United States Court of Appeals

for the Fifth Circuit

No. 21-40512

Joanna Guijarro, Individually and next friend of J.C.G.; Monique 

Guijarro, Individually, 

Plaintiffs—Appellants,

versus

Enterprise Holdings, Incorporated, doing business as Enterprise 

Rent-A-Car; EAN Holdings, L.L.C., doing business as Enterprise RentA-Car; George Macias, Individually, and as Employee and Agent of 

Enterprise Rent-A-Car; Isis Trevino; Lithia Dodge of Corpus

Christi, L.P.; Lithia of Corpus Christi, L.P.; Lithia 

Chrysler Dodge Jeep Ram of Corpus Christi, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:19-CV-217

Before Richman, Chief Judge, and Costa and Ho, Circuit Judges.

Gregg Costa, Circuit Judge:

This car-accident case raises numerous issues about the appropriate 

forum and parties. Because the district court correctly ruled on those 

procedural questions and also got the merits right, we affirm.

United States Court of Appeals

Fifth Circuit

FILED

July 5, 2022

Lyle W. Cayce

Clerk
No. 21-40512

2

I

Joanna Guijarro lives in Texas with her two children. In 2018, Joanna 

rented a Jeep SUV from her local Enterprise Rent-A-Car in Brownsville for 

a road trip. That Enterprise location is owned and operated by EAN 

Holdings. EAN is a Delaware limited liability company, whose sole member 

is a Missouri corporation called Enterprise Holdings.

The next day, the Guijarros were driving on Highway 59 in heavy rain, 

when Joanna decided to stop for gas. There was a sharp curve where the 

highway exit met the local road. As Joanna approached the curve, she lost 

control of the Jeep. The vehicle tumbled into a ditch, slammed into a 

concrete culvert, and came to rest facing down with the rear end in the air. 

All three family members were injured.

The Guijarros believed that a defect in the Jeep’s braking system 

caused the accident. They sued Enterprise Holdings and EAN Holdings in

Texas state court, alleging negligence, breach of contract, and violations of 

the Deceptive Trade Practices Act (DTPA). The Guijarros claimed that the 

defendants knew or should have known that the Jeep’s brakes “were in a 

defective and/or unsafe condition” and failed to disclose or correct the 

problem.

The defendants removed the suit to federal court. The Guijarros 

twice tried to move the case back to state court. They first argued that the 

amount in controversy was insufficient. The court denied that motion, 

finding it apparent from the complaint that the amount in controversy 

exceeded $75,000. The Guijarros next asserted that their amended 

complaint defeated complete diversity because it added two Texas 

defendants—Lithia of Corpus Christi, Inc. (the Enterprise affiliate that 

serviced the Jeep) and Isis Trevino (the Enterprise agent who rented Joanna 

the Jeep). The court denied the second motion to remand and struck the 
No. 21-40512

3

amended complaint, concluding the Guijarros only sought to join these 

parties to escape federal court.

The district court next dismissed the claims against Enterprise 

Holdings. Because of a filing earlier in the case in which the Guijarros had 

agreed to dismiss that entity if the defendants agreed EAN Holdings was the 

proper defendant, the court held that the Guijarros were judicially estopped 

from suing Enterprise Holdings.

With only EAN Holdings left in the case, the court granted summary 

judgment on the ground that the Guijarros had failed to set forth competent 

evidence that the Jeep’s brakes were defective. In the court’s view, Texas 

law required the Guijarros to introduce expert opinions that identified a 

“specific defect” in the vehicle and “ruled out other possible causes” for the 

crash. See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004).

The Guijarros’ evidence did not satisfy the expert requirement, as their only 

proof of a defect was Joanna’s lay testimony “that she applied the brakes” 

and the car “would not stop.”1

II

A

We begin with the Guijarros’ first motion to remand. The denial of a 

motion to remand receives de novo review. Borden v. Allstate Ins. Co., 589 

F.3d 168, 170 (5th Cir. 2009).

Federal courts have diversity jurisdiction over civil actions in which

the amount in controversy exceeds $ 75,000 and the parties are citizens of 

1 Meanwhile, the defendants had introduced countervailing reports by two 

automotive experts. One had inspected the vehicle and found the brakes in good working 

order; the other had reviewed data from the vehicle’s event recorder and opined that the 

brakes functioned as expected in the moments before the crash.
No. 21-40512

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different states. 28 U.S.C. § 1332. There is no dispute that the relevant 

parties2 in the state-court petition are diverse—the Guijarros are domiciled 

in Texas, while the two Enterprise entities are citizens of Missouri. See

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)(holding 

that the citizenship of a limited liability company is determined by the 

citizenship of its members). The only question is whether the suit involves 

the requisite amount in controversy. Because the Guijarros did not plead a 

sum certain for damages in state court, they argue there was no basis for the 

district court to find that their case was worth more than $ 75,000.

There is a framework for resolving disputes over the amount in 

controversy. If the plaintiff’s state court petition specifies a dollar amount of 

damages, that amount controls if made in good faith. Allen v. R & H Oil & 

Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). If the petition is silent (asis often 

the case in state courts in our jurisdiction), the defendant must prove by a 

preponderance of the evidence that the amount in controversy exceeds 

$75,000. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). The 

defendant can meet that burden in one of two ways: (1) by establishing that it 

is “facially apparent” that the claims are likely to exceed $75,000, or (2) by 

2 The petition named one other defendant: George Macias, a citizen of Texas who 

managed the Enterprise branch. But the Guijarros never served Macias. The district court 

erroneously thought that meant he was not part of the citizenship analysis. A defendant’s 

“non-diverse citizenship cannot be ignored” just because he was never served. N.Y. Life 

Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998). Diversity is not complete unless the 

defendant is “dropped formally, as a matter of record.” 14C Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 3723 (4th ed. 

2022).

We nonetheless agree that Macias’s citizenship should not count for a different 

reason: The Guijarros could not conceivably have recovered against Macias, so he was 

improperly joined. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)

(en banc). Macias could not be liable for the Guijarros’ injuries for the same reasons 

another Enterprise employee, Trevino, could not. See infra Section II.B.
No. 21-40512

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setting forth the facts in controversy that support a finding of the requisite 

amount. Id.

It is facially apparent from the Guijarros’ original petition that their 

claims were likely to exceed $75,000. The Guijarros sought recovery for 

injuries sustained during a serious highway accident, in which their rental 

case “struck a concrete culvert” and “came to rest facing down with the rear 

end in the air.” Their alleged damages included: (1) medical expenses, (2) 

physical disfigurement, (3) physical pain and mental anguish, (4) loss of 

earning capacity, (5) punitive damages, (6) treble damages under the DTPA, 

and (7) attorney’s fees. Common sense dictates that such damages would 

exceed $75,000 for at least one plaintiff, which is all that is needed as the 

federal court would then have supplemental jurisdiction over the claims of 

the others. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 

(2005). Hospital bills for this kind of crash would likely start in the tens of 

thousands. Factoring in the other injuries alleged, multiplying for treble 

damages, and tacking on attorney’s fees, the Guijarros’ damages would easily 

exceed $75,000.

3

 See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th 

Cir. 2000); Luckett, 171 F.3d at 298 (both finding jurisdiction proper because 

the injuries alleged were similarly numerous and severe). The court thus 

properly denied the Guijarros’ first motion to remand.

3 The defendants set forth evidence in support of removal that confirms our 

finding. They produced a copy of the Guijarros’ presuit DTPA notice letter to Enterprise 

Holdings, which specifies that the Guijarros aim to recover “[m]edical bills of over 

$100,000 for Joanna Guijarro, over $200,000 for Monique Guijarro, and over $50,000 for 

Juan Carlos Guijarro.”
No. 21-40512

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B

The next question is whether the district court erred by denying the 

Guijarros’ second motion to remand. The Guijarros argued that their 

amended complaint adding two Texas citizens, Lithia and Trevino, 

destroyed diversity. When a plaintiff seeks to add such defendants after 

removal, the court must either “deny joinder, or permit joinder and remand 

the action to the State court.” 28 U.S.C. § 1447(e).

The Guijarros maintain the district court had no choice but to remand 

the case because it had already permitted joinder by granting their motion for 

leave to amend the complaint. The court did not see the grant of that routine 

motion as permission to join a nondiverse party.4 But even if the order 

granting leave had the unintended effect of joining Lithia and Trevino, it 

would not mean the court’s hands were tied. A court may repair diversity by 

vacating a prior order joining nondiverse parties. See Borden v. Allstate Ins. 

Co., 589 F.3d 168, 171–72 (5th Cir. 2009). If the order at issue led to any lapse 

in diversity, the district court confirmed it would have done just that.

The Guijarros argue alternatively that the court should have permitted

them to join Lithia and Trevino. We review that decision only for abuse of 

discretion. Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013). The district 

court “should freely give leave” to amend the pleadings “when justice so 

requires.” Fed R. Civ. P. 15(a)(2). But leave “is not automatic.” Moore, 

732 F.3d at 456. And a “higher level of scrutiny” applies to an amended 

pleading naming a new nondiverse defendant in a removed case. Allen v. 

Walmart Stores, L.L.C., 907 F.3d 170, 185 (5th Cir. 2018). In that situation, 

4 As the court later explained, the Guijarros had not clarified who they sought to 

join or the impact of such joinder on the court’s jurisdiction. The court thus treated the 

filing of the amended complaint and related motion to remand as an initial request to join 

the nondiverse defendants. It denied that request.
No. 21-40512

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the court should consider several factors, including “the extent to which the 

purpose of the amendment is to defeat federal jurisdiction.”5 Hensgens v. 

Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). The plaintiff’s failure to 

state a plausible claim against a proposed defendant is evidence of the 

amendment’s improper purpose and sufficient reason to deny leave to 

amend. See Allen, 907 F.3d at 186; Moore, 732 F.3d at 457.

The district court did not abuse its discretion in rejecting the 

Guijarros’ amended complaint. After lengthy analysis, the court concluded 

there was no possibility the Guijarros could recover against either Lithia or 

Trevino. We agree with that conclusion. The Guijarros aimed to hold both 

parties liable for negligence—Trevino, as the customer agent responsible for 

the rental transaction, and Lithia, as the servicer that last inspected the 

vehicle. The negligence claim against Trevino could not succeed because it 

related solely to her acts and omissions as an Enterprise employee. Under 

Texas law, an employee must “owe[] an independent duty of reasonable care 

to the injured party apart from the employer’s duty.” Leitch v. Hornsby, 935 

S.W.2d 114, 117 (Tex. 1996). Any duty Trevino had to protect the Guijarros 

from a defect in an Enterprise vehicle flowed from being the company’s 

agent.

As for Lithia, courts applying Texas law generally agree that auto 

repair shops are under no duty to discover and warn about latent defects or 

recalls. See Torres v. FCA US LLC, 2020 WL 1809835, at *2 (S.D. Tex. Apr. 

9, 2020) (citing cases); see also Torrington Co. v. Stutzman, 46 S.W.3d 829, 

837 (Tex. 2000) (“Texas law generally imposes no duty to take action to 

prevent harm to others . . . .”). There is an exception if the servicer

5 The court should also consider “whether plaintiff has been dilatory in asking for 

amendment, whether plaintiff will be significantly injured if amendment is not allowed, and 

any other factors bearing on the equities.” Hensgens, 833 F.3d at 1182.
No. 21-40512

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negligently performed repairs that “it knew or should have known were 

necessary for the plaintiffs’ protection,” and the plaintiff “relied upon” the 

servicer’s performance. See Torrington, 46 S.W.3d at 838. It does not apply 

here, however, as the Guijarros failed to allege that they were even aware of 

Lithia’s services before the accident, much less that they relied on them.

The district court did not abuse its discretion in denying the second 

motion to remand.

C

Nor did the district court err in dismissing Enterprise Holdings. The 

Guijarros identify no reason why two Enterprise defendants are better than 

one. In any event, we see no abuse of discretion in the court’s ruling that 

estoppel barred the Guijarros from reneging on the agreement to dismiss 

Enterprise Holdings after the defendants carried out their end of the deal (by 

stipulating EAN Holdings was the proper entity). And practically that 

dismissal does not matter if—as we are about to hold—the Guijarros do not 

have evidence to get to trial on whether the brakes were defective. Without 

evidence of a defective brake, it does not matter how many Enterprise entities

the Guijarros sue.

III

While the above issues occupy the bulk of the parties’ attention, we 

finally arrive at the one that ultimately resolves their dispute: whether the 

Guijarros’ claims should get to a jury.

The district court held there was insufficient evidence of a brake

defect because the Guijarros did not submit expert opinions that identified a 

specific defect and ruled out other possible causes of the crash. The court 

relied on Nissan Motor Co. v. Armstrong, 145 S.W.3d at 137, for that

requirement of Texas law. The Guijarros now argue that Armstrong, a 
No. 21-40512

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products-liability case involving unintended acceleration, does not apply to 

their allegations of brake failure or to different causes of action like the 

DTPA. We disagree.

In Armstrong, a driver sued a car manufacturer, claiming that a defect 

in her vehicle caused it to rapidly accelerate and strike a brick building and a 

telephone pole. 145 S.W.3d at 134–36. The plaintiff presented testimony 

from other drivers who experienced unintended acceleration in the same car 

model, as well as her own testimony that the car shot forward “[a]fter she 

‘barely touched’ the accelerator.” Id. at 134. Like Joanna, the plaintiff 

maintained that the car did not respond, although “she was pressing the 

brake pedal as hard as she could.” Id. The Supreme Court of Texas held 

that this lay testimony was not competent evidence of a defect. Id. at 137–

38. There are too “many potential causes” for a car to accelerate, the most 

frequent of which is human error (“inadvertently stepping on the wrong 

pedal”). Id. As such, the court explained, “we have consistently required 

competent expert testimony and objective proof that a defect caused the 

acceleration.” Id.

Armstrong is not limited to acceleration cases. The opinion says so. 

Id. at 137 (explaining that the evidentiary requirements “are not peculiar to 

unintended acceleration cases”). And it relies on similar rulings in cases 

involving other kinds of defects. Id. In one, for example, it was not enough 

that the plaintiff’s expert testified merely that he “suspected” an electrical 

issue was responsible for a vehicle fire. Id. (citing Ford Motor Co. v. Ridgway, 

135 S.W.3d 598, 600–01 (Tex. 2004)).

The state supreme court has reiterated these evidentiary standards 

since Armstrong. See Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 878 (Tex. 

2014) (confirming that, in defect-related cases, an expert must “exclude 

‘other plausible causes’ presented by the evidence” (quoting 
No. 21-40512

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Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 218 (Tex.2010))). And 

lower courts routinely apply them to cases involving all sorts of alleged 

product defects. See e.g., Velasquez v. EAN Holdings, LLC, 2018 WL 

5924037, at *9 (N.D. Tex. Nov. 13, 2018) (tire blowout); Madere v. Enter. 

Holdings, Inc., 2016 WL 7235829, at *2 (W.D. Tex. Dec. 14, 2016) (wheel 

failure).

It makes sense that Armstrong extends to claims predicated on brake 

defects. As with unintended acceleration, any number of common factors 

might prevent a vehicle from slowing down once the brake pedal is depressed. 

See Armstrong, 145 S.W.3d at 137; cf. Velasquez, 2018 WL 5924037, at *9 

(explaining that determining the actual cause of a tire blowout involves 

equipment and skills unfamiliar to the layperson). In this instance, the rain 

might have mixed with oil stains on the asphalt, making the car’s tires 

particularly slick. Or, as the defendants contend, perhaps Joanna was driving 

too fast, and the car hydroplaned on the wet road.

The Guijarros counter that Joanna did not need to be an expert to 

perceive that her brakes were not working. But whether the brakes 

performed as expected is not the issue. Indeed, it was just as apparent to the

driver in Armstrong that her vehicle was accelerating on its own. See 145 

S.W.3d at 134. The issue is whether a defect caused the performance 

problem. Id. at 137–38; see also Cooper Tire & Rubber Co. v. Mendez, 204 

S.W.3d 797, 807 (Tex. 2006) (“Texas law does not generally recognize a 

product failure standing alone as proof of a product defect.”). The Supreme 

Court of Texas requires that experts speak to that more technical question. 

As a federal court sitting in diversity, our job is not to weigh in on the wisdom 

of the state rule but to faithfully apply it. See Erie R. Co. v. Tompkins, 304 

U.S. 64, 78 (1938).
No. 21-40512

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The Guijarros also contend that Armstrong is distinguishable because 

it addressed a strict products-liability claim, whereas they allege negligent 

misrepresentation, breach of contract, and violations of the DTPA. True,

Armstrong did not discuss these other claims. But we see no basis for cabining 

the expert requirement for proving mechanical defects to the productsliability arena. All of the Guijarros’ claims rely on the same factual predicate: 

They cannot prove that EAN failed to maintain the Jeep or misrepresented 

the state of its brakes without first showing that the brakes were defective. 

Armstrong is about what it takes to allow a jury to find that a defect existed. 

As long as a claim depends on showing this type of mechanical defect, we see 

no logical reason for not applying the expert requirement across the board.

Indeed, Texas intermediate courts uniformly hold that claims 

premised on such defects must comport with Armstrong’s evidentiary 

standards, regardless of whether those claims are rooted in tort law, contract 

law, or the DTPA. See e.g., Hill v. Sonic Momentum JVP, LP, 2021 WL 

3501540, at *4 (Tex. App.—Houston [1st Dist.] 2021) (breach of contract, 

breach of warranty, and the DTPA); GB Tubulars, Inc. v. Union Gas 

Operating Co., 527 S.W.3d 563, 571–72 (Tex. App.—Houston [14th Dist.] 

2017) (same, as well as negligent misrepresentation). More broadly, Texas 

law has long required expert testimony for issues of causation that go beyond 

“general experience and common sense.” See Lenger v. Physician’s Gen. 

Hosp., Inc., 455 S.W.2d 703, 706, 708 (Tex. 1970).

We do not think this question is close enough to warrant certification 

to the Supreme Court of Texas. See McMillan v. Amazon.com, 983 F.3d 194, 

202 (5th Cir. 2020) (noting that certification is usually reserved for close 

questions of state law with “scant on-point precedent”). Certification is 

appropriate when “consequential state-law ground is to be plowed” and 

“any Erie guess would involve more divining than discerning.” Id. Our guess 

today is a safer bet. The Guijarros have not identified a single case cabining 
No. 21-40512

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Armstrong to the realm of products liability. See Troice v. Greenberg Traurig, 

L.L.P., 921 F.3d 501, 504–05 (5th Cir. 2019) (declining to certify because 

multiple intermediate courts had adopted one view of the issue, and the 

plaintiff had not identified any contrary authority). Nor does such a 

distinction make sense. Add to the one-sidedness of this issue that neither 

party requested certification.

We conclude that Texas law requires plaintiffs alleging a brake defect 

to put forth “competent expert testimony and objective proof” that the

defect caused their injuries. See Armstrong, 145 S.W.3d at 137. Because the 

Guijarros did not do so, the summary judgment against them was proper.

* * *

The judgment is affirmed.