Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40993

MARLA MELISSA MENENDEZ; ADELFA MANCILLAS MENENDEZ;

GRISELL MENENDEZ MANCILLAS; ALICIA BEATRIZ MANCILLAS;

MARLENE MENENDEZ MANCILLAS; ANA TERESA MANCILLAS, 

Plaintiffs - Appellants

v.

WAL-MART STORES, INC.; WAL-MART STORES EAST, LP; WAL-MART

REALTY; WALTON CONSTRUCTION COMPANY, INC.; WALTON

CONSTRUCTION COMPANY, LLC; CARTER & BURGESS, INC.; JACOBS

ENGINEERING GROUP, INC; JACOBS ENGINEERING, INC.; HANSENRICE, INC.; NES RENTALS HOLDING, INC.; NES EQUIPMENT

SERVICES CORPORATION; NES EQUIPMENT RENTAL, LP; JLG

INDUSTRIES, INC., 

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:08-cv-00348

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

February 1, 2010

Charles R. Fulbruge III

Clerk

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No. 09-40993

 The plaintiffs also assert strict liability and negligence claims against the

1

manufacturer and owner of the JLG lift. Because the claims against the individual defendants

other than Carter & Burgess are not relevant to the issues raised in this appeal, we do not

distinguish the claims raised against each defendant.

 In addition to the diversity question, Carter & Burgess’s presence in the lawsuit 2

would create an impediment to removal under 28 U.S.C. § 1441(b) because Carter & Burgess

2

This is an interlocutory appeal from an order denying the plaintiffs’ motion

to remand and granting the defendants’ motion to amend their notice of removal

to federal court. We AFFIRM. 

I. Background

This case arises from the death of Humberto Gustav Menendez. Mr.

Menendez was fatally injured in Gas City, Indiana, while operating a lift (“the

JLG lift”) on a project to build a Wal-Mart Distribution Center. Marla

Menendez, the daughter of the deceased, brought this action individually and as

the personal representative of Mr. Menendez’s estate in the 93rd Judicial

District Court in Hidalgo County, Texas. Mr. Menendez’s widow and remaining

children joined in the lawsuit. 

The plaintiffs assert two separate causes of action against the defendants.

First, they assert a survival action on behalf of Mr. Menendez for the personal

injuries, physical and mental pain and suffering, and other damages he suffered

prior to his death. Second, each plaintiff asserts a wrongful death claim for the

damages they sustained as a result of Mr. Menendez’s death. The plaintiffs

argue that the defendants were negligent “in the design, build, construction, and

supervision of the premises and/or the JLG lift.”1

The defendants filed a timely notice of removal to federal court, arguing

that removal was proper because the plaintiffs had joined non-diverse defendant

Carter & Burgess for the sole purpose of defeating diversity jurisdiction. The

parties do not dispute that complete diversity would exist between the parties

if defendant Carter & Burgess was not a party to the suit. The plaintiffs moved 2

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No. 09-40993

is a resident of the forum state. The “forum-defendant rule” is not jurisdictional and may be

waived. In re 1994 Exxon Chem. Fire, 558 F.3d 378, 393 (5th Cir. 2009). 

 The defendants assert that the plaintiffs failed to file their motion to remand within 3

the thirty-day period prescribed by 28 U.S.C. § 1447(c), and have accordingly waived their

arguments about jurisdictional defects. The plaintiffs did file a motion to remand on

December 26, 2008, within the thirty-day window, but the district court struck the motion as

deficient. A proper motion to remand was not filed until January 13, 2009, outside of the

thirty-day time limit. The plaintiffs do not dispute that their motion to remand was not timely

filed. 

3

to remand the case, asserting that the defendants failed to properly allege the

citizenship of the parties or the amount in controversy, and disputing that

Carter & Burgess is an improperly named defendant.3

The district court granted the defendants leave to amend their notice of

removal. The district court also denied the plaintiffs’ motion to remand,

concluding that the facts supporting diversity jurisdiction were apparent from

the record; the plaintiffs’ claims, either standing alone or aggregated, satisfied

the amount in controversy requirement; and defendant Carter & Burgess had

been improperly joined. Accordingly, the district court retained jurisdiction over

the case. The plaintiffs filed this interlocutory appeal, challenging the district

court’s denial of its motion to remand, method of calculating the amount in

controversy, and conclusion that non-diverse defendant Carter & Burgess was

improperly joined. 

II. Standard of Review

We review a district court’s exercise of jurisdiction de novo. Acuna v.

Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000). Factual determinations

regarding jurisdiction are reviewed for clear error. New Orleans & Gulf Coast

Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008). 

The federal diversity statute, 28 U.S.C. § 1332(a)(2), states that federal

courts have jurisdiction over all civil actions between citizens of a state and

citizens or subjects of a foreign state where the amount in controversy exceeds

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4

$75,000. The statute requires complete diversity, meaning that a federal court

may not exercise diversity jurisdiction if any one of the plaintiffs is a citizen of

the same state as any one of the defendants. The federal removal statute, 28

U.S.C. § 1441, allows defendants to remove an action to federal court if the

federal district court would have original jurisdiction based on diversity of

citizenship and no defendant “is a citizen of the State in which such action is

brought.” § 1441(b); Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir.

2003). 

The party seeking to invoke federal jurisdiction has the burden to prove

by a preponderance of the evidence that federal jurisdiction exists. Barrois, 533

F.3d at 327. The basis for diversity jurisdiction must be “distinctly and

affirmatively alleged.” Mullins v. TestAmerica, Inc., 564 F.3d 386, 397 (5th Cir.

2009) (quotation marks and citation omitted). This court has stated that a

failure to adequately allege the basis for diversity jurisdiction “mandates

dismissal.” Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991). Any

“doubts regarding whether removal jurisdiction is proper should be resolved

against federal jurisdiction.” Acuna, 200 F.3d at 339. 

III. Discussion

On appeal, the plaintiffs assert three claims of error in denying their

motion to remand. First, they argue that the original notice of removal was

defective and the district court erred by allowing the defendants to amend the

notice of removal to properly demonstrate diversity jurisdiction. They further

assert that the amended notice of removal is deficient because it fails to properly

allege the citizenship of the relevant parties or that the amount in controversy

requirement is satisfied. Finally, the plaintiffs argue that the district court

erred by concluding that non-diverse defendant Carter & Burgess was

improperly joined. We address each of these arguments in turn. 

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5

A. Defects in the Original Notice of Removal

The plaintiffs assert that the district court erred by allowing the

defendants to amend their notice of removal to correct the deficient allegations.

We find that the plaintiffs waived their objections to the sufficiency of the notice

of removal because they failed to file a proper motion to remand within thirty

days of the action being removed to federal court. See 28 U.S.C. § 1447(c); In re

Shell Oil Co., 932 F.2d 1518, 1523 (5th Cir. 1991). 

Further, the district court did not abuse its discretion by allowing the

defendants to amend their notice of removal to allege facts supporting diversity

jurisdiction. In granting the defendants leave to amend their removal notice, the

district court relied on 28 U.S.C. § 1653, which grants courts the authority and

discretion to allow parties to cure defective allegations of jurisdiction. The

district court correctly observed that § 1653 should be liberally construed to

allow a party to cure technical defects, including the failure to specifically allege

the citizenship of the parties. See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d

1254, 1258 n.5 (5th Cir. 1988); Whitmire v. Victus Ltd., 212 F.3d 885, 887-88 (5th

Cir. 2000). Therefore, the district court did not abuse its discretion by allowing

the defendants to amend their notice of removal. 

B. Denial of the Motion to Remand

The plaintiffs argue that the amended notice of removal is deficient

because the defendants failed to properly show that the amount in controversy

requirement is satisfied and the parties are diverse from one another. 

Accordingly, the plaintiffs argue that the district court erred by denying their

motion to remand. 

1. Amount In Controversy Allegations

The plaintiffs assert that the district court erred by finding that the

amount in controversy requirement was satisfied. First, the district court

concluded that each of the plaintiffs’ claims satisfied the jurisdictional

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No. 09-40993

6

requirement. Second, in the alternative, the district court found that the

plaintiffs’ claims could be aggregated to satisfy the $75,000 minimum. We

conclude that each of the plaintiffs’ claims satisfies the amount in controversy

requirement; accordingly, we do not reach the issue of whether the plaintiffs’

claims may be aggregated to satisfy the jurisdictional threshold. 

To establish federal jurisdiction, the removing party must show that the

amount in controversy “exceeds the sum or value of $75,000, exclusive of interest

and costs.” 28 U.S.C. § 1332(a). The amount in controversy is determined at the

time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.

2000). If a defendant establishes “by a preponderance of the evidence that the

amount in controversy is greater than the jurisdictional amount,” a plaintiff may

defeat removal only by establishing to a legal certainty that his or her recovery

will not exceed the statutory threshold. In re: 1994 Exxon Chem. Fire, 558 F.3d

378, 387 (5th Cir. 2009) (quotation marks and citation omitted). 

This court determines whether the defendants have satisfied the amount

in controversy requirement by first asking whether it is “facially apparent” from

the state court petition that the claims exceed $75,000 in value. See Allen v.

R.H. Oil & Gas Co., 63 F.3d 1326, 1336 & n.16 (5th Cir. 1995). If it is not

facially apparent that the monetary requirement is satisfied, the defendants

may establish federal jurisdiction by alleging facts—either in the petition for

removal or by affidavit—that support a conclusion that the amount in

controversy requirement is satisfied. Garcia v. Koch Oil Co. of Texas, Inc., 351

F.3d 636, 638-39 (5th Cir. 2003). In this case, the defendants did not introduce

additional facts to show that the amount in controversy requirement was

satisfied; rather, they asserted that it was facially apparent from the complaint

that the jurisdictional threshold is satisfied. 

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 In so holding, we do not announce a per se rule that a wrongful death claim will 4

always satisfy the amount in controversy requirement; rather, we conclude that the complaint

in this case satisfies the jurisdictional threshold.

7

We conclude that it is facially apparent that each plaintiff’s wrongful

death claim satisfies the amount in controversy requirement. In the complaint, 4

the plaintiffs, the children of Mr. Menendez, seek damages for their personal

injuries, including their mental pain and suffering, sustained as a result of Mr.

Menendez’s death. Further, plaintiff Adelfa Mancillas de Menendez, the wife of

Mr. Menendez, seeks damages for loss of companionship and consortium. These

allegations, taken on their face, establish that the amount in controversy

requirement is satisfied. See De Aguilar v. Boeing Co., 11 F.3d 55, 57 (5th Cir.

1993) (holding that, based on the face of the complaint, the plaintiffs’ claims for

wrongful death exceeded the $50,000 amount in controversy threshold); see also

Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (holding that, on

the face of a complaint for personal injury damages, the plaintiff’s claims

satisfied the $75,000 amount in controversy requirement); Gebbia, 233 F.3d at

883 (holding that it was facially apparent from the plaintiff’s complaint that the

amount in controversy was satisfied where the plaintiff alleged damages for

mental anguish, suffering, loss of wages, and medical expenses). 

Because the amount in controversy requirement is satisfied for each of the

plaintiffs’ wrongful death claims, we need not reach whether the plaintiffs’

survival action satisfies the amount in controversy requirement. The district

court could properly exercise supplemental jurisdiction over the survival action

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No. 09-40993

 While a survival action is brought on behalf of the deceased, the cause of action and

5

any attendant recovery belongs to the heirs of the deceased or the deceased’s legal

representative or estate. See TEX. CIV. PRAC. & REM. CODE § 71.021 (stating that the survival

action “survives to and in favor of the heirs, legal representatives, and estate of the injured

person”). Thus, the survival action and wrongful death actions, while separate causes of

action, are closely related and the exercise of supplemental jurisdiction is not improper.

 We treat the plaintiffs’ statement in their briefing before the district court that Mr. 6

Menendez was a citizen of Texas as a binding judicial admission. See City Nat’l Bank v.

United States, 907 F.2d 536, 544 (5th Cir. 1990) (noting that the court may “appropriately

treat statements in briefs as binding judicial admissions of fact”); see also Ruiz v. Allstate Ins.

Co., 295 F. App’x 668, 671-72 (5th Cir. 2008) (unpublished) (finding improper joinder where

plaintiff admitted in his briefing before the district court that his claims against the nondiverse defendant lacked merit). 

8

pursuant to 28 U.S.C. § 1367. Accordingly, the district court did not err by 5

concluding that the amount in controversy requirement was satisfied. 

2. Diversity of Citizenship Allegations

The plaintiffs assert that the amended notice of removal is deficient

because it fails to allege the citizenship of Mr. Menendez, the deceased. The

federal diversity jurisdiction statute states that, in determining whether

diversity jurisdiction exists, “the legal representative of the estate of a decedent

shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C.

§ 1332(c)(2). The amended notice of removal alleges only the citizenship of

Marla Menendez, the personal representative of Mr. Menendez’s estate, and not

Mr. Menendez. 

At oral argument and in their briefing before the district court, the

plaintiffs conceded that Mr. Menendez was a citizen of Texas at the time of his

death. In any event, no one contends that Mr. Menendez was a citizen of the 6

same state as any defendant other than Carter & Burgess. Thus, any defect in

the amended notice of removal is purely technical and the plaintiffs waived any

objections to the notice of removal by failing to file timely a proper motion to

remand. In re Shell Oil Co., 932 F.2d at 1523. To remedy the technical defect,

we grant the defendants’ motion for leave to amend their notice of removal

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No. 09-40993

9

contained in their appellate response brief and hold that the district court did

not err in concluding that the facts supporting diversity jurisdiction between the

plaintiffs and the out-of-state defendants were apparent from the record. See 28

U.S.C. § 1653 (stating that defective allegations of jurisdiction “may be amended,

upon terms, in the trial or appellate courts”) (emphasis added); see also Carlton

v. Baww, Inc., 751 F.2d 781, 783 (5th Cir. 1985) (granting leave on appeal to

amend the jurisdictional allegations in the complaint and affirming the decision

of the district court on the merits). Defendants are ordered to file an amended

notice of removal in the district court stating Mr. Menendez’s citizenship within

thirty days of this opinion.

3. Improper Joinder

In the final step of determining whether diversity jurisdiction exists, we

now address whether the plaintiffs improperly joined defendant Carter &

Burgess to defeat diversity jurisdiction. The parties agree that if non-diverse

defendant Carter & Burgess was properly joined, federal jurisdiction does not

exist and the case should be remanded to state court. 

The district court found that there was no reasonable possibility that the

plaintiffs could recover from resident defendant Carter & Burgess and thus

concluded that Carter & Burgess was improperly joined. The district court

relied on the affidavit of Ed Hess, an employee of Carter & Burgess, to conclude

that Carter & Burgess did not owe the decedent or the plaintiffs any legal duty

with respect to the building, construction, supervision, or control over the

premises or lift because they were not involved in these tasks. Alternatively, the

district court held that the plaintiffs had failed to attach a certificate of merit in

support of their claims for professional negligence against Carter & Burgess, as

required by Texas Civil Practice & Remedies Code § 150.002. We hold that,

based on the Hess affidavit, there is no reasonable possibility that the plaintiffs

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 In so holding, we decline to reach the second basis for the district court’s decision that

7

Carter & Burgess was improperly joined. We express no views on whether Texas Civil

Practice & Remedies Code § 150.002 precludes the plaintiffs from recovering from Carter &

Burgess. 

10

can recover from in-state defendant Carter & Burgess; accordingly, we affirm the

district court’s finding that Carter & Burgess was improperly joined.7

The federal removal statute states that suits that arise under diversity

jurisdiction are removable “only if none of the parties in interest properly joined

and served as defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. § 1441(b). Improper joinder may be established by either

“(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the

plaintiff to establish a cause of action against the non-diverse party in state

court.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en

banc) (citation omitted). In this case, there is no claim that the plaintiffs

fraudulently pleaded jurisdictional facts; accordingly, only the second type of

improper joinder is at issue. 

To determine whether non-diverse defendant Carter & Burgess was

improperly joined, we ask “whether the defendant has demonstrated that there

is no possibility of recovery by the plaintiff against [Carter & Burgess], which

stated differently means that there is no reasonable basis for the district court

to predict that the plaintiff might be able to recover against [it].” Smallwood,

385 F.3d at 573. Put another way, “there must be a reasonable possibility of

recovery, not merely a theoretical one.” Campbell v. Stone Ins., Inc., 509 F.3d

665, 669 (5th Cir. 2007) (quotation marks and citation omitted). The burden of

persuasion on a party asserting improper joinder is a “heavy one.” Id.; Kling

Realty Co., Inc. v. Chevron USA, Inc., 575 F.3d 510, 514 (5th Cir. 2009). 

In analyzing whether a plaintiff has demonstrated a reasonable possibility

of recovery, the district court may “conduct a Rule 12(b)(6)-type analysis, looking

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No. 09-40993

 The plaintiffs moved to strike the Hess affidavit in the district court. The district 8

court denied the motion. The plaintiffs-appellants have not appealed the denial of the motion

to strike. 

11

initially at the allegations of the complaint to determine whether the complaint

states a claim under state law against the in-state defendant,” or “the district

court may, in its discretion, pierce the pleadings and conduct a summary

inquiry.” Smallwood, 385 F.3d at 573. In doing so, however, the court “must also

take into account all unchallenged factual allegations, including those alleged

in the complaint, in the light most favorable to the plaintiff.” Travis v. Irby, 326

F.3d 644, 649 (5th Cir. 2003). Any ambiguities in state law or contested fact

issues must be resolved in favor of the plaintiff. Id. “[T]he focus of the inquiry

must be on the joinder, not the merits of the plaintiff’s case.” Smallwood, 385

F.3d at 573. 

The sole allegations against defendant Carter & Burgess appear in Count

I of the plaintiffs’ complaint. They assert that the defendants “were negligent

in the design, build, construction, and supervision of the premises and/or the

JGL lift by failing to recognize, eliminate, or control hazards, which resulted in

the injury and subsequent death of the decedent.” A claim of negligence consists

of three essential elements: “1) a legal duty owed by one person to another; 2) a

breach of that duty; and 3) damages proximately resulting from the breach.”

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). To

establish liability, the plaintiffs must demonstrate both the existence and the

violation of a legal duty owed to the plaintiffs by the defendant. Id. 

In support of their fraudulent joinder argument, the defendants submitted

the affidavit of Ed Hess, a senior project manager for Carter & Burgess. Hess 8

testified about the extent of the services provided by Carter & Burgess for the

Wal-Mart Distribution Center project. Hess stated that: 

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12

The scope of services [provided by Carter & Burgess]

specifically excludes authority over or responsibility for

the means, methods, techniques, sequences or

procedures of construction selected by contractors. The

scope of services further specifically excludes any

responsibility for or involvement in safety precautions

and programs incident to the work of contractors.

Further, the scope of services dictates that Carter &

Burgess is not responsible for the failure of any

contractors to comply with the laws, rules, regulations,

ordinances, codes, or orders applicable to contractors

furnishing or performing their work. 

Accordingly, the defendants assert that Carter & Burgess cannot be held liable

for the injuries and death of Mr. Menendez. 

In response, the plaintiffs assert that the district court erred by conducting

a summary inquiry into the merits of their claims against Carter & Burgess,

rather than a Rule 12(b)(6)-type inquiry. This argument fails. We have

repeatedly held that a court may pierce the pleadings and consider summaryjudgment-type evidence to determine whether joinder of a party was proper.

Smallwood, 385 F.3d at 573. Indeed, in In re: 1994 Exxon Chemical Fire, this

court examined extensive deposition testimony and affidavits to determine

whether the plaintiffs could show individual liability for any of the allegedly

improperly joined defendants. 558 F.3d at 385-87. After that review, we

concluded that the individual defendants were improperly joined because no

evidence in the record showed that the non-diverse defendants were personally

liable for the tortious conduct. Id. at 386-87; see also Kling Realty Co., Inc., 575

F.3d at 516 (concluding from the evidence in the record that the non-diverse

defendants were improperly joined because no evidence supported a reasonable

possibility of recovery against them). Where the record fails to support a

reasonable possibility of recovery and merely suggests a theoretical possibility,

this court has found improper joinder. 

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No. 09-40993

 The defenses asserted by Carter & Burgess do not apply equally to the remaining

9

defendants; accordingly, the district court did not err by denying the motion to remand. See

Rico v. Flores, 481 F.3d 234, 237 (5th Cir. 2007) (noting that, under Smallwood, “a district

court must remand a case where a defendant asserts a defense in support of improper joinder

that is dispositive of all claims in the action”); Smallwood, 385 F.3d at 571. 

13

Here, the plaintiffs argue that Carter & Burgess provided project

management services, and thus may be held liable for the negligent provision of

these services or the creation of a dangerous condition. The plaintiffs rely on

Mathis v. RKL Design/Build, 189 S.W.3d 839 (Tex. App.—Houston 2006, no

pet.). The court in Mathis did observe that, in a premises liability action, “[a]

general contractor on a construction site, who is in control of the premises, is

charged with the same duty [to keep the premises under his control in a safe

condition.]” Id. at 844. But where a defendant lacked control over the allegedly

unsafe premises, the defendant does not owe the plaintiff a duty of care. Id. at

845. 

In this case, there are no facts in the record showing that Carter &

Burgess “owned, occupied, or created the [JLG lift] or agreed to make it safe,” or

that it actually controlled the premises. Mathis, 189 S.W.3d at 845. Nor have

the plaintiffs alleged any link between the services provided by Carter &

Burgess and the death of Mr. Menendez. Carter & Burgess was not a general

contractor and did not provide similar services. The plaintiffs have not contested

Hess’s testimony that the Carter & Burgess contract expressly disclaimed

responsibility for the supervision of other contractors or the safety of the

premises. Accordingly, the district court did not err by concluding that

defendant Carter & Burgess was improperly joined because there was no

reasonable possibility that the plaintiffs could recover from it. See In re: 1994 9

Exxon Chem. Fire, 558 F.3d at 386-87 (finding that defendants were improperly

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No. 09-40993

14

joined because the plaintiff failed to allege facts showing that the non-diverse

defendants were responsible for the injury alleged). 

IV. Conclusion

For the foregoing reasons, the motion for leave to amend is GRANTED, the

order of the district court granting leave to amend and denying the motion to

remand is AFFIRMED, and the case is REMANDED for further proceedings. 

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