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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARTHA F. LARA §

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-cv-01923

§

QUIKTRIP CORPORATION; QUIKTRIP §

WEST, LLC; AL-MADINAH PETROLEUM, § JURY DEMANDED

INC.; AND T.J., §

Defendants. §

DEFENDANTS’ NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

Pursuant to the terms and provisions of 28 U.S.C. §§ 1441 and 1446, Defendants

QuikTrip Corporation and Al-Madinah Petroleum, Inc., in the cause styled “Martha F. Lara v.

QuikTrip Corporation; QuikTrip West, LLC; Al-Madinah Petroleum, Inc.; and T.J.,” originally 

pending as Cause No. DC-22-08436 in the 14th Judicial District Court of Dallas County, Texas, 

file this Notice of Removal of the cause to the United States District Court for the Northern 

District of Texas, Dallas Division.

I.

BASIS FOR REMOVAL

The basis of the removal of this action is diversity jurisdiction under 28 U.S.C. § 1332. In 

particular, diversity jurisdiction exists in this case because there is complete diversity of 

citizenship between the proper parties, as discussed further herein, no proper Defendant is a 

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citizen of the State of Texas, and the amount-in-controversy exceeds $75,000.00, exclusive of 

interest and costs.1 

II.

DIVERSITY JURISDICTION

Plaintiff, at the time of the incident giving rise to this lawsuit, at the time of the initial 

filing of this action, and at the current time of the removal of this action, was and is a citizen, 

resident, and domiciliary of the State of Texas.

QuikTrip Corporation, at the time of the initial filing of this action and at the time of the 

removal of this action, was and is a corporation formed under the laws of Oklahoma with its 

principal place of business in Tulsa, Oklahoma. QuikTrip Corporation has never been a resident 

of, incorporated in, or had its principal place of business in the State of Texas.

Al-Madinah Petroleum, Inc. is not a proper party to this lawsuit because it did not 

occupy, possess, control, manage, or operate the premises at issue at any relevant time. 

Nonetheless Al-Madinah Petroleum, Inc., at the time of the initial filing of this action and at the 

time of the removal of this action, was and is a corporation formed under the laws of Georgia 

with its principal place of business in Duluth, Georgia. Al-Madinah Petroleum, Inc. has never 

been a resident of, incorporated in, or had its principal place of business in the State of Texas.

On information and belief, QuikTrip West, LLC is not an existing entity. In the event that 

QuikTrip West, LLC exists, it is not a proper party to this lawsuit because it has no involvement 

whatsoever with Plaintiff, any of the other Defendants, or the incident made the basis of this 

lawsuit. Further, Plaintiff has alleged no facts against QuikTrip West, LLC that would give rise to 

a duty owed to Plaintiff or liability on the part of QuikTrip West, LLC. Finally, QuikTrip West, LLC 

1

See 28 U.S.C. § 1332 (2018).

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did not own, occupy, possess, control, manage, or operate the premises at issue at any relevant 

time. Therefore, QuikTrip West, LLC is not a proper party to this action and has been improperly 

and/or fraudulently joined, and hence, its citizenship should not be considered for purposes of 

removal.

T.J. is a fictitious and/or unidentified party and is not a proper party to this lawsuit.

Plaintiff has alleged no facts at all against T.J. At the time of the incident giving rise to this 

lawsuit, at the time of the initial filing of this action, and at the current time of the removal of 

this action, T.J.’s citizenship and residence is unknown. However, even T.J. is later identified and 

his citizenship and residence is determined to be the State of Texas, for the reasons discussed 

below and stated in Defendants’ verified denial on file with the State court, T.J. is not a proper 

party to this action and has been improperly and/or fraudulently joined, and hence, T.J.’s

citizenship should not be considered for purposes of removal.

III.

IMPROPER/FRAUDULENT JOINDER

Plaintiff named fictitious individual employee T.J. as a defendant.2 Although Plaintiff 

articulates her theories of liability against QuikTrip Corporation (“QuikTrip”), she does not set 

forth any allegations against T.J. However, even if Plaintiff had, she could not set forth any 

allegations against T.J. other than acts taken in performance of T.J.’s duties at QuikTrip’s store.

3

 

Plaintiff has not pled and cannot plead any facts that would allow Plaintiff to recover from T.J. 

in T.J.’s individual capacity, and, in fact, has not alleged that T.J. owed any separate or 

independent duty of reasonable care to Plaintiff apart from T.J.’s employer’s duty.

2

See generally, Pl’s’ Orig. Pet., attached hereto as Exhibit 2.

3

Id. at pp. 3-4, ¶12, 16.

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Improper/fraudulent joinder may be established where, as here, there is no possibility 

that a plaintiff can maintain a cause of action against an employee based on the pleaded facts.4

Federal courts look to Texas state law to determine whether a plaintiff may maintain a cause of 

action against a defendant.5

In Texas an individual acting as an officer, agent, or employee of a company can only be 

held individually liable for negligence when the individual owes an independent duty of 

reasonable care to the injured party apart from the employer's duty.

6 Therefore, unless 

Plaintiff can establish that T.J. owed an independent duty of care to Plaintiff, separate and apart 

from the duties owed by QuikTrip as T.J.’s employer, T.J. is not a proper party to this case.

Case law is replete with opinions finding that managers and employees do not owe an 

independent duty of care to patrons who were injured on store property – including opinions 

from every federal district in Texas.

7 Actions by an employee or officer taken in the course and 

scope of employment, whether active or passive, are actions of the corporation on behalf of 

the employer.8

4 Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007); Larrouquette v. Cardinal 

Health 200, Inc., 466 F.3d 373, 374 (5th Cir. 2006). 

5

See Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). 

6

Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005) (citing Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)).

7

See, e.g., Lindsey v. Walmart Stores, Inc., No. 3:10-CV-1587-L, 2010 WL 4860789, at *8 (N.D. Tex. Nov. 30, 

2010) (not designated for publication) (citing Tri, 162 S.W.3d at 562 and Leitch, 935 S.W.2d at 117-18, and holding 

that “there is no ambiguity in Texas law insofar as the facts pleaded in this case. As [the manager] did not owe [the 

plaintiff] an independent duty of care apart from that of Wal–Mart, [the plaintiff] has no reasonable possibility of 

recovery against [the store manager]”); Bourne v. Wal-Mart Stores, Inc., 582 F. Supp. 2d 828, 838 (E.D. Tex. 2008)

(citing same); Kopczynski v. Wal-Mart Stores Texas, L.P., No. H-10-4507, 2011 WL 902237, at *4-7 (S.D. Tex. March 

14, 2011) (not designated for publication) (citing Tri, 162 S.W.3d at 562-63 and Leitch, 935 S.W.2d at 117-18); 

Gonzalez v. Wal-Mart Stores, No. 10-CV-120, 2010 WL 1417748, at *1-3 (W.D. Tex. March 31, 2010) (not 

designated for publication) (citing same).

8

Leitch, 935 S.W.2d at 118.

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In this case, Plaintiff’s only “allegations” concerning T.J. seem to imply (without 

expressly stating so) that T.J. is a store manager or other type of employee. Such implied 

allegations deal with alleged duties T.J. may have allegedly owed or breached in T.J.’s capacity 

as a QuikTrip employee and are not distinct from those which QuikTrip itself would allegedly 

owe.9 Therefore, Plaintiff alleges no facts that would support that T.J. owed Plaintiff any duty 

independent and apart from QuikTrip’s duty.

10

Because there is no possibility that Plaintiff can maintain a cause of action against T.J. 

based on the pleaded facts, and because there is no allegation to support an independent duty 

apart from T.J.’s employer’s duty that T.J. owed to Plaintiff, T.J. has been improperly joined in 

this matter, and T.J.’s citizenship should be disregarded, resulting in complete diversity existing

between the proper parties in this case.

IV.

DEFENDANTS AGREE TO REMOVAL

The only actually existing, non-fictitious Defendants, QuikTrip Corporation and AlMadinah Petroleum, Inc., agree to removing this case to federal court.

V.

FACTUAL BACKGROUND

Plaintiff claims that, on or about July 21, 2020, while Plaintiff was an invitee at 

QuikTrip’s store located at 5825 Broadway Boulevard, Garland, Texas, and was entering the 

9

See id.; McKinney v. Home Depot, USA, Inc., No. 4:06-cv-327-A, 2006 WL 2947324, at *3 (N.D. Tex. Oct. 13, 

2006) (not designated for publication) (concluding that a manager was improperly joined because the plaintiff 

failed to allege that he owed an independent duty to the plaintiff); Palmer v. Wal-Mart Stores, Inc., 65 F.Supp.2d 

564, 567 (S.D. Tex. 1999) (denying plaintiff’s motion to remand, and noting that the plaintiff made no allegations 

that the store manager owed “her any independent duty or duty of reasonable care, apart from that which his 

employer owed any store patron”).

10 Leitch v. Hornsby, 935 S.W.2d at 118; see also Kopczynski v. Wal-Mart Stores Texas, LP, 2011 WL 902237, 

at *4-7 (S.D. Tex. Mar. 14, 2011) (co-employees and managers owed no independent duty to employee despite 

allegations they personally participated in negligent acts).

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ladies’ room, she slipped and fell on leaking water. Plaintiff filed suit on July 21, 2022, in the

14th Judicial District Court of Dallas County, Texas, alleging a premises-liability/negligence 

cause of action against Defendants.

VI.

THE AMOUNT-IN-CONTROVERSY

Plaintiff judicially admits in her Original Petition that she is seeking damages in excess of 

$75,000.00.

11

 Specifically, Plaintiff seeks monetary relief over $1,000,000,12 including past and 

future medical expenses, past and future physical pain and mental anguish, past and future 

physical impairment, past and future loss of earnings, and past and future loss of earning 

capacity.

13 As a result, the amount-in-controversy in this case exceeds $75,000.00, exclusive of 

interest and costs, and this case is removable.14

VII.

REMOVAL IS TIMELY

This removal is timely because it is filed “within thirty days after receipt, through service 

or otherwise, of a copy of an amended pleading, motion, order or other paper from which it 

may first be ascertained the case is one which is or has just become removable.”

15

 Defendants

first became aware this case was removable on or about August 8, 2022, when Defendants

were served with Plaintiff’s Original Petition. Accordingly, this removal is timely because it is 

made within thirty days after the receipt by Defendants of the document that first 

11 See Pl’s Orig. Pet. (Exh. 2).

12 Id. at p. 1, ¶ 1.

13 Id. at. pp. 6-7, ¶ 27 (including subparagraphs A through J).

14 See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996); see also Laughlin v. Kmart Corp., 50 

S.W.3d 871, 873 (10th Cir. 1995) (amount in controversy is ordinarily determined by allegations in complaint).

15 28 U.S.C. § 1446(b). 

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demonstrated the case was removable. Moreover, more than one year has not passed since 

the commencement of the action in state court on July 21, 2022.

16

VIII.

VENUE

Venue is proper in this district under 28 U.S.C. § 1441(a) because this district and 

division embrace the county in which the removed action has been pending.

IX.

PROCEDURAL REQUIREMENTS

Defendants filed with the Clerk of the 14th Judicial District Court Dallas County, Texas a 

Notice of Filing Notice of Removal to Federal Court contemporaneously with the filing of this 

Notice of Removal.

Pursuant to Local Rule 81.1, the following documents are attached hereto for the 

Court’s reference: 

(1) State court docket sheet (as of August 30, 2022);

(2) Plaintiff's Original Petition (filed on July 21, 2022) with Service of Citation (served 

on QuikTrip Corporation on August 8, 2022); and 

(3) Defendants’ Original Answer and Verified Denial (filed on August 26, 2022).

Also, in compliance with Local Rule 81.1, Defendants have filed the following documents 

with the Notice:

• Civil Cover Sheet;

• Supplemental Civil Cover Sheet; and

• Certificate of Interested Persons.

16 See id.

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WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that this case be 

removed to the United States District Court for the Northern District of Texas, Dallas Division.

Respectfully submitted,

/s/ B. Kyle Briscoe

B. Kyle Briscoe

Attorney-in-charge

State Bar No. 24069421

kbriscoe@peavlergroup.com

Michael W. Stumbaugh 

State Bar No. 24041987

mstumbaugh@peavlergroup.com

PEAVLER|BRISCOE

2215 Westgate Plaza

Grapevine, Texas 76051

214-999-0550 (telephone)

214-999-0551 (fax)

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

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

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

Procedure on August 30, 2022.

/s/ B. Kyle Briscoe

B. Kyle Briscoe

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