U S National Bank Association v. Franklin

Filing 16

MEMORANDUM ORDER: IT IS ORDERED that 14 APPEAL OF MAGISTRATE JUDGE DECISION to District Judge re 12 Order filed by Tom Franklin be and is hereby DISMISSED. IT IS FURTHER ORDERED that the 12 Order of Remand be and is hereby AFFIRMED in all respects. The stay previously entered is hereby LIFTED and this action is REMANDED to the 236TH JDC, Tarrant County, Texas, where this action was pending as Cause No. 236-252977-11. Signed by Judge S Maurice Hicks on 11/16/2011. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
U.S. NATIONAL BANK ASSOCIATION

CIVIL ACTION NO. 11-1277

VERUS

JUDGE S. MAURICE HICKS, JR.

TOM FRANKLIN

MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER

Before the Court is a Magistrate Appeal (Record Document 14) filed by pro se
defendant Tom Franklin (“Franklin”). Franklin appeals Magistrate Judge Hornsby’s Order
of Remand, which remanded the above-captioned action to the 263th Judicial District
Court, Tarrant County, Texas. See Record Document 12. The remand was based on
Franklin’s failure to file the $350 filing fee. See Record Document 11.
Magistrate Judge Hornsby’s Order of Remand was a non-dispositive matter.1 The
action taken in the Order of Remand is not listed in 28 U.S.C. § 636(b)(1)(A) as one of the
dispositive motions (often referred to as the “excepted motions”) that a magistrate judge
may not decide. Magistrate Judge Hornsby’s Order of Remand was not a recommendation
to the district court; rather, it was an order from the magistrate judge on a non-dispositive
matter than requires the district court to uphold the ruling unless it is clearly erroneous or
contrary to law. See 28 U.S.C. § 636(b)(1)(A); see also Castillo v. Frank, 70 F.3d 382, 385
(5th Cir. 1995) and Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir.1992). This Court will
review Magistrate Judge Hornsby’s legal conclusions de novo, and will review his factual
1

In the Fifth Circuit, a Magistrate Judge may rule on a motion to remand as long as
review of the ruling by the district court is not foreclosed. See Escuadra v. Geovera
Specialty Ins. Co., 739 F.Supp.2d 967, 971-972 (E.D.Tex. 2010). Here, the undersigned
notes that the Order of Remand specifically allowed an appeal to the District Judge and
further stayed the Order of Remand until any appeal to the District Judge was decided.
See Record Document 12.

findings for clear error. See Choate v. State Farm Lloyds, No. 03-CV-2111, 2005 WL
1109432, *1 (N.D.Tex. May 5, 2005).
Franklin’s “Notice of Appeal” does nothing to assist in the determination of whether
Magistrate Judge Hornsby’s Order of Remand was clearly erroneous or contrary to law, as
the entirety of his appeal provides:
Notice is hereby given that TOM FRANKLIN, Defendant in the above named
cases, hereby appeal to the United States District Judge For The Western
District of Louisiana from the Magistrate’s Order . . . dismissing this casein
this action on 4th day of October, 2011.
Record Document 14. However, an independent review of the record easily reveals that
the Order of Remand was neither clearly erroneous nor contrary to law.
Franklin failed to pay the $350 filing fee when he filed his Notice of Removal (Record
Document 1). While he filed a motion for leave to proceed in forma pauperis, Franklin did
not provide any of the required financial information and his motion was denied on July 13,
2011. See Record Documents 2, 4. He was ordered to pay the filing fee by August 13,
2011 and was warned that “[f]ailure to do so will result in the petition being stricken.”
Record Document 4. Franklin was then given an extension of time to pay the filing fee until
August 31, 2011 and was advised that no further extensions would be granted. See
Record Document 6. On October 4, 2011, more than one month after the August 31, 2011
deadline, Magistrate Judge Hornsby remanded the case,2 as there was no evidence in the
record that the filing fee had been paid. See Record Document 11.
Even under a de novo standard of review and construing all facts in favor of Franklin,

2

Magistrate Judge Hornsby noted, “Just as the court would dismiss a complaint in
the absence of a filing fee, it is appropriate to remand this case.” Record Document 11 at
2.
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who is pro se, the Court finds that Magistrate Judge Hornsby’s Order of Remand was
based on sound legal reasoning and was neither clearly erroneous nor contrary to law.
There was nothing to prevent Franklin from submitting a new motion for leave to proceed
in forma pauperis that included the required financial information regarding income, debt,
and monthly living expenses. Additionally, Franklin was given the benefit of 49 days to pay
the filing fee.
Accordingly,
IT IS ORDERED that Franklin’s Magistrate Appeal (Record Document 14) be and
is hereby DISMISSED.
IT IS FURTHER ORDERED that the Order of Remand (Record Document 12) be
and is hereby AFFIRMED in all respects. The stay previously entered is hereby LIFTED
and this action is REMANDED to the 236TH JUDICIAL DISTRICT COURT, TARRANT
COUNTY, TEXAS, where this action was pending as Cause No. 236-252977-11.
THUS DONE AND SIGNED at Shreveport, Louisiana, this the 16th day of
November, 2011.

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