Nguyen v. Walmart Inc. et al

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
LOC NGUYEN,
Plaintiff,
v.
WALMART INC. and CROSSMARK,
INC.,
Defendants.
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Civil Action No. 4:26-cv-826
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Loc Nguyen’s Motion to Remand (the “Motion”)
(Dkt. #5). Having considered the Motion and the relevant pleadings, the Court finds that the
Motion should be DENIED.
BACKGROUND
This is a personal injury case. Plaintiff alleges that a shelving unit fell on him at Walmart on
August 20, 2024. Plaintiff filed suit in Texas state court against Defendants Walmart Inc., the
owner of the premises, and Crossmark, Inc., a company that Walmart allegedly contracted for work
at the location (Dkt. #5-2 at pp. 1, 5–6, 9). On July 10, 2026, Defendants removed the case to this
Court pursuant to this Court’s diversity jurisdiction under 28 U.S.C. § 1332 and in accordance with
Local Rule CV-81 (Dkt. #1 at p. 1). In its argument for removal, Defendant Walmart alleges that
Plaintiff improperly joined Defendant Crossmark to defeat diversity jurisdiction (Dkt. #1 at p. 2).
On July 31, 2025, Plaintiff filed the present Motion, seeking to remand the case to state court
(Dkt. #5). Defendant Walmart filed a Response (Dkt. #7).
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LEGAL STANDARD
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized
by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “Only state-court actions that originally
could have been filed in federal court may be removed to federal court by the defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)). “In an action that
has been removed to federal court, a district court is required to remand the case to state court if,
at any time before final judgment, it determines that it lacks subject matter jurisdiction.”
Humphrey v. Tex. Gas Serv., No. 1:14-CV-485, 2014 WL 12687831, at *2 (E.D. Tex. Dec. 11, 2014).
The Court “must presume that a suit lies outside [its] limited jurisdiction,” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001), and “[a]ny ambiguities are construed against removal and in
favor of remand to state court.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013)
(citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). “When
considering a motion to remand, ‘the removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.’” Humphrey, 2014 WL 12687831, at *2 (citation
modified) (quoting Manguno, 276 F.3d at 723).
ANALYSIS
I. Diversity Jurisdiction
Plaintiff argues that remand is proper because Defendants failed to establish complete
diversity of citizenship (Dkt. #5 at pp. 8–9). Diversity jurisdiction under 28 U.S.C. § 1332 requires
complete diversity of citizenship between the parties. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d
535, 537 (5th Cir. 2014). For diversity purposes, an individual is a citizen of the state where they
are domiciled. MidCap Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 313–14 (5th Cir. 2019).
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A corporation is a citizen of the state, or states, of its incorporation and the state where its principal
place of business is located. Id. The citizenship of a limited liability company and a limited
partnership is determined by considering the citizenship of all the members and partners. Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008); Temple Drilling Co. v. La. Ins. Guar.
Ass’n, 946 F.2d 390, 393 (5th Cir. 1991). The party invoking jurisdiction under § 1332 is responsible
for showing that the parties are completely diverse. See Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980).
A. Plaintiff’s Citizenship
Plaintiff is a citizen of Texas because Plaintiff is an individual who is domiciled in Texas.
Plaintiff lists his primary address as Texas in his original state court petition (Dkt. #5-2 at p. 1). All
factual allegations in the lawsuit occurred in Texas, and Plaintiff asserts no other location where he
has lived, will live, or intends to live (Dkt. #5-2; Dkt. #5). As such, Plaintiff is a citizen of Texas for
diversity purposes. See MidCap, 929 F.3d at 313–14.
B. Defendants’ Citizenship
The parties are not diverse because Defendant Crossmark shares citizenship with Plaintiff.
“A federal court cannot exercise diversity jurisdiction if one of the plaintiffs shares the same
citizenship as any one of the defendants.” Stiftung v. Plains Mktg., LP, 603 F.3d 295, 297 (5th Cir.
2010) (citations omitted).
First, Defendant Walmart is a Delaware corporation with its principal place of business in
Arkansas (Dkt. #1 at p. 2). Because Defendant Walmart does not share any state of citizenship with
Plaintiff, its citizenship is sufficiently diverse to satisfy 28 U.S.C. § 1332. See MidCap, 929 F.3d at
313–14. Second, Defendant Crossmark is a Delaware corporation with its principal place of
business in Texas (Dkt. #5 at p. 1). Defendant Crossmark shares Texas as a common state of
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citizenship with Plaintiff. See MidCap, 929 F.3d at 313–14. As such, the parties are not diverse. See
Stiftung, 603 F.3d at 297. Therefore, the Court lacks subject matter jurisdiction unless Plaintiff
improperly joined Defendant Crossmark. See Pace v. Cirrus Design Corp., 93 F.4th 879, 889 (5th Cir.
2024).
II. Improper Joinder
Defendant Walmart argues that Plaintiff improperly joined Defendant Crossmark, and that
the Court should therefore disregard Defendant Crossmark’s citizenship. See id. (citation omitted)
(“If a non-diverse defendant is fraudulently joined . . . the citizenship of that party can be
ignored.”).
The Fifth Circuit recognizes two forms of improper joinder: (1) actual fraud in the pleading
of jurisdictional facts; or (2) inability of the plaintiff to establish a cause of action against the non-
diverse party in state court. Id. Defendant Walmart alleges the latter, and it must carry the “heavy
burden of proving that the joinder of the in-state party was improper.” Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 574 (5th Cir. 2004) (citation omitted).
To determine whether a plaintiff has joined a party to which no cause of action exists, courts
typically analyze “whether the plaintiff had any possibility of recovery against the non-diverse
defendant in state court at the time of removal.” Williams v. Homeland Ins. Co. of N.Y., 18 F.4th 806,
812 (5th Cir. 2021) (citation omitted). “Ordinarily, if a plaintiff can survive a Rule 12(b)(6)
challenge, there is no improper joinder.” Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016)
(citation modified).
A. Appropriate Test for Improper Joinder
The Fifth Circuit has set out two avenues for determining whether there is a reasonable
basis to predict that a plaintiff might recover against a defendant under state law. See Smallwood,
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385 F.3d at 573–74. “[A] court may choose to use either one of these two analyses, but it must use
one and only one of them, not neither or both.” Int’l Energy Ventures Mgmt., LLC v. United Energy
Grp., Ltd., 818 F.3d 193, 207 (5th Cir. 2016). Importantly, this decision “lies within the discretion
of the trial court.” Flagg, 819 F.3d at 137 (citation modified).
The first test involves a simple “Rule 12(b)(6)-type analysis, looking initially at the
allegations of the complaint to determine whether the complaint states a claim under state law
against the in-state defendant.” Smallwood, 385 F.3d at 573 (footnote omitted). Under this test, the
Court utilizes federal pleading standards in its analysis. Int’l Energy, 818 F.3d at 208 (“Our
precedent is clear: A federal court must apply the federal pleading standard.”). The second test is
less common and is appropriate in cases where “a plaintiff has stated a claim, but has misstated or
omitted discrete facts that would determine the propriety of joinder.” Smallwood, 385 F.3d at 573.
It is also appropriate where a plaintiff’s “original state court petition contains only broad allegations
against the ‘defendants’ collectively and does not allege any specific factual allegations against
[either defendant].” Centaurus GF Cove, LLC v. Lexington Ins. Co., No. CIV. A. H-10-836, 2010
WL 2710390, at *3 (S.D. Tex. July 7, 2010); see also Campos v. Starbucks Corp., No. 7:25-CV-00125,
2025 WL 3124017, at *3 (S.D. Tex. Nov. 7, 2025). Such an inquiry “is appropriate only to identify
the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the
in-state defendant.” Smallwood, 385 F.3d at 573–74.
Here, the Court exercises its discretion and applies the first test—the 12(b)(6) type
inquiry—to the relevant pleadings. Thus, Plaintiff will be found to have improperly joined
Defendant Crossmark if he has not pleaded “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. In conducting its
analysis, “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(citation modified) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)).
B. Improper Joinder Analysis
Plaintiff has no possibility of recovery against Defendant Crossmark because Plaintiff does
not allege facts sufficient to establish a plausible claim to relief. See Twombly, 550 U.S. at 570. The
first issue is what cause of action Plaintiff alleges. In his original state court petition, Plaintiff alleges
that Defendant Crossmark’s “agents, servants, and employees negligently failed to maintain,
inspect, or warn Plaintiff of the dangerous condition of the shelf.” (Dkt. #1-3 at p. 4). “When the
injury is the result of the property’s condition rather than an activity, premises-liability principles
apply.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (citation omitted). By
alleging that Defendant Crossmark failed to maintain a condition, Plaintiff alleges the elements of
a premises liability action. See id.
The next issue is whether Plaintiff’s allegations contain facts sufficient to establish a
possibility of recovery in his premises liability action. See Homeland Ins. Co., 18 F.4th at 812. Texas
law provides that property owners generally owe a duty to warn or to make the premises safe to
those invited on the property, and this duty “generally runs with the ownership or control of the
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property.” Occidental, 478 S.W.3d at 644 (citing Restatement (Second) of Torts §§ 351–54 (A.L.I.
1965)); see generally JMI Contractors, LLC v. Medellin, 738 S.W.3d 775, 789 (Tex. 2026) (explaining
the elements of a premises liability claim).
Defendant Walmart argues that Plaintiff cannot recover in his premises liability action
because Plaintiff insufficiently alleges that Defendant Crossmark controlled the premises
(Dkt. #7 at p. 3). Plaintiff argues that his original state court petition sufficiently establishes
Defendant Crossmark’s control of the premises (Dkt. #5 at p. 5).
Plaintiff cannot recover in his premises liability action against Defendant Crossmark
because Plaintiff does not allege facts that reasonably suggest Defendant Crossmark controlled or
had a right to control the premises. Texas law recognizes two main ways in which a premises liability
defendant may be held liable for premises which they do not possess. See United Scaffolding, Inc. v.
Levine, 537 S.W.3d 463, 473 (Tex. 2017). First, a premises liability defendant “may be held liable
for a dangerous condition on the property if it assumed control over and responsibility for the
premises, even if it did not own or physically occupy the property.” Id. (citation modified). Second,
“a premises liability defendant may be subject to liability if it has a right to control the premises,
which may be expressed by contract or implied by conduct.” Id. (citation modified).
Here, Plaintiff alleges that “Defendant Crossmark, Inc. had control over the shelving in
question [and] Defendant Crossmark owed certain duties to Plaintiff . . . .” (Dkt. #1-1 at ¶ 21).
However, this statement is merely a “formulaic recitation of the elements of [the] cause of action,”
which is insufficient to survive the federal pleading standard. Twombly, 550 U.S. at 555. Indeed,
Plaintiff provides no factual basis to determine how Defendant gained control of the premises; nor
does Plaintiff describe the work that Defendant Crossmark allegedly performed for Defendant
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Walmart (See Dkt. #1-1 at ¶¶ 20–24). Without any of these facts, the Court lacks the factual basis
to draw a “reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
Several district courts in Texas have also held that a plaintiff improperly joined a premises
liability defendant when the plaintiff did not allege why the tortfeasor owed a duty to the plaintiff.
Jordan v. Costco Wholesale Corp., No. 4:22-CV-848-Y, 2023 WL 12278827, at *3 (N.D. Tex. Apr. 11,
2023) (collecting cases). For example, in Padilla v. Wal-Mart Stores Texas, LLC, the court dismissed
a premises liability claim against a store employee because the Plaintiff did not allege facts
establishing that the employee owed a duty of care. No. EP-19-CV-004-KC, 2019 WL 2565260, at
*3 (W.D. Tex. Apr. 9, 2019). Likewise, in Ruelas v. Wal-Mart, this Court adopted a report and
recommendation that recommended the Court to dismiss a premises liability claim against a store
manager because the plaintiff “did not allege any facts that would support a conclusion that [the
store manager] . . . had an independent duty to her.” No. 4:12CV729, 2013 WL 949344, at *5 (E.D.
Tex. Jan. 30, 2013), report and recommendation adopted, No. 4:12CV729, 2013 WL 943412 (E.D.
Tex. Mar. 8, 2013). Here, Plaintiff does not provide the factual basis to indicate that Defendant
Crossmark owed premises duties at the store location, and Plaintiff therefore does not meet the
federal pleading standard (See Dkt. #1-1).1 See id.
1 Many federal courts in Texas categorically dismiss premises liability claims against store managers, since store
managers generally do not owe premises duties in Texas. See Kutchinski v. Costco Wholesale Corp., No. 4:22-CV-
00083, 2022 WL 1809308, at *3 (S.D. Tex. June 1, 2022) (collecting cases); see also Cantu v. Wal-Mart Inc., No.
1:24-CV-00125, 2024 WL 5400726, at *8 (S.D. Tex. Nov. 27, 2024). This case is distinguishable because Plaintiff
alleges an independent business entity—not a store manager—gained control of the premises. See HNMC, Inc. v.
Chan, 683 S.W.3d 373, 384 (Tex. 2024); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324–25 (Tex. 1993);
UBM Enter., Inc. v. Azzarello, No. 05-24-00768-CV, 2026 WL 2101333, at *4 n.5 (Tex. App.—Dallas July 21, 2026,
no pet. h.). While the present action is not categorically dismissed under Texas law, Plaintiff does not allege sufficient
facts to establish that Defendant Crossmark owed him premises duties. See Twombly, 550 U.S. at 555–56.
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Moreover, Defendant Walmart correctly points out that Plaintiff’s allegations against
Defendant Crossmark are nearly identical to its allegations against Defendant Walmart, without
any meaningful explanation as to why Defendant Crossmark is involved in the suit (Dkt. #7 at p. 3).
Several courts have observed this as a common improper joinder strategy: A plaintiff repeats
identical allegations against both parties, without any factual indication of the improperly joined
parties’ involvement in the dispute. See Maldonado v. AEP Tex. Inc., No. 2:22-CV-00160, 2022 WL
21808091, at *4 (S.D. Tex. Oct. 28, 2022) (“Plaintiff’s original petition fails to differentiate her
claims against [defendants].”); Byars v. Walmart Inc., No. 3:22-CV-2912-E, 2023 WL 4485934, at
*2–3 (N.D. Tex. July 10, 2023) (“[H]is allegations refer to ‘Defendants’ and do not specify to
whom Plaintiff refers.”); Valadez v. Geo Grp., Inc., No. 5:22-CV-00016, 2022 WL 16821127, at *4
(S.D. Tex. Oct. 21, 2022) (“Nowhere in his Original Petition does [the plaintiff ] actually allege that
[the defendant] did something . . . .”); Angeles v. Target Corp., No. EP-15-CV-193-KC, 2015 WL
12659926, at *2 (W.D. Tex. Aug. 7, 2015) (“The Petition does not assert a single fact suggesting
that [the defendant] owed [the plaintiff ] a duty of care independent from the duty owed by [the
store].”). By repeating the elements of his premises liability action against Defendants—without
providing any factual distinction as to Defendant Crossmark’s involvement—Plaintiff alleges no
more than legal conclusions, and cannot survive the Rule 12(b)(6) standard. See Twombly, 550 U.S.
at 555–56.
Defendant Walmart has met its heavy burden of demonstrating that Plaintiff has no
reasonable basis for recovery against Defendant Crossmark, as defined by the federal pleading
standard. See Smallwood, 18 F.4th at 576. As a result, the Court holds that Plaintiff improperly
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joined Defendant Crossmark, and that the Court therefore has subject matter jurisdiction over the
remaining parties. See id. at 574–76.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion to Remand (Dkt. #5) is hereby
DENIED.
Accordingly, Plaintiff ’s claims against Defendant Crossmark, Inc. are hereby
DISMISSED without prejudice as improperly joined.
IT IS SO ORDERED.
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