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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

TINA BURNEY

v.

COSTCO WHOLESALE 

CORPORATION and ALEC MOEN

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CIVIL ACTION NO. 4:23-CV-00094-

SDJ-AGD

REPORT AND RECOMMENDATION 

OF UNITED STATES MAGISTRATE JUDGE

Before the court is Plaintiff Tina Burney’s Motion to Remand this case to the 467th Judicial 

District Court of Denton County, Texas (Dkt. #4). Defendant Costco Wholesale Corporation

(“Costco”) opposes the motion (Dkt. #6). Having considered the parties’ filings, the record, and 

the applicable law, the court recommends that Plaintiff’s motion be granted and the instant lawsuit 

be remanded to the 467th Judicial District Court of Denton County, Texas. Pursuant to 28 U.S.C. 

§ 1447(c), the court also recommends that Plaintiff be awarded reasonable attorney fees incurred 

as a result of the removal. Plaintiff should be directed to submit an affidavit and supporting 

documents reflecting her entitlement to an award of attorney fees within 14 days of the adoption 

of this Report and Recommendation.

BACKGROUND

This case arises out of a personal injury suit filed in the 467th Judicial District Court of 

Denton County, Texas, Cause No. 23-0015-467 (“Petition”) (Dkt. #2). In her Petition, Plaintiff 

alleges that on June 21, 2021,

1 she was walking toward the entrance of a Costco store when she 

was struck and pushed to the ground by a row of carts pushed by Defendant Alec Moen (“Moen”), 

a Costco employee (Dkt. #2 at p. 2). Plaintiff’s daughter drove her to the emergency room, where 

1 Plaintiff’s Petition states June 21, 2021, but Defendant’s Notice of Removal states June 21, 2022, (Dkt. #1 at p. 3), 

as does Plaintiff’s Motion to Remand (Dkt. #4 at p. 2). 

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she was found to have fractured her pelvis and hip (Dkt. #2 at p. 2). Plaintiff alleges that she 

suffered severe, life-altering injuries and is seeking damages in excess of $1,000,000 (Dkt. #2 at p. 

2).

Plaintiff filed her initial Petition in state court on January 3, 2023, asserting causes of action 

for negligence and gross negligence against Defendants Costco and Moen (Dkt. #2). Costco argues

that Moen is not a proper party to this suit and removed the case to federal court on February 6,

2023, on the basis of diversity jurisdiction under 28 U.S.C. § 1332 (Dkt. #1). Plaintiff then filed 

the instant Motion to Remand (Dkt. #4).

The parties agree that Moen and Plaintiff are both citizens of Texas and that Moen is thus 

non-diverse to Plaintiff. Accordingly, if Moen is a proper party to this suit, complete diversity is 

destroyed, and this action must be remanded to state court.

LEGAL STANDARD

“When a case is removed to federal court, the removing party has the burden of proof to 

establish the federal court’s jurisdiction.” Perez v. Home Depot U.S.A., Inc., No. 4:19-CV-338, 

2019 WL 6907025, at *1 (E.D. Tex. Dec. 18, 2019) (citing Gasch v. Hartford Accident & Indem. 

Co., 491 F.3d 278, 281 (5th Cir. 2007)). “The removing party carries a heavy burden when 

attempting to prove fraudulent joinder.” Gonzalez v. Wal-Mart Stores Texas, LLC, No. 2:13-CV65, 2013 WL 1827924 (S.D. Tex. Apr. 30, 2013) (citing Cavallini v. State Farm Mut. Auto Ins. 

Co., 44 F.3d 256, 259 (5th Cir. 1995)).

To establish improper joinder, the removing party must prove one of two things: (1) “that 

there has been outright fraud in the plaintiff’s pleading of jurisdictional facts,” or (2) “that there is 

absolutely no possibility that the plaintiff will be able to establish a cause of action against the instate defendant in state court.” Cavallini, 44 F.3d at 259; see also Smallwood v. Ill. Cent. R.R. Co., 

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385 F.3d 568, 573 (5th Cir. 2004) (en banc) (observing that these are the only ways a party can

establish improper joinder). As to the second method of establishing improper joinder, a court 

must ask “whether the defendant has demonstrated there is no possibility of recovery by the 

plaintiff against an in-state defendant,” in other words, the court must find “that there is no 

reasonable basis for the district court to predict that the plaintiff might be able to recover against 

an in-state defendant.” Smallwood, 385 F.3d at 573. Further, “[a]ny ambiguities are construed 

against removal because the removal statute should be strictly construed in favor of remand.” 

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also In re 

Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (“The removal statute is therefore to be strictly 

construed and any doubt as to the propriety of removal should be resolved in favor of remand.”).

Where an employee’s actions are “directly related to the alleged negligence,” as is the case here, 

“a question of fact exists as to whether the corporate employee owes an individual duty to a 

plaintiff.” Garrison v. The Sherwin–Williams Co., No. 4:10CV128, 2010 WL 2573973, at *5

(E.D. Tex. June 1, 2010), report and recommendation adopted, 2010 WL 2573963 (E.D. Tex. June 

22, 2010).

Costco does not allege outright fraud in Plaintiff’s pleading of jurisdictional facts. The 

court therefore only considers the second method by which a party may establish improper joinder: 

whether there is any possibility Plaintiff could establish a cause of action against the non-diverse 

defendant, Moen.

DISCUSSION

A. Plaintiff’s Motion to Remand

Plaintiff alleges that Moen personally participated in the negligent act that caused 

Plaintiff’s injury (Dkt. #4; Dkt. #7). Costco argues that is insufficient to support a claim against 

Moen and that removal is therefore justified (Dkt. #6 at p. 7). In reaching this conclusion, Costco 

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misconstrues “Texas’ longstanding rule that a corporate agent is personally liable for his own 

fraudulent or tortious acts.” Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002); see also 

Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984) (“A corporation’s 

employee is personally liable for tortious acts which he directs or participates in during his 

employment.”). Texas courts have also found that an independent duty of reasonable care may 

exist when an “employee personally creates a dangerous situation that causes injury.” In re Butt, 

495 S.W.3d 455, 466 (Tex. App.—Corpus Christi 2016, no pet.) (citing San Benito Bank & Trust 

Co. v. Landair Travels, 31 S.W.3d 312, 319 (Tex. App.—Corpus Christi 2000, no pet.)); see also 

McIntosh v. Copeland, 894 S.W.2d 60, 63 (Tex. App.—Austin 1995, writ denied) (endorsing the 

viability of claims against a hospital employee for “negligent acts committed in the scope of his 

employment”).

Texas law, then, does not support Costco’s proposition that an employee cannot be liable 

for any direct act of negligence causing injury when the employee is acting within the scope of his 

employment. See, e.g., Alexander v. Lincare, Inc., Civ. A. No. 3:07-CV-1137-D, 2007 WL 

4178592, at *3 (N.D. Tex. Nov. 27, 2007) (collecting Texas cases allowing claims of negligence 

against employees for acts undertaken within the scope of employment that have caused injury); 

Garrison, 2010 WL 2573973, at *5 (“If the corporate employee is only indirectly involved in the 

alleged negligence, then the Court will not impose an individual duty on the employee, however 

if the involvement is directly related to the alleged negligence, a question of fact exists as to 

whether the corporate employee owes an individual duty to a plaintiff.”); Guzman v. Cordero, 481 

F. Supp. 2d 787, 790 (W.D. Tex. Mar. 19, 2007) (finding a possible breach of an independent duty 

of care by an employee when he was personally involved in providing allegedly negligent 

inspection services to the plaintiff).

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Because Plaintiff alleges in her Petition that “she was struck and pushed down to the ground 

by multiple carts being pushed by” Moen, (Dkt. #2 at p. 2), and because federal courts are required 

to resolve any ambiguities in the pleadings against removal, the court finds that Plaintiff has a 

possibility of recovery against Moen in Texas state court. This means that Moen is a proper 

Defendant to Plaintiff’s suit. Accordingly, complete diversity is not present in this case, as required 

by 28 U.S.C. § 1332, and the case should be remanded to state court.

B. Attorney Fees

28 U.S.C. § 1447(c) provides that “[a]n order remanding [a] case may require payment of 

just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 

“However, ‘[t]here is no automatic entitlement to an award of attorney’s fees.’” Am. Airlines, 

Inc. v. Sabre, Inc., 694 F.3d 539, 541–42 (5th Cir. 2012) (quoting Valdes v. Wal–Mart Stores, Inc., 

199 F.3d 290, 292 (5th Cir.2000) (holding that the “mere determination that removal was 

improper” does not require a district court to award attorney’s fees)). Instead, a district court “may 

award attorney’s fees when the removing party lacks an objectively reasonable basis for removal.” 

Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir. 2010) (per curiam) (citing and referring to 

Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005) (holding that “[a]bsent unusual 

circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party 

lacked an objectively reasonable basis for seeking removal”)). The United States Supreme Court 

elaborated on this standard in Martin, explaining that

[t]he appropriate test for awarding fees under § 1447(c) should recognize the desire 

to deter removals sought for the purpose of prolonging litigation and imposing costs 

on the opposing party, while not undermining Congress’ basic decision to afford 

defendants a right to remove as a general matter, when the statutory criteria are 

satisfied.

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546 U.S. at 140. Finally, “[a] fee award is inappropriate if the removing party ‘could conclude 

from [existing] case law that its position was not an unreasonable one.’” Probasco v. Wal-Mart 

Stores Texas, L.L.C., 766 F. App’x 34, 37 (5th Cir. 2019) (quoting Valdes, 199 F.3d at 293).

In its notice of removal, Costco relies on a Texas Supreme Court case, Leitch v. Hornsby,

for the proposition that “an agent of a corporate entity has no independent duty and cannot be liable 

in an independent capacity” (Dkt. #1 at pp. 6–7) (citing Leitch v. Hornsby, 935 S.W.2d 114, 117

(Tex. 1996)). Costco again cites Leitch for this same proposed rule in its Response to Plaintiff’s 

Motion to Remand and Brief in Support (Dkt. #6 at p. 6). But Leitch stands for a different 

proposition: Corporate agents cannot be personally liable for their actions within the scope of their 

employment unless they breach an independent duty of care. Leitch did not hold that corporate 

agents can never owe an independent duty; it limited agents’ personal liability to cases in which 

the agent breached an independent duty he did owe. Indeed, in Leitch itself, the Texas Supreme 

Court observed that “an agent whose negligence causes an auto accident may be held individually 

liable along with his or her employer when driving in the course and scope of employment.” Id.

at 117 (emphasis added). Leitch, then, plainly does not support the idea that corporate agents can 

never owe an independent duty of care. Many other state and federal courts applying Texas law

after Leitch have reached this same conclusion.2

Other cases Costco cites in support of removal bolster the case for remand. For example, 

in its Response to Plaintiff’s Motion to Remand and Brief in Support, Costco cites Ching Enters. v. 

2 See, e.g., Alexander, 2007 WL 4178592, at *3 (“Nothing in Leitch suggests that the court intended to alter the general 

rule that a company employee is personally liable for tortious conduct in which she participates during the course and 

scope of her employment, provided she owes a legal duty to the person who brings the claim against her.”); Walker v. 

Anderson, 232 S.W.3d 899, 918 (Tex. App.—Dallas 2007) (“[I]t is the general rule in Texas that a corporation’s 

employee is personally liable for tortious acts which he directs or participates in during his employment.”); Cimarron 

Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 564 (Tex. App.—Dallas 2004) (“It is a longstanding rule in Texas 

that a corporate agent is personally liable for his own fraudulent or tortious acts, even when acting within the course 

and scope of his employment.”).

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Barahona for the proposition that a “finding of personal liability against [an employee] cannot be 

sustained on the basis that he participated in the tortious conduct” (Dkt. #6 at p. 7) (quoting Ching 

Enters. v. Barahona, No. 01-07-00454-CV, 2008 WL 4006758, at *10 (Tex. App.—Houston [1st 

Dist.] 2008). In fact, the state appellate court in Ching Enters. cited Leitch and other Texas cases 

for the idea that “‘[u]nder longstanding Texas law, corporate agents can be held individually liable 

for tortious acts committed while working for a corporation.’” Id. at *9. Consider also 

Kopczynski v. Wal-Mart Stores, which Costco cites in support of the idea that at least one federal 

district court applying Texas law has “extend[ed] the lack of individual liability to a store greeter” 

(Dkt. #6 at p. 7) (emphasis removed) (citing Kopczynski v. Wal-Mart Stores Texas, LP, No. CIV.A. 

H-10-4507, 2011 WL 902237, at *7 (S.D. Tex. Mar. 14, 2011). Here again Costco misunderstands 

the court’s reasoning. The court in Kopczynski declined to hold the defendant personally liable for 

negligence not based on his status as an employee, but because the court found he did not owe an 

independent duty to the plaintiff. The Kopczynski court recognized that defendants who owe an 

independent duty can be held individually liable. See id. at *4, *7 (citing Tri v. J.T.T., 162 S.W.3d 

552, 562 (Tex. 2005); Leitch, 935 S.W.2d at 177).

Costco’s proposed rule that an employee “operating in the course and scope of his duties”

can never be personally liable for his own conduct, (Dkt. #6 at pp. 6–7), is not consistent with

decades of established Texas case law. Therefore, it is the view of the court that Costco lacked an 

objectively reasonable basis for removal and that Plaintiff is entitled to reasonable attorney’s fees

incurred as a result of the removal.

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, the court recommends Plaintiff Tina Burney’s Motion to 

Remand (Dkt. #4) be GRANTED and that the instant lawsuit be remanded to the 467th Judicial 

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District Court of Denton County, Texas. The court further recommends that Plaintiff should be 

awarded reasonable and necessary attorney fees incurred as a result of Costco’s removal of this 

state court action to federal court. Plaintiff should be directed to submit an affidavit and supporting 

documents reflecting her entitlement to an award of attorney fees within 14 days of the adoption 

of this Report and Recommendation.

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or refers to the briefing 

before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

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