Guzman v. Doe, et al DO NOT DOCKET. CASE HAS BEEN REMANDED.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
LETICIA GUZMAN, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:25-cv-353
§
JOHN DOE AND ROSS STORES, INC., 	§
Defendants. 	§
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF’S
MOTION FOR LEAVE TO AMEND COMPLAINT (Dkt. No. 9) AND
MOTION TO REMAND TO STATE COURT (Dkt. No. 11)
I. 	Synopsis
Before the Court is Plaintiff Leticia Guzman’s “Opposed Motion to for Leave to
Amend Pleadings” (Dkt. No. 9); Plaintiff’s “First Amended Opposed Motion to Remand”
(Dkt. No. 11); Defendant Ross Stores Inc.’s “Response to Plaintiff’s Motion for Leave to
File Amended Pleadings and Motion to Remand” (Dkt. No. 13); and Plaintiff’s “Reply to
Defendant Ross Stores Inc.’s Response to Plaintiff’s Opposed Motion for Leave to Amend
Pleadings and Motion to Remand” (Dkt. No. 14). Plaintiff seeks to amend her complaint
to identify the John Doe Defendant, now known to be a citizen of Texas like Plaintiff. After
considering the arguments from both parties and reviewing the applicable law, the Court
finds granting Plaintiff leave to amend her complaint is proper for the reasons stated below.
Because the amended complaint will destroy diversity jurisdiction, the Court further
recommends granting the motion to remand and remanding the case to the 138th District
Court of Cameron County, Texas.
II. 	Background
Plaintiff Leticia Guzman is a citizen of Texas. Dkt. No. 1-3 at 2. Defendant Ross
Stores, Inc., is a citizen of Delaware and California. Dkt. No. 1 at 2. In her original state
court petition, Plaintiff alleges the following facts. Plaintiff alleges that on or about July
30, 2024, she was on the premises of Defendant’s store located in Brownsville, Cameron
United States District Court
Southern District of Texas
ENTERED
July 21, 2026
Nathan Ochsner, Clerk
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County, Texas. Dkt. No. 1-3 at 4. Plaintiff alleges that an employee at Defendant’s store
“dropped an item onto Plaintiff’s back.” Id.
III. 	Procedural History
Defendant Ross Stores removed this case from the 138th Judicial District Court of
Cameron County, Texas to the United States District Court for the Southern District of
Texas, Brownsville Division on December 22, 2025. Dkt. No. 1. 1 Defendant asserted
federal subject matter jurisdiction based on diversity jurisdiction because (1) there was
complete diversity between Plaintiff and Ross Stores, and (2) the amount in controversy
exceeded the jurisdictional minimum under 28 U.S.C. § 1332(a). Dkt. No. 1 at 2.
Plaintiff filed “Opposed Motion for Leave to Amend Pleadings” (Dkt. No. 9) on
May 4, 2026, after the Court issued a scheduling order (Dkt. No. 8). Plaintiff states that she
“seeks leave to file” her amended complaint “to substitute the true name of a previously
unidentified ‘John Doe’ Defendant.” Dkt. No. 9 at 1, ¶ 1.1. Plaintiff explains that she
learned the identity of John Doe through Rule 26 disclosures on April 13, 2026. Dkt. No.
11 at 3.
Plaintiff also filed “First Amended Opposed Motion to Remand” (Dkt. No. 11).
Plaintiff states that “remand is required under 28 U.S.C. § 1447(c)” because (a) Plaintiff
has now identified that Defendant John Doe is a Texas resident and (b) complete diversity
does not exist. Dkt. No. 11 at 1.
The Court ordered Defendant to file a response to both Plaintiff’s Motion for Leave
to File Amended Pleading and Plaintiff’s Motion to Remand, so the Court could properly
consider Defendant’s interest in the choice of forum. Dkt. No. 12. See Hensgens v. Deere
& Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (stating the Court should consider whether to
permit amendment “with input from the defendant”)). Defendant filed a timely response.
Dkt. No. 13. Defendant argues that leave to amend the complaint should be denied because
(a) Plaintiff allegedly seeks to add a nondiverse defendant to destroy diversity; and (b)
1 Defendant properly removed the case to the district and division within which the case was pending in
state court. 28 U.S.C. § 1446(a).
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Plaintiff can obtain complete relief from Ross Stores. Dkt. No. 13 at 1-2. Additionally,
Defendant argues that leave to amend the complaint should be denied because the
Hensgens factors weigh against joinder. Id. at 5-9.
In her reply, Plaintiff argues that identifying the John Doe placeholder does not
constitute improper joinder and that the Hengens factors weigh in favor of joinder. Dkt.
No. 14 at 2.
Now, Plaintiff’s “Opposed Motion to for Leave to Amend Pleadings” (Dkt. No. 9)
and “First Amended Opposed Motion to Remand” (Dkt. No. 11) are ripe for the Court’s
consideration.
IV. 	Analysis
A. 	Diversity Jurisdiction
U.S. 	Courts 	have 	original 	jurisdiction 	in 	civil 	actions 	where 	the 	matter 	in
controversy exceeds $75,000 and is between citizens of different states. 28 U.S.C. §
1332(a)(1-2).
B. 	Amending a Pleading to Add a Non-Diverse Defendant
In Hensgens v. Deere & Co. the Fifth Circuit Court of Appeals set a standard
requiring Courts to scrutinize closely a motion to amend a pleading which proposes “to
add a nondiverse nonindispensable party.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182
(5th Cir. 1987). The Fifth Circuit reasoned that although Federal Rule of Civil Procedure
15(a)(2) states that “[t]he court should freely give leave when justice so requires,” when a
plaintiff seeks to add a nondiverse defendant “justice requires that the district court
consider a number of factors to balance the defendant's interests in maintaining the federal
forum with the competing interests of not having parallel lawsuits.” Id. Because the
addition of a nondiverse party will determine the Court’s continuance of its jurisdiction,
whether the Court permits amendment will determine whether the Court must remand the
case or maintain jurisdiction. Id.2
2 “If [the Court] permits the amendment of the nondiverse defendant, it then must remand to the state
court. If the amendment is not allowed, the federal court maintains jurisdiction.” Hensgens v. Deere &
Co., 833 F.2d at 1182.
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C. 	The Hensgens Factors
In particular, the Court should consider the following: “the extent to which the
purpose of the amendment is to defeat federal jurisdiction, 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 v.
Deere & Co., 833 F.2d at 1182. See also Pompa v. Wal-Mart Stores Texas, L.L.C., No.
5:21-CV-73, 	2022 	WL 	16785430, 	at 	*3 	(S.D. 	Tex. 	June 	23, 	2022), 	report 	and
recommendation adopted sub nom. Pompa v. Wal-Mart Stores Texas, LLC, No. 5:21-CV-
73, 2022 WL 5435484 (S.D. Tex. Oct. 7, 2022) (stating these four factors are “referred to
as the Hensgens factors”).
The Court’s analysis below finds that the Hensgens factors weigh in favor of
granting leave to amend.
1. The extent to which the purpose of the amendment is to defeat federal
jurisdiction
The first Hensgens factor requires the Court to consider the purpose of the
amendment, or the extent to which the purpose of the amendment is to defeat diversity
jurisdiction. Hensgens v. Deere & Co., 833 F.2d at 1182; see Brown v. McDermott, Inc.,
2012 WL 1135772, at *2 (E.D. La. Apr. 4, 2012), report and recommendation adopted,
2012 WL 1565521 (E.D. La. May 1, 2012). Two questions aid in this determination: “(1)
whether the plaintiff knew the identity of the non-diverse defendant when the state court
petition was filed and (2) whether the plaintiff has stated a valid claim against the
nondiverse defendant.” Casey v. B H Mgmt. Servs. Inc., No. 5:18-CV-00947, 2021 WL
6077623, at *3 (W.D. La. Apr. 22, 2021). See Richardson v. Wal-Mart Stores Texas, LLC,
192 F. Supp. 3d 719, 726 (S.D. Tex. 2016) (analyzing the same two questions); Pompa v.
Wal-Mart Stores Texas, L.L.C., 2022 WL 16785430, at *3 (analyzing the same two
questions).
The Court considers whether Plaintiff knew the identity of John Doe when she filed
her state court petition. In the present case, Plaintiff originally filed her case in state court.
In her original state court petition, Plaintiff named “John Doe” as a defendant and stated
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that “upon information and belief” John Doe “resides in Cameron County, Texas.” Dkt.
No. 13 at 2. Plaintiff stated that she would request citation “once Plaintiff has identified
John Doe.” Id. Considering these facts, the Court finds that Plaintiff did not know the
identity of John Doe when she filed her original state court petition. Additionally, the Court
also notes that considering Plaintiff’s belief that John Doe was a Texas resident, there
would have been no basis for Plaintiff to consider initiating a suit in a federal forum.
Next, the Court considers whether Plaintiff has stated a valid cause of action against
Carla Alexander, the nondiverse defendant she proposes to add. Defendant opposes the
amendment in part on the grounds that Plaintiff’s claim against Carla Alexander is
duplicative. Although not characterized as futile, the Court considers whether Plaintiff’s
complaint against the identified John Doe is futile in response to Defendant’s argument
that the claim is duplicative.
The Fifth Circuit Court of Appeals has decided that a district court has the
“discretion to deny a motion to amend if it is futile.” Stripling v. Jordan Prod. Co., LLC,
234 F.3d 863, 872–73 (5th Cir. 2000). An amended complaint is futile if it states a claim
upon which relief can be granted, or, put another way, if the amended complaint would not
survive a Rule 12(b)(6) motion. SMH Enters., L.L.C. v. Krispy Krunchy Foods, L.L.C., 340
F.R.D. 554, 562 (E.D. La. 2022). Under Texas law, even if a Plaintiff asserts a premises
liability claim, the employee may still be personally liable “if he breaches ‘an independent
duty of reasonable care’ he owed to the injured party that is separate from the employer's
duty.” Pompa v. Wal-Mart Stores Texas, L.L.C., 2022 WL 16785430, at *4 (internal
quotation omitted).3 A plaintiff can show a Defendant owed her an independent duty of
reasonable care by showing Defendant “played a personal and active role in creating the
dangerous condition at issue.” Flores v. Wal-Mart Stores Texas, L.L.C., No. CV B-16-73,
3 Judge Kazen summarized neatly the state law relevant to Plaintiff’s complaint as follows:
Under Texas law, an employee in a premises liability action is not personally liable for
torts committed while acting in the course and scope of his employment. However, an
employee may be personally liable if he breaches “an independent duty of reasonable care”
he owed to the injured party that is separate from the employer's duty.
Pompa v. Wal-Mart Stores Texas, L.L.C., 2022 WL 16785430, at *4.
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2016 	WL 	3794761, 	at 	*3 	(S.D. 	Tex. 	June 	17, 	2016) 	(Morgan, 	J.), 	report 	and
recommendation adopted, 2016 WL 3826288 (S.D. Tex. July 12, 2016) (Hanen, J.)
(citation omitted).
In the present case, Defendant Ross Stores argues that the negligent conduct
Plaintiff alleges “falls within the employer’s non-delegable duty to maintain reasonably
safe premises and supervise employees acting within the course and scope of employment.”
Dkt. No. 13 at 10-11. For this reason, Plaintiff’s complaint against the employee is actually
“properly directed at the employer.” Dkt. No. 18 at 3. 4 However, Plaintiff alleges in her
amended complaint that Carla Alexander “dropped an item on Plaintiff’s back.” Dkt. No.
9-2 at 3. Accepting the well-pled facts as true for the purpose of this analysis, the Court
finds that Plaintiff’s amended complaint would survive a Rule 12(b)(6) motion, because
these facts would show that Defendant Carla Alexander played a personal and active role
in creating the dangerous condition at issue. This showing would establish that Carla
Alexander owed an independent duty of reasonable care to Plaintiff, and, thus, can be held
personally liable for Plaintiff’s alleged injuries.
All considered, the Court finds Plaintiff does not seek to add a nondiverse defendant
for the sole purpose of defeating diversity jurisdiction. Accordingly, the Court finds the
first Hensgens factor weighs in favor of granting Plaintiff leave to amend her complaint.
2. Whether plaintiff has been dilatory in asking for amendment
The second Hensgens factor requires the Court to consider whether Plaintiff sought
diligently to amend her complaint. Hensgens v. Deere & Co., 833 F.2d at 1182. In the
present case, Plaintiff filed her Motion for Leave to Amend Complaint about three weeks
after learning the identity of John Doe from Defendant’s Rule 26(a)(1) disclosures. Dkt.
4 Defendant Ross Stores relies on the following two cases in making its argument: Leitch v. Hornsby, 935
S.W.2d 114, 117 (Tex. 1996) and Tri v. J.T.T., 162 S.W.3d 552, 562 (Tex. 2005). While true that in Tri v.
J.T.T., the Supreme Court of Texas affirmed that it “explained in Leitch v. Hornsby when individual liability
will be imposed and when it will not[,]” these cases still support Judge Kazen’s summary of the Texas law
in Pompa. See supra, note 4. Additionally, neither of the two cases presents a similar fact pattern involving
an employee allegedly performing an action which caused injury on their employer’s premises. For these
reasons, Defendant’s reliance on these cases does not change the Court’s finding that Plaintiff presents a
non-futile claim against the nondiverse defendant.
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No. 9 at 3, ¶ 3.4. Courts typically consider seeking amendment after discovering new
information indicative that the Plaintiff did not engage in dilatory conduct. See Cinco
Bayous, LLC v. Samson Expl., LLC, 2020 WL 4922329, at *5 (E.D. Tex. Aug. 20, 2020)
(collecting cases).
Further, Plaintiff amended her complaint within the deadline set by the Court and
agreed to by the parties; no dispositive motions have been filed and the deadline to do so
is about six months away; and no trial date has been set in this case. See Dkt. No. 8
(Scheduling Order). If there has not been “‘significant activity beyond the pleading stage,’ ”
or if “‘no trial or pre-trial dates were scheduled,’ ” courts typically do not consider Plaintiff
to have been dilatory in seeking amendment. Am. Legend Homes v. Navigators Specialty
Ins. Co., 2019 WL 5721634, at *3 (E.D. Tex. Nov. 5, 2019) (internal citation omitted). See
also B.A. Kelly Land Co. LLC v. Aethon Energy Operating LLC, No. 5:18-CV-01243, 2019
WL 13115363, at *3 (W.D. La. Dec. 20, 2019), aff'd sub nom. B. A. Kelly Land Co., L.L.C.
v. Aethon Energy Operating, L.L.C., 25 F.4th 369 (5th Cir. 2022) (finding the delay dilatory
where Plaintiff filed motion to amend thirteen months after initial complaint).
All considered, the Court finds Plaintiff diligently sought to amend her complaint.
3. Whether plaintiff will be significantly injured if amendment is not
allowed
The third Hensgens factor requires the Court to consider whether Plaintiff will be
significantly injured if amendment is not allowed. Hensgens v. Deere & Co., 833 F.2d at
1182. Under this factor, courts consider whether the current defendant would be able to
satisfy a future judgment. Pompa v. Wal-Mart Stores Texas, L.L.C., 2022 WL 16785430,
at *5 (citing Anzures v. Prologis Texas I LLC, 886 F. Supp. 2d 555, 565 (W.D. Tex. 2012)
(stating the same))). In the present case, the record does not indicate that Defendant Ross
Stores will be unable to satisfy a future judgment.
However, a court’s primary concern under this factor is “whether denying the
amendment would create inconsistent or inefficient parallel proceedings between state and
federal courts.” Pompa v. Wal-Mart Stores Texas, L.L.C., 2022 WL 16785430, at *5
(citation omitted). As discussed in the Court’s analysis of the first Hensgens factor, the
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Court finds that Plaintiff has stated a facially plausible cause of action against Carla
Alexander under Texas law. For this reason, Plaintiff could pursue a claim against that
Defendant alone in state court, presenting a risk of creating a parallel proceeding between
a federal court and a state court. See Cinco Bayous, LLC v. Samson Expl., LLC, No. 1:19-
CV-452, 2020 WL 4922329, at *5 (E.D. Tex. Aug. 20, 2020) (stating “several district
courts have concluded that the potential for parallel proceedings weighs in favor of granting
leave to amend.”).
Because of the risk of parallel lawsuits, the Court finds Plaintiff is likely to face
prejudice if her amendment is denied.
4. Factors Bearing on the Equities
The fourth Hensgens factor requires the Court to consider any other factors bearing
on the equities. Hensgens v. Deere & Co., 833 F.2d at 1182. Courts have noted that the
first three Hensgens factors already protect “considerations of fairness and judicial
economy.” Am. Legend Homes, 2019 WL 5721634, at *5; Pompa v. Wal-Mart Stores Texas,
L.L.C., 2022 WL 16785430, at *5. Although Defendant Ross Stores argues that the
sequence of Plaintiff filing first a Motion for Leave to Amend Complaint immediately
followed by a Motion to Remand implies bad faith, the Court notes that Fifth Circuit case
law instructs the Court to order remand if the Court grants a leave to amend which adds a
nondiverse, nonindispensible party. Hensgens v. Deere & Co., 833 F.2d at 1182 (stating
“If [the Court] permits the amendment of the nondiverse defendant, it then must remand to
the state court.”). Additionally, as Plaintiff points out in her reply, Plaintiff both raised her
concerns about federal jurisdiction and her intention to file a motion to remand once she
identified John Doe in the joint discovery / case management plan signed by both parties.
Dkt. No. 14 at 7; Dkt. No. 6 at 2, 6. For these reasons and the reasons stated when analyzing
the other Hensgens facts, the Court reiterates that the record shows no evidence suggesting
Plaintiff’s bad faith.
All considered, the Court finds this factor weighs in favor of Plaintiff given
Defendant’s allegations of Plaintiff’s bad faith.
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In conclusion, the Court finds the Hensgens factors weigh in favor of granting
Plaintiff’s motion to amend her complaint. For this reason, the Court recommends granting
Plaintiff’s motion for leave to amend her complaint. Because granting leave to amend
Plaintiff’s complaint would destroy diversity jurisdiction, it is further recommended the
Court grant Plaintiff’s motion to remand the case. Hensgens v. Deere & Co., 833 F.2d at
1182.
V. 	Recommendation
It is recommended that the Court (1) GRANT Plaintiff’s “Opposed Motion to for
Leave to Amend Pleadings” (Dkt. No. 9); (2) GRANT Plaintiff’s “First Amended Opposed
Motion to Remand” (Dkt. No. 11); (3) MOOT Plaintiff’s “Motion to Remand” (Dkt. No.
10); (4) ORDER the case remanded to the 138th District Court of Cameron County, Texas;
and (5) DIRECT the Clerk of Court to close this case.
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VI. 	Notice to the Parties
The parties have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation in which to file written objections, if any, with the United
States District assigned to this case. 28 U.S.C. § 636(b)(1). When filing an objection, a party
must object to specific facts or legal findings in this Report and Recommendation. The
District Judge is not required to consider frivolous, conclusive, or general objections. Battle
v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the record
before adopting these findings. If the District Judge chooses to adopt such findings without
conducting a de novo review of the record, the parties may not attack those findings on appeal,
except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d
243, 248 (5th Cir. 2017).
Signed on July 21, 2026.
Karen Betancourt
United States Magistrate Judge
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