Casas v. Anthony Mech. Servs.

JESSE CASAS, Plaintiff, v. ANTHONY MECHANICAL SERVICES, INC., et al., Defendants.

No. 5:21-CV-168-H

United States District Court, N.D. Texas, Lubbock Division

February 23, 2022

MEMORANDUM OPINION AND ORDER REMANDING THE CASE

JAMES WESLEY HENDRIX, UNITED STATES DISTRICT JUDGE

A massive air conditioner fell on Jesse Casas while he was at work. Alleging, understandably, that someone messed up, he filed a lawsuit against various entities- Anthony Mechanical Services, Inc. (the landlord), Lickity Split Expediting, LLC (the trucking company that delivered the unit), and Temtrol Inc. (the unit's manufacturer).

One party Casas did not sue was Nortek Air Solutions, LLC. Nevertheless, Nortek entered the picture by removing this case from state to federal court. Nortek did so because, in its view, Casas mistakenly sued Temtrol instead of it. And removal was proper, according to Nortek, because Casas fraudulently joined a nondiverse defendant. By looking behind Casas's fraud, the Court could exercise diversity jurisdiction.

But Nortek has no voice in these proceedings. At least, not yet. A nonparty may not remove a case from state to federal court regardless of whether it believes it should be a party. The proper course in such a situation is for the nonparty to intervene in state court, then remove. Since that did not happen, the Court lacks jurisdiction to even consider Nortek's argument that Anthony Mechanical Services, Inc. was improperly joined. Because Nortek removed a case it is not a party to, the case must be remanded.

1. Factual and Procedural Background

Jesse Casas is a journeyman HVAC technician employed by Anthony Mechanical, Inc. (AM). Dkt. No. 1 at 28. While at work on April 30, 2021, a large HVAC unit was delivered by a driver working for defendant Lickity Split Expediting (LSE). Id. at 19, 29. Because the driver lacked the proper equipment to offload the unit from his truck, Casas and other AM employees were asked to do so. Id. Casas alleges that the group was untrained and ill-equipped for the job. Id. Ultimately, the HVAC unit slipped while being offloaded and crushed Casas's leg, causing serious injuries. Id. at 30.

Casas sued Anthony Mechanical Services, Inc. (AMS, a different company than AM), LSE, and Temtrol, Inc. in state court alleging various forms of negligence. Id. at 19, 30-35. The case was then removed to federal court by Nortek Air Solutions, LLC, an entity claiming to be the real defendant in interest for Temtrol. Id. at 1 & n.1, 3, 13. Nortek insists that Temtrol, Inc. does not exist and that Nortek is really who Casas meant to sue. Id. at 1 & n.1. Nortek also argued that removal was proper because Casas has no viable claims against AMS, the lone in-state defendant. Id. at 4-13. Ignoring AMS, the Court could exercise diversity jurisdiction-a fraudulent misjoinder argument. Id. at 4-6.

Casas filed a motion to remand the case back to state court, arguing that Nortek was not a party, so it could not remove the case, and that AMS is a proper defendant, so the Court lacks diversity jurisdiction. Dkt. Nos. 15 (motion); 15-1 (brief). Casas also seeks his expenses in litigating the removal and remand. Dkt. No. 15-1 at 25-29. Nortek responded, arguing that Casas committed a misnomer-or a simple mistake in nomenclature-in suing Temtrol and that it (Nortek) is a defendant empowered to remove the case. Dkt. No. 17 at 5-12. Casas replied (Dkt. No. 19), so the motion is ripe.

2. Governing Law

Unlike state courts, federal courts are courts of limited jurisdiction, exercising only the power that the Constitution and Congress afford. As an adjunct to the Court's ability to hear cases between citizens of different states, the Court can hear cases originally started in state court, but which would otherwise satisfy the requirements of diversity jurisdiction. Cf. 28 U.S.C. § 1441(a)-(b). “A defendant may remove a state court action to federal court only if the action could have originally been filed in federal court.” Anderson v. Am. Airlines, Inc., 2 F.3d 590, 593 (5th Cir. 1993) (citing § 1441). Thus, whether a case can be removed from state to federal court depends upon the plaintiff's pleading at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939); Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256, 264 (5th Cir. 1995). The removing party bears the burden of establishing that federal jurisdiction exists over the controversy. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013). While any doubts about a case's removability are resolved against the exercise of federal jurisdiction, Acuna v. Brown & Root, Inc. 200 F.3d 335, 339 (5th Cir. 2000), “courts should not sanction devices intended to prevent [ ] removal . . . and should be equally vigilant to protect the right to proceed in the Federal court as to permit the state courts, in proper cases, to retain their own jurisdiction.” Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc) (Higginbotham, J.) (quoting 14A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3641, 173 (3d ed. 1998)).

A removed case must be remanded “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). And, critically, a nonparty-even one claiming to be a real party in interest-may not remove a case to federal court. Valencia v. Allstate Texas Lloyd's, 976 F.3d 593, 595 (5th Cir. 2020) (citing Salazar v. Allstate Texas Lloyd's, Inc., 455 F.3d 571, 575 (5th Cir. 2006), in turn citing Housing Auth. v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973)).

An entity “will not be considered to be a party until it has made an appearance in the state court suit.” T.H. Inc. v. 6218 Investors, 41 F.3d 235, 237 (5th Cir. 1995). “The law is clear that a case filed in state court may be removed to federal court only by the defendant or the defendants.” Valencia v. Allstate Texas Lloyd's, 976 F.3d 593, 595 (5th Cir. 2020) (quoting 28 U.S.C. § 1441(a)). “A non-party, even one that claims to be the proper party in interest, is not a defendant and accordingly lacks the authority to remove a case.” Id.; see Salazar v. Allstate Tex. Lloyd's, Inc., 455 F.3d 571, 575 (5th Cir. 2006) (“[W]here an entity has not properly been made a party in state court, removal jurisdiction cannot be premised on its presence in the action.”); FDIC v. Loyd, 955 F.2d 316, 326 (5th Cir. 1992) (“Common sense and the practicalities of pleading dictate that no non-party to a state court proceeding has a mature right to remove that proceeding to federal court.”); Housing Auth. v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973) (holding that that the district court lacked subject matter jurisdiction over a suit removed by a non-party defendant).

3. Analysis

Nortek removed this case, so the key question is whether Nortek is a defendant. Nortek insists that it is a defendant because it argues that Casas committed a misnomer when he sued Temtrol rather than Nortek. Dkt. No. 17 at 5-6. In Texas, a misnomer exists when a plaintiff sues the correct entity under a mistaken name; a misidentification “arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity.” Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999); In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009). Generally, parties are permitted to rectify a misnomer so long as it is not misleading. See Houston Orthopaedic Specialists, 295 S.W.3d at 325.

But misnomer-Nortek's best argument-is inapplicable when the plaintiff disputes whether a misnomer has occurred. Valencia, 976 F.3d at 597 (“Here, Valencia named Allstate Texas in his petition and served Allstate Texas through its registered agent as confirmed by the Texas Secretary of State's records. It is Allstate Texas, not Allstate Illinois, that Valencia maintains he intended to sue and from which to seek recovery. A misnomer does not exist under these facts.”); De Jongh v. State Farm Lloyds, 555 Fed.Appx. 435, 437-38 (5th Cir. 2014); Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir.2011); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 91 (2005) (“In general, the plaintiff is the master of the complaint and has the option of naming only those parties the plaintiff chooses to sue, subject only to the rules of joinder [of] necessary parties.”) (quoting 16 J. Moore, et al., Moore's Federal Practice § 107.14[2][c], 106-67 (3d ed. 2006)).

Furthermore, Nortek has offered no evidence that it was actually served in the state litigation. “When the correct party sues or is sued under the incorrect name, ‘the court acquires jurisdiction after service with the misnomer if it is clear that no one was misled or placed at a disadvantage by the error.'” Reddy Partnership/5900 North Freeway LP v. Harris County Appraisal, 370 S.W.3d 373, 376-77 (Tex. 2012) (quoting Sheldon v. Emergency Med. Consultants, I, P.A., 43 S.W.3d 701, 702 (Tex. App.-Fort Worth 2001, no pet.). With no evidence that Nortek was actually served, there is no evidence that the state court ever acquired jurisdiction over it. The citation Nortek offers as evidence that it was served is addressed to Temtrol and Temtrol alone. Dkt. No. 1 at 41. And the Notice of Service of Process that Nortek received from the Corporation Service Company lists “Temtrol, Inc.” as the “Entity Served.” Dkt. No. 18 at 20.

Nortek tries to explain this away by saying that “‘Temtrol, Inc.' does not exist as a corporate entity. However, an entity known as ‘Temtrol LLC' formerly existed before it was merged into a legal entity now known as Nortek Air Solutions, LLC.” Dkt No. 1 at 13; see also id. at 1 & n.1. It may be ...