Household Finance Corporation III v. Duran

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - GRANTING 4 Motion to Remand filed by Household Finance Corporation III, 5 Report and Recommendations. Signed by Judge Ron Clark on 1/11/2013. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
HOUSEHOLD FINANCE
CORPORATION, III
ITS SUCCESSORS AND ASSIGNS

V.
JESSICA DURAN AND ALL
OCCUPANTS

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CASE NO. 4:12-CV-532
Judge Clark/Judge Mazzant

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On November 9, 2012, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that plaintiff’s motion to remand [Doc. #4] be granted. On
December 14, 2012, defendant filed objections.
On October 1, 2012, defendant, pro se, removed this case to this court, asserting that
removal was proper based upon diversity of citizenship. The Magistrate Judge issued a report and
recommendation that plaintiff’s motion to remand [Doc. #4] be granted. The Magistrate Judge found
that defendant violated the “no forum defendant rule” because defendant is a citizen of Texas.
Defendant objects, asserting that the parties are diverse. The court agrees that there is
diversity; however, defendant fails to address the issue that she is a Texas defendant and plaintiff
timely moved to remand the case. Defendant violated the forum defendant rule and plaintiff timely
filed a motion to remand. Defendant’s objection has no merit.
Defendant next objects to remand asserting that the court has jurisdiction over this action
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based upon 28 U.S.C. § 1331 because plaintiff’s complaint alleges a cause of action under the laws
of the United States. First, defendant’s notice of removal only asserts diversity jurisdiction and does
not assert that removal was based upon federal question jurisdiction pursuant to section 1331.
Second, even if this issue were before the court, plaintiff’s complaint does not contain a federal
cause of action. The state court action was an eviction proceeding and alleges no federal claims.
Plaintiff has not alleged any affirmative claim against defendant for violation of 15 U.S.C. § 1681.
Therefore, this objection has no merit.
Defendant’s final objection relates to her objection to an award of attorney’s fees. However,
the Magistrate Judge did not award any attorney’s fees in this case.
Having received the report of the United States Magistrate Judge [Doc. #5], and considering
the objections thereto filed by defendant [Doc. #8], this court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the
findings and conclusions of the Court.
It is, therefore, ORDERED that plaintiff’s motion to remand [Doc. #4] is GRANTED and
the case is remanded to County Court at Law No. 3 for Collin County, Texas.
So ORDERED and SIGNED this 11 day of January, 2013.

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Ron Clark, United States District Judge

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