Esparza Rico v. Flores
| Decision Date | 19 May 2005 |
| Docket Number | No. CIV.B-04-117.,CIV.B-04-117. |
| Citation | 405 F.Supp.2d 746 |
| Parties | Juvenal ESPARZA RICO and Acrelia Contreras Ortega, Individually and as the Sole Surviving Heirs of the Estate of their Son, Omar Esparza Contreras; Maria Ines Munoz Briones, Individually, as Next Friend of her Minor Children, Ingri Marvella Reyes Munoz and Clarisa Yajaira Reyes Munoz, and as a Surviving Heir of the Estate of her Husband, Juan Enrique Reyes Meza; Juan Antonio Reyes Aguilar, Individually; Irene Godinez Cardona, Individually, as Next Friend of her Minor Son, Roberto Esparza Godinez, and as a Surviving Heir of the Estate of her Husband, Roberto Esparza Rico; Clementina Sanchez, Individually; Eva Cristina Sanchez Sierra, Individually, as Next Friend of her Minor Children, Karla Lizeth Amador Sanchez, Nancy Marisol Amador Sanchez, Marvin Alexander Amador Sanchez, and Francis Estefania Amador Sanchez, and as a Surviving Heir of the Estate of her Husband, Pedro Amador Lopez; Manuel De Jesus Doblado Avila, Individually; Delmira Soler Doblado, Individually, as Next of her Minor Children Nelis Avila Soler, Ever Avila Soler, and Elmer Roberto Avila Soler, and as a Surviving Heir of the Estate of her Husband Isidro Avila Bueso; Ludis Yesenia Avila Soler, Individually; Obdulia Ferrufino Burgos; Individually, as Next Friend of her Minor Grandchildren Jonathan Joel Gutierrez Ferrufino, Lely Amparo Canales Ferrufino, Ivy Roxana Canales Ferrufino, Oscar Alfredo Ferrufino, Jairo Mauricio Ferrufino, Katherine Ninoska Canales Ferrufino, Jennifer Guadalupe Ferrufino, and Elmer Noe Ferrufino, and as a Surviving Heir of the Estates of her Daughters, Rosibel Ferrufino and Lely Elizabeth Ferrufino, and her Granddaughter Lesly Esmeralda Ferrufino; Rosa Delia Hernandez De Ardon, Individually, as Next Friend of her Minor Children Harold Mauricio Ardon Hernandez, Marelyn Ivette Ardon Hernandez, and as a Surviving Heir of the Estate of her Husband, Domingo Ardon Sibrian; Sixto Acevedo and Maria Emilia Perez, Individually and as the Sole Surviving Heirs of the Estate of their Son, Bryon Adner Acevedo Perez, Plaintiffs, v. Arnulfo FLORES, Jr., Norma Arriaga Trevino a/k/a Norma Bocanegra, Union Pacific Corporation, Union Pacific Railroad Company, AT & L Railroad Company, Inc. and Archer Daniels Midland Company, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Alberto Tover Garcia, III, Law Office of Alberto T. Garcia III, McAllen, TX, Robert E. Ammons, The Ammons Law Firm LLP, Houston, TX, for Plaintiffs.
Joseph Anthony Rodriguez, Mitchell Craig Chaney, Robert Patrick Rodriguez, Rodriguez, Colvin, Chaney & Saenz, LLP, Brownsville, TX, Todd Lafferty, Attorney at Law, Watonga, OK, Tom Arthur Lockhart, Adams & Graham, Harlingen, TX, for Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
This case arises out of the tragic deaths of ten undocumented aliens who attempted to pass undetected through the Border Patrol checkpoint at Sarita, Texas, by stowing away in a railroad car. Before the Court is a Motion to Remand (Docket No 4) filed by Plaintiffs who are the surviving family members of the decedents. The Court, having considered the legal memoranda and applicable authorities, DENIES Plaintiffs' remand motion for the reasons elaborated below.
This case presents the very tragic but all too frequent circumstance of undocumented aliens being injured or killed either in their attempt to enter the United States illegally or in their attempt to avoid detection once in the country illegally. It is a case in which the decedents made a bargain with a smuggling organization that accidentally, negligently, or perhaps even purposefully locked them in a grain hopper train car in South Texas and failed to release them once past the Sarita Border Patrol checkpoint. Thus, the conduct of the aliens, the conduct of their co-conspirator smugglers, and possibly the conduct of others ultimately resulted in the death of ten individuals, all of whom had left family and friends in other parts of the world to travel to the United States presumably seeking better opportunities.
On the one hand, when one views this case in this fashion, equity cries out for the courts to offer their heirs some form of relief. On the other hand, the argument can be made that the degree of tragedy surrounding these circumstances do not make a difference and what this Court is truly facing is the death of ten individuals who died breaking the laws of the United States whose heirs are now seeking compensation for injuries resulting from the decedents' own illegal activities. One can certainly argue without appearing too unsympathetic that a person cannot and should not be able to profit from his or her own illegal activities.1
The complex nature of the problem presented in this case is highlighted by the pleadings of the parties. Union Pacific, a defendant, in order to distinguish this case from that of Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir.2004), is in the unlikely position of arguing in favor of there being a cause of action against itself. Conversely, the plaintiffs have argued in favor of this case being controlled by section 93.001(a)(1) of the Texas Civil Practice and Remedies Code, which, if applicable, would totally bar the plaintiffs from recovering from any of the five defendants under any cause of action.
The facts in this case as they pertain to the matter at hand, and insofar as they are known, appear to be undisputed. In June 2002, Flores, who was at that time a conductor for Union Pacific, placed ten illegal aliens into a Union Pacific grain hopper railroad car in order to illegally transport them past the Santa checkpoint.2 Four months later, in October, the aliens' remains were found in the railroad car in Denison, Iowa. The medical examiner determined the cause of death for all ten individuals to be lack of oxygen, extreme overheating, and dehydration. Flores was arrested and pled guilty to conspiring to transport illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(A)(v)(I). Neither party provided the Court with the status of Trevino; however, this Court takes judicial notice of the fact that she pled guilty to a similar § 1324 violation. Her apparent role in this illegal scheme was to operate a stash house and subsequently to deliver the illegal aliens to the railroad's property so that Flores could smuggle them on board the train.
On June 3, 2004, Plaintiffs brought a wrongful death suit in the 138th Judicial District Court of Cameron County, Texas, alleging damages as a result of the deaths of the ten undocumented aliens.3 Plaintiffs named as defendants Union Pacific Corporation, Union Pacific Railroad Company, Amulfo Flores, Jr. ("Flores"), Norma Arriaga Trevino ("Trevino"), AT & L Railroad Company, Inc. ("AT & L"), and Archer Daniels Midland Company ("Archer Daniels").4
Plaintiffs' First Amended Original Petition brings claims against Flores and Trevino involving negligence and civil conspiracy. They maintain that "civil conspiracy is derivative from the acts of negligence committed by Defendants Flores and Trevino and/or their co-conspirators...."5 (First Am. Orig. Pet., at 15.) Plaintiffs allege that Flores and Trevino's negligence arises out of their acts and omissions committed while smuggling the aliens. Plaintiffs further allege that Union Pacific is vicariously liable for Flores' alleged negligent acts and also directly liable for Flores' acts pursuant to section 317 of the RESTATEMENT (SECOND) OF TORTS. Although Plaintiffs have also named as Defendants AT & L and Archer Daniels, their petition does not plead any causes of action against them.
On July 9, 2004, Union Pacific removed this case to federal court on the basis of diversity jurisdiction claiming that Flores and Trevino were improperly joined. Specifically, Union Pacific avers that Texas' "unlawful acts" rule bars Plaintiffs' claims against Flores and Trevino.6 The controversy in this matter does not center around the question of complete diversity of citizenship of the parties. Rather, it is a controversy over fraudulent or improper joinder because the Texas citizenship of Flores and Trevino would otherwise prohibit the removal of a diversity action in which any properly joined and served defendant "is a citizen of the State in which such action is brought." 28 U.S.C.A. § 1441(b).
Plaintiffs filed a motion to remand on July 19, 2004, contending that Flores and Trevino are properly joined and that remand is warranted on three grounds. First, Plaintiffs maintain that removal was defective because all of the defendants did not consent in a timely manner, i.e., Flores and Trevino failed to consent to removal within thirty days of June 10, 2004, the date upon which the first defendant, Archer Daniels, was served. Second, Plaintiffs contend that the unlawful acts rule is inapplicable in wrongful death cases. Plaintiffs argue that section 93.001 of the Texas Civil Practice and Remedies Code governs wrongful death cases, not the unlawful acts rule. Finally, Plaintiffs maintain that, even if the unlawful acts rule is applicable, it still does not bar recovery because Plaintiffs do not have to prove any illegal act on behalf of the decedents to prove the elements of their negligence cause of action against Flores and Trevino. Union Pacific filed a response on August 9, 2004, arguing that removal was timely and that the unlawful acts rule precludes recovery against Flores and Trevino. Plaintiffs filed a reply on August 10, 2004.
Plaintiffs filed their motion to remand and Defendants filed their responses thereto on September 10, 2004, prior to the issuance of Smallwood. Smallwood signifies an important change in controlling law for it counsels that a district court must remand a case wherein the...
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