Mooring v. Wal-Mart Transportation, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANTIONE MOORING,
Plaintiff,
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v. CIVIL ACTION NO. H-25-4852
WAL-MART TRANSPORTATION, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Antione Mooring ("Plaintiff'1) brought this action agairtst
Wal-Mart Transportation, LLC ("Defendant") in the 125th Judicial
District of Court of Harris County, Texas, on September 5, 2025,
alleging negligence. 1 Defendant removed the action to this court. 2
Pending before the court is Plaintiff's Opposed Motion for Leave to
File First Amended Complaint ("Plaintiff's Motion to Amend")
(Docket Entry No. 14), which seeks to add Austin Lestage as an
individual defendant. 3 For the reasons stated below, Plaintiff's
Motion to Amend will be denied.
1Plaintiff's Original Petition and Request for Disclosure
("Original Petition"), Exhibit 2 to Defendant's Notice of Removal,
Docket Entry No. 1-2, pp. 1, 5, 6-7. For purposes of
identification, all page numbers refer to the pagination imprinted
at the top of the page by the court's Electronic Case Filing
system.
2Defendant's Notice of Removal, Docket Entry No. 1.
3Plaintiff's Motion to Amend, Docket Entry No. 14, p. 1.
United States District Court
Southern District of Texas
ENTERED
March 25, 2026
Nathan Ochsner, Clerk
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I . Background
Plaintiff alleges that on or about December 13, 2024, while he
was driving through the parking lot of the Wal-Mart store located
at 4554 Oscar Nelson Junior Drive, Baytown, Texas, the right side
of his truck was struck by a Wal-Mart truck.4 On September 5,
2025, Plaintiff brought this action against Defendant in the 125th
Judicial District Court of Harris County, Texas, alleging
negligence. 5
On October 10, 2025, Defendant removed the action to this
court based on diversity jurisdiction.6 Between November 7, 2025,
and November 10, 2025, the parties filed a joint discovery plan and
their initial disclosures.7 On November 10, 2025, the court
entered a docket control order, which required motions to amend the
pleadings and motions to add new parties to be filed by
February 13, 2026.8 On January 21, 2026, and February 23, 2026,
Defendant filed supplemental disclosures.9
4 Original Petition, Exhibit 2 to Notice of Removal, Docket
Entry No. 1-2, p. 6.
5 Id. at 1, 5, 6-7.
6Notice of Removal, Docket Entry No. 1, p. 2.
7 Joint Discovery/Case Management Plan Under Rule 26(f) Federal
Rules of Civil Procedure ("Joint Discovery/Case Management Plan"},
Docket Entry No. 8; Defendant's Notice of Initial Disclosures
("Defendant's Initial Disclosures"), Docket Entry No. 9; Plaintiff's
Initial Disclosures, Docket Entry No. 10.
8Docket Control Order, Docket Entry No. 12, p. 1.
9Defendant's Notice pf Initial Disclosures ("Defendant's
Initial Disclosures"), Docket Entry No. 13; Defendant's Notice of
(continued...)
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On February 13, 2026, Plaintiff filed his Motion for Leave to
Amend, which seeks to add Austin Lestage, the Wal-Mart truck
driver, as an indi victual defendant.10 On February 23, 2026,
Defendant filed a motion opposing Plaintiff's Motion to Amend,
arguing that 28 U.S.C. § 1447{e) and the Hensgens factors weigh
against granting Plaintiff's Motion to Amend.11
II. Legal Standard
"If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction,
the court may deny joinder, or permit joinder and remand the action
to the State court." 28 u.s.c. § 1447{e). "The district court
should scrutinize an amended pleading naming a new nondiverse
defendant in a removed case 'more closely than an ordinary
amendment.'" Moore v. Manns, 732 F.3d 454, 456 {5th Cir. 2013)
(quoting Hensgens v. Deere & Co., 833 F.2d 1179, 1182 {5th Cir.
1987)). "In deciding whether to allow leave to amend, a court
should consider several factors, including 'the extent to which the
purpose of the amendment is to defeat federal jurisdiction, whether
plaintiff has been dilatory in asking for amendment, whether
9 ( •••continued)
Second Supplemental Disclosures ("Defendant's Second Supplemental
Disclosures"), Docket Entry No. 16.
10 Plaintiff's Motion to Amend, Docket Entry No. 14, p. 1.
11Defendant's Response in Opposition to Plaintiff's Motion for
Leave to Amend Complaint ("Defendant's Response"), Docket Entry
No. 15, pp. 3-4 ii 9-10.
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plaintiff will be significantly injured if amendment is not
allowed, and any other factors bearing on the equities. '" Id.
(quoting Hensgens, 833 F.2d at 1182).
III. Analysis
After this action was removed Plaintiff moved to amend the
complaint to add Lestage as a defendant.12 Because both Plaintiff
and Lestage are citizens of Texas, diversity would be defeated if
Plaintiff is allowed to amend.13 Accordingly, the court will apply
28 U.S.C. § 1447(e) and the Hensgens-factor analysis to determine
whether Plaintiff's Motion to Amend should be granted.
A. Purpose of the Amendment
The first Hensgens factor is the "extent to which the purpose
of the amendment is to defeat federal jurisdiction." Hensgens, 833
F.2d at 1182.
important factor.
"This factor has been described as the most
11 Ekberg v. Polytec Inc., 1:24-CV-284-DII,
2024 WL 2933421, at *2, (W.D. Tex. June 11, 2024). When evaluating
the first Hensgens factor, "courts within the Fifth Circuit
frequently look at whether the plaintiff knew the identity of the
party to be joined and the facts underlying the claim against that
party when ling the original complaint." Irigoyen v. State Farm
12First Amended Complaint and Jury Demand ("First Amended
Complaint"), Exhibit 1 to Plaintiff's Motion to Amend, Docket Entry
No. 14-1, p. 1.
13 Id. at 1-2 'I[ 'I[ 1-3 .
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Lloyds, No. CA-C-03-324-H, 2004 WL 398553, at *3 (S.D. Tex. Jan. 5,
2004). "'[W]hen the plaintiff knew about the nondiverse party's
activities at the time the suit was originally brought in state
court but still chose not to include that party as an original
defendant, courts have viewed any later attempt to add the
nondiverse party as a defendant as nothing more than an attempt to
destroy diversity.'" Id. (quoting In re Norplant Contraceptive
Products Liability Litigation, 898 F.Supp. 433, 435 (E.D. Tex.
1995)).
Courts within the Fifth Circuit have held that a plaintiff's
request to add an employee to a negligence suit based on the theory
of respondeat superior after removal " ses an inference that [the
plaintiff]'s purpose in seeking [the] amendment is to defeat
jurisdiction." Ekberg, 2024 WL 2933421, at *3; see also Randolph
v. Avis Budget Car Rental, LLC, Civil Action No. H-17-3638, 2018
WL 1932656, at *1 (S.D. Tex. Apr. 23, 2018). Although Plaintiff
argues that he did not become aware of Lestage's identity until
Defendant confirmed he was the driver on January 21, 2026, 14
Plaintiff knew when he filed suit in state court that an employee
of the Defendant "was driving the truck that hit [him]." Randolph,
2018 WL 1932656, at *l. Additionally, he "alleged that [Defendant]
was liable for the negligent actions of its driver." Id. Despite
14 Plaintiff's Motion to Amend, Docket Entry No. 14, p. 2.
Defendant argues that it disclosed Lestage's identity in the
initial disclosures filed on November 10, 2026. Defendant's
Response, Docket Entry No. 15, p. 4 i 12.
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this knowledge, Plaintiff "did not include the driver as an unknown
or John Doe defendant, nor did [he] assert any claims against the
unknown employee." Id.; see also Ekberq, 2024 WL 2933421, at *3.
Because Plaintiff delayed joining Lestage until after removal,
the court finds that Plaintiff's purpose in seeking the amendment
is to defeat jurisdiction. Id.; Ekberq, 2024 WL 2933421, at
*3. The first Hensgens factor therefore weighs against
granting Plaintiff's Motion to Amend.
B. Plaintiff's Delay
The second Hensgens factor is "whether plaintiff has been
dilatory in asking for amendment." Hensgens, 833 F. 2d at 1182.
"In addressing the second Hensgens factor, courts look to (i) the
amount of time between the original state court action and the
request to amend, and the time between removal and the request; and
(ii) the state of the proceedings at the time of the amendment."
Agyei v. Endurance Power Products, Inc., 198 F.Supp.3d 764, 776
(S.D. Tex. 2016).
Here, Plaintiff filed his Motion to Amend on February 13,
2026, over five months after he filed his Original Petition and
four months after Defendant removed. Courts have found longer
periods to not be dilatory. Ruiz v. Rosendin Electric, Inc., Civil
Action No. 4:23-CV-2370, 2023 WL 8788775, at * 3 (S.D. Tex.
Dec. 18, 2023) (finding that the plaintiff was not dilatory when
his amended complaint was filed seven months after the state court
suit was filed and five months after the notice of removal); see
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also Lowe v. Singh, Civil Action No. H-10-1811, 2010 WL 3359525, at
*2 (S.D. Tex. Aug. 23, 2010) (finding that the plaintiff was not
dilatory when his amended complaint was filed six months after the
state court suit was filed and 30 days after the notice of
removal); McNeel v. Kemper Casualty Insurance Co., No. Civ.A. 3:04-
CV-0734, 2004 WL 16357 , at *3 (N.D. Tex. July 21, 2004) (finding
that the plaintiff was not dilatory when his amended complaint was
filed five months after the state court suit was filed and six
weeks after the notice of removal). Moreover, although the court
has scheduled pretrial dates, 15 "'no significant activity beyond the
pleadings has occurred.'"16 Agyei, 198 F.Supp.3d at 776 (quoting
Gallegos v. Safeco Insurance Co. of Indiana, No. 09-CV-2777, 2009
WL 4730570, at *4 (S.D. Tex. Dec. 7, 2009). Therefore, the second
factor weighs in favor of granting Plaintiff's Motion to Amend.
C. Prejudice to Plaintiff
The third Hensgens factor is "whether plaintiff will be
significantly jured if amendment is not allowed." Hensgens, 833
F.2d at 1182. "Courts analyzing the third Hensgens factor look to
(i) whether the already named diverse defendant would be unable to
satisfy a future judgment, and (ii) whether the possibility of a
15Docket Control Order, Docket Entry No. 12.
16The parties have only filed a joint discovery plan and their
initial disclosures. Joint Discovery/Case Management Plan, Docket
Entry No. 8; Defendant's Initial Disclosures, Docket Entry No. 9;
Plaintiff's Initial Disclosures, Docket Entry No. 10; Defendant's
Initial Disclosures, Docket Entry No. 13; Defendant's Second
Supplemental Disclosures, Docket Entry No. 16.
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separate state court proceeding weighs against denying the proposed
amendment because of the inefficiency of parallel proceedings or
because such proceedings would place a financial burden on the
plaintiff." Agyei, 198 F.Supp.3d at 777.
Plaintiff has not argued that Defendant would be unable to
satisfy a future judgment; and there is no indication that
Defendant could not satisfy a judgment in this case, "especially
considering that [Defendant] is one of the largest companies the
world."17
Moreover, "[u]nder Texas law, employees may be held
individually liable in negligence suits 'only when the officer or
agent owes an independent duty of reasonable care to the injured
party apart from the employer's duty.'" Ruiz, 2023 WL 8788775, at
*3 (quoting Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996)).
Because Plaintiff does not allege that Lestage owes him an
independent duty, 19 there is not a possibility of separate state
court proceedings in this case. Id. at *4 (finding that the third
factor weighed against amendment because "Texas law does not allow
Plaintiff to bring individual claims against the employees").
Therefore, the third factor weighs against granting Plaintiff's
Motion to Amend.
17Defendant's Response, Docket Entry No. 15, p. 7 1 20.
18 First Amended Complaint, Exhibit 1 to Plaintiff's Motion to
Amend, Docket Entry No. 14-1, p. 6 '1['1[ 15-16 (alleging ordinary
negligence).
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D. Other Factors Weighing on the Equities
"The fourth Hensgens factor requires courts to analyze other
equitable factors." Agyei, 198 F.Supp.3d at 776. "Although
equitable factors include whether granting leave to amend would
deprive a defendant of a properly invoked federal forum . . . and
whether denying leave to amend would result in parallel state court
proceedings . these factors are kely to be present whenever
a plaintiff in a removed case seeks to add a nondiverse defendant."
Id. Because "[t]hose factors have already been analyzed in
considering the first three Hensgens factors" and "[b]ecause
neither party points to additional equitable factors beyond these
considerations, the fourth Hensgens factor is neutral."
IV. Conclusion and Order
Although the second Hensgens factor weighs slightly in favor
of granting Plaintiff's Motion to Amend, first factor, which is
the most important factor, and the third factor weigh heavily
against granting Plaintiff's Motion to Amend. The court concludes
that the balance weighs against granting Plaintiff's Motion to
Amend. Accordingly, Plaintiff's Opposed Motion for Leave to File
First Amended Complaint (Docket Entry No. 14} is DENIED.
SIGNED at Houston, Texas, on this 25th day of March, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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