IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20404

DELEESE ALLEN, 

 Plaintiff - Appellant

v.

WALMART STORES, L.L.C.; GREGORY MOUTON; LORETTA BREWERWINTER; SHANDA HUTTON, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas 

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit 

Judges.

CARL E. STEWART, Chief Judge:

On Wednesday, April 13, 2016, Karalee Alaine Williams (“Williams”) 

was found dead in her car in the parking lot of Wal-Mart Store #2439. Her 

death resulted from inhaling a large quantity of aerosol dust remover. 

Williams’s mother, Plaintiff-Appellant Deleese Allen (“Allen”), brought 

negligence claims in her individual capacity, against Defendants-Appellees (1) 

Wal-Mart Stores, LLC (“Wal-Mart”)1 and (2) three Wal-Mart employees, 

 

1 There was some confusion over who was the correct Defendant in the case, Wal-Mart 

Stores, LLC or Wal-Mart Stores Texas, LLC. The district court determined that the correct 

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2018

Lyle W. Cayce

Clerk

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Gregory Mouton, Loretta Ann Brewer-Winter, and Shanda Marie Hutton

(collectively the “Wal-Mart employees”). Allen also brought product liability 

claims against 3M Company (“3M”) and IQ Products Company (“IQ”). The 

district court dismissed Allen’s claims pursuant to Fed. R. Civ. P. 12(b)(6) for 

failure to state a claim on which relief could be granted. For the following 

reasons, we AFFIRM.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

 Williams entered Wal-Mart Store #2439 on nine different occasions 

over the course of twenty-seven (27) hours, each time purchasing cans of dust 

remover. She allegedly purchased at least sixty (60) cans of dust remover over 

that period.

During Williams’s first visit on Sunday, April 10, 2016, she purchased a 

towel and cans of dust remover. On her second visit that day, she had soiled 

herself but proceeded to buy more cans of dust remover and told the checkout 

employee that she had had a seizure in the parking lot. On Williams’s third 

visit the next morning, she entered the store naked from the waist down. 

 

party was Wal-Mart Stores Texas, LLC given that it answered Allen’s complaint. Allen does 

not explicitly challenge the district court’s finding that Wal-Mart Stores Texas, LLC is the 

correct defendant, but she does assert that Wal-Mart did not “properly allege its citizenship.” 

In its notice of removal, Wal-Mart alleges that it is a “limited liability company formed under 

the laws of Delaware, with its principal place of business in Arkansas.” “Wal-Mart[,Inc.] is a

publicly traded corporation which owns and operates retail stores in Texas, in part through 

its wholly-owned subsidiaries [which includes Wal-Mart Stores Texas, LLC].” Wal-Mart 

Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, No. 1-15-CV-134 RP, 2015 WL 11613286, at 

*1 (W.D. Tex. Dec. 22, 2015). “[T]he citizenship of a LLC is determined by the citizenship of 

all of its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). 

Wal-Mart Stores Texas, LLC is considered to be incorporated in Delaware and has its 

principal place of business in Arkansas. See Mauer v. Wal-Mart Stores, Inc., No. 3:16-CV2085-BN, 2016 WL 5815892, at *3 (N.D. Tex. Oct. 5, 2016) (explaining Wal-Mart Texas, LLC’s 

citizenship as of October 5, 2016, specifically explaining that Wal-Mart Stores, Texas LLC’s 

sole owner, (Wal-Mart Real Estate Business Trust), is organized under the laws of Delaware 

and has its principal place of business in Arkansas). Therefore, it is not considered a citizen 

of Texas. 

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Several Wal-Mart employees noticed her condition and communicated this to 

other employees. During that third visit, Wal-Mart employees gave Williams a 

towel and a “sundress.” After receiving these items Williams purchased more

cans of dust remover. During each of Williams’s subsequent visits to Wal-Mart 

she allegedly bought more cans of dust remover. Early Tuesday morning, April 

12, 2016, Williams died in the parking lot from the effects of inhaling dust 

remover, a process called “dusting,” but her body was not discovered until the 

next day.

Allen initially sought a temporary restraining order (“TRO”) and a 

permanent injunction in the 11th District Court of Harris County, Texas. Allen 

sought the temporary restraining order for the purposes of “preserving 

evidence, and the taking of evidence before it becomes inaccessible to normal 

discovery.” Wal-Mart removed the case to the United States District Court for 

the Southern District of Texas, Houston Division based on diversity 

jurisdiction pursuant to 28 U.S.C. § 1332. When Wal-Mart removed this case, 

it also filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). After WalMart filed its motion to dismiss, Allen amended her complaint to add as 

defendants the Wal-Mart employees, IQ, and 3M. Allen also filed a motion to 

remand, asserting that “[s]everal Texas residents’ negligence and negligence 

per se contributed to the death of [Williams], and diversity jurisdiction does 

not exist.”

In response to Allen’s motion to remand, Wal-Mart moved to strike the 

joinder of the Wal-Mart employees, asserting that they had only been added to 

defeat diversity jurisdiction. Wal-Mart also moved to strike IQ because Allen 

had notice that IQ was not the manufacturer of the dust remover Williams had 

purchased. Additionally, Wal-Mart amended its motion to dismiss because

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Allen had amended her complaint. The Wal-Mart employees also filed a motion 

to dismiss in their answer to Allen’s complaint.

The district court denied Allen’s motion to remand and granted WalMart and the Wal-Mart employees’ motions to dismiss as well as Wal-Mart’s 

motion to strike joinder. The district court also denied Allen’s request to amend 

her complaint through a motion to alter or amend judgment pursuant to Fed. 

R. Civ. P. 59(e) and a motion for relief from judgment or order pursuant to Fed. 

R. Civ. P. 60(b).

Allen timely appealed the district court’s order dismissing her complaint 

and denying reconsideration. In July 2017, Allen’s appeal was dismissed for 

want of prosecution, but it was reinstated in September 2017. On appeal, Allen 

contends that the district court erred in (1) granting the Defendants-Appellees’ 

motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), (2) denying Allen’s 

motion to remand, and (3) denying Allen’s request to amend her complaint.

II. ANALYSIS

1. Motion to Dismiss

We review de novo the district court’s order on a motion to dismiss for 

failure to state a claim under Fed. R. Civ. P. 12(b)(6). In re Katrina Canal 

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). 

“To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). “A pleading that offers ‘labels and conclusions’ or 

‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

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(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders 

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting

Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right 

to relief above the speculative level[.]” Twombly, 550 U.S. at 555 (citing 5 

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND 

PROCEDURE § 1216 (3d ed. 2004)). 

“In analyzing the complaint, we will accept all well-pleaded facts as true, 

viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 

188 F.3d 322, 324 (5th Cir. 1999) (citing Doe v. Hillsboro Indep. Sch. Dist., 81 

F.3d 1395, 1401 (5th Cir. 1996)). However, “[t]hreadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice [to state a claim upon which relief can be granted].” Iqbal, 556 U.S. at 

678 (citing Twombly, 550 U.S. at 555). Additionally, “[d]ismissal is proper if 

the complaint lacks an allegation regarding a required element necessary to 

obtain relief[.]” Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (5th Cir. 2006)

(quoting Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).

Allen claims that the Defendants-Appellees acted negligently in 

continuing to sell Williams dust remover despite her impaired state. Allen 

alleges that the Defendants-Appellees are liable under a theory of negligence 

per se for violating Texas Health & Safety Code Chapter 485, and under the 

Texas theory of general negligence. Allen also alleges that the DefendantsAppellees breached a duty when they took affirmative steps to assist Williams.

Allen also alleges that Wal-Mart is independently liable for negligent 

entrustment pursuant to Restatement (Second) of Torts § 390 and that WalMart breached a duty to Williams under a theory of premises liability. Allen

further avers that Wal-Mart owed Williams a duty in the products liability 

context, invoking Texas Civil Practice & Remedies Code § 82.003(6) (2009).

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“The common law doctrine of negligence consists of three 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 Hous. Transp. Co. v. 

Phillips, 801 S.W.2d 523, 525 (Tex. 1990) (citing El Chico Corp. v. Poole, 732 

S.W.2d 306, 311 (Tex. 1987), superseded by statute, Tex. Alco. Bev. Code § 2.02, 

as recognized in Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993)). “The plaintiff 

must establish both the existence and the violation of a duty owed to the 

plaintiff by the defendant to establish liability in tort.” Id. (citing El Chico, 732 

S.W.2d at 311). “Moreover, the existence of duty is a question of law for the 

court to decide from the facts surrounding the occurrence in question.” Id.

(citing Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex. 1983)).

“Negligence per se is a common-law doctrine that allows courts to rely 

on a penal statute to define a reasonably prudent person’s standard of care.” 

Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001) (citing Carter v. William 

Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979)).

a. Premises Liability

According to Allen, premises liability provides the strongest basis for 

holding that Wal-Mart owed Williams a duty to cease selling her dust remover 

in light of her diminished capacity. Allen’s assertion is based on the Supreme 

Court of Texas’s holding in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 

(Tex. 2010). In Del Lago, the Supreme Court of Texas found that a bar had a 

duty to protect a patron given the bar’s “actual and direct knowledge that a 

violent brawl was imminent[.]” 307 S.W.3d at 769. However, in Del Lago, the 

Supreme Court of Texas explicitly stated that “[w]e do not announce a general 

rule today. We hold only, on these facts, . . . a duty arose on [the Defendant’s] 

part to use reasonable care to protect the invitees from imminent assaultive 

conduct.” Id. at 770.

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Williams was an invitee of Wal-Mart, so Wal-Mart owed her a duty to 

“use ordinary care to reduce or eliminate an unreasonable risk of harm created 

by a premises condition about which the property owner knew or should have 

known.” Id. at 767. However, Allen did not plead that there were any issues 

with the conditions of the premises. Allen seeks to extend the holding of Del 

Lago to fit the facts of this case, but Del Lago is inapplicable here. 

As we elaborate below, Wal-Mart did not owe Williams a duty under

Texas Health & Safety Code § 485.031 to protect her from abusing the dust 

remover. See LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563, 

564 (Tex. App.—Houston [1st Dist.] 1998) (“As a general rule, a defendant has 

no duty to prevent the criminal acts of a third party who does not act under 

the defendant’s supervision or control.”). Neither was it illegal for Wal-Mart to 

sell Williams dust remover, because she was an adult. See Tex. Health & Safety 

Code § 485.032 (2001) (“A person commits an offense if the person knowingly 

delivers an abusable volatile chemical to a person who is younger than 18 years 

of age.”). Because Allen did not plead that there were any issues with the

conditions of the premises, and because, as we elaborate below, Wal-Mart did 

not owe Williams any duty of care regarding her purchase or abuse of dust 

remover, Wal-Mart cannot be found negligent under a theory of premises 

liability. We thus hold that Allen’s negligence claim based on premises liability

fails. 

b. Restatement (Second) of Torts § 390 (1965)

Allen does not assert negligent entrustment by name, but she does 

advance an underlying premise of negligent entrustment, i.e., that Wal-Mart 

had a duty not to sell Williams the dust remover because Wal-Mart had 

knowledge of Williams’s diminished capacity and continued abuse of the dust 

remover. Under Restatement (Second) of Torts § 390 (1965):

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One who supplies directly or through a third person a chattel for 

the use of another whom the supplier knows or has reason to know 

to be likely because of his youth, inexperience or otherwise, to use 

it in a manner involving unreasonable risk of physical harm to 

himself and others whom the supplier should expect to share in or 

be endangered by its use, is subject to liability for physical harm 

resulting to them.

A Texas Court of Appeals referenced Section 390 in Kennedy v. Baird, 682 

S.W.2d 377 (Tex. App.—El Paso 1984), a case regarding the negligent 

entrustment of a firearm. However, Texas has not adopted Restatement 

(Second) of Torts § 390 with respect to the sale of a chattel. See Jaimes v. 

Fiesta Mart, Inc., 21 S.W.3d 301, 304 (Tex. App.—Houston [1st Dist.] 1999)

(emphasis omitted) (“Texas courts have declined, however, to adopt [S]ection 

390 and to impose this duty on sellers of chattels.” (citing Rush v. Smitherman, 

294 S.W.2d 873, 875 (Tex. Civ. App.—San Antonio 1956, writ ref’d n.r.e.))); 

Nat’l Convenience Stores, Inc. v. T.T. Barge Cleaning Co., 883 S.W.2d 684, 686 

(Tex. App.—Dallas 1994, writ denied).

Allen concedes that sellers are not generally subject to liability under 

Section 390, but she asserts that a seller may be negligent when it has a duty 

not to sell a specific product. Allen cites El Chico Corp. v. Poole, in support of 

her proposition that Wal-Mart owed Williams a duty not to sell her cans of dust 

remover given her diminished capacity. 732 S.W.2d 306. In El Chico, the 

defendant restaurant sold alcohol to an intoxicated patron who was later 

involved in a deadly collision. Id. at 308-09. The Supreme Court of Texas held 

that a seller “owe[d] a duty to the general public not to serve alcoholic 

beverages to a person when the [seller] knows or should know a patron is 

intoxicated.” Id. at 314.

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In this case, Wal-Mart did not owe a duty to Williams or the general 

public to prevent any harm resulting from Williams’s inhalation of dust 

remover, unlike the seller in El Chico, regarding the sale of alcohol. Notably, 

Texas courts have not expanded the duty recognized in El Chico to cover the 

sale of other potentially harmful products. The Texas legislature promptly 

responded to El Chico by enacting a Dram Shop Act and making it the 

exclusive basis for civil liability against alcohol providers. See Graff, 858 

S.W.2d at 919 (“In El Chico this court created a common-law duty to injured 

third parties on the part of commercial providers, but that duty was almost 

simultaneously superseded by the legislature’s enactment of the dram shop 

statute.”). 

The Supreme Court of Texas later declined to recognize a common law 

duty on social hosts who provide alcohol to guests, reasoning that there is no 

legal duty to control the conduct of another in the absence of a special 

relationship and “the common law’s focus should remain on the drinker as the 

person primarily responsible for his own behavior and best able to avoid the 

foreseeable risks of that behavior.” Graff, 858 S.W.2d at 920-22. Texas’s high 

court has also made clear that “foreseeability alone is not sufficient to justify 

the imposition of a duty.” City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 

2009).

Allen has not cited any Texas cases recognizing a duty not to sell 

abusable volatile chemicals to an impaired person, nor do we find such a duty 

under Texas law. Thus, El Chico is not applicable to this case. Accordingly, we 

hold that Wal-Mart is not liable for negligent entrustment.

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c. Texas Health & Safety Code Chapter 485

It is illegal under Texas Health & Safety Code § 485.031 to inhale an 

abusable volatile chemical contrary to directions for its use or to its warnings, 

with the intent to among other things “create or induce a condition of 

intoxication, hallucination, or elation[.]” Further, it is illegal to “knowingly . . .

deliver[] or sell[] inhalant paraphernalia [to a person whom the seller knows 

intends to use it to abuse a volatile chemical].” Tex. Health & Safety Code § 

485.033 (2001).2

Texas Health & Safety Code Chapter 485 is a penal statute, and the 

parties contest whether Chapter 485 sets forth a civil standard of conduct. The 

district court addressed this dispute and held that Chapter 485 does not set 

forth a standard of conduct for a claim of negligence or negligence per se. We 

agree.

We find no caselaw in which any court has created civil tort liability 

based on Texas Health & Safety Code § 485.031, §485.032, or § 485.033. See 

Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex. 1998) (“[A court] can borrow all, 

part, or none of a criminal statute as [the court] deem[s] appropriate for 

establishing a duty under the civil law.” (citing Rudes v. Gottschalk, 324

S.W.2d 201, 205 (Tex. 1959.))) Tellingly, Texas courts rarely imply a civil tort 

duty from a criminal statute. See Brown v. De La Cruz, 156 S.W.3d 560, 565 

(Tex. 2004) (explaining that penal statutes are strictly constructed and a 

 

2 The cans of dust remover themselves are not considered “paraphernalia” given the 

definitions denoted in Section 485.001. The dust remover would be considered an “abusable 

volatile chemical” because it “is packaged in a container subject to [specific] labeling 

requirements[.]” Tex. Health & Safety Code § 485.001(1)(A)(i) (2015). The towels could be 

considered paraphernalia because they are made of fabric. Tex. Health & Safety Code 

§ 485.001(8) (2015).

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private cause of action is not implied without some indication of legislative 

intent); Perry v. S.N., 973 S.W.2d 301, 307 (Tex. 1998) (noting that the “norm” 

is to “deriv[e] duty from the common law and look[] to the statute only for the 

standard of conduct”). For example, the Texas Supreme Court has held that a 

failure to report child abuse is not negligence per se even if it violates a 

mandatory reporting law. Perry, 973 S.W.2d at 309. Relevant to the facts 

presented here, the Supreme Court of Texas has also refused to recognize a 

negligence per se cause of action against social hosts who unlawfully provide 

alcohol to underage guests. Reeder, 61 S.W.3d at 364-65. We therefore conclude 

that Wal-Mart and the Wal-Mart employees cannot be held liable under 

Chapter 485 for negligence or negligence per se.

For the same reasons, neither Wal-Mart nor the Wal-Mart employees

can be held civilly liable for allegedly aiding and abetting Williams in violating 

Texas Health & Safety Code § 485.031.

d. Assumed Duty Pursuant to an Affirmative Action

“Texas law generally imposes no duty to take action to prevent harm to 

others absent certain special relationships or circumstances.” Torrington Co. 

v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000) (citing SmithKline Beecham Corp. 

v. Doe, 903 S.W.2d 347, 353 (Tex. 1995)). However, Texas courts “have 

recognized that a duty to use reasonable care may arise when a person 

undertakes to provide services to another, either gratuitously or for 

compensation.” Id. (citing Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 

S.W.2d 392, 396 (Tex. 1991)). This recognition relies in part on Restatement 

(Second) of Torts § 323 (1965), which states that “[o]ne who undertakes, 

gratuitously or for consideration, to render services to another . . . is subject to 

liability to the other for physical harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if . . . his failure to exercise such 

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care increases the risk of such harm, or . . . the harm is suffered because of 

other’s reliance upon the undertaking.”

Wal-Mart and the Wal-Mart employees may only be held liable for 

negligent undertaking if “(1) [they] undertook to perform services that [they]

knew or should have known were necessary for [Williams’s] protection, (2) 

[they] failed to exercise reasonable care in performing those services, and 

either (3) [Williams] relied upon [their] performance, or (4) [their] performance 

increased [Williams’s] risk of harm.” Torrington Co., 46 S.W.3d at 838-39

(citing Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 118 (Tex. 1976)).

Allen asserts that Wal-Mart and the Wal-Mart employees knew that 

Williams was abusing the dust remover and that when the Wal-Mart 

employees undertook actions to assist Williams on her third visit to the WalMart by providing her with a towel and a sundress, they engendered a duty 

not to increase her risk of harm.

However, Allen failed to plead that the employees’ alleged assistance 

either induced reliance or increased Williams’s risk of harm. See Torrington 

Co., 46 S.W.3d at 838 n.7. We thus hold that Wal-Mart and the Wal-Mart 

employees are not liable for any negligence based on the assistance that they 

gave to Williams. Rios, 444 F.3d at 421 (“Dismissal is proper if the complaint 

lacks an allegation regarding a required element necessary to obtain relief[.]”

(quoting Campbell, 43 F.3d at 975)).

e. Products Liability under Texas Civil Practice & Remedies Code § 

82.003(6)

Pursuant to Texas Civil Practice & Remedies Code § 82.003(6), “[a] seller 

that did not manufacture a product is not liable for harm caused to the 

claimant by that product unless the claimant proves . . . that . . . the seller 

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actually knew of a defect to the product at the time the seller supplied the 

product; and . . . the claimant’s harm resulted from the defect[.]” 

Allen alleges that Wal-Mart “has long been aware of the hazards and 

dangers associated with inhalant abuse” and cites several instances where 

suits were brought against Wal-Mart because individuals had abused dust

remover bought from Wal-Mart. However, Allen did not plead specific facts 

regarding any actual defect with respect to the dust remover that was sold to 

Williams. Allen’s failure to plead specific facts regarding any actual defect in 

the dust remover sold to Williams is fatal to Allen’s claim that Wal-Mart 

violated Section 82.003(6). Consequently, we conclude that Wal-Mart is not 

liable for negligence under a products liability theory.3

f. Wal-Mart Employees’ Individual Liability

Under Leitch v. Hornsby, “individual liability arises only when the officer 

or agent owes an independent duty of reasonable care to the injured party 

apart from the employer’s duty.” 935 S.W.2d 114, 117 (Tex. 1996). For the WalMart employees to be individually liable they must have owed Williams an 

independent duty apart from any duty that Wal-Mart owed Williams. The WalMart employees did not owe Williams a duty not to sell her dust remover, and 

did not have a duty to protect her from abusing the dust remover that she 

bought. See Tex. Health & Safety Code § 485.032; LaFleur, 751 S.W.2d at 564. 

Moreover, Allen has not identified any other independent duty that the WalMart employees might have owed Williams. We thus conclude that the WalMart employees cannot be held liable in their individual capacities.

 

3 We also note that the claims against IQ and 3M were also properly dismissed.

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2. Allen’s Motion to Remand

The parties disagree as to the correct standard of review for Allen’s 

motion to remand. Wal-Mart contends that the proper standard of review is 

abuse of discretion given that Allen amended her complaint after the case was 

removed. See Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987), 

appeal after remand, 869 F.2d 879 (5th Cir. 1989), cert. denied sub nom. Deere 

& Co. v. Hensgens, 493 U.S. 851 (1989) (“[T]he district court, when confronted 

with an amendment to add a non[-]diverse non[-]indispensable party, should 

use its discretion in deciding whether to allow that party to be added.”). 

However, the proper standard of review of a district court’s denial of a 

motion to remand is de novo. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 

(5th Cir. 1999) (citing Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 

1995)). Abuse of discretion is not the correct standard of review because 

Hensgens concerns a party’s motion to amend its complaint after removal, and 

Allen did not initially move to amend her complaint. Instead, she amended as 

matter of right under Fed. R. Civ. P. 15(a), which does not require the court’s 

approval. See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 

1981) (“[Fed. R. Civ. P.] 15(a) . . . governs amendments to pleadings. Although 

the plaintiff is allowed, as a matter of right, one amendment before any 

responsive pleading has been filed, subsequent amendments are permitted 

only with leave of the trial judge.”). After amending her complaint, Allen 

sought remand to the state court.

The district court’s ruling did not consider the propriety of the 

amendment itself, but instead considered whether there was proper joinder of 

the Wal-Mart employees. The district court sustained Wal-Mart’s objection to 

joinder of the non-diverse Wal-Mart employees and granted Wal-Mart’s motion 

to strike the non-diverse defendants.

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“Under 28 U.S.C. § 1441(a), any state court civil action over which the 

federal courts would have original jurisdiction may be removed from state to 

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

Cir. 2007). A case may be removed pursuant to 28 U.S.C. § 1332 if there is 

complete diversity of citizenship and the amount in controversy is greater than 

$75,000 exclusive of interests and costs. “If at any time before final judgment 

it appears that the district court lacks subject matter jurisdiction, the case 

shall be remanded.” 28 U.S.C. § 1447(c). If a party is improperly joined, a

court may disregard the party’s citizenship for purposes of determining subject 

matter jurisdiction. See Galveston Bay Biodiesel, L.P. v. Ace Am. Ins. Co., 719 

F. Supp. 2d 736, 738 (S.D. Tex. 2010) (citing Smallwood v. Ill. Cent. R.R. Co., 

385 F.3d 568, 572-73) (5th Cir. 2004) (en banc)). However, “the existence of 

even a single valid cause of action against in-state defendants . . . requires 

remand of the entire case to state court.” Gray ex rel. Rudd v. Beverly Enters.-

Miss., Inc., 390 F.3d 400, 412 (5th Cir. 2004). 

“To demonstrate improper joinder of resident defendants, the removing 

defendants must demonstrate 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.’” Gasch, 491 F.3d at 281 (quoting 

Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006)); see 

also Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 

193, 199 (5th Cir. 2016) (“A defendant is improperly joined if the moving party 

establishes that (1) the plaintiff has stated a claim against a diverse defendant 

that he fraudulently alleges is non[-]diverse, or (2) the plaintiff has not stated 

a claim against a defendant that he properly alleges is non[-]diverse.” (citing 

Smallwood, 385 F.3d at 573)). In deciding improper joinder, we must “resolve

all contested factual issues and ambiguities of state law in favor of the plaintiff 

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[and remand].” Gasch, 491 F.3d at 281 (citing Guillory v. PPG Indus., Inc., 434 

F.3d 303, 308 (5th Cir. 2005)).

There is no allegation of fraud in the pleadings alleged in this case. We 

thus must assess whether Allen has a basis of recovery against the Wal-Mart 

employees who would be non-diverse defendants. In assessing whether a 

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

state court, 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[.]” Smallwood, 385 F.3d at 573. To determine whether a 

party has a “reasonable basis of recovery under state law,” we may apply a Fed. 

R. Civ. P. 12(b)(6)-type analysis. Id. Thus, if Allen has not stated a claim for 

relief against the Wal-Mart employees, then they were improperly joined and 

we may disregard their citizenship. See Galveston Bay Biodiesel, L.P., 719 F. 

Supp. 2d at 738.

As described in detail in our analysis of the Wal-Mart employees’ motion 

to dismiss, those employees did not owe Williams any duty of care, especially 

since they were not prohibited from selling dust remover to Williams who was 

an adult.4 Therefore, reviewing the dismissal of Allen’s motion to remand 

under a de novo standard of review, we affirm the district court’s denial of 

Allen’s motion to remand.

 

4 There is no improper joinder if the reason “that there is no reasonable basis for 

predicting that state law would allow the plaintiff to recover against the in-state defendant 

necessarily compels the same result for the non[-]resident defendant.” See Smallwood, 385 

F.3d at 574. This is not the case here because Allen asserts at least one analytically distinct 

claim against Wal-Mart alone. See Boone v. Citigroup, Inc., 416 F.3d 382, 391-92 (5th Cir. 

2005).

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3. Allen’s Motion to Replead

“[The Fifth Circuit] generally review[s] a decision on a motion to alter or 

amend judgment under Rule 59(e) for abuse of discretion.” Miller v. BAC Home 

Loans Servicing, L.P., 726 F.3d 717, 721–22 (5th Cir. 2013) (quoting Pioneer 

Nat. Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int’l 

Union Loc. 4–487, 328 F.3d 818, 820 (5th Cir. 2003), modified on other grounds 

on denial of reh’g). Because Allen sought to amend her complaint using Fed. R. 

Civ. P. 59(e) or 60, we must also consider whether the district court abused its 

discretion in not allowing Allen to amend her complaint. See Rosenzweig v.

Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003).

Allen sought to amend her complaint under Fed. R. Civ. P. 59(e) and 

60(a). When a court enters a final judgment, a party may move to amend its 

complaint under Fed. R. Civ. P. 59(e) or 60 rather than under Fed. R. Civ. P. 

15(a). See Rosenzweig, 332 F.3d at 864. However, our analysis of a party’s Fed. 

R. Civ. P. 59(e) motion “should be governed by the same considerations 

controlling the exercise of discretion under [Fed. R. Civ. P.] 15(a).” Dussouy, 

660 F.2d at 597 n.1.

Allen asserts that she “is now in possession of additional party names 

not known when substantive motions were filed,” and that the district court 

erred in not letting her amend her complaint to reflect the addition of these 

parties. Allen also asserts that she has SKU numbers (numbers used to 

identify inventory) as well as twelve point-of-sale receipts, which include 

twelve different Wal-Mart employee identification numbers. Allen claims that 

she has the names of eighteen Wal-Mart employees who “interacted with 

Plaintiff during her time at the Wal-Mart store.”

In determining whether to allow a party to amend its complaint, “[t]he 

court should freely give leave [to amend] when justice so requires.” Fed. R. 

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Civ. P. 15(a)(2). The United States Supreme Court has listed several factors

for a court to consider when it analyzes a party’s motion for leave to amend, 

including “undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, [and] 

futility of amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962). 

“[O]utright refusal to grant the leave without any justifying reason 

appearing for the denial is not an exercise of discretion; it is merely abuse of 

that discretion and inconsistent with the spirit of the Federal Rules.” Id. at 

182; but see Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1154 (5th Cir. Unit 

A Sept. 1981) (“The strong preference for explicit reasons [for the district 

court’s denial of the plaintiff’s motion to amend] yields to the presence here of 

ample and obvious grounds for denying leave to amend; the district court could 

confidently have relied on any or all of them. The mere absence under these 

circumstances of articulated reasons for denial does not indicate an abuse of 

the court’s discretion.”).

Allen sought to amend her complaint to add non-diverse parties after the 

case has been removed, so the district court must apply a higher level of 

scrutiny than required under Fed. R. Civ. P. 15(a). See Hensgens, 833 F.2d at 

1182 (“The district court, when faced with an amended pleading naming a new 

non[-]diverse defendant in a removed case, should scrutinize that amendment 

more closely than an ordinary amendment.”). “[T]he court should consider the 

extent to which the purpose of the amendment is to defeat federal jurisdiction, 

whether [the] plaintiff has been dilatory in asking for amendment, whether

[the] plaintiff will be significantly injured if amendment is not allowed, and 

any other factors bearing on the equities.” Id.

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The district court denied Allen’s request to amend her complaint because

it did not fall under either Fed. R. Civ. P. 59(e) or 60(b). Beyond that, the 

district court did not provide any further reasons for denying Allen’s request 

to amend her complaint. The lack of analysis does not automatically require 

us to determine that the district court abused its discretion, but “the [district 

court’s] reasons [for denial] would have to be readily apparent[.]” Dussouy, 660 

F.2d at 597.5 The grounds for the district court’s ruling here are apparent. We 

therefore conclude that the district court did not abuse its discretion in denying 

Allen’s request to amend her complaint.

The parties that Allen sought to add were: (1) Wal-Mart employees who 

sold Williams cans of dust remover, and (2) the manufacturer of the dust 

remover, Falcon Safety Products. The Wal-Mart employees that Allen sought

to add are assumed to be Texas citizens, which would compromise our subject 

matter jurisdiction over this case. Allen alleges that “[m]ultiple individuals . . 

. were negligent and violated Texas Health & Safety Code § 485 by providing 

 

5 See Dussouy, 660 F.2d at 600 (reversing the district court’s judgment and remanding 

the case, the Fifth Circuit held that the reasons for the district court’s denial of plaintiff’s 

motion to dismiss were not “readily apparent” and that the district court should allow the 

plaintiff to amend his complaint); but see Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 

420, 426 (5th Cir. 2004) (holding that the district court did not abuse its discretion despite 

the district judge and magistrate judge’s failure to provide express reasoning for their denial, 

because there were obvious reasons for the denial due to the undue prejudice to the 

defendant); United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 

387 (5th Cir. 2003) (holding that the district court did not abuse its discretion in not allowing 

the plaintiff to amend its complaint because the plaintiff had already had two opportunities 

to amend their complaint); Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993) (holding that the 

district court did not abuse its discretion despite not articulating its reasons for denying the 

plaintiffs’ motion because the plaintiffs had already amended their complaint twice and failed 

to timely comply with a court order to amend their complaint before finally seeking an 

amendment the week before trial); Rhodes, 654 F.2d at 1154 (affirming the denial of the 

plaintiff’s motion to amend without any reasoning from the district court, because the fact 

that the plaintiff filed its amendment thirty months after the original complaint was an 

“obvious ground” to deny the plaintiff’s motion to amend).

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abusable volatile chemicals to [Williams] . . . and they violated the basic 

common law duty not to provide a mentally impaired person with goods or 

materials by which the mentally impaired person could injure themselves or 

others.”

Looking at the exhibits attached to Allen’s motion, the receipts allegedly 

have employee identification numbers, which would allow Allen to identify the 

employees who interacted with Williams. However, even if Allen had the exact 

identification of the Wal-Mart employees who interacted with Williams, these 

Wal-Mart employees would not be liable for the reasons outlined above.

The district court did not explicitly weigh the Hensgens factors but the 

fact that Allen would still fail to state a plausible claim against any Wal-Mart 

employee gives an apparent reason for the district court’s denial of Allen’s 

motion to amend.6 Additionally, Allen’s continued failure to state a plausible 

claim would outweigh the other Hensgens factors.

As to Falcon Safety Products, Allen was dilatory in seeking to add this 

manufacturer. Allen had knowledge that Falcon Safety Products was the 

correct manufacturer as early as the day that she filed her amended complaint. 

In a prior exchange, Wal-Mart’s Counsel had sent an e-mail to Allen’s Counsel 

stating that “the brand of the electronics cleaner Karalee Williams bought was 

Dust-Off.” Allen’s Counsel stated that he did not see this e-mail until after the 

complaint was filed; however, Allen did not file a separate request to amend 

until almost a year after gaining knowledge of the correct manufacturer. 

 

6 See Moore v. Manns, 732 F.3d 454, 457 (5th Cir. 2013) (“Although the district court 

did not expressly examine the other Hensgens factors—Moore’s timing; whether he would be 

significantly injured if the additional parties were not added; and additional equitable 

considerations—we cannot conclude, upon review of the briefs and record, that any of those 

factors tip the scale for Moore [because his amendment only served to destroy diversity].”).

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The district court noted that Allen filed suit against the wrong 

manufacturers, IQ and 3M, and dismissed them from the case. Allen had prior 

knowledge that Falcon Safety Products was the actual manufacturer, but she

never sought to amend her complaint before the district court ruled on the 

Defendants-Appellees’ motions to dismiss. Therefore, allowing Allen to amend 

her complaint at this stage would not be proper because it would impose an 

undue burden on the court. See Mayeaux, 376 F.3d at 426 (“[D]elay alone is an 

insufficient basis for denial of leave to amend: [t]he delay must be undue, i.e., 

it must prejudice the non[-]moving party or impose unwarranted burdens on 

the court.”). The dilatory nature of Allen’s request to add Falcon Safety 

Products and the burdensome effect that adding Falcon Safety Products would 

have on the court outweigh the other Hensgens factors.7

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s denial of 

Allen’s complaint for her failure to state a claim on which relief can be 

granted.8 We also (1) AFFIRM the district court’s denial of Allen’s motion to 

remand and (2) AFFIRM that court’s denial of Allen’s motion to alter or amend 

as to her request to amend her complaint and for more time to conduct 

discovery.

 

7 Allen also sought more time for discovery, however, because we affirm the district 

court’s denial of Allen’s motion to amend, we decline to address whether Allen should be 

entitled to more discovery.

8 Allen asserts for the first time on appeal that the district court erred by denying her 

due process in dismissing her claims on evidentiary grounds. Because Allen did not raise this 

claim in the district court, we decline to address this claim. See NCDR, L.L.C. v. Mauze & 

Bagby, P.L.L.C., 745 F.3d 742, 752 (5th Cir. 2014) (“As a general rule, ‘[a]n argument not 

raised before the district court cannot be asserted for the first time on appeal.’”) (quoting XL 

Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008)).

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