this Court's Memorandum and Order. It is further
ORDERED that Plaintiffs' Motion to Remand [Doc. # 8] is DENIED .
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO REMAND
Dena Hanovice Palermo, United States Magistrate Judge
Plaintiffs Lawrence Berry, Danielle Berry, Raquel Berry, and McKinley Berry (collectively "Plaintiffs") filed this lawsuit in the 215th Judicial District Court of Harris County, Texas against Defendants ADT LLC ("ADT") and Nick Marcoulier (collectively "Defendants"). ECF No. 1. ADT subsequently removed the suit based on diversity. Id. Plaintiffs' motion to remand is before the Court. ECF No. 8. It is undisputed that Mr. Marcoulier is a citizen of Texas and non-diverse. ECF No. 12 at 3; ECF No. 1 at ¶¶ 7-8. It is also undisputed that ADT is a citizen of Delaware with its principal place of business in Florida. ECF No. at 1 ¶ 6; ECF No. 1-6 at ¶ 5. ADT contends that remand is inappropriate because Mr. Marcoulier was improperly joined. Having considered the record and applicable authorities, the Court finds that ADT has met its burden to show improper joinder, and recommends that Plaintiffs' motion to remand, ECF No. 8, should be denied.
ADT LLC was formerly known as ADT Security Services, Inc. ECF No. 12 at 1 n.1.
On February 8, 2019, the District Judge referred this case for all pretrial purposes pursuant to 28 U.S.C. § 636, including all potentially dispositive matters for Report and Recommendation. Order, ECF No. 9. A motion to remand is a dispositive motion appropriate for a Report and Recommendation. Davidson v. Georgia-Pacific, L.L.C. , 819 F.3d 758, 762-65 (5th Cir. 2016).
ADT filed an opposition. ECF No. 12. Plaintiffs did not file a reply within the time to do so and the motion is ripe for decision.
I.
BACKGROUND
This is a personal injury suit. All four members of the Berry family live in Houston, Texas. Pl.'s First Am. Pet., ECF No. 1-6 at ¶¶ 1-4. According to their First Amended Petition ("Petition"), Plaintiffs allege that in November 2016, ADT—a security company that provides alarm services—sent employees to work on the security system at Plaintiffs' home. Id. at ¶ 12. On November 23, 2016, Plaintiffs were brutally attacked during a home invasion. Id. at ¶ 13. Plaintiffs allege "[t]he attackers knew facts about the home only ADT would know." Id. Plaintiffs allege that ADT sent employees to work on the home who were not qualified or legally authorized to perform such work, and failed to implement security measures as represented by ADT. Id. at ¶¶ 12-13. Plaintiffs allege causes of action including negligence; gross negligence; negligent supervision; negligent misrepresentation; negligent hiring, retention, and supervision; and breach of contract. Id. at ¶¶ 14-25.
In Plaintiffs' motion to remand, Plaintiffs allege that Mr. Marcoulier is the ADT employee who installed the ADT system at the Plaintiffs' residence and that he "misrepresent[ed] that the subject security system and services had uses and benefits which they did not have." ECF No. 8 at ¶¶ 2, 6, 10.
The parties appeared before the Court for a status conference on March 25, 2019. Plaintiffs' counsel explained Plaintiffs' joinder of Mr. Marcoulier as a Defendant:
Counsel: We have sued a Texas Defendant who, at the time that the events relevant to the home invasion occurred, was an employee of ADT Security.... He's also the employee who was the tortfeasor ... who carried out the activities at the Berry home.... [W]e're saying that he did the security work that led up to the home invasion. So as part of the home invasion ... five invaders invaded my client's home. As they tried to push down the door, they fired their guns. The father, Lawrence Berry, was able to fight off the five intruders to allow his minor daughters and wife to get to a safe room where they called 911. Moreover, my client, Lawrence Berry, received life threatening injuries. He has recovered but it was a serious invasion where the invaders knew the locations of safes that were hidden in the home, knew that there was a hidden DVR recorder with a surveillance system in the home, and [that] there was also certain security implementation that had been disconnected. We believe the evidence will show that was during the last ADT service call, which was in close proximity to the
home invasion. We believe the evidence will show that it was by the individual Defendant that we've named in the suit.
...
The Court: And you think for some reason that he has conspired with whoever the invaders were, such that they were able to know all this inside information about the security system, etc. and that whatever the critical piece of equipment was that was disconnected that he did that in advance of the home invasion, with the eye towards a home invasion?
Counsel: Correct.
March 25, 2019 Status Conference at 4:01-4:04.
II.
LEGAL STANDARD
The federal removal statute authorizes the removal of a civil action from state to federal court if the action could have been brought originally in federal district court. 28 U.S.C. § 1441(a) ; Lincoln Prop. Co. v. Roche , 546 U.S. 81, 83, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005). "The principal federal statute governing diversity jurisdiction, 28 U.S.C. § 1332, gives federal district courts original jurisdiction of all civil actions ‘between ... citizens of different States’ where the amount in controversy exceeds $75,000." Lincoln Prop. Co. , 546 U.S. at 89, 126 S.Ct. 606 (quoting 28 U.S.C. § 1332(a)(1) ). The statutory phrase "between ... citizens of different States" "require[s] complete diversity between all plaintiffs and all defendants." Id.
"[T]he improper joinder doctrine constitutes a narrow exception to the rule of complete diversity." Cuevas v. BAC Home Loans Servicing, LP , 648 F.3d 242, 249 (5th Cir. 2011). One way a defendant can establish improper joinder is by demonstrating the "inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Smallwood v. Ill. Cent. R.R. Co. , 385 F.3d 568, 573 (5th Cir. 2004) (en banc) (quoting Travis v. Irby , 326 F.3d 644, 646–47 (5th Cir. 2003) ), cert. denied , 544 U.S. 992, 125 S.Ct. 1825, 161 L.Ed.2d 755 (2005). To do so, the defendant must "demonstrate[ ] that there is no possibility of recovery by the plaintiff against [the] in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against [the] in-state defendant." Id. When "predicting whether a plaintiff has a reasonable basis of recovery under state law," courts generally "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. If at least one claim against the non-diverse defendant survives Rule 12(b)(6) scrutiny, "there is no improper joinder." Id.
ADT apparently does not contend there is "actual fraud in the pleading of jurisdiction facts" in this case, which is another way to establish improper joinder. Id.
Federal pleading standards govern the Rule 12(b)(6)-type improper joinder analysis. Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd. , 818 F.3d 193, 204 (5th Cir. 2016). The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "[D]etailed factual allegations" are not required. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, the factual allegations need only "be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly , 550 U.S. at 545, 127 S.Ct. 1955. "[A]ny doubt about the propriety of removal must be resolved in favor of remand." Gasch v. Hartford Acc. & Indem. Co. , 491 F.3d 278, 281–82 (5th Cir. 2007) (citing Acuna v. Brown & Root Inc. , 200 F.3d 335, 339 (5th Cir. 2000) and Carpenter v. Wichita Falls Indep. Sch. Dist. , 44 F.3d 362, 366 (5th Cir. 1995) ).
III.
ANALYSIS
A. Plaintiffs Fail To State A Claim Against Mr. Marcoulier.
ADT argues that Plaintiffs' motion to remand should be denied because Plaintiffs failed to plead a reasonable basis for recovery against Mr. Marcoulier. ECF No. 12 at 4-6. Although Plaintiffs did not file a reply, in their motion they alleged they have a colorable claim against Mr. Marcoulier and that ADT failed to meet its burden to show Plaintiffs have no possibility of a claim against Mr. Marcoulier. ECF No. 8 at ¶¶ 7-11. The Court agrees with ADT.
"The relevant time for determining jurisdiction remains removal, and the relevant pleadings are those in place at the time of removal." DTND Sierra Inv., LLC v. Bank of New York Mellon Trust Co. , No. 12-CV-1014, 2013 WL 432923, at *5 (W.D. Tex. Feb. 4, 2013). In Plaintiffs' Petition—the one in place at the time of removal—there is only a single reference to Mr. Marcoulier: the paragraph which identifies him as a citizen of Texas. ECF No. 1-6 at ¶ 6. There are no other allegations as to Mr. Marcoulier, either as to the facts or causes of action in the Petition. Plaintiffs failed to specify which causes of action are alleged against Mr. Marcoulier, however, the only ones in the Petition that could potentially pertain to Mr. Marcoulier are those for negligence, gross negligence, and negligent misrepresentation. See generally ECF No. 1-6.
Allegations pertaining to the facts and each cause of action refer only to ADT. The Petition does not allege that Mr. Marcoulier was the one who went to the Plaintiffs' home to work on the security system shortly before the home invasion, that he made any representations to the Plaintiffs about the security system, that he provided information to the invaders, that he turned off or negligently installed part of the security system, or any other facts or allegations supporting the elements of any cause of action against Mr. Marcoulier. The Petition does not even allege that he is, or was, an ADT employee. The only such allegations were made in Plaintiffs' motion to remand or during the status conference outside the pleadings.
Because Plaintiffs failed to include specific factual allegations or causes of action against Mr. Marcoulier, Plaintiffs failed to state a claim against him. See Gremillion v. AEP Tex. Central Co. , No. 1:17-CV-225, 2018 WL 1308541, at *6 (S.D. Tex. Jan. 17, 2018) (denying motion to remand), report and recommendation adopted , 2018 WL 1305554 (S.D. Tex. Mar. 12, 2018) ; James E. Bragg Post No. 4852 Veterans of Foreign Wars of United States v. Nova Casualty Co. , No. 4:17-CV-230, 2017 WL 3123863, at *3-5 (E.D. Tex. June 12, 2017) (same), report and recommendation adopted , 2017 WL 3118069 (E.D. Tex. July 21, 2017) ; Berry v. Seterus, Inc. , No. 2:17-CV-5, 2017 WL 1196207, at *3-4 (S.D. Tex. Mar. 31, 2017) (same); accord Wang v. Safeco Ins. Co. of Indiana , No. 4:17-CV-158, 2017 WL 2664207, at *4-5 (E.D. Tex. June 2, 2017) (denying motion to remand where petition failed to state a claim because it only made one allegation of wrongdoing by the non-diverse defendant, and other allegations were directed only to the diverse defendant), report and recommendation adopted , 2017 WL 2651713 (E.D. Tex. June 20, 2017).
The additional facts that Plaintiffs included in their motion to remand and during the status conference also cannot defeat diversity. "[P]ost-removal filings may be considered only to the extent they amplify or clarify facts alleged in the state-court complaint, with new claims or theories of recovery disregarded." Scott Hengemuhle and Ty Prop., LLC v. Acceptance Indem. Ins. Co. , No. 4:17-CV-409, 2017 WL 3908934, at *2 (E.D. Tex. Aug. 17, 2017) (quoting Akerblom v. Ezra Holdings Ltd. , 509 F. App'x 340, 344 (5th Cir. 2013) ), report and recommendation adopted , 2017 WL 3896157 (E.D. Tex. Sept. 6, 2017). Considering these additional allegations would require the Court to read into the Petition wholly new facts and theories, which have not been pled.
The Court also cannot consider that Plaintiffs might be able to cure the Petition's defects by another amended pleading. "[W]hether removal was proper is determined solely with reference to Plaintiff's original petition filed in state court [at the time of removal], regardless of any [subsequent] amended petition or complaint...." Enochs v. Lampasas Cty. , No. 9-CA-054, 2009 WL 10699651, at *2 (W.D. Tex. Apr. 20, 2009). "[A] complaint amended post-removal cannot divest a federal court of jurisdiction." Gremillion , 2018 WL 1308541, at *7 (quoting Cavallini v. State Farm Mut. Auto Ins. Co. , 44 F.3d 256, 264 (5th Cir. 1995) ). "Without such a rule, disposition of the issue would never be final, but would instead have to be revisited every time the plaintiff sought to amend the complaint ... all at considerable expense and delay to the parties and the state and federal courts involved." Wang , 2017 WL 2664207, at *3 (quoting Cavallini , 44 F.3d at 264 ).
B. Even If Plaintiffs Can Establish Individual Liability Against Mr. Marcoulier, They Failed To State A Claim.
ADT also argues that, even if Plaintiffs adequately pled a negligence action against Mr. Marcoulier, Texas negligence law does not permit imposing liability on an individual who acted as an agent or employee of a corporation in his individual capacity. ECF No. 12 at 7-9. Rather, only the employer would ordinarily be held liable. Id.
Individual liability would only be imposed if the individual "owes an independent duty of reasonable care to the injured party apart from the employer's duty" or "when he knowingly participates in tortious or fraudulent acts." See also Pl.'s Mot. to Remand, ECF No. 8 at ¶ 10 ("A corporation's employee is personally liable for tortious acts which he directs or participates in during his employment.") (quoting Leyendecker & Assoc., Inc. v. Wechter , 683 S.W.2d 369, 375 (Tex. 1984) ). While Plaintiffs' allegations in their motion to remand and from the status conference suggest Mr. Marcoulier personally participated in the tortious conduct, Plaintiffs failed to include these allegations in their Petition.
ECF No. 12 at 8 (quoting Tri v. J.T.T. , 162 S.W.3d 552, 562 (Tex. 2005) ).
ECF No. 12 at 8 (quoting Hebert v. Pfizer, Inc. , No. 1:05-CV-418, 2005 WL 8160785, at *1 (E.D. Tex. Aug. 18, 2005) ).
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C. Plaintiffs' Delay In Serving Mr. Marcoulier Further Supports Defendant's Theory of Improper Joinder.
ADT further asserts that Plaintiffs had not yet served Mr. Marcoulier as of the date of the status conference, and this is further evidence that his joinder is improper. ECF No. 12 at 6 n.5; March 25, 2019 Status Conference at 4:08; see also, e.g. , Crawford v. Allied Prop. & Casualty Ins. Co. , No. 4:17-CV-368, 2017 WL 4079544, at *5 (E.D. Tex. Aug. 30, 2017) (finding that tardiness in serving non-diverse defendant provided further support that he was improperly joined), report and recommendation adopted , 2017 WL 4076407 (E.D. Tex. Sept. 14, 2017). This provides additional support for denying remand.
D. Plaintiffs' Negligence Claims Against Mr. Marcoulier Are Time-Barred.
ADT further argues that, even if Plaintiffs stated claims for negligence against Mr. Marcoulier, they are time-barred. ECF No. 12 at 6-7. Plaintiffs did not file a reply and did not respond to this issue. The Court agrees with ADT.
Under Texas law, personal injury cases involving negligence, gross negligence, and negligent misrepresentation are governed by a two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) ; Meredith v. Rose , No. 5-15-54-CV, 2016 WL 4205686, at *4 n.1 (Tex. App.—Dallas Aug. 9, 2016, no pet.) (citations omitted). The incident at issue took place on November 23, 2016. ECF No. 1-6 at ¶ 13. Plaintiffs filed this action against ADT on November 21, 2018, two days before the statute of limitations period expired. ECF No. 8 at ¶ 2; ECF No. 1-3 at 2. Plaintiffs filed their First Amended Petition—joining Mr. Marcoulier—on December 28, 2018, more than one month after the statute of limitations period expired. ECF No. 8 at ¶ 2; ECF No. 1-6 at 2.
Furthermore, under Texas law, "[u]nless an exception applies, an amended pleading adding a new party does not relate back to the original pleading." Chavez v. Andersen , 525 S.W.3d 382, 387 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey , 332 S.W.3d 395, 400 (Tex. 2011) ). Plaintiffs have not cited any contrary authority or asserted that they satisfy any exception to this rule. Therefore, even assuming Plaintiffs adequately pled negligence claims against Mr. Marcoulier, they are time-barred. Thus, the Court concludes there is no possibility of recovery by the Plaintiffs against Mr. Marcoulier and he was improperly joined.
Because the Court determines that Mr. Marcoulier was improperly joined, the claims against him should be dismissed without prejudice. See Int'l Energy Ventures Mgmt., L.L.C. , 818 F.3d at 209 ("When, as here, a court determines that a nondiverse party has been improperly joined to defeat diversity, that party must be dismissed without prejudice. If subject matter jurisdiction is based on diversity, a court never has jurisdiction over a nondiverse party.") (emphasis in original).
IV.
CONCLUSION
The Court recommends that Plaintiffs' motion to remand, ECF No. 8, should be DENIED and Plaintiffs' claims against Mr. Marcoulier should be DISMISSED without prejudice .