Bridget Alex, et al. v. T-Mobile USA, Incorporated, et al.

Plaintiffs sued T-Mobile in state court for breach of contract, deceptive trade practices, and gross negligence that led to Brandon Alex’s death. T-Mobile removed to the United States District Court for the Northern District of Texas and moved to dismiss, asserting statutory immunity pursuant to dicta in a state case. The district court denied the motions to dismiss but, upon repeated urging, granted T-Mobile’s motion for certification under 28 U.S.C. § 1292(b) but noting “it would have preferred to certify the question to the Texas Supreme Court, but is prohibited from doing so.” The Fifth Circuit interpreted dicta within a Texas tort claims act (“TTCA”) case under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), finding, after remand, that Defendants were immune from liability under Tex. Health and Safety Code § 771.053(a). The first Fifth Circuit Panel did not provide a rationale why it did not certify this important question to the Texas Supreme Court, despite that its interpretation of the dicta debatably reforms Tex. Civ. Prac. & Rem.Code § 101 et. seq. (the TTCA) and nullifies §§ 771.053(a) and 772.407 for federal court litigants. Nor did the Fifth Circuit indicate why it appears it did not consider state law precedent, statutory language, or statutory interpretations in making the Erie guesses. Thus, the questions presented are: 1. Whether the Fifth Circuit abused its discretion by refusing to certify the case to the Texas Supreme Court, considering it involves two Erie-predictions that