Rubio v. Daimler Truck North America LLC et al

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FLORIBERTO RUBIO, Individually §
and on Behalf of the Estate §
of Jaime Rubio, Deceased, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. H-26-3358
§
DAIMLER TRUCK NORTH AMERICA §
LLC; WESTERN STAR TRUCK SALES §
INC.; ALLEYTON RESOURCE §
COMPANY, LLC; and ROGER §
BUSTAMANTE, §
§
Defendants, §
§
v. §
§
ARCELIA RUBIO, Individually, §
as Wrongful Death Beneficiary, §
and on Behalf of the Estate of §
Jaime Rubio, and Next Friend §
of M.R. and J.R., minor §
children; and ELVIRA RUBIO, §
Individually, as Wrongful Death §
Beneficiary, and on Behalf of §
the Estate of Jaime Rubio, §
§
Plaintiffs-Intervenors. §
MEMORANDUM OPINION AND ORDER
Floriberto Rubio (“Plaintiff”) brought this action against
Daimler Truck North America LLC (“DTNA”), Western Star Truck Sales
Inc. (“Western”), Alleyton Resource Company, LLC (“Alleyton”), and
Roger Bustamante (“Bustamante”) in the 133rd Judicial District
United States District Court
Southern District of Texas
ENTERED
July 15, 2026
Nathan Ochsner, Clerk
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Court of Harris County, Texas.1 Arcelia Rubio and Elvira Rubio
(collectively referred to as “Intervenors”) joined the suit as
intervenor plaintiffs.2 Defendants removed the action to federal
court.3 Pending before the court is Plaintiff’s and Plaintiffs-
Intervenors’ Joint Motion to Remand to State Court (“Motion to
Remand”) (Docket Entry No. 12). For the reasons explained below,
the Motion to Remand will be denied.
I. Background
Plaintiff and Intervenors (collectively referred to as
“Claimants”) allege that on May 4, 2024, Jaime Rubio was utilizing
the rear controls of a cement mixer truck to transfer concrete from
the cement mixer truck to the pump truck while positioned between
the two vehicles.4 While Rubio was doing so, the air brakes of the
cement mixer truck disengaged, causing it to roll.5 The cement
1Plaintiff’s First Amended Petition (“Plaintiff’s Amended
Petition”), Exhibit K to Defendants Daimler Truck North America LLC
and Western Star Trucks Sales, Inc.’s Notice of Removal (“Notice of
Removal”), Docket Entry No. 1-12, p. 1. For purpose of
identification all page numbers refer to the pagination imprinted
at the top of the page by the court’s Electronic Case Filing
system.
2First Amended Petition in Intervention (“Intervenors’ Amended
Petition”), Exhibit J to Notice of Removal, Docket Entry No. 1-11,
p. 1.
3Notice of Removal, Docket Entry No. 1.
4Amended Petition, Exhibit K to Notice of Removal, Docket
Entry No. 1-12, pp. 4–5 ¶¶ 16, 18.
5Id. at 5 ¶ 18.
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mixer truck struck Rubio, crushing him and causing fatal injuries.6
At all times relevant to this action, Rubio was employed by
Alleyton.7
On August 5, 2025, Plaintiff brought suit in the 133rd Judicial
District of Harris County, Texas, against Alleyton and Bustamante.8
Intervenors joined as plaintiff intervenors on August 15, 2025.9
Alleyton and Bustamante filed an answer to Plaintiff and
Intervenors’ original petitions on September 9, 2025.10
Intervenors filed an amended petition on March 23, 2026.11 On
March 27, 2026, Plaintiff filed an amended petition adding DTNA and
Western as defendants. Plaintiff’s Amended Petition alleged strict
product liability, manufacturing defect, marketing defect,
negligence, and gross negligence claims against DTNA, Western, and
Alleyton.12 It also alleged claims of direct personal negligence
6Id.
7Id. at 4 ¶ 16.
8Plaintiff’s Original Petition, Exhibit B to Notice of
Removal, Docket Entry No. 1-3, p. 1; Notice of Removal, Docket
Entry No. 1, p. 4 n.1.
9Original Petition in Intervention, Exhibit C to Notice of
Removal, Docket Entry No. 1-4, pp. 1-2.
10Defendants’ Original Answer to Plaintiff’s Original Petition
and Intervenors’ Petition in Intervention, Exhibit H to Notice of
Removal, Docket Entry No. 1-9.
11Intervenors’ Amended Petition, Exhibit J to Notice of
Removal, Docket Entry No. 1-11, p. 1.
12Plaintiff’s Amended Petition, Exhibit K to Notice of Removal,
Docket Entry No. 1-12, pp. 1, 6–13. Plaintiff also named Daimler
Truck Holding AG as a defendant, but it has not yet been served
with process.
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and gross negligence against Bustamante, who was responsible for
the oversight and enforcement of vehicle safety protocols at
Alleyton.13 DTNA and Western (hereafter collectively referred to
as “Defendants”) responded to Intervenors’ Amended Petition on
April 17, 2026, and to Plaintiff’s Amended Petition on March 24,
2026.14 On April 24, 2026, Defendants removed the action to this
court, arguing that there is diversity jurisdiction because
Bustamante was improperly joined as a defendant.15
On May 26, 2026, Claimants filed a Motion to Remand, arguing
that the court does not have diversity jurisdiction because
Bustamante is properly joined as a defendant.16 Defendants filed
a response on June 16, 2026.17 Claimants did not file a reply.
II. Legal Standard
Under 28 U.S.C. § 1441(a) a defendant may remove a state court
civil action to federal district court if federal court has
13Id. at 7–10.
14Daimler Truck North America LLC and Western Star Trucks
Sales, Inc.’s Special Exceptions and Original Answer to First
Amended Petition in Intervention, Exhibit N to Notice of Removal,
Docket Entry No. 1-15; Daimler Truck North America LLC and Western
Star Truck Sales, Inc.’s Special Exceptions and Original Answer to
Plaintiff’s First Amended Petition, Exhibit O to Notice of Removal,
Docket Entry No. 1-16.
15Notice of Removal, Docket Entry No. 1, pp. 6–7. Alleyton
consented to removal. Defendant Alleyton Resource Company, LLC’s
Consent to Notice of Removal, Exhibit Q to Notice of Removal,
Docket Entry No. 1-18, p. 2.
16Motion to Remand, Docket Entry No. 12, pp. 2–3.
17Defendants Daimler Truck North America LLC and Western Star
Trucks Sales, Inc.’s Response to Plaintiff’s and Plaintiffs-
Intervenors’ Joint Motion to Remand (“Defendants’ Response”),
Docket Entry No. 14.
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original jurisdiction. See Gasch v. Hartford Accident & Indemnity
Co., 491 F.3d 278, 281 (5th Cir. 2007). District courts “have
original [diversity] jurisdiction of all civil actions where the
matter in controversy exceeds . . . $75,000 . . . and is between
. . . citizens of different States[.]” 28 U.S.C. § 1332(a)(1).
Although there is complete diversity among Plaintiff and
Intervenors, and DTNA, Western, and Alleyton, Bustamante’s presence
precludes diversity jurisdiction if he was properly joined.18
“A removing party attempting to prove improper joinder carries
a heavy burden.” Perio v. Titan Maritime, LLC, Civil Action
No. H-13-1754, 2013 WL 5563711, at *5 (S.D. Tex. Oct. 8, 2013).
Improper joinder “may be established by showing (1) actual fraud in
the pleadings or (2) the ‘inability of the plaintiff to establish
a cause of action against the nondiverse party in state court.’”
Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 219 (5th Cir.
2018). “The second approach focuses on whether plaintiff has
asserted a valid state-law cause of action against the nondiverse
defendant.” Beran v. World Telemetry, Inc., 747 F.Supp.2d 719, 726
(S.D. Tex. 2010). “[T]he test . . . is whether . . . there is no
reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.”
Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir.
2004) (en banc). “In determining whether there is a reasonable
18Claimants are Texas citizens, DTNA is a citizen of Germany,
Western is a citizen of Washington and Oregon, Alleyton is a
citizen of Delaware and Georgia, and Bustamante is a citizen of
Texas. Notice of Removal, Docket Entry No. 1, pp. 6–7.
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basis for the plaintiff to recover against a defendant under state
law, a court conducts ‘a 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.’” Beran, 747 F.Supp.2d at 726 (quoting Smallwood, 385
F.3d at 573). “[I]f the plaintiff can survive a Rule 12(b)(6)
challenge, there [generally] is no improper joinder.” Smallwood,
385 F.3d at 573.
If “a plaintiff has . . . misstated or omitted discrete facts
that would determine the propriety of joinder . . . the district
court may, in its discretion, pierce the pleadings and conduct a
summary inquiry.” Id. When the court pierces the pleadings “the
defendant must put forward evidence that would negate a possibility
of liability on the part of [the nondiverse defendant].” Travis v.
Irby, 326 F.3d 644, 650 (5th Cir. 2003).
III. Analysis
Defendants argue that Bustamante is improperly joined because
Claimants cannot establish a negligence or gross negligence cause
of action against him.19
A. Claimants’ negligence claim is barred under Texas law.
Defendants argue that Claimants’ negligence claim against
Bustamante is barred by § 408.001 of the Texas Labor Code.20
Claimants do not address this argument.
19Notice of Removal, Docket Entry No. 1, pp. 8–17.
20Id. at 17–18.
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Section 408.001(a) of the Texas Labor Code states that:
Recovery of workers’ compensation benefits is the
exclusive remedy of an employee covered by workers’
compensation insurance coverage or a legal beneficiary
against the employer or an agent or employee of the
employer for the death of or a work-related injury
sustained by the employee.
TEX. LAB. CODE § 408.001(a). In other words, § 408.001
“provide[s] the exclusive remedy for on-the-job injuries,
prohibiting the employee [or families of employees] from seeking
common-law remedies from his employer, its agents, and co-
employees.” Aguirre v. Vasquez, 225 S.W.3d 744, 753 (Tex.
App.–Houston [14th Dist.] 2007, no pet.). “The only exception to
the exclusive remedy provision is when an employee’s death ‘was
caused by an intentional act or omission of the employer or by the
employer’s gross negligence.’” Port Elevator-Brownsville v.
Casados, 358 S.W.3d 238, 241 (Tex. 2012) (quoting TEX. LAB. CODE
§ 408.001(b)). “The Texas Supreme Court has held that an employer
is entitled to assert the . . . exclusive remedy provision upon a
showing that it subscribed to workers’ compensation insurance, that
the plaintiff was an employee, and that the plaintiff suffered a
work-related injury.” Perio, 2013 WL 5563711, at *6.
In Alleyton’s and Bustamante’s answer to Claimants’ original
petitions, they assert that “[a]t the time of the accident made the
basis of this lawsuit [Rubio] and [Bustamante] were employees of
[Alleyton] . . . [and that Alleyton] maintained workers’
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compensation coverage.”21 Claimants therefore have no reasonable
possibility of recovery on their negligence claim against
Bustamante. Flagg v. Stryker Corp., 819 F.3d 132, 139 n.32 (5th
Cir. 2016) (citing Boone v. Citigroup, Inc., 416 F.3d 382, 391 (5th
Cir. 2005), and Bell v. Texaco, Inc., 493 F. App’x 587, 592 (5th
Cir. 2012)) (stating that the Fifth Circuit has “consistently found
improper joinder where a non-jurisdictional affirmative defense
(such as statute of limitations) conclusively bars the plaintiff’s
claims against the non-diverse defendant.”).
B. Claimants fail to state a claim for gross negligence.
Defendants argue that Claimants have failed to plead facts
that establish that Bustamante owed Rubio an independent duty of
reasonable care apart from Alleyton’s duty.22 Claimants argue that
their pleadings establish that Bustamante “owed independent, non-
delegable duties to ensure the safe operation, maintenance, and
procedural oversight of the company’s commercial fleet and its
field operations” because their pleadings allege that Bustamante
failed to act on his knowledge that the brakes were faulty and that
rear-mounted controls were dangerous.23
21Defendants’ Original Answer to Plaintiff’s Original Petition
and Intervenors’ Petition in Intervention, Exhibit H to Notice to
Removal, Docket Entry No. 1-9, p. 2. Claimants do not dispute that
they have no claim against Alleyton and Bustamante for negligence.
Motion to Remand, Docket Entry No. 12, pp. 5–6 (stating that “Texas
law at least permits the gross-negligence theory pleaded against
Bustamante”).
22Defendants’ Response, Docket Entry No. 14, pp. 5–13.
23Plaintiff’s Amended Petition, Exhibit K to Notice of Removal,
Docket Entry No. 1-12, pp. 7–8 ¶¶ 28, 31; Motion to Remand, Docket
Entry No. 12, pp. 7–8.
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“As with negligence actions, . . . a defendant may be liable
for gross negligence only to the extent that it owed the plaintiff
a legal duty.” City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex.
2009). Under Texas law, an employee acting within the scope of
their employment is only individually liable when the plaintiff can
establish that the employee “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). “Courts have held that
if an ‘employee played a personal and active role in creating the
dangerous condition at issue, then an independent duty of care
existed, recovery was possible, and remand was appropriate.’” Rivas
v. 2ML Real Estate Interests, Inc., CIVIL ACTION NO. H-23-3058, 2023
WL 7545224, at *2 (S.D. Tex. Nov. 13, 2023) (quoting Champion v.
Wal-Mart Stores of Texas, LLC, No. 5:16-CV-112, 2016 WL 1226942, at
*3 (W.D. Tex. Mar. 24, 2016)). However, “‘where the employee was
merely indirectly involved, or the plaintiff did not allege active
involvement, courts have held plaintiffs could not recover from the
employee.’” Bowens v. Sweeping Corp. of America, LLC, No. 3:24-cv-
178-BN, 2024 WL 3278969, at *12 (N.D. Tex. July 2, 2024).
1. Duty Based on Personal Knowledge
Claimants first argue that Bustamante owed Rubio an
independent duty because he failed to act on his knowledge that the
brakes were faulty and that rear-mounted controls were dangerous.24
24Plaintiff’s Amended Petition, Exhibit K to Notice of Removal,
Docket Entry No. 1-12, pp. 7–8 ¶¶ 28–29, 31; Motion to Remand,
Docket Entry No. 12, pp. 7–8.
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When an employee knows of “specific deficiencies in existing
. . . equipment and then refuse[s] to take steps to remedy the
problem,” the employee may owe an independent duty of reasonable
care. Wallace v. Industrial Tank Cleaning Services, LLC, CIVIL
ACTION NO. 3:22-cv-00297, 2023 WL 2568917, at *3 (S.D. Tex.
Mar. 13, 2023), memorandum and recommendation adopted, 2023
WL 3262060 (S.D. Tex. May 4, 2023) (holding that the plaintiff had
successfully pled that the co-employee owed him a duty of
reasonable care apart from the duty owed by the employer because
“[i]nstead of claiming that the [co-employee] violated a general
duty to provide [the plaintiff] with a safe workplace, [the
plaintiff] aver[red] that the [co-employee] knew of specific
deficiencies in existing safety equipment and then refused to take
steps to remedy the problem”); see also Bowens, 2024 WL 3278969, at
*12-*13 (granting the plaintiff’s motion to remand because his
pleadings, which alleged that the employee “had ample and
sufficient knowledge of the risks associated with [the plaintiff’s]
operation of the vehicle,” sufficiently alleged the duty element of
his negligence claim against the employee); Lopez-Monroy v.
Wal-Mart Stores Texas, LLC, Civil Action No. 3:19-CV-00051, 2019
WL 3302615, at *5 (S.D. Tex. July 23, 2019), memorandum and
recommendation adopted, 2019 WL 3753702 (Aug. 8, 2019) (“[It]
certainly appears plausible that [the plaintiff] could recover
against [the employee] under Texas law if, in fact, [the employee]
created a dangerous condition and then did nothing to remedy the
situation.”).
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In cases alleging that a defendant-employee played a personal
and active role in creating the dangerous condition at issue by
failing to act on personal knowledge, courts have required the
plaintiff’s pleadings to allege specific facts that support the
allegations that the defendant-employee had such knowledge. See,
e.g., Wallace, 2023 WL 2568917, at *1 (pleading that the employee
received “repeated complaints regarding the condition of the
equipment provided to Plaintiff”); Bowens, 2024 WL 3278969, at *12
(pleading that the employee “had ample and sufficient knowledge of
the risks associated with [the victim’s] operation of the vehicle
. . . [because he] was advised by [other] employees that [the
victim] should not have been operating the street sweeping
vehicle”) (internal quotation marks omitted).25 Although Claimants
assert that Bustamante (1) was “personally aware of brake issues or
safety complaints related to cement mixer trucks, including the one
involved in this incident,” (2) “had actual knowledge of the hazard
posed by rear-mounted controls between a cement mixer and a pump
truck,” and (3) failed to take corrective action,26 Claimants do not
25See also Sanchez v. Shintech Louisiana, LLC, Civil Action
No. 12-370-BAJ-SCR, 2013 WL 1296684, at *5 (M.D. La. Feb. 19, 2013)
(finding that “[a]lthough the plaintiff alleged that [the
defendant] had personal knowledge of the harmful condition, the
state court petition is devoid of any facts to support the
allegations that he had such knowledge”) (applying Louisiana law,
which imposes an independent duty on a supervisor when he has
knowledge of the dangers present).
26Plaintiff’s Amended Petition, Exhibit K to Notice to Removal,
Docket Entry No. 1-12, p. 8 ¶¶ 29, 31(B)(C).
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allege any specific facts to support the allegation that Bustamante
had knowledge of the faulty brakes or the dangers of rear-mounted
controls.27 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” under
Rule 8.).
Claimants’ pleadings therefore fail to allege that Bustamante
owed Plaintiff an independent duty based on his failure to act on
his personal knowledge.
2. Duty to Provide a Safe Work Place
Claimants also argue that Bustamante had an independent duty
to provide Plaintiff with a safe workplace.28 However, without
more, simply alleging that Bustamante “owed independent, non-
delegable duties to ensure the safe operation, maintenance, and
procedural oversight of the company’s commercial fleet and its
27Plaintiff’s amended complaint supports the court’s conclusion
that Plaintiff’s pleadings do not allege facts to support the
allegation that Bustamante had knowledge of the faulty brakes.
Although Claimants’ petitions assert personal knowledge as a fact,
the amended complaint alleges that Bustamante “knew or should have
known of brake issues” and that he “fail[ed] to respond to known or
suspected brake . . . complaints.” Plaintiff Floriberto Rubio’s
First Amended Complaint, Docket Entry No. 11, pp. 9–10 ¶¶ 39, 40(E)
(emphasis added). The court can consider the amended complaint “to
the extent [it] ‘clarif[ies] or amplif[ies] the claims actually
alleged’ in the removed pleading.” Palmquist v. Hain Celestial
Group, Inc., 103 F.4th 294, 303 (5th Cir. 2024) (quoting Griggs v.
State Farm Lloyds, 181 F.3d 694, 700 (5th Cir. 1999)).
28Plaintiff’s Amended Petition, Exhibit K to Notice of Removal,
Docket Entry No. 1-12, pp. 7–8 ¶ 28; Motion to Remand, Docket Entry
No. 12, pp. 7–8.
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field operations”29 is not sufficient to support the duty element
of Claimants’ gross negligence claim. Leitch, 935 S.W.2d at 118
(holding that the “duty to provide a safe workplace [is] a
nondelegable duty imposed on, and belonging solely to, [the
employer]”).
Because Claimants have failed to plead facts to support the
allegation that Bustamante owed Plaintiff an independent duty of
reasonable care apart from Alleyton’s duty, Claimants have failed
to state a claim under state law. Kirwan, 298 S.W.3d at 623 (“[A]
defendant may be liable for gross negligence only to the extent
that it owed the plaintiff a legal duty.”).
IV. Conclusion and Order
Because Claimants’ negligence claim is barred by Texas law and
because they have failed to state a claim for gross negligence
under Texas law, the court concludes that Defendants have carried
their heavy burden to show that there is no reasonable basis for
the district court to predict that Claimants might be able to
recover against Bustamante.30 Bustamante is therefore improperly
29Id.
30Defendants also argue that Claimants have not pled facts to
support the objective and subjective elements and the causation
element of their gross negligence claim. Defendants’ Response,
Docket Entry No. 14, pp. 13–20. The court need not address these
claims because the court has concluded that Claimants have failed
to plead facts to support the duty element. The court does not
need to address Defendants’ request to pierce the pleadings because
the court has concluded that Plaintiff has failed to state a claim
under state law.
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joined as a defendant to this action. Because there is complete
diversity among Claimants, DTNA, Western, and Alleyton and because
the amount in controversy exceeds $75,000, the court has diversity
jurisdiction over this action."
Accordingly, Plaintiff's and Plaintiffs-Intervenors' Joint
Motion to Remand to State Court (Docket Entry No. 12) is DENIED.
SIGNED at Houston, Texas, on this the 15th day of July, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
31 Notice of Removal, Docket Entry No. 1, pp. 6-7; Plaintiff's
Amended Petition, Exhibit K to Notice of Removal, Docket Entry
No. 1-12, p. 2 1 1 (n Plaintiffs seek monetary relief over
$1,000,000.00.").
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