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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

ANTONIO LOPEZ‐VICTORINO, et al.,  §   

Plaintiffs,  §   

  §   

v.  §   

  §   

BRIAN LYNN COLBURN, et al.,  §   

Defendants,   §  CIVIL ACTION NO. 4:22‐cv‐476 

  §   

v.   §   

  §   

MARIA JACKSON,   §   

Intervenor.   §   

TARGET AND THE HOGAN DEFENDANTS’ BRIEF IN OPPOSITION TO  

PLAINTIFFS’ AND INTERVENOR’S MOTION TO REMAND 

Donna C. Peavler 

State Bar No. 00783887 

dpeavler@peavlerbriscoe.com

Sara Kimbrough Scudday 

State Bar No. 24073675 

sscudday@peavlerbriscoe.com 

PEAVLER|BRISCOE

2215 Westgate Plaza 

Grapevine, Texas 76051 

214‐999‐0550 (telephone) 

214‐999‐0551 (fax) 

ATTORNEYS FOR DEFENDANT

TARGET CORPORATION  

‐ AND     ‐ 

Caitlin J. Morgan 

State Bar No. 24074757 

cmorgan@polsinelli.com 

McCall K. Bauersfeld 

State Bar No. 24116524 

mbauersfeld@polsinelli.com  

POLSINELLI PC 

2950 N. Harwood, Suite 2100 

Dallas, Texas 75201 

214‐397‐0030 (telephone) 

214‐397‐0033 (fax) 

ATTORNEYS FOR DEFENDANTS

HOGAN  DEDICATED  SERVICES,  LLC, 

HOGAN  PERSONNEL,  LLC,  HOGAN 

TRANSPORTS,  INC.  and  HOGAN 

SERVICES, INC

Filed August 1, 2022 

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TABLE OF CONTENTS  

TABLE OF AUTHORITIES ............................................................................................................................ iv 

I.  FACTS AND EVIDENCE SUPPORTING REMOVAL ................................................................................ 1 

A.  The Hogan Defendants .................................................................................................... 1

B.  The Hogan Defendants’ Workers’ Compensation Insurance Policy ................................. 2 

C.  Employment of Lopez‐Orenday and Brian Colburn .......................................................... 3 

D.  Lopez‐Orenday, Colburn, and Bonk’s Work at the Distribution Center ............................ 4 

II.  ALL PROPERLY‐JOINED DEFENDANTS JOINED IN THE REMOVAL ................................................... 5 

A.  Plaintiffs and Intervenors’ “Gotcha” Argument Fails. ...................................................... 5 

B.  The Fraudulently‐Joined Defendants Need Not Consent to Removal. ............................. 7 

III. COLBURN AND BONK WERE FRAUDULENTLY JOINED ..................................................................... 8 

A.  Standard .......................................................................................................................... 8 

B.  A Defendant Immune from Liability Is Fraudulently Joined. ............................................ 8 

1.   Employees May Have More Than One Employer for Purposes of the Workers’‐

Compensation Exclusive‐Remedy Bar. ....................................................................... 9 

2.   Lopez‐Orenday, Colburn, and Bonk Each Had More Than One Employer ................ 10 

3.   All Three Individuals Were Employees of Hogan Dedicated Because It Had              

the Right to Control Their Work. .............................................................................. 11 

4.  Bonk Was Further Fraudulently Joined Because He Owed Lopez‐Orenday No 

Independent Duty and Hence Cannot Be Personally Liable. .................................... 14 

C.   Movants Have No Viable Gross‐Negligence Action Against Colburn. ............................. 15 

1.  Movants’ Gross‐Negligence Claim is Barred by Section 408.001(a) and is Not 

Excepted by Section 408.001(b). .............................................................................. 15 

2.  The Texas Supreme Court Has Expressly Rejected Movants’ Claim That They        

Have a “Constitutional Right” to Recovery. ............................................................. 16 

3.  Decedent Waived His (and Thus His Beneficiaries’) Right to Sue by Not               

Opting Out of the  TWCA. ........................................................................................ 18 

4.  Movants’ Cases Do Not Support Remand. ............................................................... 19 

a.   Dudley is No Longer Good Law. ......................................................................... 19 

b.  The Aguirre Decision is Wrong. .......................................................................... 20 

c.  Judge Fish’s Opinion is Misguided ...................................................................... 21 

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IV.  MOVANTS WAIVE ANY PROCEDURAL OBJECTION TO THE TIMELINESS OF REMOVAL ........... 22 

V.  CONCLUSION ....................................................................................................................................... 23 

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TABLE OF AUTHORITIES 

Page(s)

Cases 

Aguirre v. Vasquez, 

225 S.W.3d 744 (Tex. App—Houston [14th Dist.] 2007, no pet) .................................. 23, 24, 25 

Appliance Alliance, LLC v. Sears Home Appliance Showrooms, LLC, 

No. 3:15‐cv‐01707‐M, 2015 WL 9319179 (N.D. Tex. Dec. 23, 2015) .................................. 11, 12 

Breitling v. LNV Corp., 

86 F. Supp. 3d 564 (N.D. Tex. 2015) ......................................................................................... 12 

City of Bellaire v. Johnson, 

400 S.W.3d 922 (Tex. 2013) ..................................................................................................... 18 

Crowell v. Shell Oil Co., 

541 F.3d 295 (5th Cir. 2008) .................................................................................................... 11 

Dudley v. Community Public Serv. Co., 

108 F.2d 119 (5th Cir. 1939) .............................................................................................. 23, 24 

Fort Worth Elevators Co. v. Russell, 

70 S.W.2d 397 (1934) .............................................................................................................. 23 

Fugitt v. Walmart Stores, Inc., 

No. 3:15‐CV‐2145‐B, 2015 WL 7352194 (N.D. Tex. Nov. 19, 2015) .......................................... 13 

Garrett v. Patterson‐UTI Drilling Company, L.P., 

299 S.W.3d 911 (Tex. App.—Eastland 2009, pet. denied) ............................................ 22, 23, 25 

Grand Tex. Homes v. American Safety Indem. Co., 

2012 WL 5355958 (N.D. Tex. Oct. 30, 2012) ............................................................................ 11 

In re Lebatt v. Food Serv., L.P., 

279 S.W.3d 640 (Tex. 2009) ..................................................................................................... 22 

In re TXNB Internal Case, 

483 F.3d 292 (5th Cir. 2007) .................................................................................................... 26 

Jernigan v. Ashland Oil Inc., 

989 F.2d 812 (5th Cir. 1993) .............................................................................................. 12, 13 

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Koger v. Wal‐Mart Stores Texas, LLC, 

No. 1:09‐CV‐125‐C ECF, 2009 WL 10703186 (N.D. Tex. Sept. 22, 2009) ................................... 19 

Leitch v. Hornsby, 

935 S.W.2d 114 (Tex. 1996) ..................................................................................................... 19 

Mastronardi v. Wells Fargo Bank, N.A., 

No. 4:15‐CV‐452‐A, 2015 WL 5472924 (N.D. Tex. Sept. 17, 2015) ........................................... 11 

Mauldin v. Allstate Ins. Co., 

757 Fed. Appx. 304 (5th Cir. 2018) ........................................................................................... 12 

Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 

642 S.W.3d 551 (Tex. 2022) ..................................................................................................... 14 

McCarty v. Hillstone Restaurant Group, 

No. 3:15‐CV‐518‐L, 2015 WL 4920013 (N.D. Tex. Aug. 18, 2015) ............................................. 19 

Moayedi v. Interstate 35/Chisam Rd, L.P., 

438 S.W.3d 1 (Tex. 2014) ......................................................................................................... 22 

Morton Salt Co. v. Wells, 

70 S.W.2d 409 (1934) .............................................................................................................. 23 

Mosley v. Wood Group PSN, Inc., 

760 Fed. Appx. 352 (5th Cir. 2019) ..................................................................................... 16, 17 

Palmer v. Wal‐Mart Stores, Inc., 

65 F.Supp.2d 564 (S.D. Tex. 1999) ........................................................................................... 19 

Perio v. Titan Maritaim, LLC, 

No. H‐13‐1754, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013) ........................................................ 9 

Potter v. Cabello, 

No. 3:19‐CV‐1330‐G, 2019 WL 6173763 (N.D. Tex. Nov. 19, 2019) .................................... 23, 25 

Shanks v. AlliedSignal, Inc., 

169 F.3d 988 (5th Cir. 1999) .................................................................................................... 26 

Texas Workers’ Comp. Ins. Fund v. Del Industrial, Inc., 

35 S.W.3d 591 (Tex. 2000) ................................................................................................. 16, 20 

Thompson v. Travelers Indemn. Co., 

789 S.W.2d 277 (Tex. 1990) ..................................................................................................... 16 

Case 4:22-cv-00476-O Document 56 Filed 08/01/22 Page 5 of 32 PageID 2874
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TIC Energy & Chem., Inc. v. Martin, 

498 S.W.3d 68 (Tex. 2016) ....................................................................................................... 14 

Trahan v. Premcor Refining Group, Inc., 

No. 09‐17‐00005‐CV, 2018 WL 3887634  

(Tex. App.—Beaumont Aug. 16, 2018, pet. denied) ........................................................... 17, 18 

Travelers Indemnity Company of Illinois v. Fuller, 

892 S.W.2d 848 (Tex. 1995) ................................................................................... 21, 22, 23, 24 

Travis v. Irby, 

326 F.3d 644 (5th Cir. 2003) .................................................................................................... 13 

Tri v. J.T.T., 

162 S.W.3d 552 (Tex. 2005) ............................................................................................... 18, 19 

Western Steel Co. v. Altenburg, 

206 S.W.3d 121 (Tex. 2006) ..................................................................................................... 16 

Wingfoot Enterpr. v. Alvarado, 

111 S.W.3d 134 (Tex. 2003) ......................................................................................... 14, 16, 20 

Zacharie v. U.S. Nat. Resources, Inc., 

94 S.W.3d 748 (Tex. App.—San Antonio 2002, no pet.) ........................................................... 22 

Statutes 

28 U.S.C. § 1446(a) ...................................................................................................................... 11 

28 U.S.C. § 1446(b)(2)(A) ............................................................................................................. 11 

28 U.S.C. § 1653 .......................................................................................................................... 12 

33 U.S.C. § 905(a) ........................................................................................................................ 16 

TEX. CONSTITUTION, Art. 16, § 26 ........................................................................................ 20, 21, 24 

TEX. LABOR CODE § 201.011(11) ....................................................................................................... 6 

TEX. LABOR CODE § 408.001(a) ................................................................................................ Passim 

TEX. LABOR CODE § 408.001(b) ................................................................................................ Passim 

Case 4:22-cv-00476-O Document 56 Filed 08/01/22 Page 6 of 32 PageID 2875
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TEX. LABOR CODE § 411.003(a) ....................................................................................................... 22 

Rules 

FED. R. CIV. P. 11 ........................................................................................................................... 11 

FED. R. CIV. P. 11(a) ....................................................................................................................... 11 

Regulations 

40 TEX. ADMIN. CODE § 815.117 ....................................................................................................... 6 

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I. 

FACTS AND EVIDENCE SUPPORTING REMOVAL 

A. The Hogan Defendants  

1. Hogan  Transports,  Inc.  is  an  integrated  transportation  and  logistics  business  with 

several affiliated entities, including, among others, Hogan Personnel, LLC (“Hogan Personnel”), 

Hogan  Dedicated  Services,  LLC  (“Hogan  Dedicated”),  and  Hogan  Services,  Inc.  (“Hogan 

Services”).1

  

2. Hogan Personnel operates as the “common paymaster” or “nominal employer” for 

various  Hogan  entities  in  a  manner  specifically  authorized  by  Texas  law.2  Per  the  common‐

paymaster rule, the human‐resources function for those entities is consolidated across various 

Hogan  entities,  using  Hogan  Personnel  to  administer  the  hiring  process;  comply  with 

employment‐eligibility  requirements;  coordinate  on‐boarding  for  new  employees;  pay 

employees; issue payroll‐related forms; and administer employee‐benefit programs.3  

3. Hogan Services, Inc. (“Hogan Services”) is another common paymaster and nominal 

employer of certain employees who provide services for the benefit of other Hogan entities.4  

4. Hogan Dedicated Services, LLC  (“Hogan Dedicated”) is a Hogan Transports affiliate 

that  provides  dedicated  logistics  services  to  clients,  including  Target  Corporation.5  Hogan 

Dedicated has a Transportation Services Contract (“Contract”) with Target under which Hogan 

1 See 7/27/22 Affidavit of Scott Randall, at p. 2, ¶ 4, attached as Exhibit 1 (Appx. 003) and p. 5, ¶ 25 

(Appx. 006).

2 See TEX. LABOR CODE § 201.011(11); 40 TEX. ADMIN. CODE § 815.117. 

3 See Randall Aff., at p. 2, ¶ 4 (Ex. 1; Appx. 003).

4 See id., at p. 5, ¶ 25 (Ex. 1; Appx. 006).  

5 See id., at p. 2, ¶ 5 (Ex. 1; Appx. 003).

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Dedicated  (and  only  Hogan  Dedicated)  provides  drivers  to  operate  yard  tractors  at  Target’s 

Distribution Center in Midlothian, Texas ( “Distribution Center”).6 All “Hogan” yard‐tractor drivers 

who work at the Distribution Center are employed by Hogan Dedicated, with Hogan Personnel 

serving as their paymaster and nominal employer.7

B. The Hogan Defendants’ Workers’ Compensation Insurance Policy  

5. At all times relevant to the October 10, 2020 accident in which Lopez‐Orenday was 

killed (“Accident”), all four Hogan Defendants were insured under Worker’s Compensation and 

Employers’  Liability  Insurance  Policy  Number  TWC3825581  (“the  Policy”).8  The  Policy  was  in 

effect from November 1, 2019, through November 1, 2020, and it covered employees of Hogan 

Transports and numerous affiliated entities, including the four Hogan Defendants, each of whom 

is specifically identified as a separate “Named Insured” on the Policy.9

6. The Policy covers the provision of Texas Workers’ Compensation benefits on a form 

issued consistent with the requirements of the Texas Department of Insurance.10  

7. At no time did Lopez‐Orenday notify either Hogan Dedicated or Hogan Personnel that 

he wished to opt‐out of Texas Workers’ Compensation benefits or that he wished to retain his 

common law rights to recover damages for personal injury.11

6 See id., at p. 2, ¶ 6 (Appx. 003); see also Transportation Services Contract (“Contract”), a true and 

correct copy of which is attached as Exhibit 1‐A (Appx. 008‐40).  

7 See Randall Aff., at p. 2, ¶ 6 (Ex. 1; Appx. 003).  

8 See id., at  p.  4, ¶  17  (Ex.  1; Appx.  005); see  also Workers Comp. and Employers  Liab. Insur.  Pol. 

No. TWC3825581 (“Policy”), a true and correct copy of which is attached as Exhibit 1‐C (Appx. 093‐335).  

9 See Randall Aff., at p. 4, ¶ 17  (Ex. 1; Appx. 005); see also Declarations Page of Policy, a  true and 

correct copy of which is attached as Exhibit 1‐B (Appx. 044, 048, 050, 055). 

10 See Randall Aff., at p. 4, ¶ 18 (Ex. 1; Appx. 005). 

11 See id., at p. 4, ¶ 19 (Ex. 1; Appx. 005). 

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C. Employment of Lopez‐Orenday and Brian Colburn 

8. Gerardo  Lopez‐Orenday  was  hired  on  April  20,  2020,  and  he  worked  for  Hogan 

Dedicated as a yard‐tractor driver at the Distribution Center until October 10, 2020, when he died 

in the Accident. Lopez‐Orenday was nominally employed by Hogan Personnel, but all the work 

he performed at the Distribution Center was done for the benefit of, on behalf of, and through 

Hogan Dedicated in furtherance of its Contract with Target.12  

9. Brian  Colburn  also  worked  at  the  Distribution  Center  as  a  yard‐tractor  driver  for 

Hogan Dedicated. Like Lopez‐Orenday, Colburn was nominally employed by Hogan Personnel, 

but he provided services at the Distribution Center for the benefit of, on behalf of, and through 

Hogan Dedicated in furtherance of its Contract with Target.13

10. Greg Bonk worked as a fleet manager for Hogan Dedicated at the Distribution Center. 

His duties included ensuring Hogan Dedicated’s compliance with Target’s policies and procedures 

while  performing  under  the  Hogan Dedicated’s  Contract  with  Target.  Although  he  said  in  his 

deposition  that his employer was “Hogan Transportation Dedicated Account,” no  such Hogan 

entity exists. Bonk’s nominal employer (paymaster) was Hogan Services, Inc., but he performed 

services at the Distribution Center for the benefit of, on behalf of, and through Hogan Dedicated 

in furtherance of its Contract with Target.14  

12 See id., at pp. 2‐3, ¶¶ 7‐8 (Ex. 1; Appx. 003‐04). Randall previously submitted an affidavit in which 

he stated that Hogan Personnel was not Lopez‐Orenday’s employer. Randall explains the imprecision of 

this statement in his affidavit attached hereto. See id., at p. 4, ¶ 21 (Ex. 1; Appx. 005).  

13 See id., at p. 3, ¶ 9 (Ex. 1; Appx. 004).  

14 See id., at p. 5, ¶ 25 (Ex. 1; Appx. 006). 

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D. Lopez‐Orenday, Colburn, and Bonk’s Work at the Distribution Center 

11. Hogan Dedicated assigned Lopez‐Orenday and Colburn to work at the Distribution 

Center, and they were both working for Hogan Dedicated at that location on October 10, 2020, 

pursuant to the Contract between Hogan Dedicated and Target at the time of the Accident. The 

two men had the same job title (“lead driver”) and responsibilities, and they worked together on 

a regular basis, including on the day of the Accident. Further, Lopez‐Orenday and Colburn had 

the same supervisor at the Distribution Center:  Greg Bonk.15

12. Hogan  Dedicated  directed  and  controlled  the  details  of  the  work  that  Bonk 

performed for Hogan Dedicated in furtherance of its Contract with Target.16 In turn, acting on 

behalf of Hogan Dedicated, Bonk directed and controlled the details of the work performed by 

Lopez‐Orenday  and  Colburn  (and  the  other  drivers  for  Hogan  Dedicated)  at  the  Distribution 

Center. In that role, Bonk instructed Lopez‐Orenday, Colburn, and the other drivers when they 

were to work at the Distribution Center and told them the details of how that work was to be 

performed. Further, Bonk was responsible for the safety training of Lopez‐Orenday, Colburn, and 

the  other  Hogan  yard‐tractor  drivers  at  the  Distribution  Center  and  ensuring  that  their  work 

complied with Target’s safety and other requirements. Bonk had authority on behalf of Hogan 

Dedicated to discipline drivers (including Lopez‐Orenday and Colburn), including termination if 

warranted.17  More  specifically,  Bonk  had  the  authority  to  correct  Lopez‐Orenday  if,  while 

15 See Randall Aff., at pp. 3‐4, ¶¶ 10‐13, 15 (Ex. 1; Appx. 003‐04).

16 See id., at p. 5, ¶ 25 (Ex. 1; Appx. 006). 

17 See id., at p. 3, ¶ 11 (Ex. 1; Appx. 004). 

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supervising him, Bonk observed him doing anything unsafe.18 Bonk had the ability to both hire 

and  fire Lopez‐Orenday. In  fact, Bonk had previously both hired and laid‐off Lopez‐Orenday in 

2018, and then rehired him in 2019.19 And he had given a verbal warning to Lopez‐Orenday in his 

capacity as his supervisor.20

13. The work performed by Lopez‐Orenday and Colburn at  the Distribution Center on 

October 10, 2020, included “spotting” semi‐truck trailers. This work generally involved moving 

empty  or  full  trailers  in  and  out  of  warehouse  loading  docks.21  Lopez‐Orenday  and  Colburn 

spotted  trailers  at  the  Distribution  Center  on  October  10,  2020,  in  furtherance  of  Hogan 

Dedicated’s business as it performed services under its Contract with Target.22 At the time the 

Accident occurred, Lopez‐Orenday and Colburn were both acting in the course and scope of their 

employment with, and taking directions and instructions from, Hogan Dedicated.23

II. 

ALL PROPERLY‐JOINED DEFENDANTS JOINED IN THE REMOVAL 

A. Plaintiffs and Intervenors’ “Gotcha” Argument Fails.  

  Plaintiffs and Intervenor  (collectively  “Movants”)  devote  three  full  pages  of  their Brief 

arguing  that  the  case  should  be  remanded  because  only  Target’s  counsel  signed  the  Joint 

18 See, e.g., 9/22/21 Deposition of Greg Bonk at p. 28, line 17, to p. 29, line 7, and p. 29, line 21 to p. 

30, line 8), excerpts from which are attached as Exhibit 2 (Appx. 340‐42). 

19 See id., at p. 28, line 17, to p. 29, line 3, and p. 30, line 19, to p. 31, line 4 (Ex. 2; Appx. 340‐42).  

20 See id. at p. 28, lines 20‐21, and p. 29, line 21, to p. 30, line 8 (Ex. 2; Appx. 340 ‐43).  

21 See Randall Aff., at pp. 3, ¶ 12 (Ex. 1; Appx. 004). 

22 See id., at p. 3, ¶ 13 (Ex. 1; Appx. 004). 

23 See id., at p. 4, ¶ 15 (Ex. 1; Appx. 005). 

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Removal.24  As Chief Justice Barbara Lynn has pointed out, however, “[l]itigation is not a game of 

‘gotcha.’” 25 Rather, “[j]urisdiction should be decided on actual facts.”26  

  Here, the “actual facts” are that all properly‐joined defendants—the four Hogan entities 

(collectively the “Hogan Defendants”) and Target—not only consented to but actually joined in

the removal. When a removal is filed jointly by the defendants, each individual defendant need 

not  sign.27  Rather,  the  Notice  of  Removal  need  only  be  signed  pursuant  to  Rule  11,28  which 

requires  that  it  “be  signed  by  at  least  one  attorney  of  record  in  the  attorney’s  name.”29

Accordingly, judges in this District who have specifically considered this issue have upheld joint 

removals signed by a single attorney.30 Here, the “Joint Notice of Removal” was signed by one 

24 See Movant’s Br. in Suppt. of Jt. Mot. to Remand [ECF No. 35, at Page ID 11‐13].  

25 Appliance Alliance, LLC v. Sears Home Appliance Showrooms, LLC, No. 3:15‐cv‐01707‐M, 2015 WL 

9319179, at *3 (N.D. Tex. Dec. 23, 2015) (Lynn, J.), a copy of which is attached as Exhibit 3 (Appx. 349‐56, 

at 352). 

26 Id., 2015 WL 9319179, at *3 (Ex. 3; Appx. 352). 

27 See  Crowell  v.  Shell  Oil  Co.,  541  F.3d  295,  302  (5th  Cir.  2008)  (consent  in  the  removal  by  all 

defendants was properly shown where all were named as joining in  the removal and  the removal was 

signed by one attorney in conformance with Rule 11). 

28 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil action... shall file... a 

notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure...”).  

29 Crowell, 541 F.3d at 302 (citing FED. R. CIV. P. 11(a)) (emphasis added).  

30 See Mastronardi v. Wells Fargo Bank, N.A., No. 4:15‐CV‐452‐A, 2015 WL 5472924, at *2 (N.D. Tex. 

Sept. 17, 2015) (McBryde. J.) (“The Fifth Circuit concluded in Crowell that a joint notice of removal listing 

all  of  the  defendants, signed by  a  single  attorney,  satisfied  the  requirement  that  all  defendants  join 

in removal.”) (cites omitted), a copy of which is attached as Exhibit 4 (Appx. 357‐64, at 359‐60); see also 

Grand Tex. Homes v. American Safety Indem. Co., No. 3:12‐cv‐1773‐M, 2012 WL 5355958, at *2 (N.D. Tex. 

Oct. 30, 2012) (Lynn, J.) (distinguishing situation in which “the defendants filed a joint notice of removal 

that listed all of  the defendants but was signed by only a single attorney” with a removal  filed by one 

defendant but with the consent of the other defendants; only the latter situation requires signatures of 

all defendants), a copy of which is attached as Exhibit 5 (Appx. 365‐69, at 366‐67). 

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attorney (counsel for Target), and thus satisfied Section 1446(b)(2)(A).31  If the Court concludes 

that the absence of an electronic signature on Hogan’s signature block somehow is considered a 

procedural flaw that should be cured, “the Court... has authority to allow Defendants to amend 

their  Notice  of  Removal,”  and  Target  and  Hogan  respectfully  request  leave  to  include  the 

signature of counsel for Hogan, if the Court deems it necessary.

32  

B. The Fraudulently‐Joined Defendants Need Not Consent to Removal.

In the Fifth Circuit’s own words, “this court has repeatedly made clear that a removing 

defendant need not obtain the consent of a co‐defendant that the removing party contends is 

improperly joined.”33 Indeed, both the Fifth Circuit and Judge Lynn have described the idea of 

requiring  their consent or joinder “nonsensical,” since  removal in  those cases is based on  the 

contention that no other proper defendant exists.34  

Here, Target and the Hogan Defendants clearly contended in their Notice of Removal that 

Colburn and Bonk were fraudulently joined35—and they explain and support these contentions 

in Section II of this Brief, infra. Accordingly, Target and Hogan did not need the consent of Colburn 

and Bonk to remove this case, and Movants’ argument to the contrary lacks merit.  

31 See Crowell, 541 F.3d at 302; Mastronardi, 2015 WL 5472924, at *2‐3; Grand Tex. Homes, 2012 WL 

5355958, at *2. 

32 See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial 

or appellate courts.”); Appliance Alliance, 2015 WL 9319179, at *3 (granting leave under § 1653 to amend 

Notice of Removal) (Ex. 3, Appx. 352). 

33 Mauldin v. Allstate Ins. Co., 757 Fed. Appx. 304, 309 (5th Cir. 2018); accord Breitling v. LNV Corp., 

86 F. Supp. 3d 564, 570 (N.D. Tex. 2015) (where fraudulent or improper joinder is applicable, an allegedly 

improperly joined defendant need not join in or consent to removal, and the removing defendant need 

not explain the absence of consent).

34 See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).   

35 See Jt. Not. of Removal at pp. 9, 11‐12 [ECF No. 1, at PageID 9, 11‐12]. 

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III. 

COLBURN AND BONK WERE FRAUDULENTLY JOINED 

A. Standard 

  A  non‐diverse  defendant  has  been  improperly  joined  where  there  is  no  reasonable 

possibility  of  recovery  by  the  plaintiff.36  “[W]hile  the  fraudulent‐joinder  and  Rule  12(b)(6) 

standards  appear  similar,  the  scope  of  the  inquiry  is  different.”37  For  fraudulent  joinder,  the 

district court may “pierce the pleadings” and consider summary‐judgment‐type evidence in the 

record.38  Here,  the  unrefuted  summary‐judgment‐type  evidence  offered  by  Respondents 

consists of “unchallenged factual allegations” relating to the various Hogan entities’ roles vis‐à‐

vis Lopez‐Orenday, Colburn, and Bonk. Despite taking numerous Hogan employee depositions, 

Movants have no evidence to refute or challenge the information contained in Scott Randall’s 

attached affidavit, in his capacity as Vice President of Risk Management  for Hogan Transports 

and  Hogan  Dedicated,  the  only  entity  performing  operations  at  the  Target  Midlothian 

Distribution Center.39  

B. A Defendant Immune from Liability Is Fraudulently Joined.  

  A  non‐diverse  defendant  is  fraudulently  joined  when  that  defendant  is  immune  from 

liability.40 Thus, if a defendant is immune from suit under the Texas Workers’ Compensation Act, 

36 See Fugitt v. Walmart Stores, Inc., No. 3:15‐CV‐2145‐B, 2015 WL 7352194, *2 (N.D. Tex. Nov. 19, 

2015) (Boyle, J.) (emphasis added), attached as Exhibit 6 (Appx. 370‐75, at 372‐74).  

37 Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003).

38 Id., at 648‐49. 

39 See Randall Aff., at p. 2, ¶¶ 2‐3 (Ex. 1, Appx. 003).  

40 See, e.g., Jernigan v. Ashland Oil Co., 989 F.2d 812 (5th Cir. 1993) (corporations improperly joined 

based on their statutory workers‐compensation immunity).  

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(“TWCA”),  his  citizenship  must  be  disregarded  when  determining  diversity  jurisdiction.41  The 

exclusive‐remedy provision of the TWCA protects not only employers but employees:

Recovery  of  workers’  compensation  benefits  is  the  exclusive  remedy  of  an 

employee  covered  by  workers’  compensation  insurance  coverage  or  a  legal 

beneficiary against the employer or an agent or employee of the employer for the 

death of or a work‐related injury sustained by the employee.”42  

The exclusive‐remedy defense “extends to the employer’s servants, meaning covered employees 

secure  additional  benefits  under  the  [TWCA]  in  the  form  of  protection  from  personal‐injury 

claims by co‐workers.”43  

1. Employees  May  Have  More  Than  One  Employer  for  Purposes  of  the  Workers’‐

Compensation Exclusive‐Remedy Bar. 

  When determining a worker’s employment status, the TWCA is “liberally construed” in 

favor of coverage.44 This longstanding adage “applies with equal force” to protect injured workers 

by ensuring coverage, and to protect employers and their employees from lawsuits.45 In other 

words, it’s a  “two‐way  street.”46 Indeed,  the  terms ‘co‐employee’ and ‘co‐employer’  describe 

employment  relationships  that  have  been  “statutorily  expanded  for  workers’  compensation 

purposes.”47  

41 Id.; see also Perio v. Tital Maritime, LLC, No. H‐13‐1754, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013)

(when  defendant  is  immune  under  TWCA,  there  is  no  reasonable  possibility  of  recovery  against  that 

defendant and the defendant is improperly joined), attached as Exhibit 7 (Appx. 376‐94, at 380‐81).   

42 TEX. LABOR CODE § 408.001(a) (emphasis added). 

43 TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 73 (Tex. 2016).  

44 See Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 559 (Tex. 2022). 

45 Id.  

46 Id.

47 Id.  

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  Movants correctly state in their Motion that “a person is considered an ‘employer’ under 

the TWCA if: (1) it meets the TWCA’s statutory definition of ‘employer’; or (2) the person had the 

‘right to control’ the employee.”48  But they disregard a key tenet of Texas law—that a worker 

can have “more than one employer”  for purposes of workers’ compensation and its exclusive‐

remedy bar.49 Here, Lopez‐Orenday, Colburn, and Bonk each had two “employers” and all shared 

a common employer: Hogan Dedicated. Lopez‐Orenday and Colburn further shared a common 

nominal employer, paymaster Hogan Personnel. 

2. Lopez‐Orenday, Colburn, and Bonk Each Had More Than One Employer 

  Significantly, Respondents fully agree with Movants’ contentions that Lopez‐Orenday was 

employed  by  Hogan  Personnel;  Colburn  was  employed  by  Hogan  Dedicated;  and  Bonk  was 

employed by Hogan Services. But that’s only half the story. The other half—and the significant 

part  for purposes of determining diversity jurisdiction in this case—is that Lopez‐Orenday and 

Bonk were also employees of Hogan Dedicated, making all three employees of the same workers‐

compensation  subscriber.  Further,  Colburn  was  also  employed  by  Hogan  Personnel,  making 

Lopez‐Orenday and Colburn co‐employees of that workers’‐compensation subscriber, too.  

48 See Br. in Suppt. of Mot. to Remand, at p. 13, ¶ 24 [ECF No. 35, at PageID 2628].  

49 Wingfoot Enterpr. v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003). 

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  The following graphic shows the relationships: 

3. All Three Individuals Were Employees of Hogan Dedicated Because It Had the Right 

to Control Their Work. 

  It is well established that an employee may have more than one employer for purposes 

of  the workers’‐compensation exclusive‐remedy bar.50 When determining employment status, 

Texas courts “consider traditional indicia, such as the exercise of actual control over the details 

of the work that gave rise to the injury.”51  

  Here, it is undisputed  that Hogan Dedicated had  the  right  to control—and actually did 

control—all  three  individuals’  work  at  the  Target  Midlothian  Distribution  Center.  Hogan 

Dedicated is the only Hogan entity that contracted with Target to provide transportation services. 

Thus, though all employees who worked at the Distribution Center were nominally employed by 

Hogan  paymasters  for  payroll  and  administrative  purposes,  they  performed  the  essential 

50 See Wingfoot, 111 S.W.3d at 145; Texas Workers’ Comp. Ins. Fund v. Del Industrial, Inc., 35 S.W.3d 

591, 596 (Tex. 2000). 

51 See Western Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006); see also  Thompson v. Travelers 

Indemn. Co., 789 S.W.2d 277, 278 (Tex. 1990) (“This same test applies whether the claim arises at common 

law or under workers’ compensation.”). 

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functions of Hogan Dedicated required under its Contract with Target. In other words, regardless 

of which Hogan paymaster (i.e., “nominal employer”) was identified on their paychecks and Form 

I‐9 paperwork, Lopez‐Orenday, Colburn, and Bonk were also employees Hogan Dedicated.  

  The Mosley  v. Wood Group  PSN, Inc.  case  is  instructive.52 In  that  case, a worker  sued 

multiple defendants (including his allegedly negligent co‐workers) after slipping and falling on an 

oil platform. The question presented was whether the exclusive remedy of the Longshore and 

Harbor Workers’ Compensation Act barred his claims against his co‐workers.53 Plaintiff Mosely 

(a production manager for Fieldwood) was the “payroll employee” of a third party (QPS), who 

had a contract with defendant Fieldwood to provide production personnel to Fieldwood.54 The 

two co‐workers were “payroll employees” of defendant Wood Group but worked as Fieldwood 

operators.  All  the  defendants  argued  that  they  were  immune  under  the  LWSHA’s  exclusive‐

remedy provision because the two individual defendants and the plaintiff were joint “borrowed 

employees”  of  Fieldwood.  The  Fifth  Circuit  agreed,  in  large  part  because  all  the  work  they 

performed was for Fieldwood and because they all three took instruction from Villemarette, a 

Fieldwood  employee  in  charge  of  the  platform.55  Similarly,  all  the  work  Lopez‐Orenday  and 

Colburn performed here was  for Hogan Dedicated, and both took instruction  from Bonk, who 

worked as a fleet manager for Hogan Dedicated.56  

52 Mosley v. Wood Group PSN, Inc., 760 Fed. Appx. 352 (5th Cir. 2019).  

53 The exclusive‐remedy provision in the LHWCA is substantively the same as that found in the TWCA. 

See 33 U.S.C. § 905(a). 

54 Mosley, 760 Fed. Appx. at 356. 

55 See id., at 359‐60.  

56 See Randall Aff., at p. 3, ¶ 11 (Ex. 1; Appx. 004). 

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  The Trahan v.  Premcor Refining Group, Inc.  case is likewise  helpful.57 In  that  case,  the 

plaintiff was injured while working at a refinery owned and operated by Premcor Refining Group, 

Inc.  (“Premcor”).  Premcor  was  a  wholly‐owned  subsidiary  of  Valero  Energy  Corporation  (a 

holding company with no employees). Valero Services, Inc, was another wholly‐owned subsidiary 

of Valery Energy Corporation, and it provided payroll services to Premcor.58 Premcor’s general 

manager controlled the details of plaintiff’s work, including aspects related to safety, and he had 

the  authority  to  fire  plaintiff  and  correct  her  if  he  saw  her  doing  something  unsafe. He  gave 

plaintiff her work instructions, and she was injured when performing a “necessary process” to 

Premcor’s  business.  The  court  held  that  because  Premcor  controlled  the  details  of  plaintiff’s 

work,  it  was  her  “employer”  for  purposes  of  the  workers’‐compensation  exclusive‐remedy 

provision, even though she was a “payroll employee” of a different company.59

  The same situation exists here. Regardless of which entity was Lopez‐Orenday, Colburn 

or Bonk’s “payroll employer,” there is no dispute that while at the Distribution Center, all three 

individuals performed work for Hogan Dedicated pursuant to Hogan Dedicated’s Contract with 

Target. Further, there is no dispute that Bonk—the fleet manager “over the fleet operation at the 

Distribution  Center”60  for  Hogan  Dedicated—controlled  the  details  of  Lopez‐Orenday’s  and 

Colburn’s work. Thus, all three were “employees” of Hogan Dedicated.  

57 Trahan  v.  Premcor  Refining  Group,  Inc.,  No.  09‐17‐00005‐CV,  2018  WL  3887634  (Tex.  App.—

Beaumont Aug. 16, 2018, pet. denied), attached as Exhibit 8 (Appx. 395‐402). 

58 Id., at *1, *5 (Ex. 8; Appx. 396, 399).  

59 Id., at *5 (Ex. 8; Appx. 399); see also City of Bellaire v. Johnson, 400 S.W.3d 922, 924 (Tex. 2013) (City 

was  “employer” even  though  Plaintiff  paid  by another  company  because  City  had  the  right  to  control 

worker’s work). 

60 See Pls.’ 2d Am. Pet. at p. 4, ¶ 4.05 (ECF No. 6, PageID 2128); see also Intervenor’s 2d Am. Pet. at 

p. 5, ¶ 4.05 (ECF No. 6, PageID 2174).  

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Further,  Lopez‐Orenday  and  Colburn  also  had  the  same  payroll  employer  (Hogan 

Personnel). Thus, Colburn is also immune under  the exclusive‐remedy bar by virtue of his co‐

employment with Lopez‐Orenday at Hogan Personnel. Consequently, Movants have no plausible 

right of recovery against him, and he, therefore, was fraudulently joined.  

4. Bonk  Was  Further  Fraudulently  Joined  Because  He  Owed  Lopez‐Orenday  No 

Independent Duty and Hence Cannot Be Personally Liable. 

Bonk was fraudulently joined for the additional and independent reason that a manager 

owes no independent duty to co‐employees or premises invitees. For this reason, “a negligence 

finding  against  an  individual  does  not  automatically  result  in  individual  liability  when  the 

individual was acting as the agent or employee of a corporation.”61 Rather, “individual liability 

arises only when the  [employee] owes an independent duty of reasonable care to the injured 

party apart from the employer’s duty.”62  

  Movants’ only complaints against Bonk are that he had knowledge of the unreasonably 

dangerous conditions at the Distribution Center and failed to adequately warn or correct them.63

But those are not duties owed by Bonk individually; rather they are duties owed (if at all) by the 

property  owner  and/or  Lopez‐Orenday’s  employer.64  Movants  do  not  allege  that  Bonk  was 

61 Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005). 

62 Id. (citing Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)). 

63 See Pls’ 2nd Am. Pet., at pp. 15‐18, ¶¶ 6.01 ‐ 6.05 (ECF No. 6, PageID 2137‐40); Intervenor’s 2nd 

Am. Pet. at pp. 12‐14, ¶¶ 6.01 – 6.05 (ECF No. 6, PageID 2181‐83).  

64 See Tri, 162 S.W.3d at 562 (only employer owes duty to provide safe workplace); see also Koger v. 

Wal‐Mart  Stores  Texas,  LLC,  No.  1:09‐CV‐125‐C  ECF,  2009  WL  10703186  (N.D.  Tex.  Sept.  22,  2009) 

(Cummings, J.) (store manager owes no independent duty to customer), a copy of which is attached as 

Exhibit  9  (Appx.  403‐05,  at  405); McCarty  v. Hillstone  Restaurant Group, No.  3:15‐CV‐518‐L,  2015 WL 

4920013, at *4‐5 (N.D. Tex. Aug. 18, 2015) (Lindsay, J.) (where plaintiffs’ allegations related to defendant’s 

duties as a manager, they did not support the inference that manager owed them an independent duty 

under negligent‐activity or premises‐liability theory), a copy of which is attached as Exhibit 10 (Appx. 406‐

12, at 410); Palmer v. Wal‐Mart Stores, Inc., 65 F.Supp.2d 564 (S.D. Tex. 1999) (under Texas law, corporate

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Lopez‐Orenday’s  employer;  nor  do  they  allege  that  Bonk  was  the  owner  or  operator  of  the 

premises.  Thus,  there  is  no  basis  for  individual  liability  against  Bonk,  and  he  was  therefore 

fraudulently joined regardless of who his employer was. 

C. Movants Have No Viable Gross‐Negligence Action Against Colburn.

1. Movants’  Gross‐Negligence  Claim  is  Barred  by  Section  408.001(a)  and  is  Not 

Excepted by Section 408.001(b).   

  Movants argue that despite the exclusive‐remedy bar, they nonetheless have a plausible 

right to recovery against Colburn under Section 408.001(b).65 But that section only permits the 

recovery of exemplary damages when a worker’s death is caused by intentional conduct or gross 

negligence of “the employer.”66 Unlike Section 408.001(a), which exempts both the employer and

“an agent or employee of the employer” from all types of actions,67 Section (b)’s carve‐out for 

gross  negligence  and  intentional  conduct  in  death  cases  only  excepts  employers  from  the 

exclusive‐remedy bar:  

This section does not prohibit the recovery of exemplary damages by the surviving 

spouse or heirs of the body of a deceased employee whose death was caused by 

an  intentional  act  or  omission  of  the  employer  or  by  the  employer’s  gross 

negligence.68

employees have no independent duty to furnish safe workplace and therefore cannot be held personally 

liable). 

65 Jt. Mot. to Remand, at pp. 15‐18, ¶¶ 28‐31 [ECF No. 35, PageID 2630‐33].  

66 See TEX. LABOR CODE § 408.001(b). 

67 TEX. LABOR CODE § 408.001(a). 

68 TEX. LABOR CODE § 408.001(b) (emphasis added). 

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  Texas courts apply the TWCA “as written in determining workers’ compensation issues.”69  

As written, the exclusive‐remedy bar prohibits all actions against employees. Had the legislature 

intended to except gross‐negligence actions against employees from the exclusive‐remedy bar, 

it  easily  could  have  tracked  the  language  it  used  in  the  preceding  subsection.  Indeed,  in  the 

predecessor statute, the Texas legislature specifically did so.70 The Texas legislature chose not to 

do  so  in  the  current  statute,  however,  so  this  Court  should  decline  Movants’  invitation  to 

judicially rewrite the statute.  

2. The Texas Supreme Court Has Expressly Rejected Movants’ Claim That They Have a 

“Constitutional Right” to Recovery.  

Movants  further argue  that  they  have a  viable  gross‐negligence  claim against  Colburn 

under Article 16, Section 26 of the Texas Constitution, which provides: 

Every  person,  corporation,  or  company  that  may  commit  a  homicide,  through 

willful  act,  or  omission,  or  gross  negligence,  shall  be  responsible,  in exemplary 

damages, to the surviving husband, widow, heirs of the body, or such of them as 

there may be, without regard to any criminal proceeding that may or may not be 

had in relation to the homicide.71  

Movants claim this Constitutional provision overrides the TWCA’s exclusive‐remedy bar. But the 

Texas Supreme Court has expressly considered and rejected this very argument:  

[T]he  reason  for  adoption  of  the  constitutional  provision  was  to  allow  for 

exemplary  damages  under  the  Wrongful  Death  Act  because  of  an  early 

69 See Wingfoot Enterpr. v. Alvarado, 111 S.W.3d 134, 137 (Tex. 2003) (citing Texas Workers’ Comp. 

Ins. Fund v. Del Industrial, Inc., 35 S.W.3d 591, 596 (Tex. 2000)). 

70 See VERNON’S ANN. CIV. ST. SUPP art. 5246‐7 (1918) (emphasis added) (“Nothing in this act shall be 

taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his 

or her body... of any deceased employé whose death is occasioned by homicide from the willful act or 

omission or gross negligence of any person, firm or corporation from the employer of such employé at the 

time of the injury causing the death of the latter.”). 

71 TEX. CONSTITUTION, Art. 16, § 26.  

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interpretation  that  such  damages  were  not  authorized  by  the  Act.

72 It  did  not 

abrogate the common law requirement of actual damages and extend the remedy 

to those with no cause of action under the Act.

 73

  In Travelers Indemnity Company of Illinois v. Fuller, the plaintiff claimed Article 16, Section 

26  supported  her  claim  for  exemplary  damages  against  her  father’s  employer’s  insurance 

company  after  her  father  died  of  work‐related  cancer.  She  sued  his  employer’s  insurance 

company for gross negligence, arguing that the Constitution granted her an independent right to 

exemplary damages and that the legislature could not abrogate that right through its passage of 

the TWCA. The Supreme Court of Texas disagreed for two reasons: (1) the TWCA prohibited the 

plaintiff from recovering “actual damages” against the insurance company, a prerequisite to the 

recovery  of  exemplary  damages;  and  (2)  the  TWCA  only  allows  a  claim  for  gross  negligence 

against the employer.

74   

  The  two‐pronged  reasoning  of  Fuller  applies  here  with  equal  force.  First,  the  TWCA 

expressly  prohibits  a  subscribing  employee’s  beneficiaries  from  recovering  actual  damages 

against any non‐employer, whether it be an insurer (like in Fuller) or a co‐employee (like in this 

case).75  Second,  just  as  the  legislature  declined  to  carve  out  a  right‐to‐sue  exception  for 

exemplary damages against insurers, it likewise declined  to except exemplary‐damages claims 

72 Travelers Indemnity Company of Illinois v. Fuller, 892 S.W.2d 848, 851‐52 (Tex. 1995) (emphasis in 

original and emphasis added).

73 Id. (emphasis added). 

74 See generally id., 892 S.W.2d 848. 

75 See TEX. LABOR CODE § 411.003(a)  (prohibiting actions against a subscriber’s insurance company); 

TEX. LABOR CODE § 408.001(a) (prohibiting actions against a subscriber’s employees).  

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against co‐employees.

76  Thus, Fuller is directly on point; one need only substitute the word “co‐

employees”  for  “insurers,”  as  all  the  same  reasoning  applies.  Consequently,  the  Constitution 

offers Movants no alternative avenue to recovery against Colburn.77

3. Decedent Waived His (and Thus His Beneficiaries’) Right to Sue by Not Opting Out 

of the TWCA.  

  A wholly independent  reason Movants’ arguments under  the Texas Constitution  fail is 

because  Lopez‐Orenday  waived  his  right—and  hence  Movants’  derivative  rights—to  sue. 

Consequently, even if the Texas Constitution did create an independent cause of action—which 

it does not—“parties may waive statutory and even constitutional rights.”78 Indeed, even actions 

for exemplary damages against an employer “provided by” the TWCA can be waived.79

  The Eastland Court of Appeals’ opinion in Garrett v. Patterson‐UTI Drilling Company, L.P. 

is on point.80 In that case, the court analyzed “whether a wrongful death claimant can assert a 

gross  negligence  claim  against  the  decedent’s  co‐employee  when the  employer  has  workers’ 

compensation insurance” in the context of a venue dispute. It concluded no such cause of action 

was viable for two reasons. First, relying on Fuller, it held that “Section 26 does not abrogate the 

76 See TEX. LABOR CODE § 408.001(b) (only saving gross‐negligence and intentional‐tort claims against 

the employer). 

77 See Fuller, at 849‐853. 

78 Moayedi v. Interstate 35/Chisam Rd, L.P., 438 S.W.3d 1, 6 (Tex. 2014); In re Lebatt v. Food Serv., L.P., 

279 S.W.3d 640 (Tex. 2009) (“decedent’s pre‐death contract may limit or totally bar a subsequent action 

by his wrongful death  beneficiaries”)  (citing Sullivan‐Sanford Lumber Co. v. Watson, 155 S.W.179, 180 

(Tex. 1913)). 

79 See, e.g., Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748, 758 (Tex. App.—San Antonio 2002, 

no pet.) (widow waived right to pursue claim against decedent husband’s employer under TWCA by not 

using diligence in serving the defendant with process). 

80 Garrett v. Patterson‐UTI Drilling Company, L.P., 299 S.W.3d 911  (Tex. App.—Eastland 2009, pet. 

denied).  

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common‐law requirement of actual damages or a right to seek punitive damages to those with 

no cause of action under the Wrongful Death Act.”81 Second, it held that by not electing to opt‐

out of the workers’ compensation system, the deceased waived his (and thus his beneficiaries’) 

right to sue a co‐employee for gross negligence.82 The same reasoning applies here.   

4. Movants’ Cases Do Not Support Remand. 

Movants do not even attempt  to distinguish Fuller or Garrett. Rather,  they cite a 1939 

Fifth Circuit decision that is no longer good law, and two post‐Fuller cases in which the courts 

were clearly unaware of the Fuller decision.83   

a. Dudley is No Longer Good Law. 

While at first blush Dudley v. Community Public Service Co.84 appearsto support Movants’ 

position, the Texas Supreme Court in Fuller expressly rejected Dudley’s reasoning. In Dudley, the 

Fifth  Circuit  relied  on  Fort  Worth  Elevators  Co.  v.  Russell85 and Morton  Salt  Co.  v. Wells86 to 

conclude that “the Legislature was without power, and did not attempt, to change the right under 

the Constitution to recover exemplary damages from a fellow employe[e], just as was held to be 

true of such a suit against the employer.”87 In Fuller, however, the Texas Supreme Court expressly

rejected those two cases’ conclusion, discounting the very language that Dudley relied upon from 

81 Id., at 916.  

82 Id., at 916‐17. 

83 Aguirre v. Vasquez, 225 S.W.3d 744, 753‐54 (Tex. App—Houston [14th Dist.] 2007, no pet)); Potter 

v.  Cabello,  No.  3:19‐CV‐1330‐G,  2019  WL  6173763  (N.D.  Tex.  Nov.  19,  2019)  (Fish,  J.),  attached  as 

Exhibit 11 (Appx. 413‐20). 

84 Dudley v. Community Public Serv. Co., 108 F.2d 119 (5th Cir. 1939). 

85 Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 408 (1934). 

86 Morton Salt Co. v. Wells, 70 S.W.2d 409, 410 (1934). 

87 Dudley, 108 F.2d at 122.  

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Ft. Worth Elevators and Morton Salt as sheer “dicta, a mere expression of opinion on a point or 

issue not necessarily involved in the cases which does not create binding precedent under stare 

decisis.”88  Moreover, Dudley was decided 56 years before Fuller, back when “[n]o case  [was] 

found in the Texas courts where, as in the present case, a fellow employe[e] was sued.”89 But 

now  such a  case exists—Garrett  v.  Patterson‐UTI Drilling  Company,  L.P.—and  it  proves Texas 

courts  do  not  permit  exemplary‐damages  claims  against  co‐employees  protected  by  the 

exclusive‐remedy bar after the Texas Supreme Court issued its Fuller decision. 

b. The Aguirre Decision is Wrong. 

The second case Claimants cite—which devotes a whopping one sentence to the topic at 

issue—is simply wrong. In Aguirre v. Vasquez, the Houston Court of Appeals correctly cited the 

section  408.001(b)  savings  clause  as  only  excepting  the  employer.

90  But  then,  in  the  next 

sentence, it simply concluded that “the gross negligence claim for exemplary damages filed by 

Jose’s  family members  [against  the co‐employee’s estate] survives  the exclusivity provision of 

the Act.”91 The court gave no rationale or authority whatsoever for its leap in logic. Even more 

significantly,  it  never  considered  or  discussed  Article  16,  Section  26  or  the  Fuller  opinion. 

Moreover, it was decided before Garrett—which actually analyzed the issue  (and reached the 

opposite conclusion). Thus, Aguirre is not binding or persuasive authority.  

88 Travelers Indemn. Co. v. Fuller, 892 S.W.2d 848, 851, n.3 (Tex. 1995) 

89 Dudley, 108 F.2d at 122. 

90 Aguirre v. Vasquez, 225 S.W.3d 744, 753‐754 (Tex. App.—Houston [14th Dist.]  2007, no pet.) (citing 

TEX. LABOR CODE § 408.001(b)). 

91 Id., at 754. 

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c. Judge Fish’s Opinion is Misguided. 

More  recently,  in  2019,  Judge  Fish  relied  primarily  on  the  Aguirre  decision  for  his 

conclusion in Potter v. Cabello, that the decedent worker’s family potentially had a viable claim 

against a co‐employee after his research revealed no other similarly‐positioned cases: 

The parties do not cite, and the court is not aware of, any case in which the Texas 

Supreme  Court  has  addressed  the  specific  issue  presented  here...  This  Court  is 

aware of only one Texas court of appeals case in which the court considered the 

precise issue presented in the present case: whether the ‘spouse or heirs of the 

body”  of  a  deceased  employee  who  was  covered  by  workers’  compensation 

insurance  may  assert  a  claim  for  gross  negligence  against  the  decedent’s  co‐

employee  whose  alleged  gross  negligence  caused  the  decedent’s  death.  See 

Aguirre v. Vasquez, 225 S.W.3d 744  (Tex. App.—Houston  [14th Dist.]   2007, no 

writ [sic]). There the court found such a claim cognizable under Texas law.92

Judge Fish then concluded, “[g]iven the factual similarity between the present case and Aguirre, 

the court finds the Aguirre court’s interpretation of section 408.001(b) a strong indicator of “what 

the Texas Supreme Court would do if faced with the same facts.”93  

  Unfortunately, the Potter litigants did not direct Judge Fish to the Texas Supreme Court’s 

opinion in Fuller or to the Garrett case.94 This is significant, because unlike the Aguirre case, which 

devoted  a  single  sentence  to  the  topic  and  was  not  appealed,  the Garrett  court  extensively 

analyzed  the  interplay  between  Section  26  and  the  TWCA,  and  it was  appealed  to  the  Texas 

92 Potter v. Cabello, No.  3:19‐CV‐1330‐G,  2019 WL  6173763, *3  (N.D. Tex. Nov.  19,  2019)  (Fish,  J.) 

(Ex. 11, Appx. 416). 

93 Id., at *4 (Appx. 417). Judge Fish further parroted the plaintiff’s argument in its remand briefing that 

since the immunity of Section 408.001(a) “extends to employees,” then “where the employer is stripped 

of the immunity provided by section 408.001(a) due to the employer’s gross negligence, the decedent’s 

grossly negligent co‐employee is stripped of immunity as well.” Id., at *4 (Appx. 417). But this argument 

ignores the fact the savings‐clause omitted “or an agent or employee of the employer.” See TEX. LABOR 

CODE § 408.001(b).

94 See Def.’s Resp. to Pl's Mot. to Remand in Case 3:19‐cv‐01330‐G (ECF No. 12); Pl.’s Br. in Suppt. of 

His Reply to Def.’s Resp. to Pl’s Mot. to Remand in Case 3:19‐cv‐01330‐G (ECF No. 15‐1).  

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Supreme Court. The Supreme Court of Texas denied the petition for review, meaning it reviewed 

the  petition and  response  but  concluded  that  “the  petition  present[ed]  no error  that  requires 

reversal or that is of such importance to the jurisprudence of the state as to require correction.”95

In other words, the Texas Supreme Court actually reviewed the merits of Garrett and chose not

to  reverse  it,  making  it  a  stronger  indication  of  how  it  would rule  than Aguirre,  in  which  no 

petition was filed. 

  Accordingly, Movants’  cited authorities are  contrary  to Fuller,  under which, as Garrett

confirms, Movants have no viable cause of action against Colburn under the Texas Constitution. 

As a federal court exercising diversity jurisdiction, this Court must follow Fuller.

96

IV. 

MOVANTS WAIVE ANY PROCEDURAL OBJECTION  

TO THE TIMELINESS OF REMOVAL 

The  timeliness  of  removal  is  a  procedural  objection  to  removal  that  a  plaintiff  may 

waive.97  Movants expressly waive any such objection here.98  

95 See Texas Rules of Form: The Greenbook 18.1.1, Appx. D (Tex. Law Rev. Ass’n ed., 14th ed. 2018) 

(emphasis added). 

96 Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 (5th Cir. 1999) (“To determine state substantive law, 

we look to final decisions of the state’s highest court.”). 

97 See, e.g., In re TXNB Internal Case, 483 F.3d 292, 299 (5th Cir. 2007) (“Timeliness of removal is a 

procedural rather than jurisdictional issue and, accordingly, may be waived...”).  

98 See Jt. Mot. to Remand, at p. 21, ¶ 38 [ECF No. 35, PageID 2636]. To the extent the issue still needs 

to be addressed, however, Respondents hereby incorporate the facts, argument, and authority set forth 

in their Joint Notice of Removal. See Jt. Not. of Removal, at pp. 5‐7 [ECF No. 1, PageID 5‐7] and pp. 18‐22 

[ECF No. 1, PageID 18‐22]. 

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V. 

CONCLUSION 

Movants’  Motion  for  Remand  should  be  denied  because  they  have  no  viable  claims 

against any non‐diverse defendant. They have no viable claim against Colburn because: (1) he 

and Lopez‐Orenday were co‐employees of both Hogan Personnel  (their payroll employer) and 

Hogan  Dedicated  (their  co‐employer),  and  claims  against  co‐employees  of  workers’‐

compensation subscribers (Hogan Dedicated and Hogan Personnel here) are barred under the 

TWCA’s exclusive‐remedy bar; and (2) exemplary damages under the Texas Constitution require 

the recovery of actual damages—which Movants cannot recover against Colburn in view of the 

exclusive‐remedy bar. Movants likewise have no viable claim against Bonk, because: (1) he and 

Lopez‐Orenday were co‐employees of workers’‐compensation subscriber Hogan Dedicated; and 

(2)  Bonk  owed  Lopez‐Orenday  no  independent  duty  to  provide  him  a  safe  workplace  or  safe 

premises. Because Movants have no reasonable chance of recovery against either non‐diverse 

defendant,  Colburn  and  Bonk’s  citizenship  must  be  disregarded,  leaving  complete  diversity 

among the properly‐joined defendants.  

  Further,  Respondents’  removal  was  not  defective  for  lack  of  signatures,  because  as  a 

“joint” motion,  only  one attorney was  required  to  sign.  Finally, Movants expressly waive any 

objection  to  the  timeliness of  the  removal and Respondents’  removal was  timely nonetheless 

under the circumstances.  

WHEREFORE,  PREMISES  CONSIDERED,  Defendants  Target  Corporation  and  the  Hogan 

Defendants respectfully pray that Plaintiffs’ and Intervenor’s Joint Motion for Remand be DENIED 

and  for such other and  further relief, in law or in equity, to which they may show themselves 

justly entitled. 

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Respectfully submitted, 

/s/ Donna C. Peavler 

Donna C. Peavler 

State Bar No. 00783887 

dpeavler@peavlerbriscoe.com

Sara Kimbrough Scudday 

State Bar No. 24073675 

sscudday@peavlerbriscoe.com 

PEAVLER|BRISCOE

2215 Westgate Plaza 

Grapevine, Texas 76051 

214‐999‐0550 (telephone) 

214‐999‐0551 (fax) 

ATTORNEYS FOR DEFENDANT

TARGET CORPORATION  

‐ AND    ‐

/s/ Caitlin J. Morgan (with consent/DCP)_________ 

Caitlin J. Morgan 

State Bar No. 24074757 

cmorgan@polsinelli.com 

McCall K. Bauersfeld 

State Bar No. 24116524 

mbauersfeld@polsinelli.com  

POLSINELLI PC 

2950 N. Harwood, Suite 2100 

Dallas, Texas 75201 

214‐397‐0030 (telephone) 

214‐397‐0033 (fax) 

ATTORNEYS FOR DEFENDANTS

HOGAN  DEDICATED  SERVICES,  LLC,  HOGAN 

PERSONNEL,  LLC,  HOGAN  TRANSPORTS,  INC.  and 

HOGAN SERVICES, INC., 

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CERTIFICATE OF SERVICE 

I  hereby  certify  that  a  true  and  correct  copy  of  the  foregoing  document  has  been 

forwarded to all counsel of record, in accordance with and pursuant to the Federal Rules of Civil 

Procedure on August 1, 2022. 

/s/ Donna C. Peavler 

Donna C. Peavler  

Case 4:22-cv-00476-O Document 56 Filed 08/01/22 Page 32 of 32 PageID 2901