1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JUAN REDE, §

Plaintiff, §

§

VS. § CIVIL ACTION NO. _______________

§

PLAINS MARKETING, L.P., PLAINS ALL §

AMERICAN PIPELINE, L.P., SPIRO PENOVIC, §

and WTL OIL, LLC, §

Defendants. §

DEFENDANT WTL OIL, LLC’S NOTICE OF REMOVAL

Comes now WTL OIL,LLC(hereinafter “WTL”) and filesthis Notice of Removal, removing 

the State Court action described below to this federal court, and in support therefore respectfully 

shows the Court as follows:

I.

BASIS OF REMOVAL

This removal is filed pursuant to 28 U.S.C. §§ 1332(a) and 1441(a) in that WTL assertsthere 

is an improper/fraudulent joinder attempting to defeat diversity thereby conferring federal question 

jurisdiction upon this Court. WTL asserts the following facts and basis supporting removal, and in 

so doing expressly reserves all other questions for the purpose of future pleadings.

II.

PROCEDURAL HISTORY

Juan Rede (hereinafter “Plaintiff”) filed this action on or about March 25, 2020 against 

Plains Marketing, L.P. and Plains All American Pipeline, L.P. (hereinafter “Plains Marketing” and 

“Plains Pipeline” respectively and “Plains Defendants” collectively) in the 218th Judicial District 

Court of Frio County, Texas, docketed under Cause No. 20-03-00116CVF (hereinafter referred to 
as the “State Court Action”).

1

See Ex. A-1. The Plains Defendants filed their Original Verified 

Answer to Plaintiff’s Original Petition on April 27, 2020 (Ex. A-5), a Motion to Dismiss pursuant 

to TEXAS RULE OF CIVIL PROCEDURE 91a on May 11, 2020 (Ex. A-6), and a First Amended Motion 

to Dismiss on May 19, 2020 (Ex. A-7).

On May 12, 2020 Plaintiff filed his First Amended Petition adding Spiro Penovic 

(hereinafter “Penovic”) and WTL Oil, LLC as Defendants. WTL was served with Plaintiff’s First 

Amended Petition on May 21, 2020 and filed its Original Answer and Jury Demand on June 8, 

2020 (Exs. A-12 and A-13, respectively).

On May 21, 2020 Plaintiff improperly attempted service on Penovic by delivering a copy 

of the Citation and First Amended Petition to the registered agent of his former employer, WTL. 

See Ex. A-12. As such attempt was improper, Penovic has not yet been properly served with 

Citation and no Answer has been filed on his behalf as of the filing of this Notice of Removal.

This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it is filed 

within thirty (30) days from the date on which WTL was served with Plaintiff’s First Amended 

Petition. See Ex. A-12.

III.

BASIS FOR REMOVAL

Plaintiff is an individual residing in Bexar County, Texas. Plains Marketing, L.P. is a Texas 

corporation with its principal office and place of business in Houston, Texas. Plains All American 

Pipeline, L.P. is a Delaware corporation with its principal office and place of business in Houston, 

Texas. WTL Oil, LLC is a Delaware corporation with its principal office and place of business 

located at 14201 Caliber Dr., Suite 300, Oklahoma County, Oklahoma City, Oklahoma 73134. 

1A true and correct copy of the Docket Sheet, together with all process, pleadings, and orders in the State Court Action, 

are attached as Exhibits A and A-1 to A-15, respectively, to the Index of Matters Being Filed, which is being filed 

contemporaneously with this Notice of Removal.
Spiro Penovic is an individual residing at 753 W. Main St. South, Malheur County, Ontario, 

Oregon 97918. Neither WTL nor Penovic are citizens of the State of Texas and do not have a 

principal office and/or place of business in the State of Texas.

Plaintiff’s State Court Action arises from a motor vehicle accident that occurred on or about 

February 15, 2019 in Frio County, Texas, wherein Plaintiff alleges that he was struck by a tractor 

trailer driven by Penovic. Plaintiff further alleges that Penovic was in the course and scope of his 

employment with WTL and engaged in delivering a load for the use and benefit of WTL and the 

Plains Defendants at the time of the subject accident. Plaintiff alleges that he sustained severe 

bodily injuries to his shoulders, neck, back, knees, and, generally, other parts of his body as a result 

of the subject accident. Plaintiff has asserted causes of action jointly and severally against 

Defendants for negligence, negligence per se, gross negligence, negligent hiring, entrustment, 

qualifications, vehicle monitoring, retention, management, contracting, maintenance, training, 

operating, and supervision. See Ex. A-8, §V. Plaintiff alleges in his First Amended Petition that 

the damages he seeks to recover are over $1,000,000. See Ex. A-8, ¶3.4. Plaintiff’s claims and 

allegations show that the amount in controversy exceeds the jurisdictional minimum of $75,000, 

exclusive of interest and costs.

A. Standards for Improper Joinder

The Fifth Circuit has outlined the two methods available to the district courts in deciding a 

motion for remand based on improper joinder: (1) the court may conduct a Rule 12(b)(6)-type 

analysis looking initially at the allegations in the complaint to determine whether the complaint 

states a claim under state law against the in-state defendant; or (2) after examining the pleadings, 

the court may determine it is appropriate to pierce the pleadings and conduct a summary 

inquiry. See Smallwood v. Illinois Cent R. Co., 385 F.3d 568, 573 (5th Cir.2004) (en banc); Travis 
v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003). Here, an examination of the Plaintiff’s pleadings is 

sufficient for the court to rule on the removal. 

Although Plaintiff may eventually contend that the standard for improper joinder is a heavy 

one, the standard was not meant to allow plaintiffs' attempts to circumvent federal 

jurisdiction. See Smallwood at 573 (“‘the Federal courts should not sanction devices intended to 

prevent the removal to a Federal court where one has that right, and should be equally vigilant to 

protect the right to proceed in the Federal court as to permit the state courts, in proper cases, to 

retain their own jurisdiction.”’) (quoting 14 Charles Alan Wright, Federal Practice And Procedure

§ 3641, at 173 (3d ed. 1998)); see also McKinney v. Board of Md. Community College, 955 F.2d 

924, 928 (4th Cir. 1992) (“Congress created the removal process to protect defendants. It did not 

extend such protection with one hand, and with the other give plaintiffs a bag of tricks to overcome 

it.”). In fact, the Fifth Circuit routinely upholds improper joinder where, like here, a plaintiff's 

claims against the non-diverse defendant are based on nothing more than conclusory allegations. 

See Carrie Badon, et al. vs. RJR Nabisco, Inc., et al., 224 F.3d 382, 392-93 (5th Cir. 2000)

(conclusory or generic allegations of wrongdoing are not sufficient to show that the local defendant 

was properly joined).

B. Plaintiff Cannot Establish a Cause of Action Against the Plains Defendants in State 

Court

Removal is proper because Plaintiff joined the Plains Defendants solely to defeat diversity 

jurisdiction. See Davidson v. Ga.-Pac., L.LO.C., 819 F.3d 758, 765 (5th Cir. 2016). 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. Hoyt v. The Lane 

Construction Corporation, 927 F.3d 287, 296 (5th Cir. 2019) (citing Crockett v. R.J. Reynolds 

Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006)). Moreover, a “mere theoretical possibility of 
recovery under local law” will not preclude a finding of improper joinder. See Badon at 386 n. 

4; Ross v. Citifinancial, Inc., 344 F.3d 458 (5th Cir. 2003). Because “the presence of an improperly 

joined, non-diverse defendant does not defeat federal removal jurisdiction based on diversity,” a 

district court must decide matters of joinder before it can determine whether diversity jurisdiction 

exists. See Borden v. AllState Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009).

As more fully set forth in the Plains Defendants’ First Amended Motion to Dismiss filed 

in the State Court Action (Ex. A-9), Plaintiff has failed to identify any specific instance of damagecausing negligence allegedly committed by either of the Plains Defendants, let alone attribute those 

instances to any particular defendant. See Low v. Henry, 221 S.W.3d 609, 615 (Tex. 2007) 

(rejecting reliance on “group pleadings” as defense to sanction). Plaintiff's petition does not state 

facts sufficient to support a legal duty owed by the Plains Defendants, and even if such a duty were 

to exist, the facts alleged do not support any breach of such a duty. As a result, Plaintiff's ordinarynegligence and gross-negligence causes of action against the Plains Defendants lack a basis in law.

Plaintiff's petition provides nothing more than conclusory group pleadings and fails to

identify: (1) facts to support the existence of a legal duty, (2) what any of the Defendants actually 

did or failed to do on any occasion, (3) why any such act or omission was negligent, and (4) how 

any such act or omission proximately caused recoverable damages. Plaintiff's allegations violate 

the principle that "[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice." Iqbal, at 678, as quoted in Vasquez, at 451; see also, e.g., 

Zheng v. Vacation Network Inc., 468 S.W.3d 180, 186 (Tex. App. – Houston [14th Dist.] 2015, 
pet. denied) (dismissing fraud claim because, although elements were alleged, petition did not 

allege sufficient supporting facts).2

Because Plaintiff’s allegations actively show that he has no cause of action against the

Plains Defendants for the purported claims in this case, there is no reasonable basis for believing 

that Plaintiff could recover from the non-diverse Plains Defendants in the State Court Action. 

Chambers v. HSBC Bank USA, N.A., 796 F.3d 560, 564-65 (6th Cir. 2015); Morris v. Princess 

Cruises, Inc., 236 F.3d 1061, 1067-68 (9th Cir. 2001). 

C. There is no Joint, Several, or Other Liability Between the Diverse and Non-Diverse 

Defendants

WTL and Penovic, the diverse defendants, were joined with the non-diverse Plains 

Defendants, but: (1) there is no joint, several, or alternative liability between the diverse and nondiverse defendants; and (2) the claims against the non-diverse Plains Defendants have no real 

connection to the claims against WTL and Penovic, the diverse defendants. See Tapscott vs. MS 

Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), overruled on other grounds, Cohen v. 

Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).

Plaintiff has improperly joined the Plains Defendants for “employing” WTL to pick up its 

petroleum products. However, a company is not vicariously liable for the actions of another 

corporation (even a related one) absent an alter ego situation or to prevent an injustice where there 

is something like fraud. See SSP Partners v. Gladstrong Investments (USA) Corp., 275 S.W.3d 

2 See also Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th Cir. 1999)(holding that generic allegations do not meet 

“even the liberalized requirements that permit notice pleadings”); Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 817 (5th

Cir. 1993)(explaining that conclusory “allegations, wholly lacking in factual support” are insufficient as a matter of 

law to create a cause of action against a non-diverse defendant); Peters v. Metro. Life Ins. Co., 164 F. Supp. 2d 830, 

834 (S.D. Miss. 2001) (holding that the allegations against non-diverse defendants “must be factual, and not 

conclusory, because conclusory allegations do not state a claim”); Addison v. Allstate Ins. Co., 58 F.Supp.2d 729, 734 

(S.D. Miss. 1999) (“to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere 

conclusory allegations”).
444, 454-55 (Tex.2009).3 There is no such thing as respondeat superior liability for the actions of 

someone else’s employee, nor is there any duty to hire, train, supervise, retain, or manage the 

employees of others. Likewise, there is no authority under Texas law for negligent “operations,”

“contracting,” or “delivery” as Plaintiff has pled. Negligence actions in Texas require a legal duty 

owed by one person to another, a breach of that duty, and damages proximately caused by the 

breach. Nabors Drilling U.S.A. Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quot. omitted). 

A gross-negligence claim does not exist without an underlying negligence claim. See, e.g., Shell 

Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App. – Houston [14th Dist.] 1994, writ den.) 

(lack of legal duty defeated both ordinary-negligence and gross-negligence claims). There is no 

duty under Texas law which would require the Plains Defendants to screen WTL’s drivers. 

As demonstrated above, there is no joint, several, or alternative liability between the 

diverse and non-diverse defendants; as such, removal in this case is proper.

Pursuant to 28 U.S.C. § 1441(a), the District and Division where this action is pending is 

the U.S. District Court for the Western District of Texas, San Antonio Division, and WTL properly 

seeks to remove this action to this Court. 

IV.

CONSENT TO REMOVAL

Consent for removal is not required from an improperly joined defendant. See Rico v. 

Flores, 481 F.3d 234, 239 (5th Cir. 2007) (discussing Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 

815 (5th Cir. 1993)). The Fifth Circuit Court has recognized that requiring a removing party to 

3

“By “injustice” and “inequity” we do not mean a subjective perception of unfairness by an individual judge or juror; 

rather, these words are used in Castleberry as shorthand references for the kinds of abuse, specifically identified, that 

the corporate structure should not shield-fraud, evasion of existing obligations, circumvention of statutes, 

monopolization, criminal conduct, and the like. Such abuse is necessary before disregarding the existence of a 

corporation as a separate entity. Any other rule would seriously compromise what we have called a “bedrock principle 

of corporate law” – that a legitimate purpose for forming a corporation is to limit individual liability for the 

corporation's obligations.” Id. at 455.
obtain the consent of improperly joined defendants “would be ‘nonsensical, as removal in those 

cases is based on the contention that no other proper defendant exists.’” Id. (quoting Jernigan at 

815). In Rico, the removing parties claimed that the removal was invalid because the non-diverse 

defendants did not join in the removal petition. Id. The Fifth Circuit summarily rejected that 

argument. The Court noted that Plaintiff's position was incorrect, “since [the removing defendant] 

claims that [the non-diverse defendants] were not properly joined.” Id. Accordingly, the Court 

concluded that “the district court was correct in holding that the absence of consent by [the nondiverse parties] did not render [the] removal invalid.” Id. 

Nevertheless, the improperly/fraudulently joined non-diverse Plains Defendants have 

consented to this removal as indicated on Exhibit B attached to the Index of Matters Being Filed.

Consent of Defendant Penovic is not required because he has not been properly served and 

has not filed an Answer in the State Court Action.

4

V.

NOTICE PROVIDED TO STATE COURT

Pursuant to 28 U.S.C. § 1446(d), WTL will promptly provide written notice to Plaintiff of 

this removal and file a copy of this Notice of Removal with the Clerk of the District Court of Frio

County, Texas.

VI.

CONCLUSION

This Court has original jurisdiction over this action pursuant to 28 U.S.C. §§ 1332 and

1441(b) because it is an action based on diversity of citizenship and the amount in controversy 

exceeds the sum of $75,000.00, exclusive of interest and cost.

4 Plaintiff has attempted to perfect service on Penovic by improperly directing and delivering the Citation addressed 

to Penovic to the registered agent for process of his former employer, WTL. See Ex. A-12.
VII.

PRAYER

WHEREFORE, based on the foregoing, Defendant WTL OIL, LLC hereby remove this action 

from the 218

th Judicial District Court of Frio County, Texas, to this Court.

Respectfully submitted,

 Greg R. Hokenson

State Bar No. 24036794

BROCK ♦ GUERRA 

STRANDMO DIMALINE JONES, P.C.

17339 Redland Road

San Antonio, Texas 78247-2304

(210) 979-0100 Telephone

(210) 979-7810 Facsimile

ghokenson@brock.law

ATTORNEY FOR DEFENDANT WTL OIL, LLC

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing is being served on the 

following counsel of record in accordance with the FEDERAL RULES OF CIVIL PROCEDURE on this 

the 11th day of June 2020:

Jason F. DeSouza

Paul Bowers

DESOUZA LAW, PC

3201 Cherry Ridge Drive, Suite B-208

San Antonio, Texas 78230

~and~

J. Scott Frederick

LAW OFFICE OF J. SCOTT FREDERICK, PLLC

850 Park Street, Suite 100

Beaumont, Texas 77701

Attorneys for Plaintiff

David L. Ortega

Erik L. Krudop

NAMAN HOWELL SMITH & LEE, PLLC

10001 Reunion Pl., Ste. 600

San Antonio, Texas 78216

Attorneys for Defendants Plains Marketing, 

L.P. and Plains All American Pipeline, L.P.

Greg R. Hokenson