DEFENDANT DARRELL THIBODEAUX’S RESPONSE TO PLAINTIFFS’ OPPOSED MOTION TO REMAND Page 1 of 9

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

JOCELYN O’QUINN, SHELBY PATRIZI, § 

AND CHARLOTTE ARCENEAUX, § 

INDIVIDUALLY, AND AS § 

REPRESENTATIVES OF THE ESTATE § 

OF JOHN O’QUINN, § 

Plaintiffs § 

§ CIVIL ACTION NO. 1:24-CV-15 

v. § Jury Demanded 

§ 

DARRELL THIBODEAUX AND § 

GOODYEAR TIRE & RUBBER § 

COMPANY, § 

Defendants § 

DEFENDANT DARRELL THIBODEAUX’S

RESPONSE TO PLAINTIFFS’ OPPOSED MOTION TO REMAND

TO THE HONORABLE U.S. DISTRICT COURT JUDGE MICHAEL TRUNCALE: 

COMES NOW Defendant DARRELL THIBODEAUX (“Thibodeaux”) and files his 

Response to Plaintiffs’ Opposed Motion to Remand, and in support of same, would respectfully

show unto this Honorable Court as follows: 

I. SUMMARY OF ARGUMENT

1. Plaintiffs originally brought this matter in the District Courts of Jefferson County, Texas. 

On January 11, 2024, The Goodyear Tire & Rubber Company (“Goodyear”) removed the case to 

Federal District Court on the grounds that complete diversity exists between the parties and the 

amount in controversy exceeds $75,000. 

2. Plaintiffs have challenged Goodyear’s removal, alleging that this Court does not have 

subject-matter jurisdiction over this suit and requested that this Court remand this matter back to 

the 60th District Court of Jefferson County, Texas. Plaintiffs’ Motion to Remand should be denied 

because the pleading on file at the time of removal, Plaintiffs’ First Amended Petition, failed to 

set forth sufficient facts to show that Darrell Thibodeaux’s alleged misconduct was a proximate 

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cause of Plaintiffs’ claimed harm. Additionally, this pleading did not mention the Texas Workers’ 

Compensation Act (“TWCA”) or allege any cause of action based on the TWCA. However, even 

if Plaintiffs’ most recent pleading is considered, their Third Amended Complaint does not contain 

claims that arise under the TWCA, nor does it allege sufficient facts to show that their claims 

against Thibodeaux are plausible. As such, Thibodeaux is improperly joined in this case, resulting 

in complete diversity between the parties. With complete diversity between the parties and the 

absence of any statute requiring remand, Plaintiffs’ Motion to Remand should be denied.

II. ARGUMENTS & AUTHORITIES

A. The pleading on file at the time of removal determines removal jurisdiction and is 

evaluated using federal pleading rules

3. When the removal of an action initiated in state court is challenged, the pleadings on file 

at the time of removal provide the basis for evaluating the existence of Federal jurisdiction.1

 In 

the absence of such a rule, there could be no final disposition of a jurisdictional issue, because the 

issue would need to be reanalyzed every time a plaintiff amended the complaint.2

 Next, federal 

pleading rules are utilized to when evaluating the propriety of removal.3

1. Plaintiffs did not allege any claims under the Texas Workers’ Compensation 

Act in their First Amended Petition

4. The pleading on file at the time of removal, Plaintiffs’ First Amended Petition, is the 

instrument that must be evaluated for jurisdictional purposes. Plaintiffs’ claims against Goodyear 

in this pleading consisted of allegations of gross negligence and ordinary negligence, with no 

mention of the TWCA, or allegations of any causes of action that are purportedly based on the 

TWCA.4

 In their Motion to Remand, Plaintiffs assert that Goodyear was “silent on this Court’s 

1 Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). 2 Id.

3 Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016). 4 Exhibit A attached to Defendant’s Notice of Removal [Doc. 1].

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lack of jurisdiction pursuant to the TWCA.”5 Goodyear was silent regarding the TWCA, precisely 

because the TWCA was not mentioned in Plaintiffs’ First Amended Petition. Thus, it is clear that 

when considering the pleading on file at the time of removal, Plaintiffs had not alleged any claims 

that were based on or arose under the TWCA that would require remand. This circumstance is 

precisely the reason why the law requires that the pleading considered when determining federal 

jurisdiction be the pleading on file at the time of removal. As the Firth Circuit stated in Cavallini:

The rationale for determining removal jurisdiction on the basis of claims in the state 

court complaint as it exists at the time of removal is obvious. Without such a rule, 

disposition of the issue would never be final, but would instead have to be revisited 

every time the plaintiff sought to amend the complaint to assert a new cause of 

action against the nondiverse defendant, all at considerable expense and delay to 

the parties and the state and federal courts involved. Limiting the removal 

jurisdiction question to the claims in the state court complaint avoids that 

unacceptable result, and permits early resolution of which court has jurisdiction, so 

that the parties and the court can proceed with, and expeditiously conclude, the 

litigation.6

In their Second and Third Amended Complaints, Plaintiffs are not clarifying the facts in existence 

at the time of removal, they are attempting to impermissibly amend away federal jurisdiction.7

 As 

such, the allegations related to the TWCA contained in Plaintiffs’ Second and Third Amended 

Complaints should not be considered, and Plaintiff’s Motion to Remand should be denied.

1. Plaintiffs did not allege any factual basis in their First Amended Petition for 

their claims against Thibodeaux

5. Plaintiffs claim that this Court does not have subject-matter jurisdiction over this matter 

because of the presence of Thibodeaux, a non-diverse party. Plaintiffs base this argument on 

certain facts alleged in their Second and Third Amended Complaints (both filed February 12, 2024) 

regarding the diameter of a safety cage around the ladder in question and the condition of the 

ladder’s rungs. These facts were not alleged in Plaintiffs’ First Amended Petition. As outlined in 

5 Plaintiff’s Motion to Remand [Doc. 11], at para. 4.

6 Cavallini, 44 F.3d at 264. 7 Id.

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Goodyear’s Notice of Removal, improper joinder is shown when a plaintiff is unable to establish 

a cause of action against the non-diverse or forum defendant in state court.8

 A district court 

conducts a Rule 12(b)(6)-type analysis, looking at the allegations of the complaint to decide if the 

complaint states a claim under state law against the in-state defendant.9 Plaintiffs must plead

sufficient facts “to state a claim to relief that is plausible on its face.”10 A claim is facially plausible 

only “when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”11

6. Plaintiffs did not plead any facts in their First Amended Petition to support their contention 

that the ladder in question was defective and that Thibodeaux’s failure to inspect and discover 

these alleged defects proximately caused O’Quinn to fall. Without such facts, it is impossible to 

reasonably infer that Thibodeaux’s conduct in any way caused or contributed to O’Quinn’s fall. 

Plaintiffs, in their Motion to Remand, do not appear to argue that their First Amended Petition, the 

pleading on file at the time of removal, provided a sufficient factual basis for their claims and have 

based their arguments in support of a remand on the factual allegations contained in their Third 

Amended Complaint. Although for reasons detailed below, the factual allegations regarding the 

safety cage and ladder rungs remain insufficient, these facts should not be considered as they were 

not alleged in Plaintiffs’ First Amended Petition. Plaintiffs’ First Amended Petition does not allege 

any factual basis supporting their claims against Thibodeaux. The First Amended Petition lists 

conclusory statements of alleged negligence that are attributed to Goodyear and Thibodeaux.12 It 

is impossible to tell which allegations are attributed to Goodyear versus Thibodeaux and no facts 

are presented to illustrate how the allegations caused or contributed to O’Quinn’s fall. These 

8 Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 586, 573 (5th Cir. 2004). 9 Smallwood, 385 F.3d at 573. 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 12 Exhibit A attached to Defendant’s Notice of Removal [Doc. 1], p. 5 § 6.

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unsupported statements are insufficient to show to Plaintiffs’ have a plausible claim for relief.13 

Because Plaintiffs’ First Amended Petition fails to state a plausible claim for relief against 

Thibodeaux, he is improperly joined in this case and complete diversity exists between Plaintiffs 

and Goodyear. As a result, Plaintiffs’ Motion to Remand should be denied.

B. Plaintiffs’ gross negligence claims do not arise under the TWCA

7. As detailed above, Plaintiffs failed to allege any claims based on the TWCA in their First 

Amended Petition, but regardless, their gross negligence claims against Goodyear do not arise 

under the TWCA. Civil actions arising under a state’s workers’ compensation laws are not 

removeable to federal court.14 However, the court in Wagner v. FedEx Freight, Inc. determined 

that a claim of gross negligence asserted by a deceased employee against his employer did not 

arise under the TWCA.15 The Wagner court conducted a detailed analysis of §408.001(b) of the 

TWCA, the Texas Wrongful Death Act and the Texas Constitution to arrive at this conclusion. 

8. When the TWCA was enacted in 1913, the Act did not preclude a deceased employee’s 

spouse and children from pursing exemplary damages, a claim that pre-existed the passing of the 

TWCA.16 The court noted that the passage of the TWCA neither “adds to nor takes from such 

liability, but leaves the law with reference thereto as it stood before the passage of the act and 

subject to the same defenses.”17 The Texas legislature exempted claims of exemplary damages 

from the TWCA because the Texas Constitution requires it.18 

9. Furthermore, the court noted that the structure of the TWCA indicates that exemplary 

damages claims do not arise under the TWCA. The TWCA was enacted to quickly resolve the 

13 Ashcroft, 556 U.S. at 678. 14 28 U.S.C. §1445(c). 15 Wagner v. FedEx Freight, Inc., 315 F.Supp.3d 916, 920 (N.D. Tex. 2018). 16 Wagner, 315 F.Supp.3d at 923. 17 Wagner, 315 F.Supp.3d at 924. 18 Id.

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claims of injured employees.19 §408.001(b) of the TWCA does nothing to quickly resolve the 

claims of injured workers, as it does not help an injured worker obtain benefits or protect the 

workers compensation system.20 The Texas Supreme Court considered a similarly worded 

predecessor of §408.001(b) and determined that the statute did not create a cause of action for 

exemplary damages, but merely preserved an existing one.21 The Fifth Circuit has also held that 

the TWCA preserves the cause of action for exemplary damages found in the Texas Constitution 

as opposed to creating it.22 This detailed review of case law, the TWCA, and the Texas 

Constitution “requires a finding that §408.001(b) preserves a cause of action found outside the 

TWCA, and therefore falls outside the ambit of §1445(c).”23 Absent the statutory requirement of 

§1445(c), Plaintiffs’ Motion to Remand should be denied.

C. The facts Plaintiffs pled in their Third Amended Complaint remain inadequate

10. As detailed above, the additional facts pled by Plaintiffs in their Second and Third 

Amended Complaints should not be considered in determining the jurisdictional issues in this case. 

However, even if these facts are considered, they remain inadequate to establish that Plaintiffs 

have a plausible cause of action against Thibodeaux. Facts supporting the allegations in a 

complaint cannot be generalities.24 Additionally, conclusory factual allegations are not sufficient 

to show the existence of a plausible cause of action.25

11. Plaintiffs have claimed that the diameter of the safety cage on the ladder in question was 

three inches too large.26 However, a safety cage was not required for this ladder, according to the 

19 Id. 20 Wagner, 315 F.Supp.3d at 925. 21 Id. 22 Wagner, 315 F.Supp.3d at 926, citing Bonner v. Tex. Co., 89 F.2d 291, 292 (5th Cir. 1937). 23 Wagner, 315 F.Supp.3d at 931. 24 Brooks v. Ross, 578 F.3d 581 (7th Cir. 2009). 25 Ashcroft, 556 U.S. at 678 citing Twombly, 550 U.S. at 555. 26 Plaintiffs’ Third Amended Complaint [Doc. 10], p. 4.

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deposition testimony of Jim Dangaran.27 Plaintiffs did not cite any regulations or other facts that 

would show that a safety cage was required on this ladder in contradiction to Dangaran’s sworn 

testimony. Plaintiffs have also claimed that the ladder’s rungs were worn.28 This conclusory 

statement is also made without reference to any regulations or requirements regarding the 

standards for ladder rungs in a similar workplace setting. These allegations are nothing more than 

“naked assertion(s) devoid of further factual enhancement” that are insufficient to show Plaintiffs’ 

have a plausible cause of action against Thibodeaux.29 It should be noted that Plaintiffs have 

inspected this ladder and, as a result, have knowledge of the ladder’s dimensions and 

measurements. Thus, Plaintiffs are well-positioned to identify how the ladder in question fails to 

meet any applicable safety regulations or requirements and how Thibodeaux’s alleged failure to 

inspect and find any such deficiency caused or contributed to O’Quinn’s fall but have failed to do 

so in any of their pleadings. Plaintiffs have failed to provide the required level of factual support 

for their claims against Thibodeaux, because no such factual support exists. The lack of a sufficient 

factual basis for Plaintiffs’ claims against Thibodeaux in any of the petitions or complaints filed 

in this case shows that these claims are not plausible on their face. As such, Thibodeaux has been 

improperly joined in this matter resulting in complete diversity between Plaintiffs and Goodyear 

necessitating the denial of Plaintiff’s Motion to Remand.

III. CONCLUSION and PRAYER

Plaintiffs’ First Amended Petition, the pleading on file at the time of removal, did not allege 

any claims based on the TWCA nor state any factual basis for their claims against Thibodeaux. 

Although their amendments after removal should not be considered, Plaintiffs’ claims for 

exemplary damages in their Third Amended Complaint do not arise under the TWCA such that a 

27 Exhibit G attached to Defendant’s Notice of Removal [Doc. 1], p. 31, l. 17 – p. 32, l. 1. 28 Plaintiffs’ Third Amended Complaint [Doc. 10], p. 4. 29 Ashcroft, 556 U.S. at 678 citing Twombly, 550 U.S. at 555.

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remand to state court is required. Further, Plaintiffs have failed to state sufficient facts in their 

Third Amended Complaint regarding their claims against Thibodeaux to show that they have any 

plausible cause of action against him. As a result, Thibodeaux is improperly joined in this case 

and should be dismissed from this matter, resulting in complete diversity between Plaintiffs and 

Goodyear. With complete diversity between the parties and absent a statutory requirement for 

remand, Plaintiffs’ Motion to Remand should be denied and this matter should remain in the 

Federal District Court.

Respectfully submitted,

/s/ John Engvall, Jr. 

JOHN ENGVALL, JR. 

State Bar No. 06628975 

Email: jengvall@engvalltxlaw.com

ATTORNEY-IN-CHARGE FOR 

DEFENDANT DARRELL THIBODEAUX

OF COUNSEL:

ENGVALL & YORK, LLP

CHRISTINE N. YORK

State Bar No. 24028058 

Email: cyork@engalltxlaw.com

1811 Bering Drive, Suite 210 

Houston, Texas 77057 

Tel.: 713-787-6700 

Fax: 713-787-0070 

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of February 2024, a copy of the foregoing instrument 

has this day been served upon all known counsel of record as follows: 

Timothy M. Ferguson Via E-Service

Antanese Kinard

The Ferguson Law Firm LLP 

3155 Executive Boulevard 

Beaumont, Texas 77705 

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Michele Y. Smith Via E-Service

Ryan Scott 

MEHAFFY WEBER

2615 Calder, Suite 800 

Beaumont, Texas 77702 

/s/ John Engvall, Jr. 

JOHN ENGVALL, JR. 

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