Hernandez v. Nema 3 Electrical Contractors INC et al
| Leobardo Popoca Hernandez |
| Nema 3 Electrical Contractors INC doing business as Nema 3 Electric Inc, Teupen North America INC doing business as Teupen and All Access Equipment LLC |
| 3:2024cv00304 |
| February 7, 2024 |
| US District Court for the Northern District of Texas |
| Ed Kinkeade |
| Torts/Pers Inj: Product Liability |
| 28 U.S.C. § 1332 Diversity-Tort/Non-Motor Vehicle |
| Both |
Docket Report
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This docket was last retrieved on April 5, 2024. A more recent docket listing may be available from PACER.
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| ***Clerk's Notice of delivery: (see NEF for details) Docket No:9, 10. Fri Apr 5 13:20:35 CDT 2024 (crt) |
Filing 10
ORDER REQUIRING SCHEDULING CONFERENCE AND REPORT FOR CONTENTS OF SCHEDULING ORDER (Ordered by Judge Ed Kinkeade on 4/2/2024) (chmb)
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Filing 9
Order - Defendant Teupen North America, Inc. d/b/a Teupen ("Teupen") removed this case on the basis of diversity jurisdiction. Doc. No. 1 at 2; Doc. No. 5 at 2. In support of jurisdiction, Teupen filed a Notice of Removal dated February 7, 2024 and an Amended Notice of Removal dated February 20, 2024 in which it alleged that Defend-ant Nema 3 Electrical Contractors, Inc. d/b/a Nema 3 Electrical, Inc. ("Nema") is an improperly joined party. Doc. No. 1 at 3; Doc. No. 5 at 4. Plaintiff Leobardo Popoca Hernandez did not move to remand this case to state court or otherwise defend the joinder of Nema.On March 13, 2024, the Court ordered Mr. Hernandez to file a consent to the dismissal without prejudice of the claims against Nema or a motion addressing the Court's jurisdiction, in either case no later than March 29, 2024. Doc. No. 6. The Court advised Mr. Hernandez that it would construe his failure to timely file a consent or motion as agreement that the Court should dismiss the claims against Nema without prejudice. Id. Mr. Hernandez has not responded to the Courts March 13 order, so the Court concludes that he agrees to the dismissal of the claims against Nema without prejudice. Accordingly, the Court DISMISSES all claims against Nema without prejudice. (Ordered by Judge Ed Kinkeade on 4/2/2024) (chmb)
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Filing 8
ELECTRONIC ORDER: Local Civil Rule 83.10(a) requires the appearance of local counsel where the attorney of record for a party does not reside or maintain their principal office in this district. By April 12, 2024, Defendant All Access Equipment, LLC, shall file the entry of appearance of local counsel satisfying the requirements of Local Civil Rule 83.10(a). Failure to do so may result in sanctions being imposed for failure to comply with an order of the Court. (Ordered by Judge Ed Kinkeade on 3/22/2024) (chmb)
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| Filing 7 ANSWER to Complaint with Jury Demand filed by All Access Equipment LLC. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. Attorney John K Woodard added to party All Access Equipment LLC(pty:dft) (Woodard, John) |
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Filing 6
ELECTRONIC ORDER: On February 20, 2024, Defendant Teupen North America, Inc. d/b/a Teupen filed an Amended Notice of Removal stating that this Court has jurisdiction of the removed case because, among other things, Defendant Nema 3 Electrical Contractors, Inc. d/b/a Nema 3 Electric, Inc. ("Nema 3") is improperly joined. Doc. No. 5 at 4. Plaintiff Leobardo Popoca Hernandez has not moved to remand. Accordingly, the Court ORDERS Mr. Hernandez to (1) file a consent to dismissal of his claims against Nema 3 without prejudice or (2) file a motion addressing the Court's jurisdiction, in either case no later than March 29, 2024. If Mr. Hernandez does not timely file a consent or a motion, the Court WILL CONSTRUE his silence as agreement that the claims against Nema 3 should be dismissed without prejudice. The Court DIRECTS the clerk to transmit this order to counsel for Mr. Hernandez, Attorney Domingo Garcia, by (1) email at dallasoffice@dgley.com and (2) certified mail, return receipt requested at 1111 W. Mockingbird Lane, Suite 1200, Dallas, Texas 75247. (Ordered by Judge Ed Kinkeade on 3/13/2024) (chmb)
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| ***Clerk's Notice of delivery: (see NEF for details) Docket No:6. Wed Mar 13 16:11:03 CDT 2024 (crt) |
| Filing 5 AMENDED DOCUMENT by Teupen North America INC. Amendment to #1 Notice of Removal,,,,,. . (Attachments: #1 Exhibit(s)) (Martin, Ryan) |
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Filing 4
ORDER: This Order governs requests to file materials in this case under seal. (Ordered by Judge Ed Kinkeade on 2/8/2024) (chmb)
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Filing 3
ELECTRONIC ORDER: Before the Court is Defendant Teupen North America, Inc. d/b/a Teupen's ("Teupen") Notice of Removal. Doc. No. 1. Teupen bases its removal of this case on the Court's diversity jurisdiction. Id. at 2; 28 U.S.C. 1332(a), 1441(a). Accordingly, Teupen must "distinctly and affirmatively" allege the citizenship of each party so that the Court can determine whether Plaintiff's citizenship differs from the citizenship of each Defendant. Getty Oil Corp., Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (citation omitted). That includes the citizenships of both served and unserved parties. In re Levy, 52 F.4th 244, 246 (5th Cir. 2022) (per curiam). Having reviewed Teupen's Notice of Removal under its obligation to assess subject matter jurisdiction sua sponte, Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001), the Court concludes that Teupen has not sufficiently alleged Defendant All Access Equipment, LLC's ("All Access") citizenship. Because All Access is a limited liability company, its citizenship depends on the citizenship of its members, and Teupen must "specifically allege the citizenship of every member" of the company. MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 314 (5th Cir. 2019) (citation omitted). Teupen states that All Access's sole manager is a "resident" of Massachusetts, Doc. No. 1 at 3, but "residency is not citizenship" for purposes of diversity jurisdiction. SXSW, L.L.C. v. Fed. Ins. Co., 83 F.4th 405, 408 (5th Cir. 2023). Teupen also fails to exhaustively allege the citizenships of all of All Access's members, including managing and non-managing members. Teupen's assertion that All Access "does not have a member who is a citizen of Texas" is insufficient. Doc. No. 1 at 3. Teupen must identify each of All Access's members and affirmatively allege member's citizenship. Sourcing Mgmt., Inc. v. Simclar, Inc., 2015 WL 2212344, at *4 (N.D. Tex. May 12, 2015) (Lindsay, J.); Birdow v. State Farm Mut. Auto. Ins. Co., 2021 WL 5448973, at *4 (N.D. Tex. Nov. 22, 2021) (Boyle, J.).Accordingly, the Court ORDERS Teupen to amend its Notice of Removal to properly allege All Access's citizenship no later than February 21, 2024. Failure to properly comply with this order WILL RESULT in the remand of this case without further notice. 28 U.S.C. 1447(c). (Ordered by Judge Ed Kinkeade on 2/7/2024) (chmb)
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| Filing 2 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Rutherford). Clerk to provide copy to plaintiff if not received electronically. (cea) |
| Filing 1 NOTICE OF REMOVAL WITH JURY DEMAND filed by Teupen North America INC. (Filing fee $405; receipt number ATXNDC-14373173) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements and # Judge Specific Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Exhibit(s), #2 Exhibit(s), #3 Exhibit(s), #4 Exhibit(s), #5 Exhibit(s), #6 Exhibit(s), #7 Exhibit(s), #8 Exhibit(s), #9 Cover Sheet) (Martin, Ryan) |
| CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Teupen North America INC. (Clerk QC note: Affiliate entry indicated). (See document #1 -7 for image) (axm) |
| ***Clerk's Notice of delivery: (see NEF for details) Docket No:2. Wed Feb 7 14:28:26 CST 2024 (crt) |
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