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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DEAN LONG,

Plaintiff

v.

HOME DEPOT INC. and PAVECON 

MANAGEMENT, INC., 

Defendants

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Case No. 1:20-cv-00668-LY-SH 

 

 

 

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

Before the Court are Plaintiff’s Motion to Dismiss Without Prejudice, filed January 29, 2021

(Dkt. 18); Defendant Pavecon Management, Inc.’s Motion for Summary Judgment, filed March 2, 

2021 (Dkt. 24); and the associated response and reply briefs. On March 9, 2021, the District Court 

referred all motions in this case to the undersigned Magistrate Judge, pursuant to 28 U.S.C. 

§ 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of 

the United States District Court for the Western District of Texas. Dkt. 25.

I. Background

On January 20, 2019, Plaintiff Dean Long tripped and fell in the parking lot of Defendant 

Home Depot U.S.A., Inc.’s (“Home Depot”) store in Round Rock, Texas. Plaintiff’s First 

Amended Complaint, Dkt. 10 ¶ 6. Long claims that, after pulling into a parking spot, he got out of 

his truck, stepped into a pothole, and fell, hitting his head on his truck and landing “hard on his 

back.” Id. Long alleges that Home Depot was aware of the pothole and the danger it posed. Id.

¶¶ 7-9.

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On June 26, 2020, Long, a Texas resident, filed this negligence suit against Home Depot, a 

Delaware corporation, based on diversity jurisdiction. Dkt. 1 ¶¶ 1-3; Dkt. 7. On July 15, 2020, 

Home Depot answered and asserted that the negligence of a third party was the proximate cause 

of the incident. Dkt. 5 at 5. On October 2, 2020, Home Depot stated in a discovery response that 

it had placed a work order to repair the pothole with Defendant Pavecon Management, Inc. 

(“Pavecon”) on December 22, 2018. Dkt. 18-1 at 3.

Long filed his First Amended Complaint to add Pavecon as a party on November 3, 2020.

Dkt. 10 ¶ 3; Dkt. 18 at 2. Long obtained Home Depot’s consent to file the Amended Complaint

pursuant to Federal Rule of Civil Procedure 15(a)(2) (allowing a party to amend its pleadings 

before trial “with the opposing party’s written consent or the court’s leave”). 

Pavecon filed its Answer on November 30, 2020, denying that diversity jurisdiction exists

because it is a Texas resident. Dkt. 14 ¶ 4. On January 20, 2021, Long filed a separate suit in Texas 

state court, alleging the same causes of action against Home Depot and Pavecon. Long v. Pavecon

Mgmt., Inc., No. DC-21-00867 (68th Dist. Ct., Dallas County, Tex. Jan. 20, 2021). The same day, 

Long asked Pavecon to agree to the voluntary dismissal of this case without prejudice, but Pavecon 

refused. Dkt. 18 at 4-5.

Long now moves to dismiss without prejudice for lack of subject matter jurisdiction, arguing 

that there is no longer complete diversity among the parties. In response, Pavecon argues that 

dismissal without prejudice is improper because it was joined fraudulently to defeat jurisdiction. 

Pavecon also has filed a Motion for Summary Judgment in which it contends that Long’s 

negligence claim fails as a matter of law.

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II. Legal Standards

A. Voluntary Dismissal

A plaintiff may dismiss his action unilaterally without prejudice by filing a notice of dismissal 

before the opposing party serves either an answer or a motion for summary judgment. FED. R. CIV.

P. 41(a)(1)(A)(i). If the defendant has filed a motion for summary judgment or an answer, 

Rule 41(a)(2) permits dismissal at the plaintiff’s request “only by court order, on terms that the 

court considers proper.” FED. R. CIV. P. 41(a)(2). “Voluntary dismissal under Rule 41(a)(2) is a 

matter within the sound discretion of the district court, and the district court’s decision on this 

issue is reviewed only for abuse of discretion.” Templeton v. Nedlloyd Lines, 901 F.2d 1273, 1274-

75 (5th Cir. 1990).

The Fifth Circuit has explained that, “as a general rule, motions for voluntary dismissal should 

be freely granted unless the non-moving party will suffer some plain legal prejudice other than the 

mere prospect of a second lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 

2002). The mere “fact that a plaintiff may gain a tactical advantage by dismissing its suit without 

prejudice and refiling in another forum is not sufficient legal prejudice to justify denying a motion 

for voluntary dismissal.” Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287, 299 (5th Cir. 2016) 

(citation omitted). The purpose of the Rule 41(a)(2) grant of discretion “is primarily to prevent 

voluntary dismissals which unfairly affect the other side.” 9 CHARLES ALAN WRIGHT & ARTHUR 

R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2364 (4th ed. 2021) (citation omitted). Absent 

such a showing or other evidence of abuse by the movant, the motion should be granted. Elbaor,

279 F.3d at 317.

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B. Subject Matter Jurisdiction

Federal courts “are courts of limited jurisdiction, possessing only that power authorized by 

Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Subject matter jurisdiction can be 

established by a federal question or diversity of citizenship between the parties. 28 U.S.C. §§ 1331, 

1332. Diversity jurisdiction authorizes jurisdiction over civil actions where the matter in 

controversy exceeds $75,000 and there is complete diversity of parties – specifically, where no 

plaintiff is a citizen of the same state as any defendant. 28 U.S.C. § 1332(a); Lincoln Prop. Co. v. 

Roche, 546 U.S. 81, 89 (2005); Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968). A federal 

court properly dismisses a case or claim for lack of subject-matter jurisdiction when it lacks the 

statutory or constitutional power to adjudicate the claims. Home Builders Ass’n of Miss., Inc. v. 

City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

III. Analysis

The Court addresses Long’s Motion to Dismiss first because it involves the Court’s subject 

matter jurisdiction. 

A. Motion to Dismiss 

Long argues that the Court was divested of subject matter jurisdiction when he filed his 

Amended Complaint against Pavecon, a nondiverse defendant. The Court agrees. Jurisdiction 

generally is determined at the time a suit is filed. Hensgens v. Deere & Co., 833 F.2d 1179, 1180 

(5th Cir. 1987). Thus, a district court has jurisdiction to decide a case even if the plaintiff fails to 

prove a federal question claim or the amount in controversy falls below the jurisdictional amount. 

Id. at 1180-81. Addition of a nondiverse party, however, will defeat jurisdiction. Id. at 1181. When 

Long filed his Amended Complaint adding Pavecon, it destroyed complete diversity and the Court 

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lost subject matter jurisdiction. Cobb v. Delta Exps., Inc., 186 F.3d 675, 678 (5th Cir. 1999); 

Hensgens, 833 F.2d at 1181.

Pavecon does not dispute that its presence in the suit destroys diversity jurisdiction, but argues 

that it was fraudulently joined. “To establish a claim for improper joinder, the party seeking 

removal 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.” McDonal v. Abbott Lab’ys, 408 F.3d 177, 183 (5th Cir. 2005); Cobb, 186 F.3d at 677. The 

fraudulent joinder doctrine applies only to the removal of cases from state court, not to cases 

originally filed in federal court, as this suit was.

Even if Long had filed this case in state court originally, the fraudulent joinder doctrine would 

not apply to a joinder that occurred after removal. Id. Instead, the proper analysis would be 

governed by 28 U.S.C. § 1447(e) and the factors applied when a plaintiff seeks to add a claim 

against a new nondiverse defendant post-removal. Hensgens, 833 F.3d at 1182. The Court need 

not address the Hensgens factors because Long did not seek permission from the Court to add 

Pavecon as a defendant; rather, Home Depot consented to the amendment.

In sum, Long’s amendment adding Pavecon as a party destroyed diversity and this Court lost 

subject matter jurisdiction. Accordingly, the Court lacks subject matter jurisdiction to review this 

case, and Plaintiff’s Motion to Dismiss should be granted.

B. Pavecon’s Motion for Summary Judgment

Because the Court recommends dismissal of the case, the Court further recommends that the 

District Court dismiss as moot Defendant Pavecon Management, Inc.’s Motion for Summary 

Judgment (Dkt. 24).

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IV. Recommendation

Based on the foregoing, the undersigned RECOMMENDS that the District Court GRANT

Plaintiff’s Motion to Dismiss Without Prejudice (Dkt. 18) and DISMISS Plaintiff’s Amended 

Complaint without prejudice under Federal Rule of Civil Procedure 41(a)(2). The undersigned 

FURTHER RECOMMENDS that the District Court DISMISS AS MOOT Defendant Pavecon 

Management, Inc.’s Motion for Summary Judgment (Dkt. 24).

V. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on June 14, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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