Ruiz, ANF of D.N.G, A Minor v. Walmart Inc

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ELVIA RUIZ, as next friend of D.N.G., §
§
Plaintiff, §
§
v. § Civil Action No. 7:26-CV-00006
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WALMART, INC., and OSCAR ORTIZ, §
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Defendants. §
MEMORANDUM OPINION AND ORDER
A clear liquid on the floor of a Rio Grande City Walmart allegedly caused minor
D.N.G. to slip and fall and suffer injuries. Her mother, Plaintiff Elvia Ruiz, sued Walmart,
Inc., (“Walmart”) and the store manager, Oscar Ortiz, on D.N.G.’s behalf. Ruiz now asks
the Court to remand the case. (Dkt. No. 3). But because Ortiz was improperly joined, the
Motion to Remand is DENIED, and Ortiz is DISMISSED.
I. BACKGROUND
On March 5, 2025, Elvia Ruiz and her daughter D.N.G. entered a Walmart
Supercenter in Rio Grande City, Texas. (Dkt. No. 1-4 at 3). While in the store, D.N.G.
allegedly slipped and fell on a clear liquid that had accumulated on the floor in the store’s
produce section. (Id.). Ruiz claims that there were no signs alerting customers to the
hazard. (Id.). As a result of the fall, D.N.G. sustained bodily injuries. (Id.).
On November 20, 2025, Ruiz filed a premises-liability claim against both Walmart
and the store manager working at the time, Oscar Ruiz. (See generally id.). Walmart
United States District Court
Southern District of Texas
ENTERED
June 01, 2026
Nathan Ochsner, Clerk
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removed the case to federal court on January 6, 2026. (Dkt. No. 1). Ruiz then moved to
remand the case, (Dkt. No. 3), and Walmart responded, (Dkt. No. 9).
II. DISCUSSION
Under 28 U.S.C. § 1441, removal is proper for “any civil action brought in a State
court of which the district courts of the United States have original jurisdiction.” 28
U.S.C. § 1441(a). Once removed, 28 U.S.C. § 1447 provides that a “case shall be
remanded” wherever “the district court lacks subject-matter jurisdiction.” 28 U.S.C.
§ 1447(c). Relevant here, a district court lacks subject matter jurisdiction where the matter
in controversy is not “between citizens of different States.” 28 U.S.C. § 1332(a). The Fifth
Circuit further instructs that “a district court must disregard, for diversity jurisdiction
purposes, the citizenship of an improperly joined defendant.” Waste Mgmt., Inc. v. AIG
Specialty Ins. Co., 974 F.3d 528, 533 (5th Cir. 2020). As both parties agree that Ortiz would
destroy diversity under Section 1332 and thus serve as a cause for remand under Section
1447, this case turns on whether Ortiz has been improperly joined by Ruiz.1
In Smallwood v. Illinois Central Railroad Co., the Fifth Circuit articulated two ways
to establish 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.” 385 F.3d 568, 573 (5th Cir. 2004) (en banc). The Fifth Circuit further noted
that “[t]he party seeking removal bears a heavy burden of proving that the joinder of the
in-state party was improper.” Id. at 574.
1 Walmart is a corporation incorporated under Delaware law with its principal place of
business in Arkansas, therefore making it a citizen of both states. (Dkt. No. 9 at 1).
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Because Walmart does not argue that Ruiz’s pleadings fraudulently state
jurisdictional facts, only the second Smallwood prong applies. To meet this prong,
Walmart must show “that there is no reasonable basis for the district court to predict that
[Ruiz] might be able to recover against [Ortiz].” Id. at 573. A court may make this
determination in one of two ways: (1) by conducting a “Rule 12(b)(6)-type analysis” that
involves “looking initially at the allegations of the complaint” to determine whether it
alleges a state-law claim against the in-state defendant, or (2) by piercing the pleadings
and conducting a summary inquiry. Id.
While the latter approach is within a court’s discretion, the motive of the joinder
is irrelevant, and the court should avoid the “heavy risk of moving . . . beyond
jurisdiction and into a resolution of the merits.” Id. at 574. “Indeed, the inability to make
the requisite decision in a summary manner itself points to an inability of the removing
party to carry its burden.” Id.
The Court addresses the issue under the “Rule 12(b)(6)-type analysis.”2 Ruiz’s
complaint asserts premises-liability claims against both Walmart and Ortiz. (Dkt. No. 1-
4 at 3–5). Under Texas law, “individual liability [separate from corporate liability] arises
only when the officer or agent owes 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).
While “independent duties may arise when the officer or employee personally creates a
dangerous situation that causes injury,” “liability cannot be imposed on employees
2 The Court declines to conduct a summary inquiry under the second Smallwood prong as
the record contains no evidence or exhibits on which to base such an inquiry.
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where the employer and the employees committed the identical negligent acts or
omissions.” In re Butt, 495 S.W.3d 455, 466–67 (Tex. App.—Corpus Christi 2016, orig.
proceeding).
Here, Ruiz’s complaint does not distinguish between Walmart’s and Ortiz’s
negligent acts. It states only that Ruiz’s daughter “was seriously injured as a result of a
dangerous condition that existed . . . inside of the Walmart,” that D.N.G. slipped and fell
because of “a clear liquid that accumulated on the floor,” that “[t]here were no cautionary
signs present to warn” of the hazard, and that Ortiz was the store manager working at
the time of the incident. (Dkt. No. 1-4 at 3–4). It contains no allegations of negligent acts
taken by Ortiz separate and apart from the negligent acts allegedly taken by Walmart.
Ruiz also fails to allege that Ortiz personally created the dangerous situation that caused
injury. So, Ruiz is attempting to impose individual liability on Ortiz in the absence of an
independent duty of care, which is not a reasonable basis for recovery under Texas law.
Ruiz’s citation to Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992), to argue that,
as an “operator of the premises,” Ortiz may have liability for a premises defect does little
to persuade the Court. As Walmart notes, even if Ortiz could be considered an “operator”
that has “general direction and control of [a] corporation’s affairs, and who may do
everything which [a] corporation could do in transaction of its business,” (Dkt. No. 3 at
4), Ruiz still fails to show that Ortiz had an independent duty of care, (Dkt. No. 9 at 3–4).
Without such a duty, Ruiz cannot recover from Ortiz, and he is improperly joined.
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III. CONCLUSION
For the reasons stated above, Ruiz’s Motion to Remand, (Dkt. No. 3), is DENIED
and Oscar Ortiz is DISMISSED for improper joinder.
It is SO ORDERED.
Signed on May 30, 2026.
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DREW B. TIPTON
UNITED STATES DISTRICT JUDGE
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