Henley v. Meyer et al
Memorandum Opinion and Order granting 16 Motion to Remand to State Court and denying Motion for Reimbursement of Expenses filed by Thomas Henley. This action is remanded to the 44th Judicial District Court of Dallas County, Texas. (Ordered by Judge Sam A Lindsay on 1/16/2015) (bdb)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
SAUL M. MEYER, et al.,
Civil Action No. 3:14-CV-1080-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff Thomas Henley’s Motion to Remand and for Reimbursement
of Expenses, filed May 8, 2014. After careful consideration of the motion, response, briefs, record,
and applicable law, the court grants Plaintiff Thomas Henley’s Motion to Remand, denies his
Motion for Reimbursement of Expenses, and remands this action to the 44th Judicial District Court
of Dallas County, Texas.
Thomas Henley (“Plaintiff” or “Henley”), a Texas citizen, originally filed this action in the
44th Judicial District Court of Dallas County, Texas, against his business partners, Saul M. Meyer,
Matthew O’Reilly, and Richard Ellman, as well as several of their partnership entities (collectively
the “Aldus Entities” and, together with the individual defendants, the “Aldus Defendants”). Meyer,
O’Reilly, and Ellman are citizens of Texas. Plaintiff also sued Executive Risk Indemnity, Inc.
(“ERI”), a Delaware corporation having its principal place of business in New Jersey.
In Plaintiff’s Original Petition (“Petition”), which is the live pleading in this action, Henley
alleges that he joined Aldus Equity, a Dallas-based private equity firm, as a partner in 2005. Aldus
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Equity grew tremendously until 2009, when Meyer pleaded guilty to felony fraud charges in New
York and admitted guilt with respect to similar allegations pending in New Mexico. Meyer
thereafter resigned from the firm, and a number of Aldus Equity’s clients filed lawsuits against the
firm and its remaining partners.
The firm maintained insurance under Global Financial
Services/Investment Company Professional and Management Liability Policy No. 6803-5389 (the
“Policy”) issued by ERI to protect the partners against lawsuits, but ERI refused to provide coverage
under the Policy for any of the lawsuits arising out of Meyer’s misconduct. Accordingly, Aldus
Equity filed a lawsuit against ERI. Plaintiff alleges that ERI and the remaining partners, O’Reilly,
Ellman, and Henley, agreed to settle the firm’s lawsuit against ERI and agreed to a specific
distribution of settlement proceeds among the partners.
O’Reilly and Ellman, however,
subsequently agreed to accept a cash payment from ERI and retroactively nullify the Policy.
O’Reilly and Ellman refused to pay any of the settlement proceeds to Plaintiff. O’Reilly and Ellman
also failed to indemnify Plaintiff in connection with a lawsuit filed in New Mexico. When Plaintiff
requested that ERI provide him a defense in the New Mexico lawsuit, ERI refused and allegedly sent
him a letter stating that O’Reilly and Ellman had previously entered into an agreement with ERI that
precluded coverage for Plaintiff under the Policy.
When O’Reilly announced that Aldus Equity would stop paying compensation to its
remaining employees and partners, Plaintiff submitted his resignation. He also allegedly stated his
intent to retain his partnership interests in the firm and the Aldus Entities, as permitted by an alleged
Agreement Among Owners. After Plaintiff resigned his employment, O’Reilly and Ellman refused
to acknowledge his ownership interests, contending instead that they own such interests.
Memorandum Opinion and Order – Page 2
Based on this conduct, Plaintiff asserts claims against O’Reilly and Ellman for breach of the
Agreement Among Owners, shareholder oppression, breach of fiduciary duty, promissory estoppel,
and breach of contract with respect to the agreement to share settlement proceeds paid by ERI.
Plaintiff further asserts claims against O’Reilly, Ellman, and various Aldus Entities for money had
and received and breach of a contractual obligation to indemnify him against harm arising out of the
New Mexico lawsuit. Plaintiff sues Meyer for breach of the Agreement Among Owners and fraud.
He also sues ERI for declaratory judgment, breach of contract, promissory estoppel, bad faith, and
violations of the Texas Insurance Code for its failure to defend and indemnify him in the New
ERI removed this action to federal court on March 26, 2014, contending that, as required by
28 U.S.C. § 1332(a), complete diversity of citizenship exists between the parties and the amount in
controversy exceeds $75,000, exclusive of interest and costs.1 Although several of the Aldus
Defendants are Texas citizens, ERI contends that their citizenship should be disregarded in
determining diversity because they were “fraudulently misjoined.” More specifically, ERI contends
that Plaintiff’s claims against the Aldus Defendants are wholly distinct from his claims against ERI
and that joinder of the Aldus Defendants and ERI is procedurally improper under state law.
Plaintiff filed a motion to remand on May 8, 2014, in which he argues that complete diversity
does not exist because Meyer, O’Reilly, Ellman, and several of the Aldus Entities are citizens of
Texas. Plaintiff contends that the Aldus Defendants were not fraudulently misjoined and their
citizenship cannot be disregarded for purposes of determining diversity. The issues pertaining to
removal have been fully briefed, and the motion to remand is now ripe for determination.
ERI filed an amended notice of removal two days later, on March 28, 2014, asserting the same grounds for
Memorandum Opinion and Order – Page 3
Meyer and the Aldus Defendants also have filed separate motions to dismiss or, in the
alternative, to compel arbitration. The parties, however, agree that the court should not reach these
motions unless and until it denies Plaintiff’s motion to remand. Because the court grants Plaintiff’s
motion to remand, it does not reach the other pending motions. See Corp. Relocation, Inc. v. Martin,
No. 3:06-CV-232-L, 2006 WL 4101944, at *6 (N.D. Tex. Sep. 12, 2006) (“A court must have
subject matter jurisdiction before it may compel arbitration.”)
Subject Matter Jurisdiction
A federal court has subject matter jurisdiction over civil cases “arising under the
Constitution, laws, or treaties of the United States,” or over civil cases in which the amount in
controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship
exists between the parties. 28 U.S.C. §§ 1331, 1332. Diversity of citizenship exists between the
parties only if each plaintiff has a different citizenship from each defendant. Getty Oil Corp. v. Ins.
Co. of North America, 841 F.2d 1254, 1258 (5th Cir. 1988). Otherwise stated, 28 U.S.C. § 1332
requires complete diversity of citizenship; that is, a district court cannot exercise jurisdiction if any
plaintiff shares the same citizenship as any defendant. See Corfield v. Dallas Glen Hills, LP, 355
F.3d 853, 857 (5th Cir. 2003) (citation omitted).
Federal courts may also exercise subject matter jurisdiction over a civil action removed from
a state court. Unless Congress provides otherwise, a “civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the defendant
or defendants, to the district court of the United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. § 1441(a). Any doubts as to the propriety of the
removal are to be construed strictly in favor of remand. Manguno v. Prudential Prop. & Cas. Ins.
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Co., 276 F.3d 720, 723 (5th Cir. 2002). “The burden of establishing subject matter jurisdiction in
federal court rests on the party seeking to invoke it.” St. Paul Reinsurance Co. v. Greenberg, 134
F.3d 1250, 1253 (5th Cir. 1998) (footnote omitted). Because ERI removed this case to federal court,
it has the burden of establishing subject matter jurisdiction.
A party seeking to remove an action to federal court on the basis of fraudulent or improper
joinder bears a heavy burden. Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 574 (5th Cir.
2004) (en banc). In Smallwood, the Fifth Circuit “adopt[ed] the term ‘improper joinder’ as being
more consistent with the statutory language than the term ‘fraudulent joinder,’ which has been used
in the past. Although there is no substantive difference between the two terms, ‘improper joinder’
is preferred.” Id. at 571 n.1. Accordingly, the court uses the term “improper joinder” in this
As previously stated, a federal court has jurisdiction over civil actions in which there is
complete diversity of citizenship between the parties and the amount in controversy exceeds
$75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). In considering citizenship, the court
considers only the citizenship of real and substantial parties to the litigation; it does not take into
account nominal or formal parties that have no real interest in the litigation. Navarro Sav. Ass'n v.
Lee, 446 U.S. 458, 460-61 (1980). The citizenship of a party that is improperly joined also must be
disregarded in determining whether diversity of citizenship exists. Johnson v. Heublein, 227 F.3d
236, 240 (5th Cir. 2000).
The Fifth Circuit has traditionally recognized two grounds on which a court can find that a
defendant was improperly joined: “(1) actual fraud in the pleading of jurisdictional facts, or (2)
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inability of the plaintiff to establish a cause of action against the non-diverse party in state court.”
Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694,
698 (5th Cir. 1999)). ERI does not rely on either of these grounds in this case. Instead, ERI
contends that the doctrine of “fraudulent misjoinder” established by the Eleventh Circuit in
Tapscott v. MS Dealer Service Corporation, 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated in part
on other grounds by Cohen v. Office Depot, 204 F.3d 1069 (11th Cir. 2000), supports a finding of
The viability of the fraudulent misjoinder doctrine is an open question. The Fifth Circuit has
never expressly adopted the theory, although it has indicated that it might do so in an appropriate
case. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532-33 (5th Cir. 2006); In re
Benjamin Moore & Co., 309 F.3d 296, 298 (5th Cir. 2002). Additionally, numerous district courts
in the Fifth Circuit have assumed, without necessarily deciding, that fraudulent misjoinder is a
possible ground to support a finding of improper joinder.
See, e.g., Martinson v. Total
Petrochemicals & Refining USA, Inc., No. H-14-555, 2014 WL 2169970, at *2 (S.D. Tex. May 23,
2014); Palos v. Vick, No. SA-13-CV-805-XR, 2013 WL 5740287, at *3 (W.D. Tex. Oct. 22, 2013);
Salazar v. Lopez, No. 3:13-CV-188-M, 2013 WL 1124302, at *1 (N.D. Tex. Mar. 18, 2013); J.O.B
Investments, LLC v. Gootee Services, LLC, 908 F. Supp. 2d 771, 774 (E.D. La. 2012); Tex.
Instruments, Inc. v. Citigroup Global Mkts., Inc., 266 F.R.D. 143, 147 (N.D. Tex. 2010); Wells
Fargo Bank, N.A. v. Am. Gen. Life Ins. Co., 670 F. Supp. 2d 555, 562 (N.D. Tex. Nov 18, 2009);
Palermo v. Letourneau Techs., Inc., 542 F. Supp. 2d 499, 515 (S.D. Miss. 2008); Schuchmann v.
Miraglia, No. 3:04-CV-1057-B, 2004 WL 2626532, at *3 (N.D. Tex. Nov. 16, 2004). For purposes
Memorandum Opinion and Order – Page 6
of the pending motion to remand, this court similarly assumes, without deciding, that fraudulent
misjoinder may support a finding of improper joinder.
Courts that recognize the fraudulent misjoinder doctrine as viable engage in a two-step
analysis that asks: (1) has any party been misjoined with another party in violation of the applicable
joinder rules; and, (2) is the misjoinder sufficiently “egregious” to rise to the level of a fraudulent
misjoinder? See, e.g., Tex. Instruments, 266 F.R.D. at 147-48. Given that the Fifth Circuit has not
expressly adopted the doctrine of fraudulent misjoinder, it has not had the opportunity to determine
whether federal or state joinder rules govern the analysis. The district courts in Texas that have
considered the issue apparently agree that the state rules should apply. See, e.g., Martinson, 2014
WL 2169970, at *2, n.1; Salazar, 2013 WL 1124302, at *2 n.10. Further, at least one district court
has noted that the question of whether to apply Texas rules or federal rules to a misjoinder analysis
is “largely academic” because the state rule is practically identical to its federal counterpart. Tex.
Instruments, 266 F.R.D. at 148, n.3. The court agrees that the Texas joinder rules are not
substantially different from the federal joinder rules and thus uses the state rules in its analysis. See
Crockett, 436 F.3d at 533 (noting that Texas has adopted the same requirements for proper joinder
as set forth in the federal rules).
Under Texas Rule of Civil Procedure 40(a), claims against multiple defendants may be
joined in one action “if there is asserted against them jointly, severally, or in the alternative any right
to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all of them will arise in the action.” TEX.
R. CIV. P. 40(a). Rule 40(a) thus establishes two requirements for joining claims against multiple
defendants: (1) a “same transaction” requirement and (2) a “common question” requirement. The
Memorandum Opinion and Order – Page 7
“same transaction” requirement is governed by a logical-relationship test that is borrowed from
federal law. Tex. Instruments, 266 F.R.D. at 147-48. The “common question” requirement is
satisfied by the presence of a single common question of law or fact. Id. To the extent ERI suggests
that language in Texas Rule 40(a) requiring the right to relief to be asserted against the defendants
“jointly, severally, or in the alternative” constitutes a third requirement of permissive joinder, see
Def. Resp. 10, its suggestion is misplaced. This language does not further limit the scope of
permissible joinder beyond what is allowed by the “same transaction” requirement; it merely
emphasizes the broad scope of permissible joinder under the Texas Rules. Tex. Instruments, 266
F.R.D. at 149, n.5.
Additionally, mere misjoinder does not constitute fraudulent misjoinder. Tapscott, 77 F.3d
at 1360. Rather, the misjoinder must be “egregious.” Id.; see also Salazar, 2013 WL 1124302, at *2
n.8 (noting apparent unanimity among courts in applying the egregiousness standard to fraudulent
misjoinder analysis). It is not entirely clear what constitutes egregiousness. Some courts have
indicated that the misjoined claims must be “wholly distinct” or have “no real connection” to each
other such that their joinder “border[s] on a sham.” Tapscott, 77 F.3d at 1360. Other courts have
explained that misjoinder is egregious only if it is “grossly improper and without any arguable basis
other than to defeat diversity.” Martinson, 2014 WL 2169970, at *3. Indeed, the showing of
“egregiousness” required presents such a high bar that it has rarely been satisfied. See Tex.
Instruments, 266 F.R.D. at 152 (observing “the overwhelming majority of those cases [removed to
federal court on grounds of fraudulent misjoinder] have been remanded to state court, often on the
ground that even if the parties have been misjoined, such misjoinder is not so egregious as to be
fraudulent.”); see also Salazar, 2013 WL 1124302, at *2 (“Although the claims appear to have been
Memorandum Opinion and Order – Page 8
properly joined in this case . . . , the Court rests its conclusion on narrower grounds. . . . The joinder
. . . was not so egregious as to constitute fraudulent misjoinder.”); Oesch v. Woman’s Hosp. of
Texas, No. H-11-770, 2012 WL 950109, at *5 (S.D. Tex. Mar. 20, 2012) (same).
Defects in the Removal Notice
Plaintiff initially asserts that remand is required because ERI’s notice of removal failed to
identify the place of business for each of the corporate defendants and thus failed to properly allege
complete diversity. The court observes, however, that many of the “corporate defendants” appear
to be partnerships and limited liability companies. See Orig. Pet. 3-5, ¶¶ 5-23. The citizenship of
these entities is not dependent upon their place of business. A partnership or unincorporated
association’s citizenship is determined by the citizenship of each of its partners. Carden v. Arkoma
Assocs., 494 U.S. 185, 195-96 (1990). The citizenship of a limited liability company is determined
by the citizenship of all of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th
Cir. 2008). Moreover, Plaintiff’s objections to the sufficiency of the notice of removal are
procedural in nature and are deemed waived because he did not file his motion to remand within
thirty days of the action being removed to federal court. See 28 U.S.C. § 1447(c); In re Shell Oil
Co., 932 F.2d 1518, 1523 (5th Cir. 1991).
Contentions of the Parties regarding Fraudulent Misjoinder
ERI contends that Plaintiff’s claims against the Aldus Defendants and ERI fail to satisfy the
standard for joinder under Texas law. That is, Plaintiff’s claims against ERI do not arise out of the
same transaction or occurrence as his claims against the Aldus Defendants or share any common
question of law or fact with the claims he brings against the Aldus Defendants. ERI further contends
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that Plaintiff’s claims against it lack any real connection with the controversy involving the Aldus
Defendants, and thus they are egregiously, or fraudulently, misjoined. ERI urges the court to
disregard the citizenship of the Aldus Defendants for the purpose of determining jurisdiction and
find that complete diversity exists among the parties such that removal is proper.
Plaintiff responds that ERI’s removal is improper because he has committed no fraud in
pleading jurisdictional facts and he can establish a cause of action against the Aldus Defendants.
He further argues that the Aldus Defendants are properly joined with ERI because they were jointly
involved in the occurrences that gave rise to his claims and, to the extent any defendant is not
properly joined, that misjoinder is not so egregious as to destroy diversity. Plaintiff requests that
the court remand this case to the state court from which it was removed and that the court award him
$5,000 in costs incurred in opposing removal.
Plaintiff’s allegations against ERI and the Aldus Defendants provide a sufficient basis for
the joinder of his claims against them under state law. Plaintiff alleges that ERI refused to provide
coverage under the Policy for a barrage of lawsuits filed by Aldus Equity’s customers after Meyer
pled guilty to felony charges in New York. See Orig. Pet. 10-11, ¶¶ 51, 53. According to Plaintiff,
the firm was forced to hire legal counsel and file its own lawsuit against ERI demanding coverage
under the Policy (the “ERI Litigation”). Id. at 11, ¶ 54. Plaintiff alleges that it eventually became
clear that the dispute with ERI would likely be settled and that the partners agreed to a specific
distribution of any settlement proceeds paid by ERI. Id., ¶¶ 56-57. Plaintiff further alleges that
“O’Reilly, Ellman and ERI thereafter wrongfully attempted to resolve the ERI Litigation without
the participation of Henley (Ellman and O’Reilly’s partner, and ERI’s insured) by ERI making a
Memorandum Opinion and Order – Page 10
cash payment to purportedly retroactively nullify the ERI Policy.” Id. at 11-12, ¶ 58. When Plaintiff
was named as a defendant in the New Mexico lawsuit, he demanded that ERI provide him a defense
under the Policy. ERI refused coverage and sent Plaintiff a letter stating that it refused coverage
because “O’Reilly and Ellman had previously entered into a settlement agreement with ERI that
precluded insurance coverage for Henley.” Id. at 13, ¶ 67.
ERI characterizes Plaintiff’s allegations as raising two distinct claims: (1) a claim against
the Aldus Defendants for breach of an agreement to share settlement proceeds and (2) a claim
against ERI for breach of an insurance contract. See Def. Resp. 9-10. It contends that the legal
analysis of these disparate claims, as well as the evidence, witnesses, and discovery necessary to
prove the claims, “differs greatly.” This characterization essentially ignores Plaintiff’s allegations
that O’Reilly, Ellman and ERI conspired to settle the ERI Litigation and nullify the Policy without
his consent. See Orig. Pet. 11-12, ¶ 58; 13, ¶ 69. It also dismisses his assertion that their joint
wrongful conduct, which he contends constitutes a breach of fiduciary duty and a breach of contract,
deprived him of insurance coverage for the New Mexico lawsuit. Id. at 16, ¶ 85. ERI cannot simply
recast Plaintiff’s allegations to support its arguments in favor of removal.
As set forth in the Petition, Plaintiff’s allegations against ERI, O’Reilly, and Ellman arise
out the same transaction, occurrence, or series of transactions or occurrences—the alleged agreement
between those parties to settle the ERI Litigation without Plaintiff’s consent and deprive him of
coverage under the Policy. Plaintiff’s allegations also involve at least one common question of law
or fact, including whether ERI and the Aldus Defendants’ actions were effective to retroactively
nullify Plaintiff’s coverage. Therefore, Plaintiff’s claims are not misjoined under state law. See
Memorandum Opinion and Order – Page 11
Oesch, 2012 WL 950109, at *4 (declining to find procedural misjoiner where the plaintiff’s
different causes of action against the various defendants involved common operative facts).
Even if Plaintiff’s claims against ERI and the Aldus Defendants are not properly joined, any
misjoinder is not egregious. As alleged, Plaintiff’s claims against ERI, O’Reilly, and Ellman are
connected by the assertion that those parties conspired to wrongfully cancel the Policy and deny
coverage for the New Mexico lawsuit. The claims are not “wholly distinct” or lacking in “real
connection” to each other. Plaintiff has alleged that ERI, O’Reilly, and Ellman acted together to
deprive him of insurance coverage. He contends that all three acted wrongfully and caused him
injury when they settled the ERI Litigation without his participation and nullified the Policy without
his consent. The court concludes that ERI has not met its heavy burden to demonstrate that
Plaintiff’s joinder of ERI in this lawsuit is “grossly improper” or “without any arguable basis other
than to defeat diversity.”
Contrary to ERI’s argument, the facts of this case are distinguishable from those presented
by Nsight Technologies, LLC v. Federal Insurance Co., No. 4:10-CV-458-Y, 2009 WL 1106868
(S.D. Miss. Apr. 23, 2009). In Nsight, a business whose employee had allegedly embezzled more
than $400,000 of company funds filed a single action asserting claims against the employee for
conversion and against the company’s insurance provider for bad-faith breach of its employee-theft
insurance policy. Nsight, 2009 WL 1106868, at *1. The Nsight court determined that the plaintiff’s
claims arose “out of separate allegations of wrongdoing occurring at separate times” and that they
“involve[d] different factual issues and different legal issues.” Id. at *4. The court thus concluded
that the plaintiff’s claims against the insurance company had been improperly joined. Id. at *5.
Significantly, however, the plaintiff in Nsight did not allege that the employee conspired with the
Memorandum Opinion and Order – Page 12
insurer to cause it injury or to deprive it of any benefit. Plaintiff’s claims in this case arise out of
a common allegation of wrongdoing involving ERI, O’Reilly, and Ellman’s joint action to settle the
ERI Litigation and cancel the Policy without Plaintiff’s participation. Therefore, Nsight is
Attorney’s Fees and Costs
Finally, Plaintiff seeks attorney’s fees and costs incurred for obtaining a remand of this
action to state court pursuant to 28 U.S.C. § 1447(c). Section 1447(c) provides that “[a]n order
remanding the case may require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). There is no “automatic entitlement
to an award of attorney’s fees.” Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000).
Bad faith is not “a prerequisite to awarding attorney fees and costs.” Id. (citation omitted). “Absent
unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005) (citations omitted).
When removal is determined to be improper, courts have discretion to award attorney’s fees
incurred in obtaining a remand. 28 U.S.C. § 1447(c). Here, ERI sought removal based on the theory
of fraudulent misjoinder. Although this theory has not been explicitly recognized by the Fifth
Circuit, a significant body of authority exists to suggest such a theory is viable. The legal contours
of the doctrine are still developing. While the court concludes that this case should not have been
removed, it does not find that ERI lacked an objectively reasonable basis for seeking removal.
Memorandum Opinion and Order – Page 13
Therefore, the court determines, in exercising its discretion, that the interests of justice are not
served by awarding attorney’s fees and costs to Plaintiff in this case.
For the reasons herein stated, the court concludes that the Aldus Defendants were not
improperly joined to defeat diversity jurisdiction, that complete diversity of citizenship does not
exist between the parties because Plaintiff and several of the Aldus Defendants are Texas citizens,
and that it therefore lacks subject matter jurisdiction to hear this action. Accordingly, the court
grants Plaintiff Thomas Henley’s Motion to Remand (Doc. 17) and remands this case to the 44th
Judicial District Court of Dallas County, Texas. Plaintiff’s request for attorney’s fees and costs is
denied. The clerk of court shall effect this remand in accordance with the usual procedure.
It is so ordered this 16th day of January, 2015.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order – Page 14
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