### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 10555

BRIDGET ALEX, Individually and on Behalf of the Estate of Brandon Alex; JASHAWN ALEX; MICHAELLE COHEN; ESTATE OF BRANDON ALEX; DETREASURE COKER,
Plaintiffs

- Appellees

v. T

- MOBILE USA, INCORPORATED; T

- MOBILE US INCORPORATED, formerly known as MetroPCS Communications Incorporated,
Defendants

- Appellants

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17

- CV

- 1532 USDC No. 3:17

- CV

- 2622

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges

. PER CURIAM: * After Brandon Alex’s death, members of his family (collectively, the “Estate”) sued T

- Mobile USA, Inc. and T

- Mobile US, Inc. (collectively, “T

Mobile”) and alleged that T

- Mobile caused Brandon’s death because its failed

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that th is opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 6, 2019 Lyle W. Cayce Clerk Case: 18-10555 Document: 00514985683 Page: 1 Date Filed: 06/06/2019No. 18

- 10555

2 technology prevented Brandon from receiving timely medical attention after an injury. The district court rejected T

- Mobi le’s assertion of statutory immunity because the Estate had plausibly alleged that T

- Mobile’s service was the proximate cause of Brandon’s death. Although this case is tragic , and the Estate’s claim is emotionally compelling , Texas law appears to insulate T

Mobile from suit

— we reverse . F ACTS AND P ROCEEDINGS On March 11, 2017, seven

- month old Brandon Alex was injured after falling from a daybed. His babysitter dialed 9

- 1

- 1 three separate times from her T

- Mobile/MetroPCS cell phone. She was placed on hold each time, for a total of more than forty minutes. Unable to connect to a dispatcher, she eventually called Brandon’s grandmother, who drove him to an emergency room more than an hour after the first 9

- 1

- 1 call. Brandon was pronounced d ead soon after arriving at the hospital. The Estate sued T

- Mobile in state court for claims arising from Brandon’s death. The matter was removed to the Northern District of Texas. T

- Mobile moved to dismiss the claims, asserting statutory immunity. The dist rict court held that statutory immunity did not bar the claims

. The district court certified its decision for interlocutory appeal , concluding that it presented the following question of law: “whether, as a matter of law, the use of property that hinders o r delays treatment, without other intervening causes, can never be the proximate cause of an injury.” S TANDARD OF R EVIEW We review de novo a district court’s denial of a motion to dismiss, “accepting all well

- pleaded facts as true and viewing those facts in the light most favorable to the plaintiff[s].” Billings v. Propel Fin. Servs., L.L.C. , 821 F.3d 608, 611 (5th Cir. 2016) (quotation omitted)

. Case: 18-10555 Document: 00514985683 Page: 2 Date Filed: 06/06/2019No. 18

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3 D ISCUSSION In a four

- page opinion , the Supreme Court of Texas provided guidance on what constitutes proximate cause in a similar case

. City of Dall

. v. Sanchez , 494 S.W.3d 722 (Tex. 2016)

. Sanchez’s parents sued the City of Dallas for negligence, alleging that the C ity’s defective 9

- 1

- 1 system caused their son’s death. Id. The C ity moved to dismiss the claims, asserting governmental immunity under the Texas Tort Claims Act (“TTCA”). To establish a waiver of governmental immunity, the parents needed to establish that “the phone’s condition was a proximate cause of Sanchez’s death.” Id. at 726. The court articul ated the following rule : Proximate cause requires both cause in fact and foreseeability. For a condition of property to be a cause in fact, the condition must serve as a substantial factor in causing the injury and without which the injury would not have o ccurred. When a condition or use of property merely furnishes a circumstance that makes the injury possible, the condition or use is not a substantial factor in causing the injury. To be a substantial factor, the condition or use of the property must actua lly have caused the injury. Thus, the use of property that simply hinders or delays treatment does not actually cause the injury and does not constitute a proximate cause of an injury. Id

. at 726 (citations and quotations omitted) (emphasis added). Under Texas Health and Safety Code §§ 771.053(a) and 772.407, T

Mobile is immune from claims arising out of its provision of 9

- 1

- 1 services “unless the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct.” So, the Case: 18-10555 Document: 00514985683 Page: 3 Date Filed: 06/06/2019No. 18

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4 Estate must establish proximate cause to prevail on a claim against T

- Mobile under the statutes. 1 See id. The parties debate the binding effect of the above

- quoted Sanchez statement. At an absolute minimum, the statement is non - erroneous judicial dictum , and we must follow it under the Erie doctrine. 2 In Texas, t here are two types of dicta : obiter dictum and judicial dictum

. Autobahn Imports, L.P. v. Jaguar Land Rover N. Am ., L.L.C., 896 F.3d 340, 346 (5th Cir. 2018)

. Obiter dictum is made in passing and is not binding. Id. Judicial dictum is “a statement made deliberately after careful consideration and for future guidance in the conduct of litigation.” Id. Judicial dictum

“ should be followed unless found to be errone ous. ” Id. In Sanchez , the statement appears as the culminating point of the rule statement. Sanchez , 494 S.W.3d at 726

. Based on the language and structure of the opinion, th is statement appears to be deliberate and “plainly intended to guide future courts and litigants” on the appropriate requirements to establish proximate cause in similar circumstances. Autobahn , 896 F.3d at 347 (emphasis removed). Accordingly, the statement must at least be treated

as judicial dictu m . 3 To the extent the facts in Sanchez are slightly different from those at hand , “ this court must make an ‘ Erie guess, ’ i.e., forecast how the Supreme Court of Texas ‘ would rule. ’” Mid

- Continent Cas. Co. v. Eland Energy, Inc. , 709

1 The Estate argues that “ [ a ] s long as pleadings plausibly allege gross negligence, recklessness and/or intentional misconduct, §§ 771.053(a) and 772.407 provide no immunity to T

- Mobile.” However, this is at odds with the quoted portion of the relevant statutes. 2 While T

- Mobile argues that the Sanchez statement was not dictum at all , we need not reach this issue

. 3 And the Estate cannot show that the statement is somehow erroneous. Indeed , it is consistent with the approach to proximate causation that Texas outlined more than a decade earlier

. See Tex

. Dep’t of Criminal Justice v. Miller , 51 S.W.3d 583, 587

– 88 (Tex. 2001) (cited f

avorably in Sanchez ). Case: 18-10555 Document: 00514985683 Page: 4 Date Filed: 06/06/2019No. 18

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5 F.3d 515, 520 (5th Cir. 201 3) (citing Paz v. Brush Engineered Materials, Inc. , 555 F.3d 383, 392 (5th Cir. 2009) ). “This prediction may be based on [Texas] case law, dicta, general rules on the issues, decisions of other states, and secondary sources.” Id. (alteration in original). B ased on the express language of the Sanchez statement, we conclude that the Supreme Court of Texas would probably rule that the Estate has failed to plead facts that could support a finding of proximate cause. Accordingly, the district court erred in attem pting to modify Texas’s proximate cause law. See W.

- S. Life Assurance Co. v. Kaleh , 879 F.3d 653, 658 (5th Cir. 2018) (“When making an Erie guess, [o]ur task is to attempt to predict state law, not to create or modify it.” (alteration in original) (quotation omitted) )

. C ONCLUSION For the foregoing reasons, we REVERSE the district court and REMAND with instructions to dismiss the action against T

- Mobile. Case: 18-10555 Document: 00514985683 Page: 5 Date Filed: 06/06/2019