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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ANDRE HILL,

 Plaintiff,

v.

NEBRASKA FURNITURE MART or 

TXFM, INC. d/b/a NEBRASKA 

FURNITURE MART,

 Defendant.

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 Civil Action No. 4:23-cv-583-ALM-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant Nebraska Furniture Mart or TXFM, Inc. d/b/a 

Nebraska Furniture’s (“Defendant”)1 Motion to Dismiss for Lack of Subject-Matter Jurisdiction 

(the “Second Motion to Dismiss”) (Dkt. 19), to which Plaintiff Andre Hill (“Plaintiff”) filed a 

response (the “Response”) (Dkt. 21), and Defendant filed a reply (the “Reply”) (Dkt. 23). For the 

reasons that follow, the Court recommends that the Second Motion to Dismiss (Dkt. 19) be 

GRANTED.

I. BACKGROUND

A. Procedural History

On June 21, 2023, Plaintiff initiated this action by filing a complaint (the “Complaint”) 

(Dkt. 1) against Defendant, wherein Plaintiff asserts several discrimination and retaliation claims 

arising under the Family and Medical Leave Act (the “FMLA”), Title VII of the Civil Rights Act 

of 1964 (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), and the Texas Labor Code. See Dkt. 1 at 9–

1 The parties implicitly recognize that the appropriate party to this action is “TXFM, Inc.,” which does business as 

“Nebraska Furniture Mart.” See Dkt. 15 at 1.

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12. Two days later, Plaintiff filed the First Amended Complaint (Dkt. 3) as a matter of course, 

which added two additional retaliation claims arising under the Texas Labor Code and § 1981. See 

Dkt. 3; see also FED. R. CIV. P. 15(a)(1). On September 8, 2023, Defendant filed a motion to 

dismiss (the “First Motion to Dismiss”) (Dkts. 7–8), wherein it sought dismissal of Plaintiff’s 

claims arising under the Texas Labor Code because “Defendant was a non-subscriber under the 

Texas Worker’s Compensation Act,” and because Plaintiff did not exhaust his administrative 

remedies. Dkt. 8 at 2–3. In response, Plaintiff filed the Second Amended Complaint (Dkt. 9), 

which dropped all claims under the Texas Labor Code and added a state law negligence claim

against Defendant. See Dkt. 9 at 9–13. On October 10, 2023, Defendant answered the Second 

Amended Complaint (Dkt. 9). See Dkt. 10.

On October 16, 2023, the Court found that the Second Amended Complaint (Dkt. 9) “was 

improperly filed without the Court’s leave.” Dkt. 12 at 2. Nevertheless, the Court found that it was 

“in the interest of justice to retroactively grant leave of court for Plaintiff to file the amended 

pleading.” Id. (cleaned up). The Court was persuaded by the fact that the Second Amended 

Complaint (Dkt. 9) provided the relief sought by Defendant in the First Motion to Dismiss 

(Dkts. 7–8). Id. The Court also noted that Defendant did not move to strike the pleading as 

untimely, and instead filed an answer. Id. Because the Second Amended Complaint (Dkt. 9) was 

deemed the live pleading in this matter, thereby superseding the First Amended Complaint 

(Dkt. 3), the Court denied the First Motion to Dismiss (Dkts. 7–8) as moot. Id.

On December 19, 2023, Defendant filed the Second Motion to Dismiss (Dkt. 19) seeking 

dismissal of one of Plaintiff’s five claims. See Dkt. 19. According to Defendant, “[t]he Court lacks 

subject-matter jurisdiction over Plaintiff’s negligence claim” and, thus, that “claim should be 

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dismissed.” Id. at 1. On January 19, 2024, Plaintiff filed the Response (Dkt. 21). See Dkt. 21.2 On 

January 26, 2024, Defendant filed the Reply (Dkt. 23). See Dkt. 23.3

B. Factual Allegations

In the Second Amended Complaint (Dkt. 9), Plaintiff alleges that he began his employment 

with Defendant in January 2013. Dkt. 9 at 3. Over the next several years, Plaintiff received a 

number of promotions and was “relocated to the Dallas area when [Defendant] opened a super 

center in The Colony, Texas.” Id. According to Plaintiff, “his career was solid, and his prospects 

were positive.” Id. Plaintiff alleges that this “solid” trajectory changed in February 2020 when 

Plaintiff’s “white supervisor wanted to replace him with one of the supervisor’s white friends.” Id. 

at 4. Thereafter, Plaintiff alleges that he received three performance agreements in a sixth-month 

period. Id. Because Plaintiff believed these performance agreements were “bogus and racially 

motivated,” he filed an “internal complaint of racial discrimination” in July 2020. Id. Plaintiff was 

demoted two months thereafter. Id. A few months later, Plaintiff filed an affidavit supporting a 

fellow employee’s claim of racial discrimination in her charge with the Equal Employment 

Opportunity Commission (the “EEOC”) against Defendant. Id.

Plaintiff alleges that, in August 2021, he began “experiencing health issues while working 

at the . . . loading dock . . . due to the physical demand and working in outside conditions.” Id.

Specifically, Plaintiff alleges that, while he was recovering from Covid-19 complications, he 

“experienced what he would later be told by his physicians was a mild heart attack.” Id. at 5. Due 

to this medical issue, Plaintiff experienced “shortness of breath, a fast and irregular heartbeat, and 

2

In most cases, “[a] party opposing a motion has fourteen days . . . from the date the motion was served in which to 

file a response and any supporting documents.” LOC. R. CV-7(e). While the Response (Dkt. 21) was filed outside this 

timeframe, it is timely because the Court extended Plaintiff’s response deadline sua sponte. See Dkt. 20.

3

Initially, Defendant filed a reply which exceeded the page limit imposed by the Local Rules. See Dkt. 22; see also 

LOC. R. CV-7(a)(2). The Clerk of Court issued a notice of deficiency, and Defendant filed the Reply (Dkt. 23) the 

following day. See Dkt. 23.

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muscle spasms in his back and stomach.” Id. Thereafter, Plaintiff reported “his symptoms and 

condition” to Defendant’s human resources department (“Human Resources”), which instructed 

him to file an FMLA claim. Id. After Plaintiff filed an FMLA claim, he was instructed to 

communicate with a third-party vendor (the “Third Party”), which handles Defendant’s 

employees’ FMLA claims. Id. According to Plaintiff, the Third Party gave him a “timeframe to 

provide documentation from his doctor to certify the dates needed for FMLA leave.” Id.

At some point thereafter, Plaintiff alleges that Human Resources contacted Plaintiff 

regarding his return-to-work date, which had “came and went.” Id. at 6. According to Plaintiff, he 

communicated that he had continuing health issues and, as a result, would provide the Third Party 

with the documents necessary to extend his FMLA leave. See id. Within a few hours of this 

communication, Plaintiff alleges he was terminated due to “two consecutive ‘No Call No Show’ 

policy violations.” Id. According to Plaintiff, he “immediately communicated” with Human 

Resources and Defendant’s management “to let them know that he was still out on covered FMLA 

leave and was unable to report to work on the dates in question.” Id. However, Human Resources 

indicated that his termination was “final.” Id. Plaintiff then filed charges of discrimination with 

the EEOC relating to his termination and, upon receiving a right to sue letter, initiated this lawsuit.

Id. at 9. Plaintiff asserts that he was unlawfully terminated or demoted: (1) “because he filed for 

FMLA leave and sought to fully take advantage of the leave rights as instructed by his physician 

and allowed by the FMLA”; (2) “because of his race”; and (3) “in retaliation for his protected 

activity of filing a claim of racial discrimination and/or supporting the racial discrimination [claim] 

of another.” See id. at 10–12. In addition, Plaintiff asserts a claim of negligence based on 

Defendant’s failure to

exercise reasonable care by failing to provide sufficient and reasonable tools for the 

performance of Plaintiff’s job, including without limitations: a workplace 

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sufficiently shaded and cooled from the Texas heat in the manner reasonable for 

the circumstances; the tools and equipment needed to perform the lifting and other 

physical activities needed for Plaintiff’s job duties; providing sufficient number of 

employees for the volume, nature, and speed of the work involved given the hot 

work environment; and other similar acts or omissions that were unreasonable 

under the circumstances.

See id. at 12–13.

II. LEGAL ANALYSIS4

In the Second Motion to Dismiss (Dkt. 19), Defendant argues that the Court “lacks 

supplemental jurisdiction” over Plaintiff’s negligence claim because it “does not arise out of the 

same case or controversy as Plaintiff’s federal claims.” Dkt. 19 at 2. Specifically, Defendant 

contends that “Plaintiff’s federal claims stem from Plaintiff’s demotion and termination,” while 

Plaintiff’s negligence claim “stem[s] from a personal injury allegedly sustained while Plaintiff was 

in the course and scope of his employment.” Id. In the Response (Dkt. 21), Plaintiff argues there 

is a “clear common nucleus of fact” because all of his claims seek lost wages “for the same period 

of time.” See Dkt. 21 at 12–13. Relatedly, Plaintiff argues that, because “Defendant has asserted 

the failure to mitigate damages as an affirmative defense as to all of Plaintiff’s causes of action,” 

Plaintiff must introduce evidence demonstrating that “Plaintiff was illegally fired . . . and that 

Plaintiff took reasonable efforts to prevent that illegal firing.” Id. at 13. The Court agrees with 

Defendant.

“Federal courts are courts of limited jurisdiction” and “possess only that power authorized 

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, a federal 

4 The parties analyze the “common law factors of judicial economy, convenience, fairness, and comity.” See Dkts. 21 

at 9; 23 at 3. The Court declines to do so here. These factors are only relevant when the Court has supplemental 

jurisdiction but uses its discretion—guided by the statutory and common law factors—to decline to exercise it. See 

Garcia v. City of McAllen, 853 F. App’x 918, 920 (5th Cir. 2021); see also 28 U.S.C. § 1367(c).

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court “must determine whether it has proper subject matter jurisdiction over every claim.” 

Insuremax Ins. Agencies, Inc. v. Shanze Enters., Inc., No. 13-cv-1231, 2013 WL 4014476, at *1 

(N.D. Tex. Aug. 7, 2013) (citing Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d 668, 672 

(5th Cir. 1978)). It is well established that the “party invoking federal subject-matter jurisdiction 

has [the] burden of pleading and proving it.” Maxwell v. Kight, 974 F. Supp. 899, 902 (E.D. Tex. 

1996) (citing Epps v. Bexar-Medina-Atascosa Cntys. Water Improvement Dist. No. 1, 665 F.2d 

594, 595 (5th Cir. 1982)). Such a party “has the burden of proving subject matter jurisdiction by a 

preponderance of the evidence.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 

2009) (citing New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008)). 

“In the Fifth Circuit, subject-matter jurisdiction determinations may be made using any one of the 

following bases: ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts 

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s 

resolution of disputed facts.’” Maxwell, 974 F. Supp. at 902 (citing Barrett Comput. Servs., Inc. v. 

PDA, Inc., 884 F.2d 214, 220 (5th Cir. 1989)).

“When a district court has jurisdiction over one claim, 28 U.S.C. § 1367(a) authorizes 

supplemental jurisdiction over other claims so related to it ‘that they form part of the same case or 

controversy.’” Weaver v. Metro. Life Ins. Co., 939 F.3d 618, 624 (5th Cir. 2019) (quoting 

28 U.S.C. § 1367(a)). A claim is a part of the same case or controversy if it is “so related to the 

original claims that they . . . ‘derive from a common nucleus of operative fact.’” S J Associated 

Pathologists, P.L.L.C. v. Cigna Healthcare of Tex., Inc., 964 F.3d 369, 373 (5th Cir. 2020) 

(omission in original) (quoting Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008)). In other 

words, “if, considered without regard to their federal or state character, a plaintiff’s claims are such 

that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming 

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substantiality of the federal issues, there is power in federal courts to hear the whole.” Mumpuku 

v. City of Plano, No. 18-cv-785, 2021 WL 1600286, at *3 (E.D. Tex. Apr. 22, 2021) (quoting 

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)) (internal quotation marks 

omitted).

After careful consideration, the Court finds that Plaintiff’s negligence claim does not arise 

from the same common nucleus of operative fact as his federal claims. Each of Plaintiff’s federal 

claims relate to his alleged wrongful termination or demotion at the hands of Defendant,

5 while 

Plaintiff’s negligence claim is based on Defendant’s alleged failure to “exercise reasonable care 

by failing to provide sufficient and reasonable tools for the performance of Plaintiff’s job.” See

Dkt. 9 at 13. The only significant commonality between these claims is that they arise from 

Plaintiff’s employment with Defendant. But “[t]he mere fact that the parties were once linked by 

an employer-employee relationship is insufficient when the claims would stir such different issues 

and rely on such different facts and evidence.” Cordero v. Voltaire, LLC, No. 13-ca-253, 2013 WL 

6415667, at *5 (W.D. Tex. Dec. 6, 2013) (citation omitted) (internal quotation marks omitted); 

see, e.g., Whatley v. Young Women’s Christian Ass’n of Nw. La., Inc., No. 06-423, 2006 WL 

1453043, at *3 (W.D. La. May 18, 2006) (finding no common nucleus of operative fact where the 

only relationship between plaintiff’s FLSA claim and state law claims was the “employeremployee relationship”).

The Court notes that there appears to be an attenuated causal relationship between 

Plaintiff’s state and federal claims: (1) Defendant’s negligence allegedly caused Plaintiff’s heart 

5 See Dkt. 9 at 10 (“Defendant violated the FMLA by terminating [Plaintiff] . . . because he filed for FMLA 

leave . . . .”); id. at 10–11 (asserting Defendant violated Title VII and § 1981 by “terminating [Plaintiff] . . . because 

of his race”); id. at 11 (asserting Defendant violated Title VII and § 1981 by “terminating [Plaintiff] . . . in retaliation 

for his protected activity of filing a claim of racial discrimination . . . and/or supporting the racial discrimination 

[claim] of another”); id. at 12 (“Defendant . . . wrongfully demoted [Plaintiff] and violated [§] 1981 by demoting 

him . . . based on race and/or in retaliation for his protected activity of filing a claim of racial discrimination and/or 

supporting the racial discrimination [claim] of another.”).

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attack; (2) Plaintiff’s heart attack resulted in him taking FMLA leave; and (3) Plaintiff was 

terminated because he took FMLA leave. See Dkt. 9 at 4–5, 10, 13. Notwithstanding this 

attenuated causal relationship, Plaintiff’s state and federal claims do not share “operative facts” 

insofar as the facts relevant to the disposition of Plaintiff’s negligence claim are “separate and 

distinct” from Plaintiff’s federal claims. See Salei v. Boardwalk Regency Corp., 913 F. Supp. 993, 

999 (E.D. Mich. 1996). Specifically, the facts needed to prove that Defendant terminated Plaintiff 

for taking FMLA leave differ widely from those needed to prove that Defendant was negligent by 

failing “to provide sufficient and reasonable tools for the performance of Plaintiff’s job.” See 

Dkt. 9 at 10, 12–13. For these reasons, the Court lacks supplemental jurisdiction over Plaintiff’s 

negligence claim.

Plaintiff’s arguments to the contrary are unavailing. Specifically, Plaintiff contends that 

there is a “clear common nucleus of fact” because all of his claims seek lost wages “for the same 

period of time.” Dkt. 21 at 12–13. Even assuming arguendo that this would require the submission 

of duplicative evidence,6 Plaintiff points to no authority—and the Court finds none—indicating 

that claims are sufficiently related for the purposes of supplemental jurisdiction because they seek 

the same remedy. See id. Indeed, Plaintiff’s own authority suggests the need for a greater degree 

of factual relatedness.

For example, in Bennett v. Fastenal Co., 184 F. Supp. 3d 304 (W.D. Va. 2016), the plaintiff 

sued her employer alleging that her supervisor sexually harassed her and “eventually terminated 

her after she rejected his advances.” Id. at 305. The plaintiff asserted Title VII claims of sex 

6

In the Reply (Dkt. 23), Defendant asserts that the “only common thread” between Plaintiff’s federal claims and 

negligence claim is “the evidence necessary to support his claim for lost wages.” Dkt. 23 at 3. According to Defendant, 

these “sweeping generalizations” fail to account for the fact that “lost wages under Plaintiff’s federal claims consists 

of forgone wages and benefits, while Plaintiff’s state negligence claim consists of compensation for diminished 

capacity in the workforce.” Id. at 4. Defendant argues that these differences undermine Plaintiff’s argument insofar as 

the damages calculations “will require different discovery and evidence to substantiate” those claims. Id. at 5.

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discrimination and harassment, as well as state law claims of assault and battery. Id. The court 

found that it had supplemental jurisdiction over the assault and battery claims because the same 

underlying factual allegations (the supervisor’s sexual misconduct) formed a “significant part” of 

both the state and federal claims. Id. at 308. As explained above, the allegations in the present case 

involve distinct occurrences without significant factual overlap.

Similarly, in Saenz v. Austin Roofer’s Supply, LLC, 664 F.Supp.2d 704 (W.D. Tex. 2009), 

the plaintiffs asserted a claim under the Fair Labor Standards Act (the “FLSA”) for the defendants’ 

alleged failure to “pay them overtime wages.” Id. at 705. The plaintiffs also asserted a state law 

claim for breach of contract for the defendants’ alleged failure “to pay them commissions for sales 

of roofing supplies.” Id. Finally, one of the plaintiffs asserted claims of assault, battery, and 

negligent training, retention, and supervision arising from an alleged “assault and battery . . . in 

the workplace.” Id. at 705–06. As to the tort claims, the court found that the there were no “specific 

facts” besides the “employment relationship between the parties” connecting the “state law tort 

claims together with the FLSA claim.” Id. at 708–09. Thus, the court concluded that it lacked 

supplemental jurisdiction over the tort claims. Id. at 709–10. However, the court reached the 

opposite conclusion with respect to the breach of contract claim because both the state and federal 

claims emerged from the plaintiffs’ “alleged entitlement to wages and the amount [the] 

[d]efendants allegedly failed to pay.” Id. at 710. In addition, the parties would have relied on 

“substantially the same facts” to prove (and defend against) these claims. Id. Unlike the breach of 

contract claim in Saenz, Plaintiff’s state and federal claims arise from two distinct occurrences

and, in any event, involve little to no factual overlap.

Plaintiff also argues that there is a common nucleus of operative fact because “Defendant 

has asserted the failure to mitigate damages as an affirmative defense as to all of Plaintiff’s causes 

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of action,” which will require Plaintiff to introduce evidence demonstrating that “Plaintiff was 

illegally fired . . . and that Plaintiff took reasonable efforts to prevent that illegal firing.” Dkt. 21 

at 13. This argument is without merit. The common nucleus of operative fact is created by the 

relatedness of the claims—not by reference to any affirmative defense raised by the opposing 

party. See Mendoza, 532 F.3d at 346 (“The question . . . is whether the supplemental claims are so 

related to the original claims that they form part of the same case or controversy, or in other words, 

that they ‘derive from a common nucleus of operative fact.’ Here, both the federal and state claims 

on the face of the pleadings concern the same core factual issue: the proper diagnosis and treatment 

of [the plaintiff’s] bladder cancer.” (internal citation omitted)); cf. Lawrence & Assocs., Inc. v. 

Amdocs Champaign, Inc., No. 05-cv-2306, 2007 WL 390732, at *3 (E.D. Mo. Jan. 31, 2007) 

(“The . . . defendants argue that the counterclaims and the potential affirmative defenses share a 

common nucleus of operative facts. This is irrelevant for purposes of supplemental jurisdiction. 

The issue is whether the counterclaims and the claims, not the potential affirmative defenses to 

those claims, are so related as to form the same case or controversy.”).

Taken together, the Court finds that Plaintiff’s negligence claim is not “so related” to his 

federal claims that they form the same “case or controversy” or involve a “common nucleus of 

operative fact.” See Weaver, 939 F.3d at 624. Because the Court lacks supplemental jurisdiction 

over Plaintiff’s negligence claim, it should be dismissed without prejudice for lack of subject 

matter jurisdiction.7

7 Plaintiff does not invoke diversity jurisdiction or allege facts sufficient for the Court to do so. See Dkt. 9 at 2–3, 14–

15. However, the Court notes that Plaintiff is a citizen of Texas, Dkt. 9 at 2, and, based on public filings, Defendant 

appears to be a Texas corporation with its principal place of business in The Colony, Texas. Whether Defendant is a 

subsidiary is of no consequence for the purposes of diversity jurisdiction. See Panalpina Welttransport GmBh v. 

Geosource, Inc., 764 F.2d 352, 354–55 (5th Cir. 1985).

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III. RECOMMENDATION

For the foregoing reasons, the Court recommends that the Second Motion to Dismiss 

(Dkt. 19) be GRANTED, and Plaintiff’s negligence claim be DISMISSED WITHOUT 

PREJUDICE for lack of subject matter jurisdiction. All of Plaintiff’s federal claims remain 

pending.

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

serve and file written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C).

A party is entitled to de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140, 148 (1985); see also 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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