Amrhein v. Prosperity Bank et al

Filing 67

MEMORANDUM REJECTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 28 Order, Report and Recommendations. ORDERED that Plaintiff Darlene C. Amrhein's Motion to Remand (Dkt. #11) is GRANTED and the case is REMANDED to the 417th Judicial District Court of Collin County, Texas. ORDERED that the Court sua sponte STRIKES Document Number 59 to theextent that this document is considered an amended complaint. Signed by District Judge Amos L. Mazzant, III on 5/21/2018. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DARLENE C. AMRHEIN
V.
PROSPERITY BANK, ET AL.

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CASE NO. 4:18-CV-18
(Judge Mazzant/Judge Nowak)

MEMORANDUM REJECTING 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 March 8, 2018, the report of the Magistrate Judge (Dkt. #28) was entered containing
proposed findings of fact and recommendations that Plaintiff Darlene C. Amrhein’s Motion to
Remand (Dkt. #11) be denied, and ordering that Plaintiff’s Second Motion for Stay and Continuance
of this Lawsuit for “Good Cause” Reasons (Dkt. #17) be denied. Having received the report and
recommendation of the Magistrate Judge (Dkt. #28), having considered Plaintiff’s objections (Dkts.
#31, #32, #58) and responses (Dkt. #39, #40), and having conducted a de novo review, the Court is
of the opinion that the Magistrate Judge’s report should be rejected and the case remanded to state
court.
BACKGROUND
On December 6, 2016, Plaintiff Darlene C. Amrhein, represented by counsel, sued
Defendants Prosperity Bank, Jo’el Doe, Keena Clifton, and Naomi Thames for various state law
claims related to her employment at Prosperity Bank, in the 417th Judicial District Court of Collin
County, Texas (Dkt. #1). Plaintiff’s counsel withdrew from the state court matter on September 6,
2017 (Dkt. #1-12). Since her counsel’s withdrawal, Plaintiff has proceeded pro se.

In the state court, Defendants Prosperity Bank and Keena Clifton (“Defendants”) filed a
motion for summary judgment. Plaintiff thereafter responded to Defendants’ Motion for Summary
Judgment and filed her own Motion for Summary Judgment (Dkt. #1-17). Plaintiff’s Response to
Defendants’ Motion for Summary Judgment and her own Motion for Summary Judgment appears
to indicate that she is pursuing claims for discrimination, harassment, and retaliation under Title VII,
the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act
(“ADEA”). Defendants then removed the suit to the United States District Court for the Eastern
District of Texas, Sherman Division on January 8, 2018 (Dkt. #1). Defendants allege that the Court
has federal question jurisdiction because Plaintiff has partially based her suit on claims under federal
statutes: Title VII, the ADA, and the ADEA.
On January 17, 2018, Plaintiff filed her Motion to Remand (Dkt. #11), arguing that “[t]here
is ‘no federal question’ in this transferred case as Texas has adopted Labor Laws [and]
Discrimination Laws [and] all Defendants have never been served in that case [and] this case” (Dkt.
#11 at p. 2). On February 5, 2018, Plaintiff filed her “Second Motion for Stay and Continuance of
this Lawsuit for ‘Good Cause’ Reasons” (“Motion to Stay”), seeking to stay the instant case while
she recovers from back surgery (Dkt. #17). On March 8, 2018, the Magistrate Judge entered a Report
and Recommendation, recommending that Plaintiff’s Motion to Remand be denied, and also ordered
that Plaintiff’s Motion to Stay be denied (Dkt. #28).
On March 19, 2018, Plaintiff filed two documents objecting to the Report and
Recommendation and Order Denying Stay: (1) her “Motion for Reversal of March 8, 2018 Order On
Denied ADA Medical Stay & [sic] Medial Care Until Recovery of Two Surgeries for ‘Good Cause’

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Reasons” (Dkt. #31); and (2) “Objections & [sic] Arguments to Report and Recommendation of
United States Magistrate Judge Christine A. Nowak Signed March 8, 2018 & [sic] Abuses” (Dkt.
#32). On March 27, 2018, Defendants filed a Motion to Strike Plaintiff’s Objections to Magistrate
Judge’s Report and Recommendation and to Require Posting of Security (Dkt. #39), and their
Response to Plaintiff’s Objections to Report and Recommendation of United States Magistrate Judge
(Dkt. #40). Defendants move to strike Plaintiff’s objections for: (1) exceeding Local Rule
CV-72(c)’s page limit; and (2) Plaintiff’s inappropriate and abusive allegations (Dkt. #39). The
Court denies Defendants’ Motion to Strike on the basis of page limits.
On April 5, 2018, Plaintiff filed “Plaintiff’s Objections & [sic] Responses to Defendants[’]
Motion for Attorney Fees; Defendants’ Response to Plaintiff’s Objections to Report and
Recommendation of United States Magistrate Judge; and Defendants’ Motion to Strike Plaintiff’s
Objections to Magistrate’s Report and Recommendation and to Require Posting of Security” (Dkt.
#47). On April 10, 2018, Defendants filed a sur-reply (Dkt. #48).
On April 20, 2018, Plaintiff further filed her “Updated New Medical Information for ‘Good
Cause’ Reasons that Require a Medical Stay Under Americans With Disabilities Act/ ADA & [sic]
Existing Constitutional Civil Rights Issues” (Dkt. #53), raising new health concerns and attaching
additional medical documentation not provided to the Magistrate Judge to support her assertion that
an indefinite medical stay is warranted in this case. The Court construes such filing as a request to
the District Court to review the Magistrate Judge’s denial of a stay. Defendants have not specifically
responded to such filing.
On April 23, 2018, Plaintiff filed her “Responses & Objections to Defendants’ Reply to

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Plaintiff’s Response and 2nd Supplement to their Motion for an Order Determining Plaintiff Darlene
Amrhein [ ] to be a Vexatious Litigant & Requesting Security, Plaintiff’s 3rd Supplement
Objections, Invalid & No Adverse Orders” (Dkt. #54). On April 27, 2018, Plaintiff filed a second
set of objections: “Plaintiff’s Objections to this Federal Court Banned from Transferring this Lawsuit
on Texas Wages, Texas Unemployment, Texas Worker’s Compensation for Injuries, which Devalues
this Employment Lawsuit & Refused Service of Process of All Named Defendants & other ‘Good
Cause’ Reasons” (Dkt. #58).
PLAINTIFF’S OBJECTIONS
The Court now considers each of Plaintiff’s aforementioned filings and any objections stated
therein to the Report and Recommendation and Order Denying Stay. At the outset, the Court notes,
that the majority of Plaintiff’s objections (Dkt. #32) are nonsensical fragments and clauses, unrelated
to the findings regarding Plaintiff’s Motion to Remand or Motion to Stay.
Plaintiff’s Objections Related to Remand
A party who files timely, written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)–(3). Broadly construed,
Plaintiff’s objections generally re-urge her arguments in favor of remanding this case to state court,
including her arguments that remand is necessary because Texas state courts are capable of enforcing
federal law, and further that removal procedure has not been properly followed in the instant case.
A reading of Plaintiff’s objections demonstrates that Plaintiff is only asserting state law claims and
would like the state law claims to be handled in state court.

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The Magistrate Judge found:
Plaintiff’s initial pleadings did not present a federal question on their face; thus, the
case was not initially removable. While Plaintiff’s petitions do not facially reference
federal law, Plaintiff’s response to Defendants’ Motion for Summary Judgment
contains references to multiple constitutional claims. Indeed, Plaintiff’s summary
judgment response clearly and unequivocally asserts federal claims. Plaintiff’s
appendix expressly identifies various federal statutes, including Title VII, the ADA,
and the ADEA And further, under the title “Workplace Harassment Violations of
Federal Law,” Plaintiff states that “[w]orkplace harassment violates federal law,”
and therefore, Defendant Prosperity Bank, by engaging in workplace harassment,
has violated federal law. Additionally, Plaintiff avers that Prosperity Bank is liable
under “Title VII of the Civil Rights Act of 1964. . . because they employ fifteen or
more people, which is federal laws violated in this lawsuit for personal injuries
[and] punitive damages, plus violations of state laws on sexual harassment [and]
other harassment, abuses, bullying [and] against anti-discrimination laws.” Under
heading entitled “Americans with Disabilities Act,” Plaintiff alleges that “Plaintiff
was refused all [and] any accommodations for her disabilities affecting her Diabetes,
scheduled lunches [and] insulin injections timely causing uncontrolled diabetes that
leads to complications now or in the future, caused illness, injuries [and] wrongfully
terminated Plaintiff” It is readily apparent that Plaintiff brings claims under federal
law related to her employment at Prosperity Bank.
(Dkt. #28 at p. 5) (internal citations omitted and emphasis added). The Magistrate Judge also found:
Plaintiff is correct that claims related to employment and the workplace may be
brought under either/both federal and Texas laws; however, Plaintiff’s summary
judgment response raises various claims under federal law, in addition to her state
law claims. Plaintiff’s Response therefore invokes federal question jurisdiction,
allowing Defendants to remove this case from state court to federal court.
(Dkt. #28 at p. 8) (internal citations omitted). The Magistrate Judge determined that removal was
proper under 28 U.S.C. § 1446(b)(3) because Plaintiff’s response to motion for summary judgment
was an “other paper” allowing removal citing Schexnider v. Schexnider, No. 6:11-CV-02148, 2013
WL 5603808, at *4–5 (W.D. La. Oct. 10, 2013) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d
489, 494 (5th Cir. 1996)). The Magistrate Judge concluded that in Plaintiff’s “Response to
Defendants’ Motion for Summary Judgment, Plaintiff clearly brings claims under federal law related
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to her employment at Prosperity Bank” (Dkt. #28 at p. 6).
In the absence of diversity jurisdiction, federal question jurisdiction is required for removal.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). District courts have “original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331. A case may be removed from state court to federal court when a plaintiff’s petition alleges a
claim “arising under” federal law. See 28 U.S.C. § 1441; Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6 (2003).
Generally, “[t]he presence or absence of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S.
at 392. “Under the well-pleaded complaint rule, the plaintiff is the master of the claim and may avoid
federal jurisdiction by exclusively relying on state law, even where a federal claim is also available.”
Am. Home Shield of Texas v. Texas, No. H–10–0808, 2010 WL 1903594, at *3 (S.D. Tex. May 10,
2010) (citing Caterpillar, 482 U.S. at 392). Here, it is undisputed that “Plaintiff’s initial and
amended petitions [do] not assert any federal claims; indeed, they specifically reference[ ] only Texas
state law claims and avoid[ ] all reference to federal law.” (Dkt. #28 at pp. 1–2).
Under 28 U.S.C. § 1446(b), where the original complaint does not present grounds for
removal, a defendant may later remove the case to federal court after receipt of “an amended
pleading, motion order or other paper from which it may first be ascertained that the case is one
which is or has become removable.” (emphasis added). “[A] pleading, such as a response to a motion
for summary judgment, can be qualified as ‘other paper’ sufficient to put [a] defendant on notice that

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a federal cause of action has been [pleaded].” Thompson v. Pyramid Constructors, 125 F. Supp. 2d
200, 203 (E.D. Tex. 2000) (citations omitted). Defendants contend that Plaintiff’s response to their
motion for summary judgment, in addition to Plaintiff’s own competing motion for summary
judgment, constitute “other paper” sufficient to raise a federal question and establish federal
jurisdiction.
Generally, when courts look to “other paper” to ascertain removability, courts are clarifying
that diversity jurisdiction has been established. For example, a plaintiff will assert state law claims
against a diverse party, but will not allege the amount in controversy in the complaint; a later
document will then establish a sufficient amount in controversy, creating federal diversity
jurisdiction. Eggert v. Britton, 223 F. App’x 394, 397 (5th Cir. 2007) (citing Addo v. Globe Life &
Accident Ins. Co., 230 F.3d 759, 761 (5th Cir. 2000); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489,
494 (5th Cir. 1996)).
As explained above, removal based on federal question jurisdiction is determined by
reference to the well-pleaded complaint. “Under limited circumstances, courts have looked to ‘other
paper’ to establish federal question jurisdiction, such as to clarify that a plaintiff’s state law claim
is one that would be preempted by federal law.” Eggert, 223 F. App’x at 397. Thus, to establish
federal question jurisdiction, the “other paper” “must clarify the federal nature of an existing claim,
and not relate to a putative claim that has not yet been [pleaded].” O’Keefe v. State Farm Fire & Cas.
Co., No. 1:08–CV–600–HSO–LRA, 2009 WL 95039, at *3 (S.D. Miss. Jan. 13, 2009) (citing
Eggert, 223 F. App’x at 397).
Based on the aforementioned standard, Plaintiff’s motion to remand should be granted

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because there is not a federal question presented “on the face of the plaintiff’s properly pleaded
complaint.” Caterpillar, 482 U.S. at 392. Although Plaintiff’s response to Defendants’ motion for
summary judgment—“other paper”—makes reference to various federal statutes and causes of
actions, because it does not relate to an already pleaded claim, such references, on their own, cannot
establish federal question jurisdiction. Further, given Plaintiff’s status as pro se, it is difficult to
conclude that she understood the nature of her response. i.e., that such response would act as an
amendment to her already amended petition and invoke federal question jurisdiction. See Eggert, 223
F. App’x at 398 (finding “removal inconsistent with the well-pleaded complaint rule and the intent
of § 1446(b)” because a pro se plaintiff, whose petition contained only state-law claims, did not fully
understand the nature of and intend to make his response to an interrogatory into a § 1983 claim
establishing federal question jurisdiction).
It is important to note that in Schexnider v. Schexnider, out of the Western District of
Louisiana, the magistrate judge found that although the plaintiffs’ initial pleading did not present a
federal question on its face, the plaintiffs’ response to the defendant’s motion for summary
judgment—“other paper”—sufficiently pleaded a federal cause of action warranting removal of the
case to federal court. No. 6:11–CV–02148, 2013 WL 5603808, at *3–*5 (W.D. La. Oct. 10, 2013).
Despite the court’s ruling, the facts of Schexnider are distinguishable from the case at hand.
In Schexnider, the plaintiffs’ initial pleading relied solely on state law and did not present a
federal question. Id. at *3. Subsequently, as a result of the plaintiffs’ response to the defendants’
motion for summary judgment, the defendants removed the case to federal court based on federal
question jurisdiction. Id. at *2. The plaintiffs failed to object to such removal. Id. Over a year later,

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the Court, sua sponte, ordered briefing on whether federal question existed, by which the plaintiffs
failed to abide. Id. Moreover, in the parties’ Joint Rule 26(f) Report, the plaintiffs did not object to
the assertion of federal jurisdiction. Id. Based on the plaintiffs’ response to the defendants’ motion
for summary judgment, which made reference to various constitutional claims, the court held that
“the case became removable based on federal question jurisdiction.” Id. at *4-*5.
Schexnider is distinguishable from this case for several reasons. Here, Plaintiff objected to
Defendants’ removal to federal court by filing a motion to remand, whereas the Schexnider plaintiffs
failed to object to the exercise of federal jurisdiction, file a motion to remand, or respond to the
court’s order to file briefing on the issue. Further, Plaintiff is proceeding pro se, while the plaintiffs
in Schexnider had the benefit of counsel. As such, although both cases involve responses to
dispositive motions that contained references to federal claims and statutes, each case contains
distinct factual differences. Moreover, a ruling from a court in the Western District of Louisiana is
not binding upon this Court and the Magistrate Judge did not explain why Schexnider should be
followed as persuasive authority.
Since Plaintiff’s state court petition alleges no federal claims, the Court finds “removal
inconsistent with the well-pleaded complaint rule and the intent of § 1446(b), [permitting] removal
on the basis of documents subsequent to the complaint when they clarify that the plaintiff’s claims
were federal in nature.” Eggert, 223 F. App’x at 398.1 The Court sustains Plaintiff’s objection and
rejects the Magistrate Judge’s Report and Recommendation that the Motion to Remand should be
denied. The Court the finds that removal was improper because Plaintiff’s petition contained no

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Although Eggert is not published and is not precedent, the Court finds it instructive and persuasive.

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federal claims on its face and Defendants cannot conflate the claims asserted by the petition by
looking at Plaintiff’s response to the Defendants’ motion for summary judgment, which fails to
clarify that Plaintiff’s claims were actually federal in nature. Because the Court finds that the motion
to remand should be granted , the Court declines to address the other issues addressed by the
Magistrate Judge.
CONCLUSION
Having considered each of Plaintiff’s filings stated herein, and having conducted a de novo
review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge on the
Motion to Remand are in error and rejects the Magistrate Judge’s report (Dkt. #28) as the findings
and conclusions of the Court as to the Motion to Remand (Dkt. #11).
It is therefore ORDERED that Plaintiff Darlene C. Amrhein’s Motion to Remand (Dkt. #11)
is GRANTED and the case is REMANDED to the 417th Judicial District Court of Collin County,
Texas.
It is further ORDERED that the Court sua sponte STRIKES Document Number 59 to the
extent that this document is considered an amended complaint. Upon remand, Plaintiff should
address the question of filing an amended petition to the state court.
IT IS SO ORDERED.

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SIGNED this 21st day of May, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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