Madison v. Aviles

Decision Date04 June 2021
Docket NumberCIVIL ACTION NO. 3:20-CV-2516-B
Citation542 F.Supp.3d 521
Parties Taylor MADISON and Angie Dickson, Plaintiffs, v. Telesforo AVILES, Defendant, and ADT LLC, Intervenor-Defendant.
CourtU.S. District Court — Northern District of Texas

Gregory F. Cox, Michael Andrew Downey, II, Mostyn Law Firm, Houston, TX, for Plaintiffs.

Thomas G. Pappas, Burleson Pate & Gibson LLP, Dallas, TX, for Defendant Telesforo Aviles.

Benjamin Wayne Walther, Shook Hardy & Bacon LLP, Houston, TX, Brian Rawson, Holly Naehritz, Roy Bradford McKay, Hartline Dacus Barger Dreyer LLP, Dallas, TX, Charles Carson Eblen, Pro Hac Vice, Jason R. Scott, Pro Hac Vice, Shook Hardy & Bacon LLP, Kansas City, MO, for Intervenor-Defendant ADT LLC.



Before the Court is Plaintiffs Taylor Madison and Angie Dickson's Motion to Remand (Doc. 9). In their motion, Plaintiffs challenge Defendant ADT LLC (ADT)’s removal of this case under the Class Action Fairness Act of 2005 (CAFA). Although the Court holds ADT's removal was proper, the home-state exception to CAFA applies to this case, meaning the Court must abstain from exercising jurisdiction. Accordingly, the Court GRANTS Plaintiffs’ motion (Doc. 9) and REMANDS this case to the 191st Judicial District Court of Dallas County, Texas.


This is one of a handful of cases arising from a former ADT employee's spying on individuals by accessing their security-camera footage. Plaintiff Madison alleges that she contracted with ADT to provide security for her home. Doc. 2, Def.’s App., 10. Defendant Telesforo Aviles ("Aviles"), an employee of ADT and citizen of Texas, installed and set up the security system in Plaintiff Madison's residence. Id. at 11. While doing so, Aviles provided himself access to the security cameras in Plaintiff Madison's home. Id. Over a roughly thirty-day period following the installation, Aviles accessed the security cameras 139 times, potentially recording images of what he saw. Id. Aviles's spying, however, was not limited to Plaintiff Madison's household; rather, according to Plaintiffs, Aviles spied on "at least 220 of ADT's Dallas-area customers," and there are likely hundreds of other victims. Id. at 54.

Upon learning of Aviles's conduct, Plaintiff Madison and her mother, Plaintiff Dickson—both of whom are Texas citizens—filed a class action against Aviles in Texas state court. See generally id. at 6–17; see Doc. 1, Notice of Removal, 3. Plaintiffs seek to represent a class of "[a]ll Texas citizens or residents who experienced damages as a result of the intrusion of their seclusion by [Aviles]" and a subclass of "[a]ll Texas citizens or residents who: (1) are not customers of ADT; (2) who were present at a location monitored by an ADT video security system; (3) had a reasonable expectation of privacy at the location; and (4) experienced damages as a result of the intrusion of their seclusion by [Aviles.]" Doc. 2, Def.’s App., 53. Plaintiffs’ class-action petition alleges a single claim of intrusion upon seclusion against Aviles and requests both injunctive relief and damages. Id. at 11–14.

After Plaintiffs filed their petition in state court, they served a discovery request on ADT, a non-party in the case at that point. See id. at 21 (documenting plaintiffsmotion to compel ADT's compliance with a subpoena). About one month later, ADT intervened in the case as a defendant under Texas Rule of Civil Procedure 60. See id. at 24. In its petition in intervention, ADT explained that it was intervening because Plaintiffs sought certification of a class harmed by Aviles, whom Plaintiffs previously alleged "was operating ‘in the course and scope of his employment with ADT’ when he committed the wrongful conduct[.]" Id. at 25. Eight days after intervening as a defendant, ADT removed the action to this Court. See generally Doc. 1, Notice of Removal. ADT, a citizen of Delaware and Florida, asserts that the Court has jurisdiction over this dispute under CAFA. Id. at 1, 3. Plaintiffs disagree and thus filed a motion to remand (Doc. 9) this case. The motion is fully briefed, and it is now ripe for review.

A. General Removal Standard

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree[.]" Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). The removal statute, 28 U.S.C. § 1441, authorizes defendants to remove any civil action from state court to federal district court if the district court would have original jurisdiction. 28 U.S.C. § 1441(a). Generally, "[r]emoval raises significant federalism concerns" because it effectively "deprive[s] the state court of an action properly before it." Gasch v. Hartford Accident & Indem. Co. , 491 F.3d 278, 281 (5th Cir. 2007) (citation omitted). As a result, courts strictly construe the removal statute. Id. at 281–82 (citations omitted).

B. Removal Under CAFA

"CAFA gives federal courts jurisdiction over certain class actions, defined in § 1332(d)(1), if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million." Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 84–85, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) (citing, inter alia , 28 U.S.C. § 1332(d)(1)(2), (5)(B) ). "Congress enacted CAFA to encourage federal jurisdiction over interstate class action lawsuits of national interest." Preston v. Tenet Healthsystem Mem'l Med. Ctr. , 485 F.3d 793, 797 (5th Cir. 2007). For this reason, there is "no antiremoval presumption" in cases invoking CAFA. Dart Cherokee , 574 U.S. at 89, 135 S.Ct. 547 (citations omitted). Nevertheless, the Court must "decline to exercise CAFA jurisdiction" if the home-state exception, § 1332(d)(4)(B), or the local-controversy exception, § 1332(d)(4)(A), of CAFA applies to the case. Watson v. City of Allen , 821 F.3d 634, 639 (5th Cir. 2016) (citations and quotation marks omitted).


Below, the Court examines whether ADT properly removed this case under CAFA.1 Concluding removal based on CAFA jurisdiction was proper, the Court then turns to whether a statutory exception to the exercise of CAFA jurisdiction applies. Because the Court holds that the home-state exception applies to this action, the Court must decline to exercise jurisdiction and grants Plaintiffsmotion to remand.

A. Removal Under CAFA Was Proper.

The Court first addresses Plaintiffs’ four arguments disputing ADT's right to remove under CAFA: (1) that ADT waived its right to remove this case; (2) that ADT, as an intervening defendant, cannot remove under CAFA; (3) that the voluntary-involuntary rule prohibits removal in this case; and (4) that ADT has not satisfied CAFA's amount-in-controversy requirements. For the reasons explained below, the Court rejects these arguments and holds that ADT properly removed this case based on jurisdiction under CAFA.

1. ADT did not waive its right to remove this case.

As an initial matter, the parties dispute whether ADT waived its right to remove this case by evincing an intent to litigate in state court. Doc. 9-1, Pls.’ Mot. Br., 12; Doc. 18, Def.’s Resp., 13. "A waiver of the right to remove must be clear and unequivocal; the right to removal is not lost by participating in state court proceedings short of seeking an adjudication on the merits." Strong v. Green Tree Servicing, L.L.C. , 716 F. App'x 259, 263 (5th Cir. 2017) (per curiam) (citation omitted). "For example, the filing of a motion to dismiss or for summary judgment in state court can demonstrate the requisite intent to waive the right of removal." DT Apartment Grp., LP v. CWCapital, LLC , 2012 WL 1555450, at *1 (N.D. Tex. May 3, 2012) (citing, inter alia , Johnson v. Heublein, Inc. , 227 F.3d 236, 244 (5th Cir. 2000) ).

Plaintiffs argue that ADT waived its right to removal by: filing a motion for a protective order from a subpoena; setting a hearing on the motion; filing a petition in intervention; filing a motion to stay; and setting that motion for a hearing, too. Doc. 9-1, Pls.’ Mot. Br., 12. Additionally, Plaintiffs point out that "ADT waited almost three months to intervene and remove this case after it received Plaintiffsdiscovery request ...." Id.

ADT's state-court actions, however, do not show an "unequivocal" waiver of the right to remove. See Strong , 716 F. App'x at 263. Indeed, the Fifth Circuit has found that a defendant did not waive the right to removal "by engaging in extensive discovery in state court[.]" Id. ; see also Titan Aviation, LLC v. Key Equip. Fin., Inc. , 2006 WL 3040923, at *3–4 (N.D. Tex. Oct. 26, 2006) (finding no waiver where the defendants "appeared at various hearings[,]" "made various court filings," and attended a temporary injunction hearing, where they "moved for judgment or a directed verdict"). Likewise, another district court concluded a defendant did not waive its right to removal when it intervened as a defendant in state court. See DT Apartment , 2012 WL 1555450, at *3 ("Even if [the defendant] was attempting to obtain some form of affirmative relief, it was not asking the state court to proceed on the merits of the case[.]"). The Court follows the same course here and holds that ADT did not waive its right to removal.

2. ADT's status as an intervening defendant does not preclude removal.

Next, the Court addresses an unresolved procedural issue: whether ADT—as an intervening defendant not named in Plaintiffs’ complaint—could remove under § 1453(b), CAFA's removal provision. As further explained in their reply brief, Plaintiffs contend that ADT, as an intervening party, is not a "defendant" for purposes of the CAFA removal statute, which permits removal "by any defendant...." Doc. 20, Pls.’ Reply, 3; 28 U.S.C. § 1453(b). Plaintiffs rely upon the Supreme Court's holding in Home Depot...

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