Crear Sr et al v. US Bank NA et al
ORDER granting 26 , 31 Motion to Dismiss. Accepts 46 Findings and Recommendations on Case. Denying 49 Motion for Leave to File Second Amended Complaint and dismisses with prejudice this action. The court will issue a judgment by a separate document in accordance with Federal Rule of Civil Procedure 58. (Ordered by Judge Sam A Lindsay on 7/31/2017) (ndt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
STEVEN CREAR, SR. and CHARLES
US BANK, N.A.; MORTGAGE
SYSTEMS, INC.; EMC MORTGAGE
CORPORATION a/k/a EMC Mortgage
LLC; and JPMORGAN CHASE BANK,
Civil Action No. 3:16-CV-1570-L
Before the court are U.S. Bank Trustee’s and MERS’s Motion to Dismiss, filed January
20, 2017 (Doc. 26); Chase and EMC’s Motion to Dismiss, filed January 30, 2017 (Doc. 31);
Plaintiff Steven Crear, Sr.’s Motion for Leave to File Plaintiffs’ Second Amended Complaint,
filed July 18, 2017 (Doc. 49). On June 13, 2017, Magistrate Judge Irma Carrillo Ramirez entered
the Findings, Conclusions, and Recommendation of the United States Magistrate Judge
(“Report”), recommending that the court grant the motions to dismiss (Docs. 26, 31) and dismiss
with prejudice this action as barred by res judicata. No objections were filed to the report.
On July 18, 2017, Plaintiff Steven Crear, Sr. (“Plaintiff Crear”) filed a motion for leave to
file a second amended complaint. * Plaintiff Crear requests that the court allow him an opportunity
to amend his pleadings to present claims that are not barred by res judicata. The court has
In Plaintiff Steven Crear, Sr.’s Motion for Leave to File Plaintiffs’ Second Amended Complaint, Plaintiff Crear
informs the court that Plaintiff Charles Haines does not wish to pursue this matter further. To the extent that this
expressed contention can be considered a motion to withdraw, it is denied as moot, because the court will dismiss this
action with prejudice as barred by res judicata.
Order – Page 1
carefully reviewed his request and closely examined Plaintiffs’ proposed Second Amended
Complaint (“Second Amended Complaint”) (Doc. 49-1), which is attached to Plaintiff Steven
Crear, Sr.’s Motion for Leave to File Plaintiffs’ Second Amended Complaint.
The proposed Second Amended Complaint fails to plead sufficient facts to establish
subject matter jurisdiction. A federal court has subject matter jurisdiction over cases arising under
the Constitution, laws, or treaties of the United States, which is commonly referred to as federal
question jurisdiction. 28 U.S.C. § 1331. This provision for federal question jurisdiction is
generally invoked by a plaintiff pleading a cause of action created by federal law. With respect
to the proposed Second Amended Complaint, it states incorrectly states that 28 U.S.C. § 1331
allows this court to exercise federal question jurisdiction over this case, as the proposed Second
Amended Complaint only asserts claims for violations of the Texas Debt Collection Act and
Texas Deceptive Trade Practices Act. The court determines that Plaintiff Crear’s proposed
Second Amended Complaint fails to properly plead subject matter jurisdiction. The court,
therefore, will deny Plaintiff Steven Crear, Sr.’s Motion for Leave to File Plaintiffs’ Second
Amended Complaint, and for the reasons stated in the Report, determines that the case is barred
by res judicata.
Having reviewed the record in this case, Report, and applicable law, the court determines
that the findings and conclusions of the magistrate judge are correct, and accepts them as those
of the court. Accordingly, the court grants U.S. Bank Trustee’s and MERS’s Motion to Dismiss,
(Doc. 26); grants Chase’s and EMC’s Motion to Dismiss; denies Plaintiff Steven Crear, Sr.’s
Motion for Leave to File Plaintiffs’ Second Amended Complaint (Doc. 49); and dismisses with
prejudice this action. The court will issue a judgment by a separate document in accordance with
Federal Rule of Civil Procedure 58.
Order – Page 2
It is so ordered this 31st day of July, 2017.
Sam A. Lindsay
United States District Judge
Order – Page 3
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