govinfo:USCOURTS-txsd-1_25-cv-00264-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF TEXAS 
BROWNSVILLE DIVISION 
 
JANET PIZANA, 
 
              Plaintiff, 
 
VS. 
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    CIVIL ACTION NO. 1:25-CV-264  
  
ULTA BEAUTY COSMETICS, LLC, et al., 
 
              Defendants. 
 
 
ORDER 
 
Plaintiff Janet Pizana seeks leave to amend her original state -court Petition to change 
Defendant Jane Doe to Defendant Marian Chirinos, a non -diverse party whose identity Pizana 
obtained after filing her lawsuit . (Mot. to Amend, Doc. 12)  Defendant Ulta Salon, Cosmetics & 
Fragrance, Inc.,1 which employs Chirinos, opposes the Motion to Amend on the grounds that the 
proposed amendment would be futile, as Pizana could not state a viable claim against Chirinos.   
A Magistrate Judge issued a Report and Recommendation recommending that the Court 
grant the pending motion, but re-characterizing it as one to remand, on the grounds that allowing 
leave to amend the pleading would defeat diversity jurisdiction and require remand of this matter. 
(R&R, Doc. 21)  Ulta timely filed Objections (Doc. 22).   
“When a party objects to a Report and Recommendation, the district court applies de novo 
review as to the objected-to portions of the Report and Recommendation. Battle v. United States 
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).  
As a threshold matter, Ulta objects to the Report and Recommendation’s characterization 
of the Motion to Amend as a motion to remand.  The Court recognizes that Pizana presents a 
“Motion for Leave to File First Amended Complaint ,” but agrees with the Report and 
Recommendation that the analysis regarding that motion overlaps significantly with the Court’s 
 
1 Ulta claims that Pizana incorrectly names the company as “Ulta Beauty Cosmetics, LLC.” (Objs., Doc. 22, 1) 
United States District Court
Southern District of Texas
ENTERED
May 19, 2026
Nathan Ochsner, Clerk
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consideration of whether it possess subject matter jurisdiction.  No party disputes that Chirinos 
is a Texas resident and that her addition as a named defendant would defeat complete diversity.  
Thus, the Report and Recommendation correctly applies the Hensgens factors, which govern 
when a proposed amendment would add a non-diverse, non-indispensable party. (R&R, Doc. 21, 
3 (quoting Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)).  Under that test, a court 
considers, in part, whether the plaintiff presents a viable claim against the non-diverse defendant.  
Similarly, a defendant can remove a lawsuit despite the existence of a non -diverse defendant on 
the grounds that the plaintiff has fraudulently joined the non-diverse defendant to defeat diversity 
jurisdiction. See Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) .  And if the 
plaintiff moves to remand, the court consider s whether the claim against the non -diverse 
defendant would survive a motion under Federal Rule of Civil Procedure 12(b)(6), analogous to 
the analysis under Hensgens.  Thus, while Pizana presents a Motion to Amend, the motion 
naturally raises issues concerning the Court’s jurisdiction over this lawsuit.  And “federal courts 
must address jurisdictional questions whenever they are raised and must c onsider jurisdiction 
sua sponte if not raised by the parties.” Howery v. Allstate Ins. Co. , 243 F.3d 912, 919 (5th Cir.  
2001).  In the end, the Court will consider the Hensgens factors to resolve Ulta’s objections to the 
recommendation to grant Pizana leave to amend her pleading.  But in doing so, the Court will be 
conducting a substantively-similar analysis applicable to the fraudulent-joinder doctrine.  
Ulta objects to the Report and Recommendation’s application of the Hensgens factors, 
arguing principally that Pizana fails to present a cognizable claim against Chirinos because Pizana 
“actually brings a cause of action under premises liability[,]” and Texas law does not recognize 
such a claim against Chirinos. (Objs., Doc. 22, 5)  The Court disagrees with Ulta’s characterization 
of Pizana’s claim against Chirinos.  In both the original state -court Petition, and in the proposed 
Amended Complaint, Pizana all eges that Chirinos (initially, “Jane Doe”) independently acted 
negligently by knowingly using a defective cabinet in a manner that caused the alleged injury. (See 
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Pet., Doc. 1–2, 8; Am. Compl., Doc. 12–1, 2–3)  In other words, Pizana does not merely allege that 
Ulta created a defective condition that led to her injuries.  She also alleges that Chirinos/Jane Doe 
independently acted negligently.  The Report and Recommendation correctly reached the same 
conclusion.  As a result, Pizana’s proposed claim against Chirinos –which mirrors the cause of 
action against “Jane Doe” in the original state-court Petition–is not futile.  And the Court likewise 
agrees with the Report and Recommendation’s application of the remaining Hensgens factors.   
For these reasons, the Court OVERRULES Defendant’s objections to the Report and 
Recommendation (Doc. 21), which the Court ADOPTS.   
As a result, it is: 
ORDERED that Plaintiff Janet Pizana’s Motion for Leave to File First Amended 
Complaint (Doc. 12) is GRANTED. 
The Clerk of Court is directed to file Plaintiff’s Amended Complaint (Doc. 12 –1) as a 
separate CM/ECF entry. 
Signed on May 19, 2026. 
 
 
____________________________ 
Fernando Rodriguez, Jr. 
United States District Judge 
 
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