Fraire et al v. Caterpillar

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PERLA FRAIRE, ROSARIO FRAIRE,
RUBEN FRAIRE, and THE ESTATE OF
HECTOR CESAR FRAIRE,
Plaintiffs,
v.
CATERPILLAR INC.,
Defendant.
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Civil No. 3:24-CV-2623-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Caterpillar Inc.’s Motion for Summary Judgment
(Doc. No. 34) and Brief in Support (Doc. No. 35) (together, the “Motion”). Plaintiffs
Perla Fraire, Rosario Fraire, Ruben Fraire, and the Estate of Hector Cesar Fraire
(together, “Plaintiffs”) filed a response in Opposition to Defendant’s Motion for
Summary Judgment (the “Response”) (Doc. 39), and Defendant filed a Reply in further
support (the “Reply”) (Doc. No. 40). The Court has carefully considered the Motion,
the Response, the Reply, the summary judgment evidence, the relevant portions of the
record, and the applicable law. 	Because Plaintiffs’ claims are barred by the applicable
Texas statute of repose, the Court finds Defendant is entitled to summary judgment as
a matter of law and hereby GRANTS Defendant’s Motion for Summary Judgment.
This case is DISMISSED with prejudice.
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I. 	Factual and Procedural Background
Hector Fraire was killed on October 11, 2022, when a Caterpillar earthmoving
truck (the “Truck”) struck him while on a construction site in Kansas. 	Doc. No. 1-3
at 4; Doc. No. 35 at 1; Doc. No. 39 at 5. 	(Unless otherwise indicated, all record
citations herein are to the CM/ECF assigned page number located at the top of the
document.) 	Hector Fraire’s surviving spouse and children, along with his estate, filed
this suit against Defendant in state court, on October 11, 2024. 	Doc. No. 39 at 5;
Doc. No. 1-3 at 2 (petition with state court file stamp including date and time in upper
right corner); Doc. No. 1 at 1. Plaintiffs allege generally that a “legal defect” with the
Truck 	resulted 	in 	Hector 	Fraire’s 	death 	and 	assert 	claims 	for 	negligence, 	gross
negligence, strict products liability, liability as a non-manufacturing distributor, and
“liability in general”. 	Doc. No. 1-3 at 5, 6-10. 	Prior to being served in state court,
Defendant removed this case to federal court on October 18, 2024, invoking the federal
diversity jurisdiction. 	Doc. No. 1 at 2, 3. 	Plaintiffs timely filed a motion to remand
on the basis that Defendant’s removal was procedurally defective and, if remand was
denied, to certify an interlocutory appeal. See generally Doc. No. 11. After the motion
was fully briefed, the Court entered an order denying the motion to remand and
Plaintiffs’ request for leave to file an interlocutory appeal. 	Doc. No. 15. 	Thereafter,
Defendant filed this Motion for Summary Judgment, which the Court now addresses.
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II. 	Applicable Law
A. 	Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” 	FED. R. CIV. P. 56(a)); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). 	“A fact is material if it ‘might affect the outcome of the suit under the
governing law,’ while a dispute about that fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” 	Owens v. Circassia
Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
If the nonmovant will have the burden of proof on the claim at trial, the moving
party must identify those portions of the record it believes demonstrate the absence of
evidence on an essential element of that claim. Celotex, 477 U.S. at 323. This burden
is satisfied when the movant shows that the nonmovant “has completely failed to prove
‘an essential element of the nonmoving party’s case’” Owens, 33 F.4th at 824 (cleaned
up) (quoting Celotex, 477 U.S. at 323). 	The court views all evidence and reasonable
inferences in the light most favorable to the nonmovant. Scott v. Harris, 550 U.S. 372,
378 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Once the movant satisfies its burden, the nonmovant must “identify specific
evidence in the record” and “articulate the precise manner in which that evidence
supports his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
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1998); see also Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996)(en 	banc) 	(nonmovant 	may 	satisfy 	this 	burden 	by 	providing 	depositions,
affidavits, and other competent evidence). 	“There can be no genuine dispute as to a
material fact where [the nonmovant] fails ‘to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which [it] will bear the
burden of proof at trial.’” 	Guillot on behalf of T.A.G. v. Russell, 59 F.4th 743, 750 (5th
Cir. 	2023) 	(quoting 	Celotex, 	477 	U.S. 	at 	322). 	“[U]nsubstantiated 	assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” 	Luna v. Davis, 59 F.4th 713, 715 (5th Cir. 2023)
(internal quotations and citation omitted); accord Guillot, 59 F.4th at 750 (“Speculative
theories cannot defeat a motion for summary judgment.”); Douglass, 79 F.3d at 1429.
The court is not tasked with “sift[ing] through the record in search of evidence”
supporting the nonmovant’s opposition to summary judgment. Ragas, 136 F.3d at 458
(internal quotations omitted); see United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). 	Indeed,
“[w]hen evidence exists in the summary judgment record but the nonmovant fails even
to refer to it in the response to the motion for summary judgment, that evidence is not
properly before the district court.” 	Malacara v .Garber, 353 F.3d 393, 404 (5th Cir.
2003). Further, this Court’s Local Civil Rules provide that, “[w]hen citing materials in
the record . . ., a party must support each assertion by citing each relevant page of its
own or the opposing party’s appendix.” L. Civ. R. 56.5(c).
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B. 	Choice of Law
Sitting in diversity, this Court must determine the applicable law by applying
the choice-of-law rules of the forum state. R.R. Mgmt. Co., L.L.C. v. CFS La. Midstream
Co., 428 F.3d 214, 222 (5th Cir. 2005); see Burdett v. Remington Arms Co., L.L.C., 854
F.3d 733, 735 (5th Cir. 2017). 	In Texas, courts generally apply the “most significant
relationship” test of the Restatement (Second) of Conflict of Laws in determining the
applicable substantive law. Hyde v. Hoffman-La Roche, Inc., 511 F.3d 506, 511 (5th Cir.
2007). 	However, in actions for injury or death that happened outside of Texas, the
Texas Legislature codified the choice-of-law provision that applies in § 71.031(a) of the
Texas Civil Practice and Remedies Code. Hyde, 511 F.3d at 511; see Burdett, 854 F.3d
at 735 (“[B]oth this court and the Supreme Court of Texas have concluded that
§ 71.031 is a codified choice of law provision.”) (citing Hyde, 511 F.3d 506 and Owens
Corning v. Carter, 997 S.W.2d 560 (1999)); Stevenson v. Ford Motor Co., 608 S.W.3d
109, 120 (Tex.App.—Dallas 2020, no pet.).
Section 71.031(a) provides, in relevant part, that:
An action for damages for the death or personal injury of a citizen
of this state, of the United States, or of a foreign country may be
enforced in the courts of this state, although the wrongful act,
neglect, or default causing the death or injury takes place in a foreign
state or country, if:
(1) a law of the foreign state or country or of this state gives a right
to maintain an action for damages for the death or injury;
(2) the action is begun in this state within the time provided by
the laws of this state for beginning the action; [and]
(3) for a resident of a foreign state or country, the action is begun
in this state within the time provided by the laws of the foreign
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state or country in which the wrongful act, neglect, or default took
place; . . .
T EX . CIV. PRAC. & R EM . CODE § 71.031(a). It is well-established that § 71.031
applies with equal force in federal court as it does in state court. Burdett, 854 F.3d at
736.
III. 	Analysis
Defendant argues it is entitled to summary judgment as a matter of law because
Plaintiffs’ claims are untimely under the Texas product liability statute of repose. Doc.
No. 35 at 4-5. Defendant contends that, in wrongful death suits such as this, § 71.031
requires that Plaintiffs must have initiated this suit within the time required by Texas
law as well as the foreign state or country where the incident occurred. 	Id. at 5.
Defendant further asserts that, for purposes of § 71.031(a), the timeliness of the action
refers to both the statutes of limitations and statutes of repose. Id. at 4. According to
Defendant, Plaintiffs brought this suit well past the 15-year period provided for in the
Texas product liability statute of repose and, therefore, their claims are barred. Id.
In their Response, Plaintiffs argue that statutes of repose are substantive law,
and this Court is required to conduct a “most significant relationship” choice of law
analysis to determine whether Texas or Kansas substantive law applies. 	Doc. No. 39
at 7-11. 	Because Defendant fails to demonstrate that Texas’ statute of repose applies
rather than Kansas’ statute of repose, Plaintiffs contend that summary judgment must
be denied. See id. at 13. 	Plaintiffs also argue in depth that, even if Defendant had
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addressed the “most significant relationship” conflict of law analysis, Kansas’ statute
of repose would nevertheless apply warranting additional briefing. Id. at 13-16.
Defendant submits in its Reply that the Fifth Circuit has decided this exact issue,
holding that § 71.031(a) is a codified choice of law provision and, therefore, Plaintiffs
were required to bring this suit at least within the time required by Texas law, which
encompasses both statutes of limitations and statutes of repose. See, e.g., Doc. No. 40
at 2, 5. Defendant then disputes the remainder of Plaintiffs’ responsive arguments and
case law cited in support. See generally id.
A. Applicability of Section 71.031(a)
Plaintiffs assert that Hector Fraire’s death was due to an alleged “legal defect”
with the Truck that Defendant “designed, manufactured, distributed, sold, leased,
maintained, serviced, inspected, and/or tested[.]” 	Doc. No. 1-3 at 5. The parties do
not dispute that the Truck struck and killed Hector Fraire at a construction site in
Kansas. 	See Doc. No. 35 at 1; Doc. No. 39 at 5. 	Further, Defendant’s summary
judgment evidence establishes that the Truck was built in the United Kingdom and
was then sold to Ring Power Corporation in Jacksonville, Florida. Doc. No. 35-3 at 3;
Doc. No. 35 at Ex. D (invoice). Plaintiffs present no evidence controverting where the
Truck was manufactured or where the buyer was located. On this summary judgment
record, it is clear that “the wrongful act, neglect, or default” that Plaintiffs claim caused
Hector Fraire’s death occurred outside of Texas and, so, § 71.031(a) applies. 	See also,
e.g., Burdett, 854 F.3d at 734, 736 (looking to the state where the allegedly defective
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rifle was designed, manufactured, and assembled in determining the governing law,
including statute of repose); Van Heurck v. Rolls-Royce Corp., Civ. Action No. 3:23-CV-
0345-S, 2025 WL 325783, at *3 (N.D. Tex. Nov. 22, 2025)(Scholer, J.) (“In cases
alleging manufacturing or design defects, courts applying Texas law generally consider
the place of a defendant’s wrongful act to be the place of manufacture or design.”);
Brown v. Paccar Inc., 2024 WL 4860789, at *4 (E.D. Tex. Nov. 21, 2024) (considering
whether to apply substantive law of Texas, where case was filed, or Arizona, where the
buyer of the tractor was located, but not Oklahoma, where the accident occurred);
Goodwin v. Medtronic, Inc., 2021 WL 7448501, at *2 (E.D. Tex. June 4, 2021).
By its clear language, § 71.031(a) presents “two possible scenarios”:
If the plaintiff is a Texas resident, he faces two requirements to bring
suit: “(1) a law of the foreign state . . . or of [Texas] gives [him] a
right to maintain an action for damages for the death or injury”; and
“(2) the action is begun in [Texas] within the time provided by the
laws of [Texas] for beginning the action.” If the plaintiff is a resident
of a foreign state, there is an additional requirement: the action must
be “begun in [Texas] within the time provided by the laws of the
foreign state . . . in which the wrongful act, neglect, or default took
place.”
Burdett 	v. 	Remington 	Arms. 	Co., 	LLC, 	Civ. 	Action 	No. 	3:15-CV-4038-B, 	2016
WL3745682, at *4 (N.D. Tex. July 13, 2016)(Boyle, J.) (emphasis added), aff’d, 854
F.3d 733. What Plaintiffs cannot escape is that, under either scenario, their claims are
barred. 	The language of § 71.031 makes it crystal clear that a plaintiff filing suit in
Texas for wrongful death must initiate the action “within the time provided by the laws
of [Texas] for beginning the action,” regardless. § 71.031(a)(2); see Burdett, 854 F.3d at
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736 (confirming that the suit had to be timely filed pursuant to § 71.031(a)(2), “a
requirement that must be satisfied regardless of whether Burdett is considered a
resident of Texas or Georgia.”). 	It is well established that “with the time provided by
the laws” includes any applicable Texas statute of repose. 	See Hyde, 511 F.3d at 511
(the phrase “within the time provided by the laws” referred to in § 71.031(a) “includes
both statutes of limitations and statutes of repose.”) (citing Gilcrease v. Tesoro Petroleum
Corp., 70 S.W.3d 265, 269 (Tex.App.—San Antonio 2001, pet. denied)); Owens
Corning, 997 S.W.2d at 573; Burdett, 854 F.3d at 736; Brown v. Paccar Inc., 2024 WL
4860789, at *4 (E.D. Tex. Nov. 21, 2024); Stevenson, 608 S.W.3d at 120.
B. Texas Statute of Repose Bars Plaintiffs’ Claims
The Texas statute of repose governing product liability suits provides that such
suit must be brought against a manufacturer or seller within 15 years of the sale date
of 	the 	product 	at 	issue. 	TEX . CIV. PRAC. & R EM . CODE 	§ 	16.012(b); 	see 	id.
§ 16.012(a)(2) 	(“Products 	liability 	action” 	is 	defined 	as 	“any 	action 	against 	a
manufacturer or seller for recovery of damages or other relief for harm allegedly caused
by a defective product.”). “[T]he statute of repose begins running when the product is
first sold by the [defendant].” 	Burdet, 854 F.3d at 735 (internal quotations omitted).
Under § 16.012(b), Plaintiffs were required to bring this suit “before the end of 15
years after the date of the sale” of the Truck. The summary judgment evidence
establishes that, after the Truck was built, Defendant sold the Truck in August 2004.
Doc. No. 35-3 at 3-4. Plaintiffs filed this action in state court on October 11, 2024—
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more than 20 years later. See, e.g., Doc. No. 1 at 1. Plaintiffs have offered no evidence
to rebut the sale date, which triggered the statute of repose, and they have not otherwise
raised a genuine fact issue as to this suit having been commenced within the 15 year
period of the Truck being sold in August 2004. 	Without question, Plaintiffs’ claims
are barred under § 16.012(b) and, therefore, Defendant is entitled to summary
judgment.
Plaintiffs contend that statutes of repose are substantive state law and subsection
(c) of § 71.031 requires the Court to conduct “a highly fact-intensive ‘most significant
relationship’” analysis to determine whether Texas or Kansas substantive law applies
in this matter. 	Id. 	Plaintiffs then reason that, “before it can be determined whether
the Texas statute of repose applies in the first instance,” the Court must perform this
“most significant relationship” analysis. Id. The Fifth Circuit does not agree.
In addressing the same argument advanced by Plaintiffs here, the Fifth Circuit
concluded in Hyde that, even though “subsection (c) directs application of substantive
law ‘as appropriate under the facts of the case,’. . . this general directive does not
override the more specific references in subsections (a)(2) and (a)(3) to ‘the time
provided by the laws.’” 	Hyde, 511 F.3d at 512. 	This “codified choice-of-law rule
govern[s] the timeliness of [these types of] actions” and, by the clear statutory
language, this includes the Texas statute of repose. Owens Corning, 997 S.W.2d at 573;
see Hyde, 511 F.3d at 511 (the phrase “within the time provided by the laws” referred
to in § 71.031(a) “includes both statutes of limitations and statutes of repose.”). The
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Court is not persuaded by Plaintiffs’ argument nor their attempts to distinguish the
binding case law and, therefore, the undersigned will not disregard “the more specific
references in subsections (a)(2) and (a)(3)” in favor of the “general directive” of
subsection (c). Hyde, 511 F.3d at 512.
As the Court previously explained, Plaintiffs are required to satisfy the Texas
statute of repose under § 71.031(a)(2) regardless of whether the substantive law of a
foreign state or country may also apply pursuant to § 71.031(a)(3). 	Accordingly, the
Court need not determine the foreign state or country whose substantive law may apply
because the outcome would not change.
IV. 	Conclusion
For the foregoing reasons, the Court concludes that Plaintiffs’ claims are barred
thereby entitling Defendant to summary judgment as a matter of law. Thus, the Court
grants Defendant’s Motion for Summary Judgment. 	This case is dismissed with
prejudice.
SO ORDERED.
Signed February 18th , 2026.
____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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