UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRIAN O’NEIL YOUNG,

Plaintiff,

v.

REINALDO LOPEZ GONZALEZ; 

DAY EXPRESS LLC; HARTFORD 

SPECIALTY INSURANCE 

SERVICES OF TEXAS, LLC,

Defendants.

v.

PERLA JUDITH VARGAS DELAO 

ROMERO, Individually and as Next 

Friend of YXXXXX RXXXXX, a 

Minor, GXXXXXX RXXXXX, a 

Minor, and EXXXXXX RXXXXX, a 

Minor,

Intervenors.

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Civil Action No. 3:22-CV-1244-X

MEMORANDUM OPINION AND ORDER

Before the Court are four pending motions. Intervenor Plaintiff Perla Romero 

brings a motion to remand to state court and a request for sanctions [Doc. No. 5], and 

Plaintiff Brian Young brings a motion to remand to state court. [Doc. No. 6]. 

Additionally, Defendant Hartford Specialty Insurance Services of Texas, LLC

(“Hartford”) filed a motion to strike and a motion for leave to file a sur-reply. [Doc. 

No. 12]. Because the defendants failed to remove within the one-year limit, the Court 

GRANTS Young’s motion to remand and REMANDS the entire case to the 193rd 

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District Court of Dallas County, Texas. The Court did not rely on the material 

Hartford moved to strike and, therefore, the Court FINDS AS MOOT Hartford’s 

motion to strike and motion for leave to file a sur-reply. Finally, the Court FINDS

AS MOOT Romero’s request to remand and DENIES Romero’s request for sanctions.

I. Factual Background

The status of the parties in this litigation underlies the heart of this order, and 

so, it is essential that the Court explain the past and present state of events. On May 

26, 2020, Young filed his Original Petition in state court, asserting claims against 

Defendants Reinaldo Lopez Gonzalez, Day Express LLC (“Day”), and JRKR 

Management LLC a/k/a Rainwater Leasing, Ltd. (“JRKR Management”). On 

December 12, 2020, Intervenor Perla Judith Vargas Delao Romero filed her 

permissive claims in intervention, alleging claims against the same defendants, as 

well as Plaintiff Young. On January 25, 2022, Young filed a nonsuit against Day and 

Gonzalez, and the state court granted the order of dismissal with prejudice the next 

day. Shortly after, on March 10, 2022, Young amended his petition, joining Hartford 

as a defendant. Then, thirteen days later, on March 23, 2022, Young filed a nonsuit 

against JRKR Management, which the court granted with prejudice that same day. 

On April 27, 2022, Young filed his Fourth Amended Petition, which remains the live 

pleading in this case. In sum, to this point, Young had nonsuited the original three 

Defendants but added Hartford. On June 8, 2022, Hartford filed its Notice of 

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Removal. At the time of removal, all of Romero’s claims remained—Young’s claims 

only remained against Hartford.

1

II. Legal Standard

A federal court has diversity jurisdiction over civil cases in which the amount 

in controversy exceeds $75,000, exclusive of interests and costs, and in which 

diversity of citizenship exists between the parties.2 Under 28 U.S.C. § 1441(a), a 

defendant may remove to federal court any state-court action over which the federal 

district court would have original jurisdiction. “Moreover, because the effect of 

removal is to deprive the state court of an action properly before it, removal raises 

significant federalism concerns . . . which mandate strict construction of the removal 

statute.”3 Any doubts about whether removal jurisdiction is proper must therefore 

be resolved against the exercise of federal jurisdiction.4 When removal is based on 

diversity of citizenship, the notice must be filed within one year after commencement 

of the action, “unless the district court finds that the plaintiff has acted in bad faith 

in order to prevent a defendant from removing the action.”5 The Fifth Circuit has 

described § 1446(c)(1) as codifying the possibility of equitable tolling.6

1 The Court notes that Young’s Fourth Amended Petition retains claims against Day and 

Gonzalez, but because his claims against those parties were dismissed with prejudice, those parties 

remain only as Interpleader-Defendants.

2 28 U.S.C. § 1332.

3 Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365–66 (5th Cir. 1995) (citation 

omitted), abrogated on other grounds by Rivet v. Regions Bank of La., 522 U.S. 470, 473 (1998).

4 Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).

5 28 U.S.C. § 1446(c)(1).

6 See Hoyt v. Lane Constr. Corp., 927 F.3d 287, 294 (5th Cir. 2019) (noting that “Congress [] 

chose to replace Tedford’s equitable-estoppel principle with a ‘bad faith’ standard” in § 1446(c)(1)).

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A court, “when determining whether it has original jurisdiction over a civil 

action, should evaluate whether that action could have been brought originally in 

federal court.”7 To do this, a district court must “evaluate whether the plaintiff could 

have filed its operative complaint in federal court, either because it raises claims 

arising under federal law or because it falls within the court's diversity jurisdiction.”

8

Section 1441(a) does not permit removal based on counterclaims because those claims 

are irrelevant to whether the district court had “original jurisdiction” over the civil 

action.9 The civil action (over which the district court must have original jurisdiction) 

is the action as defined by the plaintiff’s complaint.10 Therefore, the defendant to 

that action is the defendant to that complaint, not a party named in any ancillary 

claims.

11

III. Analysis

Young makes two arguments for why the Court should remand this case: 

(1) The required diversity of citizenship is not present; and (2) Hartford did not 

remove the action within the one-year limitation, and there was no bad faith on the 

part of Young to invoke the exception.

7 Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019).

8 Id.

9 Id.

10 Id. (“Section 1441(a) thus does not permit removal based on counterclaims at all, as a 

counterclaim is irrelevant to whether the district court had ‘original jurisdiction’ over the civil action.

And because the ‘civil action . . . of which the district cour[t]’ must have ‘original jurisdiction’ is the 

action as defined by the plaintiff’s complaint, ‘the defendant’ to that action is the defendant to that 

complaint, not a party named in a counterclaim.”).

11 Id.

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Romero, in her motion, also argues the Court should remand this case because 

the required diversity of citizenship is not present.12

Hartford’s motion to strike alleges that Romero raised new issues in her reply 

and requests that the Court strike those arguments. In the alternative, Hartford 

requests leave to file a sur-reply.

The Court will address each argument in turn.

A. Young’s Motion to Remand

Young first argues that diversity does not exist because he and JRKR 

Management are both Interpleader-Defendants and citizens of Texas.13 Specifically, 

he claims that diversity does not exist because he is both a plaintiff and a defendant. 

Young also argues that diversity does not exist because of Interpleader-Defendant 

JRKR Management. This is incorrect because the Court concerns itself only with the 

status of parties in the civil action as defined by Young’s complaint, not those parties 

named in a counterclaim or interpleader action.14 Furthermore, Romero is a 

permissive interpleader; thus her claims are ancillary. As discussed above, the Court 

must look to the remaining parties in Young’s suit to determine if diversity exists.

The remaining parties in Young’s suit are Young, a citizen of Texas, and Hartford, a 

citizen of Connecticut or Illinois. There is complete diversity between the remaining 

parties to the original suit. Accordingly, the Court rejects Young’s argument that 

diversity does not exist.

12 Doc. No. 5 at 1.

13 Doc. No. 6 at 1.

14 Jackson, 139 S. Ct. at 1748–49.

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Second, Young argues that Hartford’s removal was improper because of the 

one-year limitation in Section 1446. In response, Hartford does not dispute that 

normally the one-year limitation would apply, but it argues that there is a bad-faith 

exception to the one-year limitation. Specifically, Hartford claims that the bad-faith

exception applies here because Young brought claims against JRKR Management 

that would not survive a Rule 12(b)(6)-type motion to dismiss. Hartford argues 

survival in a Rule 12(b)(6)-type motion to dismiss is relevant here because of a Fifth 

Circuit case called Hoyt v. Lane Construction Corp.15 Hartford argues that under 

Hoyt the Court must look at whether a plaintiff would have had any possibility of 

recovery in a Rule 12(b)(6)-type analysis. But Hartford’s argument conflates two 

different tests. While Hoyt discusses removal based on timeliness, the test that 

Hartford refers to here is related to the voluntary-involuntary rule—not to the badfaith exception.

16 The Court will distinguish the tests below.

Although not in the statutory text, it is well established that “only the 

voluntary dismissal or nonsuit by the plaintiff of a party or of parties defendant can 

convert a nonremovable case into a removable one.”17 Beginning in 1898, the 

Supreme Court approved of a defendant’s removal after a plaintiff dismissed the only 

non-diverse defendant.18 The Court acknowledged that diversity did not exist at the 

time of filing in state court, but it held that jurisdiction arises “as the action assumes 

15 927 F.3d 287 (5th Cir. 2019).

16 Id.at 293.

17 Id. at 295 (cleaned up) (emphasis omitted).

18 See Powers v. Chesapeake & O. Ry., 169 U.S. 92, 98, 101 (1898).

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the shape of a removable case in the court in which it was brought.”19 A couple years 

later, the Supreme Court clarified that only the plaintiff’s voluntary act can create 

federal jurisdiction.20 By 1918, the Court stated that a party cannot convert an

unremovable case “into a removable one by evidence of the defendant or by an order 

of the court upon any issue trued upon the merits[.]”21 Instead, it said that “such 

conversion can only be accomplished by the voluntary amendment of [] pleadings by 

the plaintiff or, where the case is not removable because of joinder of defendants, by 

the voluntary dismissal or nonsuit by [the plaintiff] of a party or of parties 

defendant.”

22 After this, the rule simply became the following: “If the resident 

defendant was dismissed from the case by the voluntary act of the plaintiff, the case 

became removable, but if the dismissal was the result of either the defendant’s or the 

court’s acting against the wish of the plaintiff, the case could not be removed.”

23 The 

Fifth Circuit described the “judicially-created voluntary-involuntary rule as 

providing an action nonremovable when commenced may become removable 

thereafter only by the voluntary act of the plaintiff.”24 However, “[w]hen the nondiverse defendant was improperly joined, the voluntary-involuntary rule is 

inapplicable.”25 Improper joinder “can be established by demonstrating, among other 

19 Id. at 101.

20 Whitcomb v. Smithson, 175 U.S. 635, 638 (1900).

21 Great N. Ry. Co. v. Alexander, 246 U.S. 276, 281 (1918).

22 Id.

23 Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir. 1967).

24 Hoyt, 927 F.3d at 295 (cleaned up).

25 Id. (cleaned up).

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things, the inability of the plaintiff to establish a cause of action against the nondiverse party in state court.”26 And, “[i]f a state court has not yet ruled, the federal 

court must ask whether there [is] any reasonable possibility that a state court would 

rule against the non-diverse defendant.”27

The test for bad faith is not the same as the voluntary-involuntary test from 

Hoyt.

28 Thus, the Court rejects Hartford’s assertion that it must conduct a Rule 

12(b)(6)-type test on Young’s claims against JRKR Management. However, this does 

not end the inquiry as the Court must determine if the bad-faith exception applies to 

Young’s actions.

Hartford argues that Young acted in bad faith in order to destroy diversity 

because he “lacked a good faith basis” for bringing his claims against JRKR 

Management.29 However, as Young points out, JRKR Management remained a part 

of the litigation for over two years, participated in discovery, and ultimately settled 

the case. In light of these facts, the Court rejects Hartford’s argument that the badfaith exception applies and finds that Hartford’s removal was barred by the one-year 

limitation. Accordingly, the Court GRANTS Young’s motion to remand.

B. Hartford’s Motion to Strike and Motion for Leave to File Sur-Reply

Hartford’s motion to strike focuses on the Affidavit of Hutton Sentell, which 

was Exhibit 2 attached to Intervenor Romero’s reply. However, the Court did not rely 

26 Id. (cleaned up).

27 Id. (cleaned up).

28 Id. at 292–95 (first determining that the one-year limitation did not apply because the 

plaintiff acted in bad faith; then determining whether the voluntary-involuntary rule applied).

29 Doc. No. 10 at 18.

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on Romero’s reply or its attached affidavit in granting Young’s motion to remand. 

Therefore, the Court FINDS AS MOOT Hartford’s motion to strike and motion for 

leave to file sur-reply.

C. Romero’s Motion to Remand

The Court does not need to address Romero’s motion to remand because the 

Court grants Young’s motion to remand and remands the entire case. Romero makes 

an additional request for sanctions. But that sanctions request is predicated on 

interpleader arguments the Court already explained are flawed. Accordingly, the 

Court FINDS AS MOOT Romero’s motion to remand and DENIES the motion for 

sanctions.

30

IV. Conclusion

The Court GRANTS Young’s motion to remand. The Court FINDS AS MOOT

Romero’s request to remand and DENIES Romero’s request for sanctions. This case 

is REMANDED to the 193rd District Court of Dallas County, Texas. Accordingly, 

the Court DISMISSES as moot Hartford’s motions.

IT IS SO ORDERED this 23rd day of January, 2023.

____________________________________

BRANTLEY STARR

UNITED STATES DISTRICT JUDGE

30 Romero also asked the Court for sanctions, but her interpleader-based argument that 

underlies that request is flawed.

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