MidFirst Bank v. Dillard

Filing 11

MEMORANDUM OPINION AND ORDER granting 7 Motion to Remand, Motion for Attorney Fees: This case is remanded to County Court at Law No. 3 of Dallas County, Texas. Midfirst Bank is awarded the sum of $2,000 as reasonable attorneys fees, which Dillard must pay within 30 days of the date this memorandum opinion and order is filed. (Ordered by Chief Judge Sidney A Fitzwater on 3/15/2012) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MIDFIRST BANK,
Plaintiff,
VS.
ANDREW D. DILLARD, et al.,
Defendants.

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Civil Action No. 3:12-CV-0171-D

MEMORANDUM OPINION
AND ORDER
Plaintiff’s motion to remand this removed case to county court is granted, at least for
the reason that the case was removed based on diversity of citizenship, the removing
defendant is a Texas citizen, and the removing defendant does not assert that he was not
properly joined or served. The court also finds that the defendant lacked an objectively
reasonable basis for seeking removal, grants plaintiff’s motion for attorney’s fees under 28
U.S.C. § 1447(c), and awards plaintiff the sum of $2,000 in attorney’s fees.
I
Defendant Andrew D. Dillard (“Dillard”) removed this action based on diversity of
citizenship. See Notice of Removal 2-3. He alleged that he and all other defendants are
citizens of Texas. Id. at 2. On January 19, 2012 the court filed an order advising the parties
that the case was not removable based on diversity of citizenship because an in-state citizen
is a defendant. See 28 U.S.C. § 1441(b). Citing U.S. Bank, N.A. v. Nelson, 2011 WL
6096250, at *2 (N.D. Tex. Dec. 6, 2011) (Fitzwater, C.J.), the court cautioned Dillard that,

despite his pro se status, the court had awarded attorney’s fees under 28 U.S.C. § 1447(c)
against a pro se Texas citizen defendant who had removed a case based on diversity of
citizenship where, as here, 28 U.S.C. § 1441(b) clearly precluded removal. After the court
filed the order, plaintiff Midfirst Bank (“Midfirst”) filed on February 14, 2012 a timely
motion to remand and for attorney’s fees. Dillard has not responded to the motion.
II
Midfirst maintains for several reasons that removal was defective and that the case
must be remanded. The court need only address one ground of the motion: that a case cannot
be removed based on diversity jurisdiction where a properly joined defendant is an in-state
citizen. See P. Br. 10. Midfirst is correct, see 28 U.S.C. § 1441(b); therefore, the court need
not reach any of the other grounds on which Midfirst relies. Even though there is complete
diversity of citizenship, the removal statute does not permit removal when, for example, the
federal court sits in Texas and there is a properly-joined and served Texas citizen defendant.
Dillard’s notice of removal admits that he is a Texas citizen, Notice of Removal 2, and that
he has been served, id. at 1. He does not allege that he was improperly joined. Midfirst’s
motion to remand is therefore granted.
III
The court grants Midfirst’s motion for attorney’s fees because Dillard lacked an
objectively reasonable basis for seeking removal. The statute that permits removal based on
diversity of citizenship clearly provides that such an action is “removable only if none of the
parties in interest properly joined and served as defendants is a citizen of the State in which
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such action is brought.” 28 U.S.C. § 1441(b). In the court’s January 19, 2012 order, it
specifically admonished Dillard that the case was not removable based on diversity of
citizenship because an in-state citizen is a defendant. Yet Dillard took no action to concur
in a remand of the case or to respond to Midfirst’s motion to remand.
Midfirst has submitted uncontested evidence establishing that it is entitled to recover
the sum of $2,000 as reasonable attorney’s fees. The court therefore awards this sum under
28 U.S.C. § 1447(c).
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Accordingly, Midfirst’s motion to remand is granted, and this case is remanded to
County Court at Law No. 3 of Dallas County, Texas. Midfirst is awarded the sum of $2,000
as reasonable attorney’s fees, which Dillard must pay within 30 days of the date this
memorandum opinion and order is filed. The clerk shall effect the remand according to the
usual procedure.
SO ORDERED.
March 15, 2012.

_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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