US Bank NA v. Allain

Filing 8

MEMORANDUM AND ORDER. The court finds that U. S. Bank's Motion to Remand should be granted and this action should be remanded to the Justice Court of Precinct 1 Place 1 of Jefferson County, Texas.Signed by Judge Marcia A. Crone on 2/17/15. (mrp, )

UNITED STATES DISTRICT COURT

U.S. BANK, N.A.,

EASTERN DISTRICT OF TEXAS

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Plaintiff,
versus
DENNY ALLAIN,
Defendant.

CIVIL ACTION NO. 1:14-CV-670

MEMORANDUM AND ORDER
Pending before the court is Plaintiff U.S. Bank, N.A.’s (“U.S. Bank”) Motion to Remand
(#3). U.S. Bank seeks remand to state court of its action against Defendant Denny Allain
(“Allain”) on the grounds that the court lacks federal question jurisdiction and that Allain’s
removal is barred by the forum defendant rule. Having reviewed the pending motion, the
submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that
U.S. Bank’s motion should be GRANTED.
I.

Background
This suit concerns the foreclosure of a property in which Allain resides, located at 2361

Louisiana Street, Beaumont, Texas 77702. On November 4, 2014, the Louisiana Street property
was sold in a non-judicial foreclosure sale. The Substitute Trustee’s Deed was recorded on
November 17, 2014, in the real property records of Jefferson County, Texas. Following
foreclosure, U.S. Bank submitted a written demand to Allain, requesting that he vacate the
property by November 21, 2014. Allain did not vacate the property. On December 3, 2014, U.S.
Bank filed its Original Petition for Forcible Detainer in the Justice Court of Precinct 1 Place 1 of

Jefferson County, Texas. A hearing in the matter was scheduled for December 18, 2014, at 1:30
p.m.
On December 17, 2014, Allain removed the case to this court on the bases of federal
question jurisdiction and diversity of citizenship. Allain asserts that federal question jurisdiction
exists because this action involves “Plaintiff’s attempt to deprive Defendant of his property without
due process of law in violation of the Fourteenth Amendment to the U.S. Constitution, for
damages under the Truth in Lending Act, the Real Estate Settlement Procedures Act, and the Fair
Debt Collection Practices Act.” Although Allain alleges that he also removes this case under 28
U.S.C. § 1332, he does not explain how complete diversity exists among the real parties in
interest. U.S. Bank responds that forcible detainer actions are governed by the Texas Property
Code and are questions of state law rather than federal law. Further, U.S. Bank argues that
although complete diversity exists in this action, the forum defendant rule renders removal
procedurally defective. Accordingly, U.S. Bank contends that remand is warranted.
II.

Analysis
A.

Removal Jurisdiction

“‘Federal courts are courts of limited jurisdiction.’” Gunn v. Minton, ___ U.S. ___, 133
S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994); accord Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010);
Johnson v. United States, 460 F.3d 616, 621 n.6 (5th Cir. 2006); McKee v. Kan. City S. Ry. Co.,
358 F.3d 329, 337 (5th Cir. 2004). “They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377 (citations
omitted). The court “must presume that a suit lies outside this limited jurisdiction, and the burden

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of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001) (citing
Kokkonen, 511 U.S. at 377); see also Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); Boone v.
Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005). In an action that has been removed to federal
court, a district court is required to remand the case to state court if, at any time before final
judgment, it determines that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); Grupo
Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004); In re 1994 Exxon Chem. Fire,
558 F.3d 378, 392 (5th Cir. 2009); McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir. 2005).
When considering a motion to remand, “[t]he removing party bears the burden of showing
that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); accord DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 342 n.3 (2006); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008); In re Hot-Hed
Inc., 477 F.3d 320, 323 (5th Cir. 2007); see 13E CHARLES A. WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 3602.1 (3d ed. 1998). “‘This extends not only to
demonstrating a jurisdictional basis for removal, but also necessary compliance with the
requirements of the removal statute.’” Roth v. Kiewit Offshore Servs., Ltd., 625 F. Supp. 2d 376,
382 (S.D. Tex. 2008) (quoting Albonetti v. GAF Corp. Chem. Grp., 520 F. Supp. 825, 827 (S.D.
Tex. 1981)); accord Crossroads of Tex., L.L.C. v. Great-West Life & Annuity Ins. Co., 467 F.
Supp. 2d 705, 708 (S.D. Tex. 2006). “Only state-court actions that originally could have been
filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)); see Aetna Health Inc. v. Davila,
542 U.S. 200, 207 (2004); Halmekangas, 603 F.3d at 294; Gutierrez, 543 F.3d at 251. “The

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removal statute ties the propriety of removal to the original jurisdiction of the federal district
courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see 28 U.S.C.
§ 1441(a); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 228 (5th Cir. 2013); Hoskins v.
Bekins Van Lines, 343 F.3d 769, 772 n.2 (5th Cir. 2003). Because removal raises significant
federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt
resolved against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 108-09 (1941); Gutierrez, 543 F.3d at 251; Gasch v. Hartford Accident & Indem. Co.,
491 F.3d 278, 281-82 (5th Cir. 2007); In re Hot-Hed Inc., 477 F.3d at 323.
Federal courts have subject matter jurisdiction and are authorized to entertain causes of
action only where a question of federal law is involved or where there is diversity of citizenship
between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and
costs. See 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006);
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (2005); Halmekangas, 603 F.3d at 294; McDonal, 408 F.3d at 181. In
order to determine whether jurisdiction is present in a removed action, the claims set forth in the
state court petition are considered as of the date of removal. See Wis. Dep’t of Corr. v. Schacht,
524 U.S. 381, 391 (1998); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n.2 (5th Cir. 2007);
McGowin v. ManPower Int’l, Inc., 363 F.3d 556, 558 n.1 (5th Cir. 2004); Manguno, 276 F.3d
at 723.
B.

Federal Question Jurisdiction

A federal question arises if a substantial, disputed question of federal law is presented on
the face of the plaintiff’s “well-pleaded complaint.” See Davila, 542 U.S. at 207; Caterpillar

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Inc., 482 U.S. at 392; Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Gutierrez, 543
F.3d at 251-52; McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir.), cert. denied,
553 U.S. 1080 (2008); Hoskins, 343 F.3d at 772. “Federal question jurisdiction under § 1331
extends to cases in which a well-pleaded complaint establishes either that federal law creates the
cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.” Frank, 128 F.3d at 922; see Singh v. Duane Morris LLP,
538 F.3d 334, 337-38 (5th Cir. 2008); MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th
Cir.), cert. denied, 537 U.S. 1046 (2002). “Under the ‘well pleaded complaint’ rule, . . . a
movant may not remove a case to federal court unless the plaintiff’s complaint establishes that the
cause of action arises under federal law.” Frank, 128 F.3d at 922 (citing Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 10-11 (1983)); accord Arana v. Ochsner Health
Plan, 338 F.3d 433, 437 (5th Cir. 2003), cert. denied, 540 U.S. 1104 (2004); Howery, 243 F.3d
at 916 n.12. “As a general rule, absent diversity jurisdiction, a case will not be removable if the
complaint does not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6 (2003). Pursuant to the well-pleaded complaint rule, a case does not arise under federal
law and, thus, is not removable if the complaint asserts only state law causes of action. See
Kramer v. Smith Barney, 80 F.3d 1080, 1082 (5th Cir. 1996) (citing Franchise Tax Bd., 463 U.S.
at 10).
On the face of U.S. Bank’s complaint, it does not appear that federal law creates any of
the causes of action alleged or that its right to relief depends on the resolution of a substantial,
disputed question of federal law, as required for federal question jurisdiction. See Caterpillar
Inc., 482 U.S. at 392; MSOF Corp., 295 F.3d at 490. Rather, U.S. Bank’s complaint asserts a

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traditional state law claim. See Bank of N.Y. Mellon Trust Co., N.A. v. De La Fuente, No. 3:14CV-3627, 2014 WL 6901794, at *4 (N.D. Tex. Dec. 8, 2014) (remanding forcible detainer action
under similar facts); Fed. Nat’l Mortg. Ass’n v. Elliott, No. 3:10-CV-1321-L, 2010 WL 4627833,
at *3 (N.D. Tex. Nov. 16, 2010) (“Forcible detainer actions do not meet [the well-pleaded
complaint rule’s] standard. Plaintiff’s Complaint is simply one to evict Defendants and obtain
physical possession of the Property under state law. The Complaint raises no federal claim or
issue and provides no basis for federal question jurisdiction . . . .”); see also Fannie Mae v. Lee,
No. 3:10-CV-1047-L, 2010 WL 3025533, at *3 (N.D. Tex. July 30, 2010). Further, the federal
defenses that Allain alleges are not considered in determining the existence of removal jurisdiction.
Stump v. Potts, 322 F. App’x 379, 380 (5th Cir. 2009) (“The complaint filed in the state court was
a simple suit to evict arising under state law. The complaint provided no basis for federal question
jurisdiction. The fact that [defendant] brought up possible federal question claims in her answer
and counterclaim cannot be considered in determining the existence of removal jurisdiction.”).
Accordingly, because U.S. Bank’s complaint does not raise a federal issue, nor is U.S.
Bank’s right to relief dependent upon a resolution of federal law, the court lacks federal question
jurisdiction.
C.

Diversity Jurisdiction

Complete diversity requires that no plaintiff be a citizen of the same state as any defendant.
See Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc., 519 U.S. at 68; Wallace v. La. Citizens
Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir. 2006); Heritage Bank v. Redcom Labs., Inc., 250
F.3d 319, 323 (5th Cir.), cert. denied, 534 U.S. 997 (2001). “‘In cases removed from state court,
diversity of citizenship must exist both at the time of filing in state court and at the time of removal

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to federal court.’” Uglunts v. Am. Servs., Inc., No. 3:12-CV-4388-D, 2013 WL 3809681, at *1
(N.D. Tex. July 23, 2013) (quoting Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)).
Furthermore, removal is appropriate only if none of the parties properly joined and served as
defendants is a citizen of the state in which the action was brought. Gasch, 491 F.3d at 281 (citing
28 U.S.C. § 1441(b)(2)); Lincoln Prop. Co., 546 U.S. at 89; In re 1994 Exxon Chem. Fire, 558
F.3d at 391; Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531-32 (5th Cir.), cert.
denied, 548 U.S. 907 (2006); Vasquez v. Pease, No. SA-14-CV-609-XR, 2014 WL 4072084, at *1-2
(W.D. Tex. Aug. 15, 2014).

U.S. Bank concedes that complete diversity exists. Nonetheless, the existence of diversity
jurisdiction does not end the inquiry with regard to Plaintiff’s motion to remand. Section
1441(b)(2) provides:
A civil action otherwise removable solely on the basis of the jurisdiction under
section 1332(a) of this title may not be removed if any of the parties in interest
properly joined and served as defendants is a citizen of the State in which such
action is brought.
28 U.S.C. § 1441(b)(2); accord Lincoln Prop. Co., 546 U.S. at 89; In re 1994 Exxon Chem. Fire,
558 F.3d at 392; Gasch, 491 F.3d at 281; Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529,
531-32 (5th Cir.), cert. denied, 548 U.S. 907 (2006). “Failure to comply with the forum
defendant rule renders removal procedurally defective.” Harvey v. Shelter Ins. Co., No. 13-392,
2013 WL 1768658, at *2 (E.D. La. Apr. 24, 2013) (citing In re 1994 Exxon Chem. Fire, 558 F.3d
at 392-94); see Fed. Nat’l Mortg. Ass’n v. Bullington, No. 4:13-CV-788, 2013 WL 5530266, at
*2 (N.D. Tex. Oct. 4, 2013); JP Morgan Chase, N.A. v. Silva, No. 3:13-CV-3314, 2013 WL
4870289, at *1 (N.D. Tex. Sept. 12, 2013); Holmes v. Lafayette, No. 4:11-CV-21, 2013 WL
654449, at *1 (N.D. Miss. Feb. 21, 2013).
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Here, Allain is a citizen and resident of Texas—the same state in which U.S. Bank filed
the underlying forcible detainer proceeding. Further, Allain has neither argued nor established
that he was not properly served in the state court action. Accordingly, because an action may not
be removed on the basis of diversity jurisdiction if any defendant, properly joined and served, is
a citizen of the state where the plaintiff filed suit, Allain’s removal was procedurally defective.
III.

Conclusion
Based on the aforementioned analysis, this case was improvidently removed, and remand

is warranted. Accordingly, the court finds that U.S. Bank’s Motion to Remand (#3) should be
granted and this action should be remanded to the Justice Court of Precinct 1 Place 1 of Jefferson
County, .Texas. An order of remand will be entered separately.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.

SIGNED at Beaumont, Texas, this 17th day of February, 2015.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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