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Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 1 of 32

JUDt DAVID GUADERR

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

LED

MAy 2 4

RICARDO MAGALLANES,

Plaintiff,

VS.

FORD MOTOR COMPANY,

Defendant.

EP13

§ CIVIL ACTION NO. :_
§ (JURY TRIAL)
§

§

§

§

§

NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT COURT:

Pursuant to Title 28 U.S.C. §1441(a) and (e) and 28 U.S.C. §1332, Defendant Ford

Motor Company ("Ford") hereby gives notice of removal of an action filed against it in the 384°

Judicial District Court of El Paso County, Texas to the United States District Court for the

Western District of Texas, El Paso Division. In support of this removal, Ford would show the

Court as follows:

Preliminary Matters

1.

On April 17, 2013, an action was commenced by Plaintiff Ricardo Magallanes

against Ford in the 384thi

Judicial District Court of El Paso County, Texas styled Ricardo

Magallanes, Plaintff v. Ford Motor Company, Defendant, Cause No. 2013-DCV156O (Tab 2,

Appendix to Notice of Removal ("App.")).

2.

On April 26, 2013, a copy of Plaintiffs Original Petition and Request for

Disclosure (hereinafter "P1. Pet.") was served by Certified Mail on Ford's registered agent for

service of process in the State of Texas (App. Tab 4). Ford answered the Plaintiffs Petition on

May 20, 2013 (App. Tab 5).

Notice of Removal Page /

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 2 of 32

Nature of the Case

3.

This is a negligence case. Plaintiff owned a 2007 Ford Focus (P1. Pet. ¶8.)

Plaintiff claims that Ford breached its duty of ordinary care to Plaintiff by providing key source

code information to a third party that allowed duplicate keys to be produced, without Plaintiff's

knowledge or consent (Id. ¶J19-21). Plaintiff claims that as a result, he became the unwitting

victim of a criminal scheme in which drug dealers used the duplicate keys to place illegal drugs

in his trunk while his vehicle was in Juarez, Mexico, and then removed the drugs from the trunk

after he had driven back into El Paso, Texas (Id. fl6-12). United States Customs discovered the

drugs in the trunk, Plaintiff was arrested and convicted, and he spent six months in jail before he

was released and acquitted (Id. ¶J 13-15).

4.

Plaintiff claims that during the period of imprisonment, during his criminal trial,

and after the trial, he suffered damages, including actual damages, past and future mental

anguish, lost wages, loss of earning capacity, and loss of consortium (Id. ¶J16, 23).

Grounds for Removal Diversity

5.

The present action is one over which this Court has original jurisdiction under the

provisions of Title 28, United States Code, §1332 and 1441(a) in that it is a civil action between

completely diverse parties and the amount in controversy exceeds the sum or value of

$75,000.00, exclusive of interest and costs.

6.

Plaintiff Ricardo Magallanes is a citizen of the State of Texas (P1. Pet. ¶2).

Currently, and at all times relevant to this action, Defendant Ford is a Delaware corporation with

its principal place of business in Dearborn, Michigan.

Amount in Controversy

7.

Plaintiffs damage claims meet the amount in controversy requirement for

diversity jurisdiction under 28 U.S.C. §1332(b). Although Plaintiff has not pled a specific

Notice of Removal Page 2

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 3 of 32

amount of compensatory damages sought in his Petition, it is apparent from the face of the

Petition that the claimed damages will be far above $75,000, exclusive of interest and costs.

Plaintiff seeks actual damages, past and future mental anguish, lost wages, loss of future earning

capacity, and loss of consortium based on an allegedly wrongful six-month incarceration in

prison. Plaintiff will not dispute the fact that his claimed damages far exceed $75,000. In the

unlikely event that Plaintiff challenges Ford's assertion that the amount in controversy exceeds

$75,000 through a motion to remand, Ford reserves its right to conduct discovery on this issue

and will submit evidence to this Court in support of the amount in controversy requirement. See

Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000); Harmon v. OKI Sys.,

115 F.3d 477, 479-80 (7th Cir. 1997); Marcel v. Pool Co., 5 F.3d 81, 84-85 (5th Cir. 1993).

Removal is Timely

8.

As a general rule, a notice of removal must be timely filed within 30 days of

receipt of an initial pleading or service of summons. 28 U.S.C. §1446(b). Defendant is filing

this notice of removal within 30 days of April 26, 2013, the date on which it was served with

summons and received Plaintiff's Original Petition.

Other Requirements

9.

On filing of this Notice of Removal, Ford will provide written notice to Plaintiff

in this action and will file a copy of the Notice of Removal with the Clerk of the Court for the

3841 Judicial District, El Paso County, Texas.

10.

The 384th Judicial District Court of El Paso County, Texas is located in the

Western District of Texas, El Paso Division. Further, the Appendix accompanying this Notice of

Removal contains all of the executed process, pleadings, and orders served on Ford, as well as

the docket sheet on file in this matter. See Appendix to Notice of Removal, attached hereto.

Notice of Removal Page 3

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 4 of 32

Prayer

Defendant Ford Motor Company requests that this action be removed from the 384th1

Judicial District Court of El Paso County, Texas to the United States District Court for the

Western District of Texas, El Paso Division. Defendant further requests all other and further

relief to which it is justly entitled.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
(512) 708-8200
(512) 708-8777 (fax)

BY:

Michael W. Eady (Attorney-in-Charge)
State Bar No. 06332400
William L. Mennucci
State Bar No. 00788042

ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY

CERTIFICATE OF SERVICE

The undersigned certifies that on this 28th day of May, 2013, a true and correct copy of
the above and foregoing document was served upon the following counsel of record via Certified
U.S. Mail, Return Receipt Requested, in accordance with the Federal Rules of Civil Procedure.

Raul Magallanes
P.O. Box 1213
Friendswood, Texas 77549

Louis Elias Lopez, Jr.
416 North Stanton
Fourth Floor, Suite 400
El Paso, Texas 79901

Notice of Removal Page 4

William L. Mennuccci

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 5 of 32

UNITED STATES DISTRICT COURT
WESTERIN DISTRICT O1 TEXAS

EL PASO DIVISION

? 2 4 2nt

RICARDO MAGALLANES,

Plaintiff,

VS.

FORD MOTOR COMPANY,

Defendant.

§ CIVIL ACW1
§ (JURY TRIAL)
§

§

§

§

§

APPENDIX TO NOTICE OF REMOVAL

TO THE HONORABLE UNITED STATES DISTRICT COURT:

Defendant, Ford Motor Company ("Ford") files this Appendix to Notice of Removal,

containing the following documents, which comprise the complete file of the El Paso County

District Clerk for Cause No. 2013-DCV156O; Ricardo Magallanes, Plaintiff v. Ford Motor
Company, Defendant; In the 384th Judicial District Court of El Paso County, Texas:

1. Docket Sheet

2. Plaintiffs' Original Petition and Request for Disclosure with Civil Case

Information Sheet

3. Citation of Plaintiffs' Original Petition and Request for Disclosure on Ford Motor

Company

4. Executed citation of Plaintiffs' Original Petition and Request for Disclosure on

Ford Motor Company

5. Ford Motor Company's Special Exceptions, Original Answer to Plaintiff's

Original Petition, and Reliance on Jury Demand

Appendix to Notice ofRetnoval - Page /

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 6 of 32

Respectfully submitted,

THOMPSON, COE, COUSiNS & IRONS L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
(512) 708-8200
(512) 708-8777 (fax)

BY:

Michael W. Eady (Attorney-in-Charge)
State Bar No. 06332400
William L. Mennucci
State Bar No. 00788042

ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY

CERTIFICATE OF SERVICE

The undersigned certifies that on this 28th day of May, 2013, a true and correct copy of
the above and foregoing document was served upon the following counsel of record via Certified
U.S. Mail, Return Receipt Requested, in accordance with the Federal Rules of Civil Procedure.

Raul Magallanes
P.O. Box 1213
Friendswood, Texas 77549

Louis Elias Lopez, Jr.
416 North Stanton
Fourth Floor, Suite 400
El Paso, Texas 79901

William L. Mennuccci

Appendix to Notice of Removal Page 2

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 7 of 32

APPENDIX

TAB1

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 8 of 32

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REGISTER OF ACTIONS

CASE No. 2013DCV1560

Page p of 1

Location All Courts Kelp

RICARDO MAGALLANES vs FORD MOTOR COMPANY

§
§
§
§
§

Case Type: Other Injury or Damage
Date Filed: 04/1812013

Location: 384th District Court

Defendant

FORD MOTOR COMPANY
CT. CORP SYSTEM
350 N. ST. PAUL STREET
DALLAS, TX 75201

Plaintiff

MAGALLANES, RICARDO

Attorneys
WILLIAM L MENNUCC1

Retained

512-472-5455(W)

LOUIS E LOPEZ
Retained
915-543-9800(W)

OTHER EVENTS AIlD HEARINGS

Doe ID# I

04/18/2013 Original Petition (OCA)
04/24/2013 Citation

FORD MOTOR COMPANY

EvTs & ORIERS OF TUE COURT

Served
Response Received
Returned

04126/2013
05/20/2013
05/03/2013

05/20/2013 Answer

Doe ID# 2

http://casesearch.epcounty.comlPublicAccess/CaseDetail.aspx?CaseID=4662685

5/20/2013

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 9 of 32

APPENDIX

TAB2

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 10 of 32

LF

No. 2O13 DCV15&O

RICARDO MAGALLANES
PLAINTIFF

vs

FORD MOTOR COMPANY
DEFENDANT

IN THE DISTRICT COURT

3e4th JUDICIAL DISTRiCT

EL PASO COUNTY, TEXAS

§

§

§

§

§

§

§

§

PLAINTIFFS' ORIGINAL PETITION AND REQUEST FOR DISCLOSURE

Discovery Cotz-o1 Plan

1. PLAINTIFF intends to conduct discovery under Level 2 or 3 of rule 190 of the

Texas Rule of Civil Proccdurc (TRCP)

Parties

2. PLAINTIFF, RICARDO MAGALLANES is a realdern of El Paso County, Texas
3. DEFENDAt'T, FORD MOTOR COMPANY (FORD"), is an automobile
manufacturer and a forcign corporation whose principal, office is located at One
American Road. Ford World Headquarters, Room 612, Deaboni, MI 48126.
DEFENONAT is authorized to do business in Texas and may be scrved with
process by serving itS registered agent for service of process, CT Corporation
System, at 350 North St. Paul St. Stew 2900, Dallas. Texas 752014234, Tarrant

County.

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 11 of 32

7

ction

4. The court has

jurisdiction over DEFENDANT, a nonresident, because
DEFENDANT purposely availed itsclf of the privileges and benefits of
conducting business in Texas and by keeping and agent for service of process in
Texas.

Venue

5. Pursuant to Texas Civil Prtice & Remedies Code sections 15002 (a) (1), Venuc
is proper in El Paso County because here is where alt or substantially all of the
events or omissions giving risc to the claim occurted.

Facts

6. DEFENDANT maintains an electronic database that shows when Vehicle
ldentificauon Number (VIN)-specific records arc accessed by users at
access
to
authorized
issued and
DEFENDANT'S
DEFENDANT's database d.o so under specifIc user occounis
maintained by DEFENDANT.

automobile dealerships.

Users

a

2007

Ford

rcfercnce

vehicic,

infosmation

to PLAINTIFFs

VINspecific key source codes which can be used to make duplicate car keys.

7. One of the pieces of information that DEFENDANT maintains in its database are
8. On or about September .10, 2010, DEFENDANT supplied a source key code in
Focus, VlN
1FAFP34N17W133926 ("Ford Focus"). A duplicate set of keys to PLAINTIFFs
from one of DEFENDANT's
Ford Focus were made with
Dealerships in Daflag, Texas ("USER ACCOUNT A").
9. PLAINTIFF did not request, flOT did he authorize making of duplicate keys for the
Ford Focus. PLAINTIFF was not notified, by DEFENDANT or anyone tise, that
a source key code for the Ford Focus had been released by DEFENDANT
10. At the time of this incglent DEFENDANT knew PLAINTIFF'S addrcss since
DEFENDANT was financing the Ford Focus to PLAINTIFF. DEFENDANT sent
monthly statements to DEFENDNAT's address of record in EL Paso, Texas.
ii. On or about November 15, 2010, DEFENDANT's vehicle trunk was illegally
opened by members of a drug smuggling organization using a duplicate key. This
criminal organization placed two duffle bags containing narcotics in the trunk of
his car. The bags were placed while the vchicle was parked in Juarez, Mexico.

2

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 12 of 32

12. On November 16, 2010 DEFENDANT used the Me*ico-US ntcrnationa1 bridge
and attempted to cross into El Paso, Texas. The drugs were found in the trunk ot'
the Ford Focus after U.S. Customer and Border Patrol (CBP) performed a routine

inspection.

13. DEFENDANT was

subsequently arrested and coriuiricd

for
to prison
approximately six months. DEFENDANT regained his Jibersy on May 13, 201 I
14. On June 27. 2011, the US. Government dismissed all indictments against
PLAINTIFF after the U.S. Federal Bureau of Investigation obtained evidence of
the conspiracy and arrested one of the perpetrators.
15. On May 22, 2012. a fcderal judge for the U.S. District Court Western District, El
16. Throughout the period of imprisonment, during the trial, and after the trial,

Paso Division, signed an order acquitting DEFENDANT of all charges.

DEFENDANT and his family suffered damages.

Common Lnwjlcence

17. DEFENDANT owed a legal duty to PLAINTIFF to conform to a.certain standard
of conduct to PLAINTIFF against unreasonable risks. Thc existence of a duty is a
question of law. Nabors DriWrg. USA v. Escoro, 288 S.W.3d at 404.
considering whether there is a common law duty, the courts will apply the risk-
utility test.

In

18. Rtsk Utility-Test

a. Balancmg Factors

In deciding whether there is a common law duty, cOurts
i. Factors.
apply the risk-utility test. Fo,cter v. Dervton ISO, 73 S.W3c1 454, 465
(Tex App-Forth. Worth 2002, no pet.) The risk-utility test would be
applied to determine the scope of defendant's duty to plairniff.
ii. Fpresceabihty. When these factors are balanced, the most important
factor to consider is the foresecability of the risk. Texas Home Mrzgmr.
V. Peavy. 89 S.W,3d 30, 36 (Tex. 2002). Foresecability requires only
that the general danger be foreseeable. ncit the exact sequence of
events that prducc the harm. Mellou Mart, Co. v. Holder, 5 S.W.3d
654, 655 (Tex. 1999) (plurality op.). The test for forseeability is
whether (1) the injury is of general character that might reasonably
have been anticipated and (2) the injured party is situated in relation

3

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 13 of 32

to the wrongful act so that injury to him (or Onc similar situated) rn.tgiu
reasonably have been fortseeti. Mellon, 5 SW.3d at 655.

b. Other Factors

i. Superior Knowledge. In deciding whether to impose a duty under the
risk-utility test, the courts also consider additional factors. One
important factor is whether one party had superior knowledge of the
risk. Nabors Drilling at 410.
ii. Duty tç Control Another. Courts also consider whether a party had a
duty to control the conduct of the person who caused the plaintiffs
injury. Graff'. Beard, R58 S.W.2d 918, 920 (Tex. 1993). Generally,
a person is under no legal duty to control thc conduct of others, even if
the person has the ability o do so. Nabors Drilling at 404. However,
a person may have a duty to control another's conduct because of their
relationship. Nabors Drilling at 405.
iii. lexas Law. In Texas, it has been establish that a party that has
information that can match keys to locks has a duty to use a system
that is reasonably devised to keeps keys and infomiation as to which
locks they open, secure from foreseeable access by a third party
criminal. Berry Properry Management, Inc. v. Bliskey, 850 S.W2d
644 (Tex.App.-Corpus Christi, 1993).

çDut

19. DEFENDANT breached the duty to PLAINTIFF or ordinary care by failing to
act reasonably in providing VIN-specific key source code information to a third
party regarding PLAINTIFF's vehicle without PLAINTIFF's knowledge or
without notifying PLAINTIFF.

20. By DEFENDANT's action DEFENDANT should have reasonably anticipated
that

in the wrong hands and

that the kcy source infonnation night fall,
PLAINTIFF would be the victim of a criminal act.

21. DEFENDANT had superior knowledge because it maintains a database of source
code information. DEFENDANT failed to maintain a system that could flag
DEFENDANT when VIN-speciuic iourcc code information is given out without
PLAINTIFF's knowledge or conseru.

Proximate Cause

22. DEFENDANT'S breach of duty proximately caused injury to PLAINTIFF. But
for DEFENDANT'S breach of duty PLAINTIFF's injury would not have

4

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 14 of 32

occurred. Any person of ordinary intelligence would have anricipated the danger
created by thc negligence of DEFENDANT.

Dama&es

23. DEFENDANTS breach of duty proximately caused injury to PLAINTIFF,

which resulted in the following damages

a. Actual damagcs:
b. Mental anguish in thc past, present arid future;

c. Lost wages;

d. Loss of earning capacity;

e, Loss of consortium;

1fyDemand

24. PLAINTIFFS demand a jury trial and tender the appropriate fee with this

petition.

Reqiest (or Disclosure

25. Under the authority of Texas Rule o. Civil Procedure rule 194. PLAINTIFF
requests that DEFENDANT disclose, within 50 days of the service of this request,
the information or material described in RuIc 194.2

Prayer

26. For these reasons, PLAINTIFF asks

the Cowl issue cjLatin for
DEFENDANT to appear and answer, and that PLAINTIFF be awarded a
judgment against DEFENDANT for the following:

that

a. Actual damages:
b. Pre-judgrrient and post-judgment interest;
c. Mental anguish in the past, present and future;

5

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 15 of 32

d. Lost wages:

e. Loss of earning capacity;

f. Loss of consortium,

injury

resulted

g. Exemplary Damage:

from
DeFENDANT'S fraud, malice, or gross negligence, which entitles
PL.AINTrFF to exemplary damages under Texas CiviL Practice &
Retrietlics Code section 41.003(a)

PLAINTIFF'S

h, Court Costs;
i. Attorney fees. Plaintiff is entitled to recover reasonable and necessaxy

auorncy fees under

j. All other relicf to whjckj Plaintiff is entitled

Respectfully submitted.

/s/ Raul Maa1lanes

RAUL MAGALLANES
Texas State Bai # 24048631
P0 Bo 1213
Friendswood, TX 77549
Tc)cphone: (281) 317-1397
Fait: (281) 271-ROSS
Attorney for Plaintiff

Js/ Louis Lone
LOUfS EL1AS LOPEZ JR.
Texas State Bar Number: 00787923
416 N. Staxiton, Fourth Floor, Suite 400
El Paso, TX 79901
Telephone: (915)5439800
Fax: (915)543-9804
Attorney for Plairtiff

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 16 of 32

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-

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 17 of 32

APPENDIX

TAB3

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 18 of 32

THE STATE OF TEXAS

IJORt'iAL FA"LA
rSTRICT C'F

NOTICE TO DEFENDANT: 'You have been sued. You may employ an attorney. If yp,,QJu5 attqje,y, d,Qot

file a written answer with the clerk who Issued ths citation by 10:00 am. on the Monday
twenty days after you were served this clIBtion and petitioN, a default judgment may be
TO: FORD MOTOR COMPANY who may be served with process by serving its registered
CT CORPORATION SYSTEM at 350 NORTH ST. PAUL ST STE, 2900, DALLAS, TX 75201

nt I

a

I of

Greetings:

You are hereby commanded to appear by filing a written answer to the Plaintiffs Original Petition and Request for
Disclosure at or before ten o'clock AM. of the ItAoriday next after the expiration of twenty days after the date of service of
this citation before the Honorable 384th JudicIal District Court, El Paso County, Texas, at the Court Rouse of said
Said Plaintiffs Original Petition and Request far Disclosure was tiled in saki court cmi the 17th day of April, 2013.
by AttDrney at Law RAUL MAGALLANES. P0 BOX 1213, FRIENDSWOOD, TX 77549 in this case numbered
O13DCV1 560 on the docket of said court, and styled

County in El Paso, Texas.

RICARDO MAGALLANES vs FORD MOTOR COMPANY

Request for Disclosure accompanying this citation and made a part hereof.

The nature of Plaintiffs demand is fully shown by a true and correct copy of the Plaintiffs Original Petition and
the same according to requirements of law, and the mandates

thereof, and make due return as the law directs.

The officer executing this writ shall promptly serv
Issued and given under my hand and seal of said Court at El Paso, Texas, on this the 24th day of April 2013.
' ' .' '

Attest: NORMA 1. FAVELA, Oistnct Clerk. El Paso County, Texas.

CLRi( OF ThE COURT
NORMA 1. FAVELA

District Clerk

El Paso County Courthouse

500 E. San Antonio Aye, RM 103

El Paso Texas, 79901

ATTACH

RETURN RECEIPTS

WiTH

ADDREsSEE'S SIGNATURE

Rule 106 (a) (2) the citation shall be served by
mailing to the defendant by Certified Mall Return
receipt requested, a true copy of the citation.
Sec. 17.02 7 Rules of Civil Practice and
Remedies Code if not prepared by Clerk of
Court.

NAME OF PREPARER

ADDRESS

TV

1lflE

STATE

ZIP

DataAmea

I
CERTIFICATE F

L ERY ev MAIL

1 hereby certify that on the

2011,at

day of
Imailedto

r1ifled mall with deiliery
Detenciant(s) by -egistered mcii oi
restricted to addressee only, retuin rcceipt requested, a true
cony
Petition end Request (or Disclosure attached thereto.

( this citation wilt, a copy of the Plinllfi's Ortinai

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 19 of 32

RETURN OF SERVICE

Delivery was completed on

delivered to_______________________

as evidence by Domestic Return Receipt PS Form 3811

attached hereto.

The described documents were riot delivered to the named recipient. The certified mail envelope was returned

undelivered marked

This forwarding address was provided:______________________________________________

El Paso County, Texas

Deputy District Clerk

OR

Name of Authorized Person

By:____________________________

VERIFICATION BY AUTHORIZED PERSON

State of Texas
County of El Paso

_, known to me to be the person

Before me, a notary public, on this day personally appeared

whose name is subscribed to the foregoing Return of Service, and beirig by me first duly sworn, declared, I am
disinterested party qualified to make an oath of that tact and statements contained In the Return of Service and true and

correct.

Subscribed and sworn to be on this

day

Notary Public, State of
My commission apires:.__________________

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 20 of 32

APPENDIX

TAB4

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 21 of 32

THE STATE OF TEXAS

NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you, or your attorney, do not
file a written answer with the clerk who issued this citation by 10:00 am. on the Monday next tollowing the expiration of
twenty days after you were served this citation and petition, a default judgment may be taken against you.'
TO; FORD MOTOR COMPANY, who may be served with process by serving its registered agent for service of process,
CT CORPORATION SYSTEM at 350 NORTH ST. PAUL ST STE. 2900, DALLAS, TX 75201-4234, TARRANT COUNTY

Greetiri gs.

You are hereby commanded to appear by fihng a written answer to the Plaintiffs Original Petition and Request for
Disclosure at or before ten o'clock AM, of the Monday next after the expiration of twenty days after the date of service of
this citation before the Honorable 384th JudicIal District Court, El Paso County, Texas, at the Court House of said
County ri El Paso. Texas

Said Plaintiffs Original Petition and Request for Disclosure was flied in said court on the 17th day of April, 2013,
by Attorney at L,aw HAUL MAGALLANES, P0 BOX 1213, FRIENDSWOOD, TX 77549 in this case numbered
20130CV1560 on the docket of said court, and styled:

RICARDO MAGALLANES vs FORD MOTOR COMPANY

The nature of Plaintiff's demand is fully shown by a true and correct copy of the Plaintiffs Original Petition and

Request for Disclosure accompanying this citation and made a part hereof.

The officer executing this writ shall promptly serve the same according to requirements of law, and the mandates

thereof, and make due return as the law directs

Issued and given under my hand and seal of said Court at El Paso, Texas, on this the 24th day of April, 2013.

Attest: NORMA L. FAVELA, District Cierl. El Paso County, Texas

CLERK OF THE COURT
NORMA L. FAVELA

District Clerk

ELPaso Counr Courthoug._.

FE OPUZIVE7 BY MAIL
at on the
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day of
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Domeelic Return Receipt

il5ve-M-1 940

I Complete Item 1.2. and 3. PJ.o complete
Item 4 If Restricted DeIl"sry Ii desired.
Print your name and uddresa on the reverse
a that wan return the card to you.
Attach this card to the beck of The meilpieco.

1. ArOd. fr.ddrs.aed to: 6/
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PS Form 3811. FebtuWy 2004

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Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 22 of 32

Delivery was completed on

jLr i 2O 7-/Iv-s

3

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RETURN OF SERVICE



delivered to J

?' ,c;( "

'

3-ô WSI

as evidence by Domestic Return Receipt PS Form 3811

attached hereto.

The described documents were not delivered to the named recipient. The certified mail envelope was returned

unclelive red marked

-.

This forwarding address was provided:_______________________________________________

By:

EljPaso County, Texas

/ Deputy District Clerk

Namethozed

-ç 1
,

.c:7A/ 3

r

TION BY AUTHORIZER PERSON

State of Texas
County of El Paso

Before me, a notary pubIc, on this day personally appeared I,A// 2'

whose name is subscbed to the foregoing Return of SeMce. and being by me 1irsworn, declared, I am
disinterested party qualified to make an oath of that fact and statements contained in the Return of Service and true and
correct

kndii to m10 be the person

1

Tc

Subscribed and sworn to be on this

-

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2.

day

Notary Public, State of
My commission expires

1 20 3

(

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 23 of 32

APPENDIX

TAB5

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 24 of 32

Filed
13 May 20 A7:22
Norma L. Favela
District Clerk
El Paso Distiict

RICARDO MAGALLANES,

)

IN THE DISTRICT COURT OF

CAUSE NO. 2013-DC1S6O

Plaintiff,

vs.

FORD MOTOR COMPANY,

EL PASO COUNTY, TEXAS

Defendant.

)

384TH JUDICIAL DISTRICT

FORD MOTOR COMPANY'S SPECIAL EXCEPTIONS, ORIGINAL ANSWER TO

PLAINTIFF'S ORIGINAL PETITION, AND RELIANCE ON JURY DEMAND

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Ford Motor Company (Ford), defendant in the above-styled and numbered

cause, and files this Special Exceptions, Original Answer to Plaintiff's Original Petition, and

Reliance on Jury Demand, and would show the Court as follows:

A.

Special Exceptions.

1.

Pleading Standard. Ford cannot prepare a defense to a lawsuit unless it is

reasonably appraised of the specific facts upon which the suit is based. Consequently Plaintiff's

petition is deficient and fails to give Ford fair and adequate notice of the facts asserted against Ford

as required by Tex. R. Civ. P. 47, and the Court should order Plaintiff to re-plead the petition to

reasonably allege the factual basis for plaintiff's claims. See Roark v. Allen, 633 S.W.2d 804, 810

(Tex. 1982) (A petition is sufficient if it gives fair and adequate notice of the facts upon which the

pleader bases his claim).

2.

Defective Notice of Claims of Gross Neglect and Malice. Under Texas law, the

defmition of "gross negligence" or "malice" as a basis for exemplary damages is governed by

statute. See Tex. Civ. Prac. & Rem. Code Ann. § 4l.003(a)(3) and §41.001(7)B). Under Tex. Civ.

Prac. & Rem. Code Ann. §41 .003(a)(3), exemplary damages may be awarded in a wrongful death

1

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 25 of 32

case in cases of "gross neglect." "Gross neglect" is defined as: An act or omission: which when

viewed objectively from the standpoint of the actor at the time of its occurrence involves an

extreme degree of risk, considering the probability and magnitude of the potential harm to others;

and of which the actor has actual, subjective awareness of the risk involved, but nevertheless

proceeds with conscious indifference to the rights, safety or welfare of others. Tex. Civ. Prac. &

Rem. Code Ann. §41.00l(7)B). "Malice" is defined the same as "gross negligence" except that a

plaintiff may prove "a specific intent by the defendant to cause substantial injury to the claimant"

as an alternative to support exemplary damages based on alleged "malice." Tex. Civ. Prac. & Rem.

Code Aim. §41.001(7).

Plaintiff has not alleged any facts that would support a claim for exemplary damages against

Ford based on "gross neglect" or "malice." Plaintiff has not alleged a specific act or omission that
involved an extreme degree of risk. Plaintiff has not alleged any facts that would support a claim

that Ford was actually subjectively aware of any risk relevant to the claims in this lawsuit.
Plaintiff has not alleged any facts to support a claim that Ford had a specific intent to cause

substantial injury to Plaintiff. Finally, plaintiff has not alleged any facts that would support a claim
that Ford proceeded with conscious indifference to the rights, safety or welfare of others. In short,
there are no facts pled to support a claim for exemplary damages under Texas law. Plaintiff should
either withdraw the claim from the pleadings or plead sufficient facts to support the claim so that

Ford may investigate and evaluate Plaintiff's claims and prepare its defense.

3.

No Pleadings to pcify Maximum Damages Claimed. Plaintiff has failed to

comply with Tex. R. Civ. P. 47(c) which requires that the plaintiff identify in his petition the
amount of monetary relief sought. Plaintiff may not conduct discovery until he has filed an
amended pleading to correct this error. Ford further specially excepts to Plaintiffs Original Petition

2

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 26 of 32

pursuant to Tex. R. Civ. P. 47 and asks that Plaintiff be required to replead and to identify the

maximum amount of damages being sought.

4.

Argument. The Court should not allow such pleadings

they constitute trial by

ambush. Unless Plaintiff's counsel is ordered to specifically allege facts to support these

contentions, plaintiff will have incentive to continue to prosecute the case with vague, ambiguous,

global and nonsensical pleadings. The net effect of this type of practice is that it works a severe

hardship on Ford in the preparation of its defense and for trial.

Failure to specify the nature of the claims asserted also wastes the time and resources of the

Court, since reasonably specific allegations will assist the parties in defining a reasonable and

appropriate discovery scope, preventing unnecessary hearings to determine the nature of the claims

and the proper scope of discovery.

Re-pleading with reasonable specificity will also facilitate the investigation of the claims

and may help facilitate settlement negotiations, since Ford will be able to better evaluate the factual

merit of the claim once Ford is made aware of the essential facts underlying Plaintiffs claims. It is

unjust and unfair to permit Plaintiff to try a significant case in such a manner that the defendant is

not aware of the essential factual basis of the claim and is thus precluded from effectively

investigation and defending against the claims.

Ford requests that these Special Exceptions be granted, and that the offending allegations be

stricken or that plaintiff be given an appropriate but limited period of time within which to replead.

If plaintiff does not timely replead, Ford requests that the allegations in question be stricken.

B.

General Denial

Ford invokes the provisions of Rule 92, Texas Rules of Civil Procedure, and does thereby

exercise its legal right to require Plaintiff to prove all of the allegations contained in Plaintiff's

3

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 27 of 32

pleading, if Plaintiff can so prove them, which is denied. Accordingly, Ford denies generally the

allegations of Plaintiff's pleading and demands strict proof thereof by a preponderance of the

evidence.

C.

Affirmative Defenses

1.

For further answer, if such be necessary, Ford alleges that plaintiff's claims are

barred by the applicable limitations period.

2.

For further answer, if such be necessary, Ford asserts that Plaintiff's claims fail to

state a claim upon which relief may be granted as a matter of law, including but not limited to

Plaintiff's claims for attorneys fees.

3.

For further answer, if such be necessary, Ford alleges that Jesus Chavez and Carlos

Albert Gomez are both a "responsible third party" as that term is defined and used in Sections

33.003 and 33.0 11 of the Texas Civil Practices & Remedies. The criminal complaint filed against

Jesus Chavez states that Jesus Chavez and Carlos Albert Gomez conspired to use frequent travelers

between El Paso, Texas and Juarez, Mexico, such as Ricardo Magallanes, to traffic illegal drugs

across the border between Mexico and the United States. Ford states that Jesus Chavez and Carlos

Albert Gomez's intentional conduct was either the sole, or at a minimum a concurring, cause of

Plaintiffs injuries and damages.

4.

For further answer, if such be necessary, Ford alleges that the criminal acts

committed by Jesus Chavez and/or Carlos Albert Gomez of breaking into Plaintiffs vehicle for the

purpose of furthering criminal trafficking of illegal drugs and/or the acts, whether criminal or

merely negligent, committed by a licensed Texas locksmith located in El Paso, Texas (the "El Paso

Locksmith") of making duplicate keys for vehicles not owned by the locksmith's customer and/or

the acts committed by the person who accessed Ford's yIN database and provided the key code

4

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 28 of 32

information to the El Paso, Texas locksmith (the Database Information Provider"), whether

criminal or merely negligent, were each intervening and superseding causes of Plaintiffs injuries.

One or more of the acts or omissions of these independent agencies destroyed the causal connection

between the act or omission alleged against Ford and the Plaintiffs injuries and thereby became the

immediate cause of the injuries. Ford requests that the jury be instructed on the inferential rebuttal

issue of new and independent intervening cause.

5.

For further answer, if such be necessary, Ford alleges that the acts andlor omissions

of Jesus Chavez, Carlos Alberto Gomez and unknown co-conspirators, John Doe and Jane Doe, the
El Paso Locksmith and/or the Database Information Provider were the sole proximate cause of

Plaintiffs injuries and damages. Ford accordingly requests that the jury be instructed on the

inferential rebuttal defense of sole proximate cause.

6.

For further answer, if such be necessary, Ford requests that in accordance with

requests that in accordance with TEx. CIV. PRAC. & REM. CODE § 33.003 the jury determine the

percentage of responsibility for causing in any way the harm for which recovery of damages is
sought of the plaintiff, each settling person and each responsible third party who has been

designated under § 3 3.004, TEx. Civ. PRAC. & REM. CODE.

7.

For further answer, if such be necessary, Ford requests that in the event at the time
of submission plaintiff seeks recovery for loss of earnings, loss of earning capacity, loss of
contributions of a pecuniary value, etc., that in accordance with the statutory requirements imposed

by TEx. Civ. PRAC. & REM. CODE § 18.091 the Court "instruct the jury as to whether any recovery

for compensatory damages sought by the claimant is subject to federal or state income taxes."

5

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 29 of 32

8.

For further answer, if such be necessary, Ford alleges that Plaintiffs recovery of

medical or health care expenses, if any, incurred be limited to the amount actually paid or incurred

by or on behalf of the Plaintiff. TEx. Civ. PRAC. & REM. CODE § 41.0105.

9.

For further answer, if such be necessary, Ford alleges that Plaintiff may not recover

any amount of damages if Plaintiff's percentage of responsibility is greater than fifty percent

(5 0%), regardless of the theory of recovery pled. TEX. Civ. PRAc. & REM. CODE § 33.001.

10.

For further answer, if such be necessary, Ford alleges that in accordance with

Section 33.0 13 of the Texas Civil Practices & Remedies Code, Ford may not be held jointly and

severally liable for any amount of damages claimed herein unless the percentage of responsibility

of Ford, when compared with that of each responsible party, each settling person, and each

responsible third party, is greater than fifty percent (50%).

11.

For further answer, if such be necessary, with respect to Plaintiffs allegation of

punitive or exemplary damages, Ford alleges as follows:

a.

Ford states that Plaintiffs claim for punitive damages against Ford cannot be
maintained, because an award of punitive damages under current Texas law
would be void for vagueness, both facially and as applied. Among other
deficiencies, there is an absence of adequate notice of what conduct is
subject to punishment; an absence of adequate notice of what punishment
may be imposed; an absence of a predetermined limit, such as a maximum
multiple of compensatory damages or a maximum amount, on the amount of
punitive damages that a jury may impose, a risk that punitive damages will
be imposed retrospectively based on conduct that was not deemed punishable
at the time the conduct occurred, and it would permit and encourage arbitrary
and discriminatory enforcement, all in violation of the due process clause of
the Fourteenth Amendment to the United States Constitution, Article I,
sections 13 and 19 of the Texas Constitution, and the common law and
public policies of the State of Texas.

b.

Ford states that Plaintiffs claim for punitive damages against Ford cannot be
maintained, because any award of punitive damages under Texas law would
be by a jury that (1) is not provided standards of sufficient clarity for
determining the appropriateness, and the appropriate size, of a punitive
damages award, (2) is not adequately instructed on the limits on punitive

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 30 of 32

damages imposed by the applicable principles of deterrence and punishment,
(3) is not expressly prohibited from awarding punitive damages, or
determining the amount of an award of punitive damages, in whole or in
part, on the basis of invidiously discriminatory characteristics, including the
residence, wealth, and corporate status of Ford, (4) is permitted to award
punitive damages under a standard for determining liability for punitive
damages that is vague and arbitrary and does not define with sufficient
clarity the conduct or mental state that makes punitive damages pennissible,
and (5) is not subject to adequate trial court and appellate judicial review for
reasonableness and furtherance of legitimate purposes on the basis of
objective standards. Any such verdict would violate Ford due process rights
guaranteed by the Fourteenth Amendment to the United States Constitution
and by the Article I, sections 13 and 19, and would be improper under the
common law and public policies of the State of Texas.

Ford states any award of punitive damages based on anything other than
Ford's conduct in connection with the one incidence of use of its yIN
database that is the subject of this lawsuit would violate the due process
clause of the Fourteenth Amendment to the United States Constitution and
Article I, Sections 13 and 19 of the Texas State Constitution, and would be
improper under the common law and public policies of the State of Texas,
because any other judgment for punitive damages in this case cannot protect
Ford against impermissible multiple punishment for the same wrong and
against punishment for extra-territorial conduct, including especially conduct
that is lawful in states other than the State of Texas In addition, any such
award would violate principles of comity under the laws of the State of
Texas.

it permits arbitrary,

To the extent that the law of Texas permits punishment to be measured by
the net worth or financial status of Ford and imposes greater punishment on
defendants with larger net worth, such an award would be unconstitutional
fundamentally unfair
because
imposing
punishments, allows bias and prejudice
punishment, allows punishment to be imposed based on lawful profits and
conduct of Ford in other States, and allows dissimilar treatment of similarly
situated defendants, in violation of the due process and equal protection
provisions of the Fourteenth Amendment to the United States Constitution,
the Commerce Clause of the United States Constitution, and Article I,
Sections 13 and 19 of the Texas State Constitution.

capricious and

to

infect verdicts

Plaintiff may not be awarded exemplary damages unless he establishes by
clear and convincing evidence that Ford acted with gross neglect or malice,
which Ford denies. TEX. CIV. PRAC. & REM. CODE § 41.003.

Ford insists that in the unlikely event any claim for recovery of punitive
damages is submitted to the jury, that in accordance with Thx. Cw. PRAc. &
REM. CODE § 4 1.003(d) and (3), the Charge of the Court instruct the jury that

c.

d.

e.

f.

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 31 of 32

any finding of "liability for and amount of exemplary damages" must be
unanimous.

g.

In the unlikely event of any exemplary damage award, Ford further invokes
the provisions of TEX. Civ. PRAC. & REM. CODE § 41.008 limiting any award
of exemplary damages to either $200,000 or two times the amount of
"economic damages, " as defined by statute, plus an amount equal to any
non-economic damages found by the jury, but not to exceed $750,000.

E.

Reliance Upon Jury Demand

Ford hereby relies upon the Plaintiff's jury demand.

WHEREFORE, defendant Ford Motor Company prays that Plaintiff take nothing by this

suit, that Ford have judgment for its costs in this proceeding, and that the Court grant Ford such

other and further relief as the Court may deem just and proper.

Respectftilly submitted,

THOMPSON, COE, COUSINS & IRONS L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
(512) 708-8200
(512) 708-8777 (fax)

BY:Is/ William L. Mennucci

Michael W. Eady (Attorney-in-Charge)
State Bar No. 06332400
William L. Mermucci
State Bar No. 00788042

ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY

Case 3:13-cv-00175-DCG Document 1 Filed 05/24/13 Page 32 of 32

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of May, 2013, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to the following parties by operation of the Court's
electronic filing system andJor by certified mail, return receipt requested. Parties may access this
filing through the Court's system.

Raul Magallanes
P. 0. Box 1213
Friendswood, TX 77549

Louis Elias Lopez Jr.
416 N. Stanton, Fourth Floor, Suite 400
El Paso, TX 79901

/s/ William L. Mennucci

William L. Mennucci