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10461659

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

DOUG SANDEL,

Plaintiff,

v.

BART BENKE, Individually and 

d/b/a BB TRANSPORT,

Defendant.

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CASE NO. _______________________

DEFENDANT BART BENKE, Individually and d/b/a BB TRANSPORT’S

NOTICE OF REMOVAL

Defendant Bart Benke, Individually and d/b/a BB Transport files this Notice of Removal 

pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 as follows:

I.

PROCEDURAL BACKGROUND

1. On March 31, 2020, Plaintiff Doug Sandel (“Plaintiff”) filed his Original Petition and 

initiated an action against Defendant Bart Benke, Individually and d/b/a BB Transport in the 82nd

District Court of Robertson County, Texas (the “State Court Action”). (See, Appendix Exhibit 

“B”). In the Original Petition Plaintiff alleges that Defendant is a resident of Arkansas.

2. Defendant Bart Benke, Individually and d/b/a BB Transport filed his Original Answer on 

May 4, 2020. There were jury demands in the State Court Action. (See, Appendix Exhibit “D”). 

3. Plaintiff’s Petition against Defendant in the 82nd District Court of Robertson County, 

Texas alleges that Defendant was negligent. 

4. Defendant has timely filed his Notice of Removal in the State Court Action.
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II.

NATURE OF THE SUIT

5. This matter arises out of a motor vehicle accident that occurred on April 2, 2018 on State 

Highway 6 near Yastic Road in Calvert, Robertson County, Texas. The basis of the Plaintiff’s 

legal action are claims in excess of $200,000 for negligence.

III.

BASIS FOR REMOVAL

6. This Court has original jurisdiction under 28 U.S.C. § 1332 over this civil action, and the 

action may be removed by Defendant pursuant to, in that it is a civil action between citizens of 

different states, and the matter in controversy exceeds the sum of $75,000, exclusive of interest 

and costs.

7. Plaintiff was, at the time this action commenced, and is still a citizen of the State of 

Texas.

8. Defendant Bart Benke, Individually and d/b/a BB Transport resides at 17701 Lawson 

Rd., Little Rock, Arkansas 72210 and resided therein at the time of the motor vehicle accident 

made the subject of this lawsuit and at the time suit was filed. Defendant Benke is a citizen of 

Arkansas for diversity purposes. 

9. Because Plaintiff is a citizen of Texas and Defendant is an Arkansas citizen, complete 

diversity of citizenship exists among the parties. 

10. Plaintiff is seeking monetary relief “over $200,000 but not more than $1,000,000” as he 

states he is seeking recovery pursuant to TRCP 47 (c) (4). 

11. Moreover, because Plaintiffs in Texas are not limited to recovery of damages requested in 

their pleadings, “[l]itigants who want to prevent removal must file a binding stipulation or 

affidavit with their complaints.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.1995) 
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(quoting In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992)). “The general principle is that 

plaintiffs will have to show that they are bound irrevocably by their state pleadings.” Id. at 1412 

n.10. No binding stipulation or affidavit was filed with Plaintiff’s Original Petition.

12. Given the nature of Plaintiff’s claims against Defendant, the alleged damages in this 

action exceed $75,000, exclusive of interest and costs. 

13. Because the amount in controversy exceeds $75,000, this Court has subject matter 

jurisdiction under 28 U.S.C. § 1332, and this removal is proper.

14. Pursuant to 28 U.S.C. § 1446(a), Defendant has filed as exhibits to this Notice of 

Removal copies of all process, pleadings, orders and the docket sheet in the State Court Action.

15. Pursuant to 28 U.S.C. § 1446(d), Defendant will notify the clerk of the court in the State 

Court Action of this removal and will give notice thereof to all adverse parties.

IV.

CONCLUSION 

16. The basis for this removal and this Court’s jurisdiction is diversity of citizenship. 28 

U.S.C. § 1332. Plaintiff is a citizen of Texas. Defendant is a citizen of the state of Arkansas. 

The amount in controversy, based on the allegations in Plaintiff’s Original Petition exceeds 

$75,000, exclusive of interest and costs. As such, this removal action is proper. On these 

grounds, Defendant hereby removes the referenced State Court Action to this Court.

17. WHEREFORE, Defendant respectfully requests that the above-entitled action be 

removed from the 82nd District Court of Robertson County, Texas to the United States District 

Court for the Western District of Texas, Waco Division.
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Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Mark J. Dyer

MARK J. DYER

State Bar No. 06317500

dyer@mdjwlaw.com

ALAN MOORE

State Bar No. 14320075

amoore@mdjwlaw.com

9111 Cypress Waters Blvd., Ste. 250

Dallas, Texas 75019

214-420-5510

214-420-5501 (fax)

ATTORNEYS FOR DEFENDANT 

BART BENKE, INDIVIDUALLY AND D/B/A BB 

TRANSPORT

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been eserved to all attorneys of record, in compliance with the FEDERAL RULES OF CIVIL PROCEDURE, 

on this the 4th day of May 2020.

David A. Bryant, Jr.

The Bryant Law Firm

2751 S. Loop 336 West, Suite B

Conroe, Texas 77304

dbryant@thebryantlawfirm.com

/s/ Alan Moore

ALAN MOORE