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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ANTONIO LOPEZ-VICTORINO, §

FATHER OF GERARDO LOPEZ- §

ORENDAY, DECEASED, et al. §

§

Plaintiffs, §

§ Civil No. 4:22-cv-476-O

vs. § (Consolidated with Civil Action

§ No. 4:21-cv-001184-O)

BRIAN LYNN COLBURN, et al. §

§

Defendants. §

DEFENDANTS’ OBJECTION TO FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Defendants Brian Lynn Colburn, Gregory Lynn Bonk, Hogan Dedicated Services, LLC, 

Hogan Personnel, LLC, Hogan Transports, Inc. and Hogan Services, Inc. respectfully object to 

the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (ECF 

No. 124) (the “Report”) because (1) it recommends remand of claims for which this Court 

has original jurisdiction; (2) it fails to include a finding on whether the Court should retain 

jurisdiction of the state court claims under supplemental jurisdiction, an issue raised by 

Defendants in their response to the motion to remand; and (3) it incorrectly predicts how 

the Texas Supreme Court would decide a state law issue.

I.

This case is a consolidation of two cases. The first, Hogan Dedicated Services, LLC and 

Hogan Personnel, LLC v. Antonio Lopez-Victorino, et al., was filed in this Court as Civil Action 

No. 4:21-cv-1184-O (the “DJ Action”) and asserts claims for declaratory relief per 28 U.S.C. 

§ 2201(a). The second, Antonio Lopez-Victorino, et al. v. Brian Lynn Colburn, et al., was 

originally filed in Texas state court and removed to this Court as Civil Action No. 4:22-cvCase 4:22-cv-00476-O Document 126 Filed 02/23/23 Page 1 of 11 PageID 4947
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00476-O (the “Removed Case”) based on diversity jurisdiction under 28 U.S.C. § 1332. 

Finding that the two cases arose from the same circumstances and shared common questions 

of law and fact, the Court consolidated the cases by Order dated June 24, 2022 (ECF No. 22) 

and denied as moot a motion to dismiss (ECF No. 7) in the DJ Action and a motion to stay 

(ECF No. 20) in the Removed Case. Although the DJ Action and the Removed Case were 

consolidated into case number 4:22-cv-00476-O, the Hogan entities’ declaratory relief 

claims remain in the case.

A case removed from state court must be remanded if “at any time before final 

judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. 

§ 1447(c). Conversely, remand is not appropriate for cases originally filed in a federal court. 

See, e.g., Foster v. Graves, 428 F. App’x 348, 351 (5th Cir. 2011) (“a district court does not have 

authority ... to remand or transfer a case to state court if the matter was not initially filed in 

state court and subsequently removed to federal court”). In situations in which a federal 

court case is consolidated with a state court case, only the state court case is subject to 

remand. See Payne v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 75 F. App’x 903, 906 (4th Cir. 

2003) (“while a district court has the discretion to remand a case removed from state court, 

it may not remand a case that was never removed from state court, even though the two 

cases have been consolidated for purposes of convenience and administration”). 

Here, the DJ Action was originally filed in federal court, not in state court, and there 

is no state court to which to remand the DJ Action. See id. The Court has subject matter 

jurisdiction of the DJ Action and the declaratory relief claims asserted by the Hogan entities 

per 28 U.S.C. § 2201(a). Because the Hogan entities’ claims in the DJ Action were not removed 

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from state court, those claims cannot be remanded and Defendants’ object to the Report’s 

recommendation to remand those claims.

II.

The second objection to the Report is it does not address Defendants’ assertion that

the Court should retain jurisdiction over the state court claims based on supplemental 

jurisdiction. This issue was properly raised and briefed by Defendants Colburn and Bonk in 

their response1 to Plaintiffs’ motion to remand but was not addressed in the Report. The only 

claim that the Report determined destroys diversity in this case is the gross negligence claim 

against Colburn - a claim Defendants assert does not exist as set forth in the following section. 

If the Court were to conclude, however, that a plausible claim exists against Colburn, that 

claim “is so related to claims in the action within [the Court’s] original jurisdiction that they 

form part of the same case or controversy.” 28 U.S.C. § 1367(a). For this and the reasons 

stated in the Colburn-Bonk response to the motion to remand, this Court should exercise 

supplemental jurisdiction over the state court claims and Defendants object to the Report’s 

failure to make a recommendation on this issue.

III.

The Report correctly found that Plaintiffs’ decedent died from a work-related injury 

and that workers’ compensation insurance covered him. ECF No. 124, at 5. The Report 

further correctly found that Hogan Dedicated was the employer or Plaintiffs’ decedent, 

Colburn, and Bonk for purposes of the Texas Workers’ Compensation Act (“TWCA”) and that 

Colburn and Bonk are immune from suit for ordinary negligence. ECF No. 124, at 8. 

1 ECF No. 54, at 8-10.

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Defendants object, however, to the conclusions in the Report that Texas Labor Code 

§ 408.001(b) likely permits Plaintiffs to sue Colburn for gross negligence and that Colburn 

was thus properly joined as a defendant in the Removed Case. These findings are based on a 

prediction that the Texas Supreme Court would interpret § 408.001(b) to allow the survivors 

of an employee covered by workers’ compensation insurance to recover exemplary damages 

from a co-employee. Defendants respectfully submit this is incorrect and object to it.

As noted by Magistrate Judge Ray, there are no Texas Supreme Court opinions on this 

issue. Without Texas Supreme Court precedent, Judge Ray looked at two intermediate 

appellate opinions: Garrett v. Patterson-UTI Drilling Co., LP, 299 S.W.3d 911 (Tex.App.—

Eastland 2009, pet. denied),2 and Aguirre v. Vasquez, 225 S.W.3d 744 (Tex.App.—Houston 

[14th Dist.] 2007, no pet.). The Garrett court concluded the deceased employee’s family could 

not pursue gross negligence claims against the co-employee because the deceased employee 

waived his rights to assert any claims against the co-employee by accepting workers’ 

compensation benefits. 299 S.W.3d at 916. The waiver in Garrett resulted from the deceased 

employee’s decision to accept comp benefits, which resulted in an election of remedies. Id.

Like the deceased worker in Garrett, the deceased worker here also made an election of 

remedies by not opting out of comp benefits.3 Under Texas law, “the exclusive remedy for an 

employee who does not opt out is the recovery of workers’ compensation benefits for 

personal injuries sustained in the course of employment.” ExxonMobil Corp. v. Kirkendall, 151 

2 The Report incorrectly cites Garrett as being a “no pet.” case. A petition for review in Garrett was filed 

on December 28, 2009, in the Texas Supreme Court as case number 09-1073 and denied on May 7, 2010. See

https://search.txcourts.gov/Case.aspx?cn=09-1073&coa=cossup [accessed Feb. 20, 2023].

3 See Affidavit of Scott Randall, at 19 (ECF No. 58, at PageID 2910).

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S.W.3d 594, 599 (Tex. App.—San Antonio 2004, pet. denied).

4 The Report correctly notes 

that the Garrett court directly held that the TWCA’s bar on suing co-employees was 

constitutional and that the employee’s acceptance of comp benefits waived his right to assert 

a claim for wrongful death. ECF No. 124, at 8.

Judge Ray then noted that another Texas court of appeal found a deceased worker’s 

wife and children could assert a gross negligence claim under §408.001(b) against a coworker, Aguirre, 225 S.W.3d at 753-74. Unlike the Garrett court, the Aguirre court did not 

discuss this issue other than to state: 

The Act does not prohibit 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. Therefore, the gross negligence claim for exemplary damages filed 

by [the deceased worker’s] family members survives the exclusivity 

provisions of the Act.

225 S.W.3d at 753-754 (internal citations omitted, emphasis added). Notably missing from 

this statement by the Aguirre court (and from § 408.001(b), for that matter) is any mention 

of an intentional act or omission by a co-employee or a co-employee’s gross negligence. There 

is no indication in the Aguirre opinion that the court considered whether the gross 

negligence exception in § 408.001(b) applies only to employers or also includes employees.

That is because the eligible family members never argued that claims against the decedent’s 

co-employee for gross negligence were barred; they instead asserted on summary judgment 

that “the record contained no evidence of gross negligence or that no genuine issue of 

material fact existed as to whether Ernesto was grossly negligent.” Id. at 754. Absent any 

discussion of this issue, Defendants respectfully submit that the Aguirre case does not 

4 The Aguirre case also states this principal of Texas law: “Appellants waived their common-law rights 

by failing to waive workers’ compensation coverage under the Act.” 225 S.W.3d at 753.

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represent a split in the Texas Courts of Appeal on this issue and that the only state court 

opinion to address the issue is Garrett. 

Moreover, precisely because the court in Aguirre concluded that no evidence of gross 

negligence by the co-employee existed, any implicit suggestion by the court that a grossnegligence claim survives the TWCA’s exclusive-remedy provision, in addition to being 

unreasoned, was unnecessary to the court’s decision, is unconsidered dicta, and thus is not 

an indication of how the Texas Supreme Court would decide the question. See Hollis v. Hill, 

232 F.3d 460, 465 (5th Cir. 2000) (noting that federal courts may consider “considered dicta” 

in “determining what a state’s highest court would hold with respect to a particular issue”); 

McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir. 1980) (stating that “a federal court 

should be circumspect in surrendering its own judgment concerning what the state law is on 

account of dicta”). See also United States v. Segura, 747 F.3d 323, 328–29 (5th Cir. 2014) (“A 

statement is dictum if it could have been deleted without seriously impairing the analytical 

foundations of the holding and being peripheral, may not have received the full and careful 

consideration of the court that uttered it.”). 

Because Garrett is the only opinion that actually examines the issue presented, and 

does so in support of a holding that the Texas Constitution does not compel a grossnegligence claim against a co-employee to survive § 408.001(a), it is the “strongest indicator 

of what [the Texas] supreme court would do”5 and is determinative on this issue. Defendants 

object to the Report’s finding that a split of authority on the issue exists and to the failure to 

follow Garrett. 

5 Kelly v. Nichamoff, 868 F.3d 371, 374 (5th Cir. 2017).

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The Report also cites, and relies on, Porter v. Cabello, No. 3:19-CV-1330-G, 2019 WL 

6173763 (N.D. Tex. 2019). As noted in the Report and in Defendants’ briefing, Judge Fish did 

not consider Garrett in his analysis of this state court issue, instead relying on what he called 

“two sentences” in the Aguirre opinion to conclude that “Texas courts would likely find the 

plaintiff’s claim cognizable here.” 2019 WL 6173763, at *4. Those two sentences are the ones 

quoted above and, as noted, do not even contain the word “employee,” let alone any 

discussion of how § 408.001(b) applies to co-workers. Judge Fish referred to these two 

sentences as the Aguirre court’s “interpretation of” section 408.001(b), but as the Court will 

observe, the Aguirre decision never considered that it was engaged in statutory 

interpretation. Nor did Judge Fish acknowledge in Porter that the cursory and unconsidered 

statement in Aguirre is dicta. Porter is not a persuasive indicator of how the Texas Supreme 

Court would decide the issue. It must yield to Garrett.

As an original matter, Defendants’ reading of § 408.001(b) is persuasive and 

compelled by the clear language of the statute. See RepublicBank Dallas, N.A. v. Interkal, Inc., 

691 S.W.2d 605, 607 (Tex. 1985) (“Unless a statute is ambiguous, we must follow the clear 

language of the statute.”). The exemplary damages exception to the comp bar in Section 

408.001(b) is very clearly and unambiguously worded. It carves out only claims for death 

caused by “the employer or by the employer's gross negligence.” (Emphasis added). This is 

significant given that § 408.001(a) specifically includes an “employee of the employer.” If the 

Texas Legislature had intended to include co-workers in the exemplary damages exception 

of § 408.001(b), it would have included co-workers in that section, as it did in subsection (a). 

In predicting how the Texas Supreme Court rule on this issue, the Court should look at the 

rules of statutory construction used by Texas courts. 

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Under Texas law, “If a statute is worded clearly, we must honor its plain language, 

unless that interpretation would lead to absurd results.” Combs v. Health Care Servs. Corp., 

401 S.W.3d 623, 629 (Tex. 2013). “A court may not judicially amend a statute and add words 

that are not implicitly contained in the language of the statute. Only when it is necessary to 

give effect to the clear legislative intent can we insert additional words into a statutory 

provision.” Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988) (internal citations 

omitted, emphasis added). “The plain meaning of the text is the best expression of legislative 

intent unless a different meaning is apparent from the context or the plain meaning leads to 

absurd or nonsensical results.” Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Here,

the plain meaning of the text of § 408.001(b) is that the exemplary damages exception 

applies to workplace deaths “caused by an intentional act or omission of the employer or by 

the employer’s gross negligence.” It is not apparent from the context that the Texas 

Legislature intended to include a co-worker’s gross negligence, and limiting the exception to 

employers does not create an absurd result.6 Plaintiffs might argue that inserting “or 

employee of the employer” into the gross negligence portion of § 408.001(b) would be 

reasonable, but “reasonableness is not the standard for eschewing plain statutory language.” 

Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 570 (Tex. 2014) (quoting In re Blair, 408 

S.W.3d 843, 859 (Tex. 2013) (orig. proceeding) (Boyd, J., concurring)).

Section 408.001(b) says what it says—there is an exception to the workers’ comp bar 

that allows the family of a deceased worker to recover exemplary damages if the death was 

caused by the employer’s gross negligence. It does not say the family can recover exemplary 

6 “Unintended, improvident, inequitable, over-inclusive, or under-inclusive consequences of a 

statute”—none of which Defendants’ position creates—“is not proof of absurd results.” Choice! Power, L.P. v. 

Feeley, 501 S.W.3d 199, 214 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

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damages from a co-worker for his gross negligence, and the only way to interpret the statute 

in that fashion is to ignore the plain language of the statute and insert words the Texas 

Legislature did not use. Defendants respectfully submit that the Texas Supreme Court would 

“enforce [§ 408.001(b)] ‘as written’ and ‘refrain from rewriting text that lawmakers chose.’” 

Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 562 (Tex. 2014) (quoting Energy Gulf States, 

Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (declining to interpret statute’s reference 

to “plaintiff” as including other types of claimants, such as cross-claimants or third-party 

plaintiffs).7 Put another way, the Texas Supreme Court would “presume that the Legislature 

chooses a statute’s language with care, including each word chosen for a purpose, while 

purposefully omitting words not chosen.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 

432, 439 (Tex. 2011). Here, the Legislature did not include co-workers in § 408.001(b)’s 

exception, yet did include them in § 408.001(a)’s broad exclusive-remedy provision. Under 

Texas law and common language norms, the presumption is this was a purposeful omission. 

Because application of § 408.001(b) would not produce an absurd result, the Court should 

predict the Texas Supreme Court would not include co-workers in the exemplary damages 

exception and find that Colburn and Bonk are immune from such claims and thus improperly 

joined in this case.

WHEREFORE, for the reasons stated above, Defendants respectfully object to the 

Magistrate Judge’s Report and request the Court reject the recommendations of the Report. 

Defendants further request this Court find that § 408.001(b) is unambiguously and clearly 

7 See also Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988) (“A court may not judicially 

amend a statute and add words that are not implicitly contained in the language of the statute. Only when it is 

necessary to give effect to the clear legislative intent can we insert additional words into a statutory provision.” 

(internal citations omitted)).

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worded and does not permit a surviving spouse or heirs of the body of a deceased worker to 

sue a co-worker for exemplary damages. Defendants further request the Court find that 

Colburn and Bonk are thus immune from Plaintiffs’ claims and were not properly joined in 

this case. Because complete diversity exists with such a finding, the Court should deny 

Plaintiffs’ motion to remand.

Respectfully submitted,

/s/ Steven L. Russell

Michael C. Wright

Texas Bar No. 22049807

mwright@rwtrial.com

Steven L. Russell

Texas Bar No. 17437040

srussell@rwtrial.com

RUSSELL & WRIGHT, PLLC

15770 Dallas Parkway, Suite 1050

Dallas, Texas 75248

(972) 267-8400

(972) 267-8401 (fax)

Attorneys for Defendant

Brian Lynn Colburn

/s/ Roy T. Atwood

Roy T. Atwood, P.C.

Texas State Bar No. 01428040

ATWOOD GAMEROS, L.L.P.

6116 N. Central Expressway, Suite 1400

Dallas, Texas 75206

Telephone: (214) 559-7399

Facsimile:(214) 481-5502

E-mail: royatwood@atwoodgameros.com

COUNSEL FOR DEFENDANT BONK 

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WALTERS BALIDO & CRAIN, L.L.P.

By: /s/ Jonathan Davenport

JONATHAN L. DAVENPORT – 24012502

JERRY L. EWING – 06755470

Meadow Park Tower, Suite 1500

10440 North Central Expressway

Dallas, Texas 75231

(214) 749-4805

(214) 760-1670 - Facsimile

davenportfax@wbclawfirm.com

Counsel for Defendants Hogan Dedicated

Services, LLC, Hogan Personnel, LLC, 

Hogan Transports, Inc. and 

Hogan Services, Inc.

Certificate of Service

I certify that a true and correct copy of the foregoing document was served on all counsel of 

record using the Court’s ECF system on February 23, 2023.

/s/ Steven L. Russell

Steven L. Russell

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