Esquivel v. LA Carrier

• Decision Date: 04 January 2022
• Docket Number: EP-21-CV-00282-DCG-1
• Citation: 578 F.Supp.3d 841
• Parties: Maria ESQUIVEL and Rosana Sandoval, Plaintiffs, v. LA CARRIER and An Quang Vuong, Defendants.
• Court: U.S. District Court — Western District of Texas

578 F.Supp.3d 841

Maria ESQUIVEL and Rosana Sandoval, Plaintiffs,

v.LA CARRIER and An Quang Vuong, Defendants.

EP-21-CV-00282-DCG-1

United States District Court, W.D. Texas, El Paso Division.

Signed January 4, 2022

Kenneth Morris, Glasheen, Valles & Inderman, LLP, Lubbock, TX, for Plaintiffs.

David L. Sargent, Sargent Law, P.C., Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Presently before the Court is Plaintiffs Maria Esquivel and Rosana Sandoval's "Motion to Remand to State Court" (ECF No. 8). For the reasons that follow, the Court denies the motion.

I. BACKGROUND

On August 30, 2021, Plaintiffs brought this lawsuit in the County Court at Law No. 3, El Paso County, Texas. According to their original petition, Plaintiffs suffered injuries in a collision between a freightliner tractor-trailer and a car that occurred on a highway in El Paso, Texas on August 20, 2020: Defendant An Quang Vuong was driving the freightliner, Esquivel was driving the car, and Sandoval was a passenger in the car.¹ Plaintiffs sued Vuong and Defendant LA Carrier, asserting, among other state-law claims, a claim for negligence.² The petition alleges that LA Carrier is the owner of the tractor-trailer and Vuong's employer.³ It further alleges that Plaintiffs are New Mexico residents, Vuong is a California resident, LA Carrier is a California corporation.⁴

In September 2021, Plaintiffs, through a process server, sent a copy of the summons and the original petition to the Texas Secretary of State as an agent for service of process on LA Carrier.⁵ The Secretary received the documents on September 13, 2021, forwarded them, via certified mail, return receipt requested, to LA Carrier on September 21, 2021, and later received a return receipt dated September 24, 2021.⁶

Also in September 2021, Plaintiffs, through a process server, sent a copy of the summons and the petition to the Chairman of the Texas Transportation Commission as an agent for service of process on Vuong.⁷ The Chairman received the documents on September 13, 2021, and immediately (on or before September 14) forwarded them, via certified mail, return receipt requested, to Vuong.⁸ There was but one issue with service of process on Vuong: Whereas Plaintiffs’ request for summons listed Vuong's address as "4 93 4 Rosemead Blvd, San Gabriel, California 91776,"⁹ the summons listed his address as "4 39 4 Rosemead Blvd., San Gabriel, CA 91776,"¹⁰ and the Chairman forwarded the summons and the petition to the address listed on the summons.¹¹ According to tracking information provided at a United States Postal Service website, the Chairman's mail was "delivered to the original sender" on September 27, 2021.¹²

On October 28, 2021, before state court, Vuong and LA Carrier jointly filed an answer to Plaintiffs’ original petition.¹³ On November 9, 2021, pursuant to 28 U.S.C. §§ 1441(b) and 1446, Vuong filed a notice of removal in this Court removing the case on the basis of diversity jurisdiction, 28 U.S.C. § 1332. LA Carrier consented to and joined in the removal.¹⁴ On December 7, 2021, Plaintiffs filed the instant motion to remand. Vuong filed a response to the motion on December 15, and Plaintiffs followed by filing a reply on December 20.

II. DISCUSSION

By their motion, Plaintiffs ask the Court to remand the case to state court on the ground that removal was untimely.¹⁵ Mot. to Remand at 5–6. Removal statutes provide: "The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ...." 28 U.S.C. § 1446(b)(1). "Failure to remove within the thirty-day time limit set forth in § 1446(b) constitutes a defect in removal procedure," not a jurisdictional defect, F.D.I.C. v. Loyd , 955 F.2d 316, 320–21 (5th Cir. 1992), and "justif[ies] a remand," Huffman v. Saul Holdings Ltd. P'ship , 194 F.3d 1072, 1077 (10th Cir. 1999).¹⁶ "The party seeking to remove bears the burden of showing that federal jurisdiction exists and that removal was proper." Mumfrey v. CVS Pharmacy, Inc. , 719 F.3d 392, 397 (5th Cir. 2013). " ‘This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.’ " Roth v. Kiewit Offshore Servs., Ltd. , 625 F. Supp. 2d 376, 382 (S.D. Tex. 2008) (citing Albonetti v. GAF Corp.-Chem. Grp. , 520 F. Supp. 825, 827 (S.D. Tex. 1981) ).

Vuong argues that he was never served with the summons and Plaintiffs’ original petition as service through the Chairman of the Texas Transportation Commission's was defective. Vuong's Resp. to Mot. to Remand at 10, ECF No. 11; Notice of Removal at 2; see also Tex. Civ. Prac. & Rem. Code Ann. § 17.063(d) ("After the chairman deposits the copy of the process in the mail, it is presumed that the process was transmitted by the chairman and received by the nonresident .... The presumption may be rebutted."). He explains that the Chairman's mail (with the summons and the petition) was returned undelivered due to an error in the address, consisting of transposed numbers and therefore, he never received the mail. Notice of Removal at 2 & n.2; Vuong's Resp. to Mot. to Remand at 8; see also Def.’s Ex. 2; Def.’s Ex. 3 at 15, 31. Vuong claims that removal was timely because the thirty-day removal period for him "began to run on either the date he received Plaintiffs’ Petition" through other means "or the date he filed his Original Answer in the State Court Case." Notice of Removal at 1–2; see also Vuong's Resp. to Mot. to Remand at 4, 10.

Plaintiffs do not dispute Vuong's assertion that he was never served or his evidence in support of that assertion. They argue however that Vuong fails to state, much less file proof of, when he actually received notice of the lawsuit—an event, Plaintiffs believe, "start[ed] the clock on the thirty-day time limit." Mot. to Remand at 6. Consequently, claim Plaintiffs, Vuong has failed to meet his burden to show that his notice of removal was timely. Id.

Although Vuong does not state exactly when he first received notice of the lawsuit or a copy of the original petition,¹⁷ the date of such receipt seems immaterial under the circumstances. The Supreme Court has clarified Section 1446(b) ’s language "the receipt by the defendant, through service or otherwise , of a copy of the initial pleading" (emphasis added), such as a complaint, to mean that a defendant's time to remove is triggered by (1) "simultaneous service of the summons and complaint," or (2) "receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 347–48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), abrogating Reece v. Wal-Mart Stores, Inc. , 98 F.3d 839, 841 (5th Cir. 1996) (reading § 1446(b) to mean that removal period begins with receipt of a copy of the initial pleading through any means, not just service of process). Either way, "the time for removal commences on formal service of process, not by mere receipt of the complaint unattended by any formal service." Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp. , 478 F.3d 274, 278 (5th Cir. 2007) (cleaned up); see also Thompson v. Deutsche Bank Nat'l Tr. Co. , 775 F.3d 298, 304 (5th Cir. 2014) ("The term ‘service of process’ is defined by state law, and thus we must evaluate propriety of service under Texas law." (cleaned up)). Because Vuong was never served,¹⁸ the date (whatever that is) on which he first received the notice of the lawsuit or a copy of the original petition did not trigger the running of Section 1446(b) ’s thirty-day time limit. See Shakouri v. Davis , 923 F.3d 407, 409–10 (5th Cir. 2019) ("If a defendant is never properly served, the thirty-day limit for filing a notice of removal does not commence to run.").¹⁹

There is, however, one wrinkle in this case: What effect, if any, the state-court answer had on the thirty-day limit for removal?²⁰ Although post- Murphy Brothers , the Fifth Circuit has not had an occasion to address this question on the facts of this case, at least three federal district courts in Texas have. In each case, these courts have held that Section 1446(b) ’s thirty-day removal period for a defendant who had not been formally or properly served commenced to run on the date on which the defendant filed an answer in state court. Cerda v. 2004-EQRI, LLC , No. SA-07-CV-632-XR, 2007 WL 2892000, at *3 (W.D. Tex. Oct. 1, 2007) ; George-Baunchand v. Wells Fargo Home Mortg., Inc. , No. CIV.A. H-10-3828, 2010 WL 5173004, at *3–4 (S.D. Tex. Dec. 14, 2010) ; Chambers v. Greentree Servicing, LLC , No. 3:15-CV-1879-M-BN, 2015 WL 4716596, at *4 (N.D. Tex. Aug. 7, 2015).²¹

Texas law governing general appearance and waiver of service of process lends some support for these courts’ holding. Cf. Murphy Bros., Inc. , 526 U.S. at 351, 119 S.Ct. 1322 ("Unless a named defendant agrees to waive service , the summons continues to function as the sine qua non directing an individual or entity [named defendant] to participate in a civil action or forgo procedural or substantive rights." (first italic added)). A "defendant may enter an appearance," and "[s]uch appearance ... shall have the same force and effect as if the citation had been duly issued and served as provided by law." Tex. R. Civ. P. 120. Thus, a defendant "can waive defects in service by entering a general appearance." J. O. v. Tex. Dep't of Family & Protective Servs. , 604 S.W.3d 182, 188 (Tex. App.—Austin 2020, no pet.) (citing Tex. R. Civ. P. 120 ). And "[f]iling an answer constitutes a general appearance." Phillips v. Dallas Cnty. Child Protective Servs. Unit , 197 S.W.3d 862, 865 (Tex. App.—Dallas 2006, pet....