Don H Konipolas et al v. TXS United Housing Program Inc

Filing 14

MEMORANDUM OPINION AND ORDER: The plaintiffs' 9 motion to remand is GRANTED.The first action is REMANDED to the Dallas County Court of Law No. 4. The second action is REMANDED to the Dallas County Court of Law No. 2. Moreover, the plaintiffs are entitled to recover from TXS all just costs and any actual expenses, including attorney's fees, incurred by the plaintiffs as a result of the removal of this action. (Ordered by Senior Judge A. Joe Fish on 2/23/2017) (sss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

DON H. KONIPOLAS, as Trustee of
Wolverine Mortgage Partner Retirement,
ET AL.,
Plaintiffs,
VS.
TXS UNITED HOUSING PROGRAM,
INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
3:17-CV-0042-G

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs’ motion to remand this case to the state court
from which it was previously removed (docket entry 9). For the reasons stated
below, the motion is granted.
I. BACKGROUND
The plaintiffs, Don H. Konipolas (“Konipolas”) and Carol A. Rogers,
commenced two forcible detainer actions to evict the defendant, TXS United
Housing Program, Inc. (“TXS”), from the plaintiffs’ properties. First Notice of
Removal (“First Notice of Removal”) at 1 (docket entry 1); Second Notice of

Removal (“Second Notice of Removal”) at 1 (docket entry 5). The plaintiffs
commenced the first action on November 7, 2016, in the Dallas County Justice of
the Peace Court, Precinct 5, seeking possession of the property located at 4718
Mexicana Road, Dallas, Texas 75212. Plaintiffs’ First Petition for Forcible Detainer
at 1-2 (docket entry 1-3). The plaintiffs commenced the second action on
December 21, 2016, in the Dallas County Justice of the Peace Court, Precinct 1,
seeking possession of the property located at 6539 Treetop Lane, Dallas, Texas
75241. See Plaintiffs’ Second Petition for Forcible Detainer at 1-2 (docket entry 510).
The first action was appealed to the Dallas County Court of Law No. 4. First
Notice of Removal at 1. The second action was appealed to the Dallas County Court
of Law No. 2. Second Notice of Removal at 1. On January 5, 2017, TXS removed
the first action to federal court based on diversity jurisdiction. First Notice of
Removal at 2. On January 18, 2017, TXS removed the second action to federal court
based on diversity jurisdiction. Second Notice of Removal at 2. The plaintiffs filed
this motion to remand on January 31, 2017, alleging that complete diversity does not
exist between the parties. Plaintiffs’ Motion to Remand (“Motion”) at 3-4 (docket
entry 9). TXS filed a response on February 21, 2017. Defendant’s Response to
Plaintiffs’ Motion to Remand (“Response”) (docket entry 12). The motion is now
ripe for decision.

-2-

II. ANALYSIS
A. Legal Standard
28 U.S.C. § 1441(a) permits the removal of “any civil action brought in a
[s]tate court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The statute allows a defendant to “remove a
state court action to federal court only if the action could have originally been filed in
federal court.” Anderson v. American Airlines, Inc., 2 F.3d 590, 593 (5th Cir. 1993).
However, the removal statute must be strictly construed because “removal
jurisdiction raises significant federalism concerns.” Willy v. Coastal Corporation, 855
F.2d 1160, 1164 (5th Cir. 1988); see also Gutierrez v. Flores, 543 F.3d 248, 251 (5th
Cir. 2008). Therefore, “any doubts concerning removal must be resolved against
removal and in favor of remanding the case back to state court.” Cross v. Bankers
Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992) (Means, J.);
see also Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941). The
party seeking removal bears the burden of establishing federal jurisdiction. Willy,
855 F.2d at 1164.
There are two principal bases upon which a district court may exercise removal
jurisdiction: the existence of a federal question, see 28 U.S.C. § 1331, and complete
diversity of citizenship among the parties. See 28 U.S.C. § 1332. Here, the removing
defendant, TXS, has alleged only diversity of citizenship as the basis for this court’s

-3-

jurisdiction. See First Notice of Removal at 2; Second Notice of Removal at 2. The
court can properly exercise jurisdiction on the basis of diversity of citizenship after
removal only if three requirements are met: (1) the parties are of completely diverse
citizenship, see 28 U.S.C. § 1332(a); (2) none of the properly joined defendants is a
citizen of the state in which the case is brought, see 28 U.S.C. § 1441(b); and (3) the
case involves an amount in controversy of more than $75,000, see 28 U.S.C.
§ 1332(a).
B. Application
Here, there is not complete diversity between the parties because Konipolas is
a citizen of Texas and TXS is also a citizen of Texas. See 28 U.S.C. § 1332(a);
Motion at 3-4, Appendix at 23-26. Moreover, as a Texas citizen, TXS is a citizen of
the state in which the case is brought. See 28 U.S.C. § 1441(b); Motion at 4-5.
Thus, this court does not have diversity jurisdiction and removal is improper.
In its response, TXS contends that removal is also proper on the basis of
federal question jurisdiction. Response at 2. Specifically, TXS contends that it
asserted a counterclaim arising under federal law. Id. at 1-2. However, the court has
original or removal jurisdiction only if a federal question is raised on the face of the
plaintiffs’ well-pleaded complaint; “[i]t is not sufficient for the federal question to be
raised in the answer or in the petition for removal.” Stump v. Potts, 322 Fed. App’x

-4-

379, 380 (5th Cir. 2009). Therefore, the court lacks subject matter jurisdiction over
this case.
C. Attorney’s Fees and Costs
The plaintiffs seek attorney’s fees and costs incurred by having to oppose
TXS’s removal. See Motion at 6-8. Federal law 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). The Fifth
Circuit has stated that “[t]he application of § 1447(c) requires consideration of the
propriety of the removing party’s actions based on an objective view of the legal and
factual elements in each particular case.” Valdes v. Wal-Mart Stores, Inc., 199 F.3d
290, 293 (5th Cir. 2000). In other words, in determining whether to grant the
plaintiffs’ request for attorney’s fees, the court must determine “whether the
defendant had objectively reasonable grounds to believe the removal was legally proper.”
See id. (emphasis added). The court concludes that TXS did not have “objectively
reasonable grounds to believe” that its removal was legally valid. Therefore, the court
grants the plaintiffs’ request for attorney’s fees.
III. CONCLUSION
For the reasons stated above, the plaintiffs’ motion to remand is GRANTED.
The first action is REMANDED to the Dallas County Court of Law No. 4. The
second action is REMANDED to the Dallas County Court of Law No. 2.

-5-

Moreover, the plaintiffs are entitled to recover from TXS all just costs and any actual
expenses, including attorney’s fees, incurred by the plaintiffs as a result of the
removal of this action. The clerk shall mail a certified copy of this order to the
County Clerk of Dallas County, Texas. 28 U.S.C. § 1447(c).
SO ORDERED.

February 23, 2017.

___________________________________
A. JOE FISH
Senior United States District Judge

-6-