Richardson v. Dwight
MEMORANDUM OPINION AND ORDER denying 8 Motion to Remand filed by Scott Damon Richardson. (Ordered by Judge Sidney A Fitzwater on 11/17/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
SCOTT DAMON RICHARDSON,
SCOTT DAMON RICHARDSON,
Civil Action No. 3:17-CV-2587-D
Civil Action No. 3:17-CV-2747-D
Plaintiff Scott Damon Richardson (“Richardson”), who is proceeding pro se, moves to
remand these cases that defendants removed based on federal question jurisdiction.1 The court
denies the motions.2
Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.
As permitted by N.D. Tex. Civ. R. 7.1(f), the court in its discretion is deciding this motion
prior to receipt of a reply brief. See Solomon v. Godwin & Carlton, P.C., 898 F. Supp. 415, 416 n.2
(N.D. Tex. 1995) (Fitzwater, J.) (applying former Local Rule 5.1(f)).
As the parties who removed these cases, defendants must overcome an initial presumption
against jurisdiction and must establish that removal is proper. See, e.g., Carnes v. Data Return,
LLC, 2005 WL 265167, at *1 (N.D. Tex. Feb. 1, 2005) (Fitzwater, J.) (citing Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001)). The removal statute implicates federalism concerns and
therefore should be strictly construed. Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.
1997). “[D]oubts regarding whether removal jurisdiction is proper should be resolved against
federal jurisdiction.” Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
“Ordinarily, the well-pleaded complaint rule governs federal question jurisdiction. Under
the rule, ‘[r]emoval is not possible unless the plaintiff's “well pleaded complaint” raises issues of
federal law sufficient to support federal question jurisdiction.’” Trugreen Landcare, L.L.C. v. Scott,
512 F. Supp. 2d 613, 619 (N.D. Tex. 2007) (Fitzwater, J.) (alteration in original) (quoting Ervin v.
Stagecoach Moving & Storage, Inc., 2004 WL 1253401, at *2 (N.D. Tex. June 8, 2004) (Fitzwater,
J.)); see Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995) (citing
Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“A determination that a cause
of action presents a federal question depends upon the allegations of the plaintiff’s well-pleaded
complaint.”)). The well-pleaded complaint rule makes the plaintiff “the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). Therefore, even if federal claims are available, a plaintiff may remain
in state court by relying exclusively on state law. See id.
“A federal claim does not exist simply because facts are available in the complaint to suggest
such a claim.” Tex. Dep’t of Protective & Regulatory Servs. v. Mitchell-Davis, 2007 WL 4334016,
at *2 (N.D. Tex. Dec. 11, 2007) (order) (Fitzwater, C.J.) (citing Gemcraft Homes, Inc. v. Sumurdy,
688 F. Supp. 289, 292 (E.D. Tex. 1988)); Chavez v. McDonald’s Corp., 1999 WL 814527, at *2
(N.D. Tex. Oct. 8, 1999) (Fitzwater, J.) (holding that plaintiff had not alleged federal-law claim even
though he referred at one point to exhausting his administrative remedies under federal law, where
he otherwise clearly alleged that his claims were based on Texas statutory or common law)).
Federal question jurisdiction “exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint” and not merely by way of an anticipated defense. Rivet v.
Regions Bank of La., 522 U.S. 470, 475 (1998) (internal quotation marks omitted); see also Hart v.
Bayer Corp., 199 F.3d 239, 244 (5th Cir. 2000) (“Yet the mere fact that a given federal law might
‘apply’ or even provide a federal defense to a state-law cause of action, is insufficient alone to
establish federal question jurisdiction.”). In other words, the “plaintiff’s petition must itself establish
that the case arises under federal law. This means that a right or immunity created by the
Constitution or laws of the United States must be an essential element of a plaintiff’s cause of
action.” Breathwit v. City of Terrell Civil Serv. Comm’n, 2001 WL 1801174, at *1 (N.D. Tex. Dec.
5, 2001) (Fitzwater, J.) (internal citation omitted).
Richardson maintains in his motions to remand that he is relying on state law alone, i.e., that
he is relying on Texas rights that mirror the United States Constitution. But in the petitions in both
cases, he demands declaratory judgment against the defendants for violations of rights “guaranteed
to Plaintiff by the 1st, 4th, 5th, 6th, 8th, Article of the Bill of Rights, and the 14th amendment to the
[C]onstitution of the [U]nited [S]tates of America.” His well-pleaded complaint therefore asserts
rights created by the Constitution of the United States that are essential elements of his cause of
If, within seven days of the date this memorandum opinion and order is filed, Richardson
dismisses all claims that present federal questions,3 the court will likely remand these cases to state
court under its discretion and in accordance with its usual procedure. Although the propriety of
removal is usually determined by examining the case at the time of removal, see Valdes v. Wal-Mart
Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000), a district court retains the discretion to remand a case
after the claims that gave rise to federal jurisdiction, and, in turn, to removal, have dropped out of
the case. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988); Giles v. NYLCare Health
Plans, Inc., 172 F.3d 332, 339 (5th Cir. 1999) (affirming remand of state claims after plaintiff’s
amended complaint dropped claim that was completely preempted); Pyle v. Beverly Enters.-Tex.,
Inc., 826 F. Supp. 206, 211-12 (N.D. Tex. 1993) (Fitzwater, J.).
Richardson’s motions to remand are denied.
November 17, 2017.
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
Defendants have not filed answers or summary judgment motions; they have filed motions
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