Sandoval v. TBA Transp.

• Decision Date: 26 July 2022
• Docket Number: Civil Action 4:22-CV-00318
• Parties: ANGELICA SANDOVAL, Plaintiff, v. TBA TRANSPORT, LLC and ERIK G. CASTRO, Defendants.
• Court: U.S. District Court — Eastern District of Texas

ANGELICA SANDOVAL, Plaintiff,
v.
TBA TRANSPORT, LLC and ERIK G. CASTRO, Defendants.

Civil Action No. 4:22-CV-00318

United States District Court, E.D. Texas, Sherman Division

July 26, 2022

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

Pending before the Court is Plaintiff's Motion to Remand (Dkt. #5). Having considered the motion and the relevant pleadings, the Court finds that the motion should be DENIED.

BACKGROUND

On February 25, 2022, Plaintiff Angelica Sandoval (“Sandoval”) filed this negligence action against Defendants TBA Transport, LLC (“TBA”) and Erik G. Castro (“Castro”) with the 62nd Judicial District Court in Hopkins County, Texas (Dkt. #2). On March 2, 2022, Sandoval executed service on both defendants by serving the Texas Secretary of State as their statutory process agent, pursuant to Chapter 17 of the Texas Civil Practice and Remedies Code (Dkt. #5 ¶ 2). On March 9, 2022, the Secretary of State forwarded a copy of the citation, Sandoval's petition, and Sandoval's Rule 194 Request for Disclosure to both defendants (Dkt. #5, Exhibits 1, 2). On March 25, 2022, Castro received Sandoval's petition (Dkt. #7 ¶ 7). On April 8, 2022, Castro filed his answer in state court (Dkt. #3). On April 15, 2022, Castro removed the case to the undersigned Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 (Dkt. #1) (the “Notice of Removal”).

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On May 10, 2022, Sandoval filed the present motion to remand (Dkt. #5), arguing first that Castro waived his right to remove the case from state court to federal court by untimely filing the Notice of Removal and further defending the action in state court (Dkt. #5 ¶ 13). Sandoval also argues that Castro did not properly allege complete diversity of citizenship in the Notice of Removal because the Notice fails to allege the citizenship of TBA's members or managers (Dkt. #5 ¶ 24). On May 24, 2022, Castro filed a response in opposition to Sandoval's motion to remand, arguing that the Notice of Removal was timely filed and further identifying the citizenship of TBA's members (Dkt. #7). On May 31, 2022, Sandoval filed her reply (Dkt. #8).

LEGAL STANDARD

“Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “Only state court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)). “In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction.” Humphrey v. Tex. Gas Serv., No. 1:14-CV-485, 2014 WL 12687831, at *2 (E.D. Tex. Dec. 11, 2014) (citations omitted). The Court “must presume that a suit lies outside [its] limited jurisdiction,” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001), and “[a]ny ambiguities are construed against removal and in favor of remand to state court.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). “When considering a motion to remand, the removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”

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Humphrey, 2014 WL 12687831, at *2 (quoting Manguno, 276 F.3d at 723).

Section 1446 establishes the procedures by which a defendant may remove a suit filed in state court to federal court. See 28 U.S.C. § 1446. A notice of removal must normally be filed within thirty days after the defendant receives the initial pleading setting forth the claim for relief upon which the action is based, or within thirty days of service of summons if the state's rules of procedure do not require the defendant to be served, whichever period is shorter. 28 U.S.C. § 1446(b). Similarly, § 1447 establishes the procedures following removal. Section 1447 specifically provides that “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within [thirty] days after the filing of the notice of removal.” 28 U.S.C. § 1447(c). In contrast, if a court finds that it lacks subject matter jurisdiction, the court must remand the case, even if the thirty days have passed. Id.

ANALYSIS

In requesting this case be remanded to state court, Sandoval first argues that Castro has waived his right to removal by defending the action in state court and untimely filing his notice of removal (Dkt. #5 ¶¶ 16-17). Sandoval next argues that Castro has not sufficiently shown diversity of citizenship because he did not properly allege the citizenship of TBA's members in the Notice of Removal (Dkt. #5 ¶ 24). In response, Castro contends that the Notice of Removal was timely filed and provides further evidentiary support identifying the citizenship of TBA's members (Dkt. #7 ¶ 1). The Court will consider each argument in turn.

I. Waiver of Right of Removal

Sandoval asserts that Castro waived his right to removal by “defend[ing] this action in state court by filing his answer, asserting affirmative defenses, requesting discovery, and requesting [Sandoval's] deposition” (Dkt. #5 ¶ 15). A defendant may waive its right to removal “by

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proceeding to defend the action in state court or otherwise invoking the processes of that court.” Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986), superseded in part by statute as recognized by Mathis v. DCR Mortg. III Sub. I, LLC, 942 F.Supp.2d 649, 650-51 (W.D. Tex. 2013). However, a party's waiver of its right to removal must be “clear and unequivocal.” City of New Orleans v. Mun. Admin. Servs., 376 F.3d 501, 504 (5th Cir. 2004), cert. denied, 543 U.S. 1187 (2005) (quoting McDermott Int'l, Inc. v. Lloyd's Underwriters, 944 F.2d 1199, 1212 (5th Cir. 1991)). The waiver must “‘indicate a specific, positive intent to proceed in state court.'” Air Starter Components, Inc. v. Molina, 442 F.Supp.2d 374, 379 (S.D. Tex. 2006) (quoting Jacko v. Thorn Ams., Inc., 121 F.Supp.2d 574, 575 (E.D. Tex. 2000)). Further, to constitute a “clear and unequivocal” waiver, the “defendant's conduct must seek a binding decision [from the state court], not just seek to maintain the ‘status quo.'” Baxter v. Hastings, No. 3:22-CV-1095, 2022 WL 2306825, at *2 (N.D. Tex. June 28, 2022) (citations omitted). “Absent seeking an adjudication on the merits, the right to remove a case to federal court is not lost when the party participates in state court proceedings.” Marroquin v. Home Depot USA, Inc., No. 1:13-CV-371, 2013 WL 11332951, at *5 (E.D. Tex. Aug. 16, 2013).

Under this framework, district...