Lindsey Hoyt v. Lane Construction Corporati

Case: 18-10289 Document: 00514990097 Page: 1 Date Filed: 06/10/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 10, 2019

No. 18-10289

Lyle W. Cayce

Clerk

LINDSEY HOYT, Individually, and Independently as Administrator of the

Estate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie

Hoyt; PATRICK HOYT,

Plaintiffs-Appellants,

v.

THE LANE CONSTRUCTION CORPORATION,

Defendant-Appellee.

Appeals from the United States District Court

for the Northern District of Texas

Before JONES, HAYNES, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

We must decide whether the district court erred by refusing to remand

this case to state court. It did not. Next, we must decide whether the district

court erred by granting summary judgment to the defendant. It did.

I.

On December 29, 2015, Jeffery Hoyt hit a patch of ice while driving on

FM 2264 in Wise County, Texas. Jeffery slid off the road. His car landed

upside down in an adjacent body of water. Tragically, Jeffery drowned. Less

than an hour later, a second driver hit the same patch of ice. The second driver

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No. 18-10289

likewise slid off the road. And the second driver landed directly on top of

Jeffery’s submerged vehicle. That apparently saved the second driver from

drowning. First responders rescued him and, in the process, discovered

Jeffery’s vehicle and body.

On September 20, 2016, members of Jeffery’s family (“the Hoyts”) filed

suit in Texas state court. They sued C.E.N. Concrete Construction Co., Storm

Water Management, Inc., and the Lane Construction Corporation. The Hoyts,

C.E.N., and Storm are citizens of Texas. Lane is not. The Hoyts contended all

three companies had performed construction work on FM 2264 and caused ice

to form at the crash site. The defendants moved for summary judgment. The

state district court granted C.E.N.’s motion and entered a “take nothing”

judgment in its favor.

The Hoyts and Storm engaged in settlement discussions. They never

reached agreement. Yet on September 22, 2017—one year and two days after

the suit began—the Hoyts voluntarily dismissed their claims against Storm.

The Hoyts received no compensation from Storm.

Five days later, Lane removed the case to federal court on the theory

that it now fit within federal diversity jurisdiction. See 28 U.S.C. § 1332(a)(1);

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring “complete

diversity”). The next day, the Hoyts filed an emergency motion to remand.

They argued Lane’s notice of removal was untimely. The federal district court

denied that motion. In a second motion to remand filed about a month later,

the Hoyts argued the voluntary-involuntary rule prohibited removal because

C.E.N. had been dismissed against their wishes. The district court denied that

motion too.

Lane moved for summary judgment on the Hoyts’ claims for premises

liability and gross negligence. The federal district court granted the motion.

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It dismissed the claims against Lane with prejudice. The Hoyts timely

appealed.

II.

The Hoyts argue we must remand the case to state court. We disagree.

The district court properly rejected both remand motions.

A.

The Hoyts’ first motion for remand turns on timeliness. Under 28 U.S.C.

§ 1446(c), the defendant in a diversity case has one year following the

commencement of an action to remove it. But Congress created an exception

to this time bar where “the district court finds that the plaintiff has acted in

bad faith in order to prevent a defendant from removing the action.” Id.

§ 1446(c)(1). Here, the district court found the Hoyts acted in bad faith by

improperly joining Storm (which prevented complete diversity and hence

precluded removal). 1 The district court therefore denied the Hoyts’ motion to

remand under § 1446(c)’s time bar.

Although we review the denial of a motion to remand de novo, we review

the underlying finding of bad faith for clear error. Spear Mktg., Inc. v.

BancorpSouth Bank, 791 F.3d 586, 591 (5th Cir. 2015). We hold (1) the district

court’s bad-faith finding was not clearly erroneous, and (2) the Hoyts cannot

avoid that result by relying on cases that predate Congress’s enactment of the

bad-faith exception to § 1446(c)(1)’s time bar.

1.

Exercising its role as factfinder, the district court found the Hoyts “knew

months beforehand that the evidence would not support the claims against

1 This Court has “adopt[ed] the term ‘improper joinder’ as being more consistent with the

statutory language than the term ‘fraudulent joinder,’ ” but “there is no substantive difference

between the two terms.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 571 n.1 (5th Cir.

2004) (en banc). Thus, we use the term “improper joinder” except where quoting other

authorities.

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Storm.” That was not clear error. The Hoyts dismissed Storm a mere two days

after the one-year deadline expired. They did so without receiving any

consideration from Storm. Before that dismissal, the Hoyts seem to have

pursued their claim against Storm only half-heartedly. Their witness list for

trial did not include any fact witnesses from Storm. And the Hoyts’ expert

witnesses made no serious efforts to establish Storm’s liability. All of this

suggests the Hoyts kept Storm in the case for one purpose and one purpose

only—to prevent removal during § 1446(c)’s one-year removal period. Two

days after accomplishing that purpose, the Hoyts dismissed Storm for free.

The Hoyts’ response is unpersuasive. In the district court, the Hoyts

submitted an affidavit from their attorney to describe allegedly strategic

reasons for their decision to dismiss Storm. But these explanations relate to

why the Hoyts were reluctant to go to trial against Storm or accept Storm’s

(apparently low) settlement offer. They do not explain why the Hoyts waited

until just two days after the one-year deadline to dismiss Storm. And while

the Hoyts claim they dismissed Storm after their settlement discussions came

to naught, the district court found it “suspicious[ ]” the Hoyts did not clarify

when “the alleged discussions with Storm” took place. We agree.

Nor can the Hoyts win a remand by raising “fact issues” regarding their

good faith. True, “we resolve all contested factual issues . . . in favor of the

plaintiff ” when determining whether it improperly joined a non-diverse

defendant. Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th

Cir. 2007). That makes sense because, when considering whether “the plaintiff

[is able] to establish a cause of action against the non-diverse party in state

court,” the question is what the plaintiff might prove in the future. Ibid.; see

Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); Smallwood v.

Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc). When it comes

to bad faith, by contrast, the question is what motivated the plaintiff in the

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past—that is, whether the plaintiff ’s litigation conduct meant “to prevent a

defendant from removing the action.” 28 U.S.C. § 1446(c)(1). The district court

found as a matter of fact the Hoyts acted in bad faith. The Hoyts failed to carry

their burden to prove that finding was clearly erroneous.

2.

The Hoyts also argue we must reverse because their litigation conduct

does not satisfy the exception we created in Tedford v. Warner-Lambert Co.,

327 F.3d 423 (5th Cir. 2003). But Tedford pre-dates Congress’s enactment of

the bad-faith exception in § 1446(c)(1), and it therefore does not control.

Before 2011, § 1446 prohibited defendants like Lane from removing a

case “more than 1 year after commencement of the action”—full stop. 28 U.S.C.

§ 1446(b) (2006). The statutory text contained no exceptions. Believing this

old version of § 1446(b) was “not inflexible,” however, Tedford ruled “the

conduct of the parties may affect whether it is equitable to strictly apply the

one-year limit.” 327 F.3d at 426. In light of the plaintiff’s “efforts to

manipulate statutory rules,” the Tedford Court concluded, “[e]quity demands

[the plaintiff ] be estopped from seeking to remand the case on the basis of the

one-year limit in § 1446(b).” Id. at 428 & n.13.

Other courts disagreed. They held that § 1446 did not allow for equitable

tolling or estoppel. See, e.g., Brock v. Syntex Labs., Inc., No. 92-5740, 1993 WL

389946, at *1 (6th Cir. Oct. 1, 1993); Kinabrew v. Emco-Wheaton, Inc., 936 F.

Supp. 351, 352 n.1 (M.D. La. 1996) (collecting cases). This split persisted until

2011, when Congress amended § 1446. See Federal Courts Jurisdiction and

Venue Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 758,

760 (2011). By adding the bad-faith exception to the one-year deadline,

Congress resolved the conflict.

If Congress wanted to resolve the conflict by adopting the Tedford

standard, it could have done so. Cf. 42 U.S.C. § 2000bb(b)(1) (listing the

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restoration of “the compelling interest test as set forth in Sherbert v. Verner,

374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)” as a purpose

of the Religious Freedom Restoration Act). But it did not. Congress instead

chose to replace Tedford’s equitable-estoppel principle with a “bad faith”

standard. See 28 U.S.C. § 1446(c)(1). And we presume that choice of different

text carries with it a choice of different meaning. Cf. Henson v. Santander

Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (“[W]hen we’re engaged in

the business of interpreting statutes we presume differences in language . . .

convey differences in meaning.”). We therefore no longer apply the old § 1446

and the Tedford exception we created. We now apply the new § 1446 and the

bad-faith exception Congress created. See Thompson v. Deutsche Bank Nat’l

Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014).

Our holding is consistent with the principle that “Congress is vested with

the power to prescribe the basic procedural scheme under which claims may

be heard in federal courts.” Patsy v. Bd. of Regents, 457 U.S. 496, 501 (1982).

Once Congress has prescribed those procedures, we cannot add to them. See,

e.g., Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (holding the Prison Litigation

Reform Act does not admit of judge-made exceptions). We do not exalt judge-

made doctrines over valid laws. See Am. Express Co. v. Italian Colors Rest.,

570 U.S. 228, 235–39 (2013) (refusing to apply “a judge-made exception to the

FAA” broadly because “[t]he FAA does not sanction such a judicially created

superstructure”); CLS Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, 1303 (Fed.

Cir. 2013) (en banc) (Rader, C.J., concurring in part and dissenting in part)

(“[J]udge-made exceptions to properly enacted statutes are to be narrowly

construed.”).

It does not matter the House Report accompanying the 2011 statute cites

Tedford. That’s for two reasons. First, when “a statute’s text is clear, courts

should not resort to legislative history.” Adkins v. Silverman, 899 F.3d 395,

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403 (5th Cir. 2018). And we think the new § 1446(c)(1) is clear. But second, in

all events, the report cites Tedford only once, and only then to explain the

conflict the amendment would resolve. See H.R. REP. 112-10, at 15 (2011), as

reprinted in 2011 U.S.C.C.A.N. 576, 580. The report does not say the bill would

adopt the Tedford standard. Instead, it refers to the statutory bad-faith

exception as a “new standard.” Ibid. Relying on a single reference to Tedford—

without accounting for the author’s description of the bad-faith standard as

“new”—would be “akin to ‘looking over a crowd and picking out your friends.’ ”

Patricia M. Wald, Some Observations on the Use of Legislative History in the

1981 Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983) (quoting Harold

Leventhal’s description of problems with citing legislative history).

Thus, even if the Hoyts’ litigation conduct would not satisfy the old

Tedford standard (an issue we need not decide), that is no reason to reverse

the district court’s finding of “bad faith” under the new § 1446(c)(1).

B.

The Hoyts’ second motion to remand turned on the voluntary-

involuntary rule. Removal was improper, they said, because diversity

jurisdiction existed only after C.E.N. exited the case, and because C.E.N. exited

the case pursuant to an opposed motion for summary judgment, not a

voluntary act of the Hoyts. The Hoyts’ argument implicates the federal

removal statute, a judge-made exception to the statute, and a judge-made

exception to that exception. We explain each in turn.

We start with the only easy part—the statutory text. Section 1446(b)(3)

is the provision governing removal of a case that becomes removable after the

initial pleading is filed. Subject to exceptions not applicable here:

if the case stated by the initial pleading is not removable, a notice

of removal may be filed within 30 days after receipt by the

defendant . . . of a copy of an amended pleading, motion, order or

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other paper from which it may first be ascertained that the case is

one which is or has become removable.

28 U.S.C. § 1446(b)(3).

One might think a case is “removable” under § 1446 so long as it “may

be removed” under § 1441. Indeed, courts generally understand § 1441 as

defining removability. See Teamsters Local 404 Health Servs. & Ins. Plan v.

King Pharm., Inc., 906 F.3d 260, 266 (2d Cir. 2018) (“[D]efin[ing] what kind of

proceedings are removable . . . is the ambit of § 1441.”); Medlin v. Boeing Vertol

Co., 620 F.2d 957, 964 (3d Cir. 1980) (“Section 1441(b) . . . defin[es]

removability . . . .”). And with exceptions not relevant here, § 1441 provides

“any civil action brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed.” 28 U.S.C.

§ 1441(a).

But this is an area thick with binding precedent. And precedent tells us

removability under §§ 1441 and 1446 is subject to a judge-made exception:

“[W]here the case is not removable because of joinder of defendants,” only “the

voluntary dismissal or nonsuit by [the plaintiff ] of a party or of parties

defendant” can convert a nonremovable case into a removable one. Great N.

Ry. Co. v. Alexander, 246 U.S. 276, 281 (1918). We have described this

“judicially-created voluntary-involuntary rule” as providing “an action

nonremovable when commenced may become removable thereafter only by the

voluntary act of the plaintiff.” Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d

529, 532 (5th Cir. 2006) (quotation omitted).

The Supreme Court developed this principle before § 1446 expressly

provided for removal of cases that were not initially removable. But in 1949,

Congress amended § 1446(b) to allow removal “after receipt . . . of an amended

pleading, motion, order or other paper from which it may first be ascertained

that the case is . . . removable.” Act of May 24, 1949, Pub. L. No. 81-72, § 83(a),

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63 Stat. 89, 101 (1949). Then we held the new § 1446(b) did not abrogate the

voluntary-involuntary rule. See Weems v. Louis Dreyfus Corp., 380 F.2d 545,

547–48 (5th Cir. 1967).

The judicially created voluntary-involuntary rule is itself subject to a

judicially created exception for improper joinder. See Great N. Ry., 246 U.S. at

282 (recognizing the voluntary-involuntary rule applies only “in the absence of

a fraudulent purpose to defeat removal”). When the non-diverse defendant

was improperly joined, “the voluntary-involuntary rule is inapplicable.”

Crockett, 436 F.3d at 532.

Beneath this doctrinal thicket lurks a question presented—namely,

whether C.E.N. was improperly joined. 2 We hold it was. Therefore, the

voluntary-involuntary rule does not apply. And because the voluntary-

2 The Hoyts argue we should not consider the improper-joinder exception because Lane

forfeited the issue by failing to include it in its notice of removal. A notice of removal must

“contain[ ] a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).

Lane’s notice of removal identified diversity jurisdiction as the ground for removal and

explained that complete diversity existed because the Texas defendants were no longer in the

case. Lane first raised improper joinder in its response to the Hoyts’ second motion to

remand. In this case at least, improper joinder was not a ground for removal. It was a

rebuttal to the Hoyts’ argument that the voluntary-involuntary rule prevented removal. In

other words, it was an exception to an exception to the ground of removal. We do not require

a litigant to anticipatorily rebut all potential arguments his adversary may raise. Failing to

do so is not a forfeiture. See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating

Eng’rs, Local Union 150, 335 F.3d 643, 650 (7th Cir. 2003) (“[A] party cannot waive something

that it does not know is at issue.”); NLRB v. NPC Int’l, Inc., No. 13-0010, 2017 WL 634713,

at *5 (W.D. Tenn. Feb. 16, 2017) (“A moving party does not waive reply arguments merely

because it fails to accurately predict the contentions of a responding party.”).

Neither the Hoyts nor the dissent point to any cases holding to the contrary. Some courts

have held a removing defendant forfeits an improper-joinder argument by failing to include

it in the notice of removal when a non-diverse party remains in the case at the time of

removal. See, e.g., Wessel v. Miraglia, No. 4:04-cv-377, 2004 WL 1943776, at *3 (N.D. Tex.

Aug. 31, 2004) (treating improper joinder as a ground that should have been included in a

notice of removal). But that rule does not apply where, as here, improper joinder is used as

an exception to the voluntary-involuntary rule. Thus, we need not decide whether those cases

are rightly decided. See Pharos Capital Grp., LLC v. Nutmeg Ins. Co., 999 F. Supp. 2d 947,

953 (N.D. Tex. 2014) (“[E]ven though it was brought up for the first time in its response to

the Motion to Remand, [the removing defendant’s] improper joinder argument was not

waived.”).

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involuntary rule does not apply, the case was removable under §§ 1441 and

1446.

Improper joinder “can be established by demonstrating,” among other

things, the “inability of the plaintiff to establish a cause of action against the

non-diverse party in state court.” Crockett, 436 F.3d at 532 (quotation

omitted). Assessing a plaintiff ’s ability to establish a cause of action against a

non-diverse defendant in state court turns on whether the state courts have

already ruled on the merits of the plaintiff ’s claim. If a state court has not yet

ruled, the federal court must ask whether “there [is] any reasonable possibility

that a state court would rule against the non-diverse defendant.” Poulos v.

Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992). “If a state court has come to

judgment,” the federal court must ask whether “there [is] any reasonable

possibility that the judgment will be reversed on appeal.” Ibid.; see also

Knudson v. Sys. Painters, Inc., 634 F.3d 968, 980 n.11 (8th Cir. 2011); Arthur

v. E.I. du Pont, 798 F. Supp. 367, 369 (S.D. W. Va. 1992). 3

In this case, the state court had granted C.E.N.’s motion for summary

judgment. When C.E.N. won summary judgment, it exited the case. See, e.g.,

Poulos, 959 F.2d at 70 (describing a party who won summary judgment in state

court as “gone from the case”); Higgins v. E.I. DuPont de Nemours & Co., 863

3Apparently rejecting this framework, the dissent would conduct a “Rule 12(b)(6)-type

analysis” and disregard the state court’s grant of summary judgment. Post at 20–22 (Haynes,

J., dissenting). Under this Court’s precedent, a “Rule 12(b)(6)-type analysis” applies when a

federal court is considering whether to dismiss a non-diverse defendant as improperly joined.

Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc); Smallwood, 385 F.3d at

572–73. But it does not necessarily apply when a state court has already dismissed the non-

diverse defendant and a federal court considers improper joinder as an exception to the

voluntary-involuntary rule. Cf. Crockett, 436 F.3d at 533. It would be passing strange for a

federal court asking whether the plaintiff can “establish a cause of action against the non-

diverse party in state court,” Flagg, 819 F.3d at 136 (quotation omitted), to ignore that “a

state court has come to judgment” on that very question, Poulos, 959 F.2d at 73; see also

Knudson, 634 F.3d at 980 n.11. “We are always chary to create a circuit split,” Gahagan v.

U.S. Citizenship & Immigration Servs., 911 F.3d 298, 304 (5th Cir. 2018) (quotation omitted),

and the dissent provides no compelling reason to do so here.

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F.2d 1162, 1166 (4th Cir. 1988) (explaining a “non-diverse party is eliminated

from the state action by voluntary or involuntary dismissal” in state court).

The federal district court concluded there was no possibility the state court’s

grant of summary judgment to C.E.N. would be reversed on appeal. The Hoyts

had not argued they “could or would pursue an appeal of the granting of

C.E.N.’s motion for summary judgment,” and the district court concluded the

Hoyts “apparently abandoned the right to do so.”

The Hoyts’ appellate briefs did not challenge the district court’s

conclusion that they could not appeal the grant of summary judgment to C.E.N.

Any argument undermining the district court’s conclusion is therefore

forfeited. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). The Hoyts’

counsel did raise the issue at oral argument, but “[a]rguments presented for

the first time at oral argument are [forfeited].” Comsat Corp. v. FCC, 250 F.3d

931, 936 n.5 (5th Cir. 2001).

When a state court order creates diversity jurisdiction and that order

cannot be reversed on appeal, our precedent treats the voluntary-involuntary

rule as inapplicable. See Crockett, 436 F.3d at 533 (“[R]emoval on the basis of

an unappealed severance, by a state court, of claims against improperly joined

defendants is not subject to the voluntary-involuntary rule.”); 14C CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3723 (Rev. 4th ed.

2019) (explaining Crockett “makes sense because there is no risk of reversal of

an unappealed severance order”). In light of the district court’s now-

unchallengeable ruling that the state court’s dismissal of C.E.N. could not be

reversed on appeal, we are compelled to conclude C.E.N. was improperly

joined. 4 As a result, the voluntary-involuntary rule did not bar Lane from

4 The dissent says the Hoyts’ forfeiture is irrelevant because the issue is

“jurisdictional.” Post at 17–18 n.1 (Haynes, J., dissenting). That conflates the rules of

subject-matter jurisdiction (which cannot be forfeited) with the rules of removal procedure

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removing the case to federal court. Therefore, the district court did not err in

denying the Hoyts’ second motion to remand.

III.

We now consider whether the district court erred by granting Lane’s

motion for summary judgment. Applying de novo review, DeVoss v. Sw.

Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018), we conclude it did.

A.

The district court first held Lane is statutorily immune from the Hoyts’

damages claims. Texas law provides:

A contractor who constructs or repairs a highway, road, or street

for the Texas Department of Transportation [(“TxDOT”)] is not

liable to a claimant for personal injury, property damage, or death

arising from the performance of the construction or repair if, at the

time of the personal injury, property damage, or death, the

contractor is in compliance with contract documents material to

the condition or defect that was the proximate cause of the

personal injury, property damage, or death.

TEX. CIV. PRAC. & REM. CODE § 97.002. According to the district court, Lane

performed its work on FM 2264 pursuant to a TxDOT contract and “did

everything to follow TxDOT plans.”

(which can be forfeited). Only Congress can make rules of unforfeitable subject-matter

jurisdiction. See, e.g., Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017).

By contrast, the judge-made voluntary-involuntary rule is a forfeitable rule of removal

procedure. See Crockett, 436 F.3d at 533 (describing the voluntary-involuntary rule as a

matter of “removal jurisdiction”); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 (5th Cir.

1991) (explaining “improper removal (i.e., lack of removal jurisdiction) . . . is waivable”); see

also Higgins, 863 F.2d at 1166 (holding a potential violation of the voluntary-involuntary rule

did not deprive a federal district court of jurisdiction); Jones v. CMM of Ind., LLC, No. 05-cv-

4039, 2006 WL 120085, at *2 n.2 (E.D. La. Jan. 17, 2006) (holding “the voluntary/involuntary

rule is one of removal procedure rather than subject matter jurisdiction”). In all events, the

Hoyts cannot bring C.E.N. back into the case for an independent reason—namely, their

claims against C.E.N. are meritless for all the reasons the district court already gave. See

Hoyt v. Lane, Order on Plaintiffs’ Second Motion to Remand, No. 17-cv-780, Doc. 32, at 4–5

(Dec. 4, 2017). Their “inability . . . to establish a cause of action against the non-diverse party

in state court” demonstrates improper joinder by itself. Crockett, 436 F.3d at 532 (quotation

omitted).

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We disagree. On October 27, 2015—nine weeks before Jeffery’s tragic

accident—Lane performed remedial “erosion control” work alongside FM 2264.

TxDOT determined this remedial work was necessitated by Lane’s

“negligence.” Lane was not properly removing “accumulated silt” from the

construction site and instead was “push[ing] off [the silt] along the [right of

way].” The Hoyts argue this silt caused the pooling of water on FM 2264 that

killed Jeffery. To support that argument, the Hoyts submitted expert

testimony that Lane’s “[f]ailure to properly install and maintain sediment

control measures” in accordance with its TxDOT contract caused water to

“flow[ ] onto the roadway.”

But that’s not all. On January 15, 2016—two weeks after Jeffery’s tragic

death—TxDOT completed a “Construction Stage Gate Checklist” for the FM

2264 project. It found Lane failed to install stormwater run-off “control

measures” in accordance with TxDOT specifications. It further found the

“control measures” were not “performing” or “properly maintained.”

These record materials—spanning the time period from before Jeffery’s

accident to after it—raise a material dispute of fact regarding Lane’s

compliance or lack thereof with its TxDOT contract. Moreover, statutory

immunity under § 97.002 is an affirmative defense on which Lane bore the

burden of proof. See Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512 (Tex.

App.—Texarkana 2016, pet. denied). And Lane failed to show as a matter of

law that its TxDOT-documented negligence before the accident and its TxDOT-

documented inspection deficiencies after the accident did not cause Jeffery’s

death. Therefore, it was error to grant summary judgment on this ground.

B.

The district court next granted summary judgment to Lane on the Hoyts’

premises-liability claim. It did so on two grounds. We conclude material

disputes of fact preclude both.

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First, the district court found the ice patch that killed Jeffery was “a

natural formation.” It is true that, under Texas law, “naturally occurring ice

that accumulates without the assistance or involvement of unnatural contact

is not an unreasonably dangerous condition sufficient to support a premises

liability claim.” Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex.

2010). Here, however, the Hoyts have pointed to summary judgment evidence

that the ice patch on FM 2264 accumulated through unnatural conditions—

namely, Lane’s construction activities at the crash site. It submitted an expert

report to that effect. Moreover, the State Trooper who responded to the

accident testified the ice patch that killed Jeffery was the only patch of ice

along a 20-mile stretch of highway. The second driver (who also slid off the

road and landed on top of Jeffery’s vehicle) testified to the same effect. This

testimony—viewed in the light most favorable to the Hoyts—creates a material

dispute of fact regarding whether the ice patch formed naturally.

Second, the district court found Lane “did not have actual knowledge of

a dangerous premises condition at the time of [Jeffery’s] accident.” Under

Texas law, actual knowledge can be proved through direct evidence or

reasonable inference. For example, in City of San Antonio v. Rodriguez, 931

S.W.2d 535 (Tex. 1996) (per curiam), the plaintiff slipped on a city-owned

basketball court. See id. at 536. The city had actual knowledge of leaks in the

roof but disputed it had actual knowledge that rain had leaked onto the

basketball court when Rodriguez slipped. See id. at 537. The Supreme Court

of Texas held that was irrelevant:

[T]here was evidence that the person in charge of the recreation

center knew of the leaks in the roof and knew that it had been

raining. Depending on the position of the leaks above the floor and

the amount of rain, the jury might have inferred that the person

in charge knew that there would be water on the floor.

Ibid.

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So here. The Hoyts produced evidence tending to show Lane knew the

culverts at its construction site could overflow in a heavy rain. Lane knew

about the drainage problems associated with its work on the culverts. And

Lane knew the site received 4–6 inches of heavy rain, under freezing

temperatures, the night before Jeffery died. That distinguishes this case from

City of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 2008) (per curiam), in which

the defendant city did not know a road had flooded, in part because a city

official was unaware of the rain. See id. at 415–16 & n.3. Therefore, as in

Rodriguez, a jury reasonably could infer Lane knew there would be ice on the

road. If anything, that inference is easier here because Lane employees

repeatedly worried drivers could slip off the road where Jeffery died—with or

without ice. As one Lane employee testified, “I just talked to [TxDOT officials]

numerous times that I was afraid that our people working there [in the spot

where Jeffery died], a car could drive off on top of them.”

C.

Finally, the district court granted summary judgment for Lane on the

Hoyts’ gross negligence claim. The Hoyts argue all the evidence they offered

to prove premises liability also suffices to show gross negligence. Having

vacated the grant of summary judgment on premises liability, we similarly

vacate the grant of summary judgment on gross negligence for

reconsideration. 5

5 That reconsideration need not include the Hoyts’ alternative argument that Lane’s

concessions regarding material disputes of fact in state court preclude summary judgment in

federal court. Neither of the doctrines the Hoyts invoke—judicial admissions and evidentiary

admissions—applies to concessions of law. “[W]hether a genuine dispute concerning a

material fact exists is itself a question of law that must be decided by the court. It does not

depend upon what either or both of the parties may have thought about the matter.” 10A

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2720 (4th ed. 2019); see

also John v. Louisiana, 757 F.2d 698, 712 (5th Cir. 1985). “[A] statement of legal opinion . . .

is not a judicial admission.” McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir. 2002);

see also Anderson v. Comm’r of Internal Revenue, 698 F.3d 160, 167 (3d Cir. 2012); Roger

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* * *

The district court did not err by denying the Hoyts’ motions for remand

but did err by granting Lane’s motion for summary judgment. The judgment

is AFFIRMED in part, VACATED in part, and REMANDED for further

proceedings consistent with this opinion.

Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383, 394 (6th Cir. 2007); N.Y. State

Nat’l Org. for Women v. Terry, 159 F.3d 86, 97 n.7 (2d Cir. 1998). “[A]nd legal conclusions

may not be used as evidentiary admissions.” W.V. Realty, Inc. v. N. Ins. Co. of N.Y., 334 F.3d

306, 316 (3d Cir. 2003); see also Incase Inc. v. Timex Corp., 488 F.3d 46, 56 (1st Cir. 2007).

Therefore, Lane’s state court concessions do not help the Hoyts here.

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HAYNES, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion’s determination that we

have jurisdiction in this case. Accordingly, I would vacate the district court’s

judgment and remand to the district court to remand to state court without

reaching the merits.

My disagreement centers on the determination as to C.E.N. under the

voluntary-involuntary rule. Here, the state court issued an order (the “C.E.N.

Order”) granting summary judgment in favor of C.E.N. The Hoyts did not

appeal at that point but, of course, the summary judgment was not final given

the presence of other defendants. See Bison Bldg. Materials, Ltd. v. Aldridge,

422 S.W.3d 582, 585 (Tex. 2012) (“A judgment is final for purposes of appeal ‘if

and only if either it actually disposes of all claims and parties then before the

court . . . or it states with unmistakable clarity that it is a final judgment as to

all claims and all parties.’” (quoting Lehmann v. Har–Con Corp., 39 S.W.3d

191, 192–93 (Tex. 2001))). In denying the Hoyts’ second motion to remand, the

district court noted that the Hoyts did not argue they could or would appeal

the district court’s grant of C.E.N.’s summary judgment motion. Without citing

any authority, the court concluded that the Hoyts had “apparently abandoned

the right to do so by agreeing with C.E.N. that costs as between them will be

borne by the party incurring same,” where “[t]he state court had ordered that

C.E.N. recover its costs from plaintiffs.”

The district court was incorrect. Nothing prevents the Hoyts from

appealing the C.E.N. Order if the case is remanded. 1 In granting C.E.N.’s

1 Lane does not explain how this court would have jurisdiction over the state court

partial judgment in favor of C.E.N. In other words, if the Hoyts had named C.E.N. in the

appeal to this court, how could this court have reversed the state court decision? Cf. D.C.

Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923).

C.E.N.’s presence in this case raises a question not of removal procedure, but of jurisdiction

itself: if C.E.N. is still a party, then diversity is not complete, so diversity jurisdiction does

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motion for summary judgment, the state court did not dismiss C.E.N. from the

suit; instead, it entered a take-nothing judgment in C.E.N.’s favor. If winning

a case makes you a non-party to that case, there could never be an appeal. The

district court’s conclusion is based upon an agreement that addresses only

costs and does not state that the case is settled or that the Hoyts will not

appeal. 2 Had there never been a removal, the Hoyts could have appealed the

summary judgment to the state court of appeals once the rest of the case was

concluded and a final judgment entered. See Aldridge, 422 S.W.3d at 585

(noting that “Texas appellate courts only have jurisdiction to review final

judgments”).

Lane did not assert in its notice of removal that the Hoyts had

fraudulently joined C.E.N. or any other resident defendant. Instead, Lane

claimed only that removal was proper based on the bad faith exception in 28

not exist. See 28 U.S.C. § 1332(a). Because C.E.N.’s presence in this case is jurisdictional,

the Hoyts have not waived their argument that C.E.N. is still in the case. See Caterpillar

Inc. v. Lewis, 519 U.S. 61, 73 (1996) (recognizing that diversity goes to subject matter

jurisdiction); see also Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d

932, 935 (5th Cir. 2012) (“A lack of subject matter jurisdiction may be raised at any time and

may be examined for the first time on appeal.”).

The majority opinion relies on out-of-circuit cases to conclude that C.E.N. was no

longer a party to the case after it won summary judgment. But in Poulos v. Naas Foods, Inc.,

the Seventh Circuit did not conclude that summary judgment in a party’s favor removed that

party from a case; instead, it held that an exception to the voluntary-involuntary rule applied

such that removal was proper. 959 F.2d 69, 70, 74 (7th Cir. 1992). Moreover, we are not

bound to follow out-of-circuit decisions, and the majority opinion points to no precedent from

the Supreme Court or our court to support its conclusion.

2 The agreement, signed one week after the C.E.N. summary judgment was granted,

states: “This letter will set out our Rule 11 Agreement regarding the court costs reflected in

[the summary judgment order]. . . . C.E.N. agrees that it will not seek to collect the court

costs awarded to it in that order from Plaintiffs. Instead, C.E.N. and Plaintiffs agree to treat

the summary judgment order as if it stated ‘All costs with regard to C.E.N. . . . shall be paid

by party incurring same.’” Rule 11 is the Texas Rule of Civil Procedure requiring agreements

among parties or counsel to be in writing and signed. See TEX. R. CIV. P. 11. Nothing here

would evince a full settlement of the case or be enforceable as such. At oral argument, the

parties confirmed there was no settlement of the entire case with C.E.N.

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U.S.C. § 1446(c). 3 The first time Lane alleged that the Hoyts had fraudulently

joined C.E.N. was in response to the Hoyts’ second motion to remand. The

Hoyts responded that Lane had waived its right to assert fraudulent joinder as

a basis for removal, and a party cannot belatedly rely on a previously

unmentioned ground for removal.

I agree. Section 1446(a) requires a statement of the grounds for removal,

and fraudulent joinder of C.E.N. was not listed. See 28 U.S.C. § 1446(a)

(requiring a notice of removal to contain “a short and plain statement of the

grounds for removal”); see also Wood v. Crane Co., 764 F.3d 316, 323 (4th Cir.

2014) (stating that after thirty-day removal deadline, “[c]ourts have no

discretion to permit amendments furnishing new allegations of a jurisdictional

basis”); Ervast v. Flexible Prods. Co., 346 F.3d 1007, 1012 n.4 (11th Cir. 2003)

(“Flexible argues, tardily, in its appellate brief, that there also exists diversity

jurisdiction . . . . Although that may be the case, we decline the invitation to

exercise jurisdiction on that basis because Flexible had the burden to plead

this basis in its notice of removal, and it did not.”). Lane has waived the

argument. 4

Even if this argument is not waived, C.E.N. was not improperly joined.

We recently addressed the standard for improper joinder in Flagg v. Stryker

Corp., 819 F.3d 132 (5th Cir. 2016) (en banc). “Ordinarily, diversity

jurisdiction requires complete diversity—if any plaintiff is a citizen of the same

State as any defendant, then diversity jurisdiction does not exist.” Id. at 136.

3 Section 1446(c) provides: “A case may not be removed under subsection (b)(3) on the

basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the

action, unless the district court finds that the plaintiff has acted in bad faith in order to

prevent a defendant from removing the action.”

4 Footnote 2 of the majority opinion overlooks the fact that, because C.E.N. was still a

party to the case, improper joinder was a necessary element that Lane should have pleaded.

If C.E.N. was not improperly joined, then complete diversity did not exist at the time of

removal and the district court did not have jurisdiction over the case. See 28 U.S.C. § 1332(a).

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“However, if the plaintiff improperly joins a non-diverse defendant, then the

court may disregard the citizenship of that defendant, dismiss the non-diverse

defendant from the case, and exercise subject matter jurisdiction over the

remaining diverse defendant.” Id. A “non-diverse party is improperly joined

if the plaintiff is unable ‘to establish a cause of action against the non-diverse

party in state court.’” Id. (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d

568, 573 (5th Cir. 2004) (en banc)). “Thus, the test for improper joinder ‘is

whether the defendant has demonstrated that there is no possibility of

recovery by the plaintiff against an in-state defendant.’” Flagg, 819 F.3d at

136 (emphasis added) (quoting Smallwood, 385 F.3d at 573). We have stated:

In most cases, to determine whether the plaintiff has

any possibility of recovery against the non-diverse

defendant, the court should “conduct a Rule 12(b)(6)-

type analysis, looking initially at the allegations of the

complaint to determine whether the complaint states

a claim under state law against the in-state defendant.

Ordinarily, if a plaintiff can survive a Rule 12(b)(6)

challenge, there is no improper joinder.”

Flagg, 819 F.3d at 136 (quoting Smallwood, 385 F.3d at 573). 5

The district court did not conduct a Rule 12(b)(6) analysis, relying

instead solely on the fact that the Hoyts lost on summary judgment and finding

it “tantamount to a determination that C.E.N. had been improperly joined.” In

so doing, the district court quoted Smallwood, but did not actually apply it.

The district court based its conclusion off the fact that “C.E.N. did not do any

work on the culvert where [Mr. Hoyt] was killed prior to the accident” and its

perception of the state court judge who ruled on the summary judgment

5 While there are limited circumstances where a district court can “pierce the

pleadings,” to make a Smallwood determination, see Flagg, 819 F.3d at 136–37, the district

court did no such thing. It relied instead upon its own conclusion that the state court judge

would not grant summary judgment absent no possibility of recovery.

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motion. It did not elaborate on why C.E.N.’s supposed failure to do any work

on that culvert was necessarily fatal to the Hoyts’ claims. Indeed, the district

court did not discuss the Hoyts’ theory of recovery against C.E.N. at all.

Instead, the district court cited this court’s decisions in Crockett v. R.J.

Reynolds Tobacco Co., 436 F.3d 529 (5th Cir. 2006), and Morgan v. Chase Home

Fin., LLC, 306 F. App’x 49 (5th Cir. 2008), to conclude that it could rely on

state court rulings in determining improper joinder.

Both cases are distinguishable. Crockett involved the permissive joinder

of parties under FED. R. CIV. P. 20(a). 6 436 F.3d at 533. In Morgan, the district

court itself determined that the plaintiff had fraudulently joined the

nondiverse defendant because Texas law explicitly barred the plaintiff’s only

cause of action. 306 F. App’x at 53. There is no indication that the Morgan

district court relied on the state court’s dismissal of the plaintiff’s claim. Thus,

the district court cited no relevant precedent for its decision to forego the Rule

12(b)(6)-like improper joinder analysis before piercing the pleadings.

Lane does not explain why this court should not analyze fraudulent

joinder under the “Rule 12(b)(6)-type analysis” set forth in Smallwood and

Flagg. 7 Like the district court, Lane relies on Crockett and Morgan to assert

that a federal court can rely on state court decisions to find improper joinder.

But as stated above, both Crockett and Morgan are distinguishable. 8

6 FED. R. CIV. P. 20(a) is not at issue here.

7The majority opinion relies upon out-of-circuit cases, but we are bound by our own

precedent which requires a “12(b)(6)-type analysis,” see Flagg, 819 F.3d at 136, and does not

support a conclusion that we are bound by state trial court decisions in conducting this

analysis.

8 Even if piercing the pleadings was appropriate in this case, Lane does not show why

the state court’s summary judgment order is indeed tantamount to a finding of improper

joinder. The state court provided no analysis to support its ruling. Further, Lane does not

demonstrate that C.E.N.’s apparent failure to do any work on the culvert where Mr. Hoyt

crashed during the relevant period rebuts the Hoyts’ claims. The Hoyts argue that C.E.N.

did not properly dispose of construction debris at another culvert, which led to the debris

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If we apply the proper standard, the district court erred in concluding

that the Hoyts fraudulently joined C.E.N. In their second amended petition,

the Hoyts claim that C.E.N. was negligent in conducting its construction zone

operation and maintenance activities. Lane does not argue that the Hoyts’

claims against C.E.N. could not survive a Rule 12(b)(6)-like analysis. The state

district court’s grant of summary judgment is not to the contrary, as it does not

mean the Hoyts had “no possibility of recovery” against C.E.N. Flagg, 819 F.3d

at 136 (quoting Smallwood, 385 F.3d at 573).

In sum, Lane failed to demonstrate that the Hoyts improperly joined

C.E.N. Accordingly, the district court abused its discretion when it applied the

wrong legal standard to conclude otherwise, seemingly resting on its own

perception of how that particular state court judge decides summary

judgments. Because the voluntary-involuntary rule precluded removal and

Lane did not show that the Hoyts fraudulently joined C.E.N., I conclude that

we should vacate the district court’s judgment and remand to the district court

to remand to state court. From the judgment finding jurisdiction, I respectfully

dissent. 9

being dumped into, and causing the accumulated water in, the culvert where Mr. Hoyt

crashed.

9 Because I conclude we lack jurisdiction, I would not reach the merits of the case.

However, given the majority opinion’s conclusion that we have jurisdiction, which means we

reach the merits, I agree with the analysis of the merits.

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