Unreported / Non-Citable
Background
Koen Overberger and Lorenzo Terrenos, electric linemen employed by El Paso Electric Company, were assigned to work on a 115 kV transmission line in El Paso, Texas. Before the work, Overberger and another lineman identified safety concerns involving nearby energized distribution lines and traffic near the worksite. They proposed performing the work at night so the distribution lines could be de-energized and traffic reduced, but a person understood to represent Jobe Materials reportedly said a dedicated line serving its continuously operating facility could not be de-energized.
On April 15, 2026, Overberger and Terrenos suffered severe electrical shocks while working from the bucket of an aerial lift truck behind a gated entrance bearing Jobe Materials’ logo. They sued Jobe Materials and the lift’s manufacturer, Altec Industries, in Texas state court for negligence and gross negligence, seeking more than $1 million. Altec removed the case on diversity grounds, contending that Jobe Materials—a citizen of Texas and New Mexico, among other states—had been improperly joined.
After removal, the plaintiffs sought leave to amend their complaint to add negligent-activity and negligent-undertaking theories and moved to remand. Because the plaintiffs and Jobe Materials were New Mexico citizens, complete diversity existed only if Jobe Materials was disregarded as improperly joined.
The Court’s Holding
The court denied leave to file the proposed amended complaint but considered its allegations insofar as they clarified or amplified the premises-liability theory already asserted in state court. Under Fifth Circuit precedent, post-removal pleadings may clarify an existing claim for purposes of the improper-joinder analysis, but they may not introduce new causes of action. Because Texas treats premises liability, negligent activity, and negligent undertaking as distinct theories, the court declined to consider the newly proposed negligent-activity and negligent-undertaking claims.
The court nevertheless held that the clarified allegations supplied a reasonable basis to predict that the plaintiffs might recover against Jobe Materials on premises-liability grounds. The gated entrance, Jobe Materials signage, security checkpoint, and alleged statement by its representative concerning whether the line could be de-energized plausibly supported an inference that Jobe Materials owned, occupied, managed, possessed, or controlled the premises and relevant operations.
The court also rejected Altec’s open-and-obvious argument at the pleading stage. Although the plaintiffs knew the line was energized, Altec had not established that every alleged hazard—including conditions involving vegetation and electrical and communication lines—was open and obvious. Jobe Materials therefore was not improperly joined. Its shared New Mexico citizenship with the plaintiffs defeated complete diversity, and its Texas citizenship also made removal procedurally improper under the forum-defendant rule. The court granted remand to the 55th Judicial District Court of Harris County, Texas.
Key Takeaways
- A post-removal amendment may clarify or amplify a state-court claim for purposes of an improper-joinder analysis, but it may not supply a new cause of action that was absent from the controlling state-court pleading.
- Allegations involving restricted access, company signage, a security checkpoint, and a company representative’s operational authority plausibly supported premises ownership, possession, management, or control.
- Knowledge that an electrical line was energized did not establish at the pleading stage that all alleged worksite dangers were open and obvious.
- Because the properly joined defendant shared citizenship with the plaintiffs and was also a Texas citizen, both complete-diversity and forum-defendant barriers required remand.
Why It Matters
The decision illustrates the removing defendant’s heavy burden when asserting improper joinder. A plaintiff need not prove the merits of the claim at the remand stage; a plausible state-law claim against the nondiverse defendant is generally enough to require that defendant’s citizenship to be considered.
It also draws a practical line for post-removal pleadings: plaintiffs may add factual detail that clarifies an existing claim under federal pleading standards, but they cannot rely on newly introduced legal theories to establish that joinder was proper when the case was removed.