Veranda Associates, LP v. Hooper

Filing 13

OPINION AND ORDER OF REMAND AND AWARD OF FEES AND COSTS granting 5 Motion for Emergency; mooting 5 Motion for Extension of Time; granting 5 Motion to Remand; granting 5 Motion for Sanctions; denying 8 Motion to Strike. This case is REMANDE D to the County Court at Law No. 1, Fort Bend County. The Court finds that an award of fees and costs is appropriate but ORDERS pltf's counsel within 20 days to supplement his affidavit with specific information about how much time and how much money he spent on what legal services and what costs. (Signed by Judge Melinda Harmon) Parties notified.(htippen, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VERANDA ASSOCIATES, L.P.,
Plaintiff,
VS.
MICHAEL HOOPER,
Defendant.

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CIVIL ACTION H-11-4206

OPINION AND ORDER OF REMAND AND AWARD OF FEES AND COSTS
Pending before the Court in the above referenced cause,
alleging breach of contract and removed from the County Court at
Law Number 1, Fort Bend County, Texas on diversity jurisdiction,
are the following motions:

(1) Plaintiff Veranda Associates,

L.P.’s emergency motion requesting necessary orders (a) to compel
discovery, (b) to extend the time to conduct discovery, (c) to
remand, and (d) for sanctions (duplicatively filed as instruments
#4 and 5); and (2) Defendant Michael Hooper’s motion to strike #4
and 5 for objectionable content1 and failure to comply with the
requirements of the Local Rules2 (#8).
After reviewing the record and the applicable law, this Court
concludes that Plaintiff’s motion to remand should be granted and

1

Federal Rule of Civil Procedure 12(f) permits the Court to
strike from a pleading any “redundant, immaterial, impertinent,
or scandalous matter.”
2

Local Rule 11.4 allows the Court to strike a paper that
“does not conform to local or federal rules or is otherwise
objectionable.”
-1-

that Plaintiff’s counsel is entitled to an award of fees and costs
under 28 U.S.C. § 1447(c).
Plaintiff’s Emergency Motion for Necessary Orders
Plaintiff, Defendant Michael Hooper’s (“Hooper’s”) lessor and
landlord, claims that its commercial tenant, Hooper, fled in the
middle of the night and left Plaintiff with a multi-year lease on
which $300,000 remains unpaid. After attempting for months to find
and serve Hooper, Plaintiff finally found him and served him with
this action while the case was pending in state court.3

Plaintiff

claims that Defendant refused to appear for his deposition even
after Plaintiff served him with a Notice. Plaintiff filed a motion
for sanctions and to compel.

On the eve of the hearing set on that

motion, December 14, 2011, Defendant removed the case to federal
court.
Plaintiff further states that Hooper filed a “Notice of
Removal” in state court on December 5, 2011, but did not file the
removal papers in federal court until December 14, 2011, and did
not serve Plaintiff with the federal paperwork until December 22,
2011.

Plaintiff complains that it is unclear what date is the

deadline for it to file its motion to remand.
3

Emphasizing Hooper’s current Texas-based activities,
Plaintiff states, “After months of searching and attempting to
serve Mr. Hooper, Mr. Hooper was finally spotted finishing his
daily workout at Lifetime Fitness in Katy, Texas. He was
followed while he was driving his Texas registered vehicle and
found to be working out of an apartment in Katy, Texas where he
was served with the lawsuit (see state court file).”
-2-

Plaintiff claims that the removal is a sham and this case
should be remanded and sanctions imposed against Hooper because
Hooper has lied to the court in claiming to be a citizen of New
York (and diverse from Plaintiff, a citizen of Texas) in the
removal papers, when he is actually a citizen of Texas.

Plaintiff

alleges numerous facts, with supporting documentation, dating back
to 1998, to prove Hooper has been a citizen of Texas for more than
a decade, including numerous times when he has sworn such under
oath in public filings and in court.
Specifically inter alia Plaintiffs assert with supporting
documents the following:

(1) On May 23, 1998 Hooper married

Russann Stacy under a marriage license purchased in Denton County,
Texas (Exhibit 1); (2) on July 30, 1999 the Hoopers purchased a
house together in McKinney, Texas, where they lived while Hooper
went to Texas Wesleyan University’s law school, from which he
graduated in 2002 (Exhibits 2 and 3); (3) the Hoopers divorced in
2002 in the 366th District Court of Collin County, Texas (Exhibit
4) and Russann deeded the property to Defendant (Exhibit 5); (4) on
August 28, 2003, after he had his 1999 Pontiac repossessed and was
about to lose his house, Hooper filed for bankruptcy in the
Northern District of Texas and swore that he was a resident of
Texas and had been domiciled there for over 180 days (Exhibits 6
and 7); (5) on June 27, 2005, after failing to make his bankruptcy
payments, Hooper lost his house (Exhibit 8); (6) on June 2, 2006

-3-

Hooper and Elleana Mann applied for a marriage license in Harris
County, Texas, were married on June 11, 2005, and moved into a
house at 5711 Sugar Hill, #11, Houston, Texas 77057 (Exhibit 9);
(7) on February 6, 2007 Hooper and his wife moved to a house in
Katy, Texas (Exhibit 10); (8) Hooper and his wife sold that
residence on August 26, 2009 (Exhibit 11) after buying a house in
Weston Lakes in Fulshear, Texas on August 1, 2008 (Exhibit 12);
(9) in 2009 Hooper and his wife refinanced their Weston Lakes home
(Exhibit #13), where he lives today; (10) Hooper owns real property
in Harris County (Exhibit 14, Property Tax Statement); (11) after
Hooper and his wife purchased the house in Weston Lakes, Hooper
filed a lawsuit against the seller on behalf of his wife as her
attorney of record in which he claimed, “In or around July, 2008,
Mrs. Hooper, her husband, and daughter began seeking a house to
purchase in Fulshear, Texas to reside in and raise their family”
(Exhibit 15, ¶ 11)4; (12) Plaintiff filed this action on June 28,
2011 (Exhibit 19), and in July 2011, Defendant swore to a Texas
Judge that he was a resident of Fort Bend, County; (13) Hooper has
a history of not paying creditors (Exhibit 16, Abstract of Judgment
by another landlord that Hooper failed to pay); (14) Hooper was
sued in 2011 in Harris County, Texas and on July 8, 2011 in that

4

Plaintiff asks the Court to take judicial notice of this
statement, filed in cause number 09-DCV-173509. Elleana Hooper v.
Deutsche Bank, N.A,, et al., in the District Court of Fort Bend
County (Ex. 15).
-4-

action he filed a motion to transfer venue to Fort Bend, County and
swore under oath that he and his wife resided in Fort Bend, County,
Texas (Exhibit 17 at 2, “defendants specifically plead that this
case should be transferred to Fort Bend County because this was the
county of National Titlenet’s last office and the county of
residence for both Michael Hooper and Elleana Hooper.”); (15)
Hooper swore under penalty of perjury that he was a resident of
Texas on December 15, 2009 when he set up one of his many law firms
under the name of The Hooper Law Firm, PC (Exhibit 18, Certificate
of Formation Professional Corporation); (16) Hooper did the same
when on October 11, 2011 when he changed the name of The Hooper Law
Firm to The Law Offices of Michael Hooper and Associates, PC
(Exhibit

21,

Articles

of

Incorporation);

(17)

he

uses

these

entities to get people to extend credit and discards them after he
does not pay (Exhibit 22, Forfeiture of Charter of Michael Hooper
and Associates, P.C. in Texas; Exhibit 23 Forfeiture of Charter of
The Hooper Law Firm, P.C. in Texas); and (18) on October 12, 2011,
the date when Defendant claimed he was not a resident of Texas,
Hooper swore under oath to the Secretary of State, “The registered
agent is an individual resident of the state [Texas] whose name is
Michael R. Hooper.” (Exhibit 20).
Therefore, because Hooper is a citizen of Texas, Plaintiff
seeks a remand to the County Court at Law Number 1, Fort Bend
County, Texas.

-5-

Alternatively, Plaintiff asks that if the Court is not already
persuaded that Defendant has filed a sham, frivolous removal and
that this case should be remanded immediately and that sanctions
should be awarded, Plaintiff asks the Court in its motion to compel
discovery to order Defendant to provide a number of specified
documents within fourteen days and to produce himself and his wife
for videotaped depositions with seven days of that production.
Also Plaintiff moves for 60 days’ additional time to conduct
discovery before the Court rules on Plaintiff’s motion to remand.
Plaintiff has produced evidence that Plaintiff’s home, place
of employment, assets’ location, car registration, and center of
his business, domestic, social, and civil life are in Texas.

It

requests the Court to remand this action immediately after awarding
sanctions for a frivolous removal under Federal Rule of Civil
Procedure 11.
Plaintiff requests an attorney’s fee award of $10,000 for its
counsel’ time and services relating to the removal and remand under
Rule 11, supported by an affidavit from attorney Ron E. Frank (#6,
Ex. 24).
Hooper’s Motion to Strike
Hooper moves to strike Plaintiff’s emergency motion as “seven
pages of seemingly irrelevant, disjointed, and inflammatory fact
assertions that are not incorporated by any of the three separate
motions” included in the emergency motion.

-6-

He complains that

Plaintiff ignores the local form rules of pleading as well as those
designed to protect the privacy of individuals, including his
children.

He accuses Plaintiff of “engag[ing] in smear tactics in

a desperate attempt to show that, because it believes Defendant is
a ‘bad person’ the Court should look past the rule of law and
simply allow Plaintiff to get his way.”
“false

assertions

and

irrelevant

He charges Plaintiff with

exhibits,”

“many

of

which

Defendant will show to be patently false,” but does not.
Hooper also objects that Plaintiff’s pleading does not comply
with Local Rules, the Administrative Procedures for Electronic
Filing, and General Order 2004-11.

Specifically he asserts that

the motion fails to style the case properly and include the proper
language in the motion caption (L.R. 10.1), that the motion is not
paginated (L.R. 10.2), and that counsel fails to include his SDTX
Bar Number (L.R. 11.3A(4).

As for the rules of electronic filing,

the Administrative Procedures, because Plaintiff failed to redact
the names of minor children and home addresses.

He complains that

Plaintiff also published an unredacted color photograph of Hooper’s
children.
Finally Hooper complains that Plaintiff acted maliciously,
with an intent to embarrass and harass Hooper and violate his
privacy, as evidenced by its discussion that Hooper filed for

-7-

bankruptcy in 2003, a fact that has nothing to do with this case.5
This Court notes that under Federal Rule of Civil Procedure
12(f),
The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to
the pleading or, if a response is not allowed, within 21
days after being served with the pleading.
Motions to strike are usually viewed with disfavor and rarely
granted since they seek a drastic remedy and are frequently sought
merely to delay.

1st United Telecom, Inc. v. MCI Communications

Services, Inc., Civ. A. No. 3:10-CV-2255-B, 2011 WL 2292265,*1
(N.D. Tex. June 8, 2011).

Such motions should be denied if there

is any question concerning law or fact.

Id.

Even when addressing

a pure question of legal sufficiency courts are “very reluctant” to
determine

such

issues

on

a

motion

to

strike,

preferring

to

determine them “only after further development by way of discovery
and a hearing on the merits, either on summary judgment motion or
at trial.”

5C Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1381 (3d ed. 2004).

The Court has

considerable discretion whether to grant a motion to strike.

FDIC

v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993).
5

The Court notes that Hooper
that the bankruptcy documents show
in the Northern District of Texas,
one more fact establishing that he
-8-

conveniently ignores the fact
that he filed for bankruptcy
where he lived at the time,
is a Texas resident.

Usually portions of a complaint will not be stricken unless
“the allegations are prejudicial to the defendant or immaterial to
the lawsuit.”

Veazie v. S. Greyhound Lines, 374 F. Supp. 811, 815

(E.D. La. 1974).
“have

no

Allegations are immaterial if they are shown to

possible

litigation.”

bearing

upon

the

subject

matter

of

the

Sadler v. Benson Motors Corp., 1997 WL 266735, *1

(E.D. La. May 15, 1997).

“Scandalous” describes “any allegation

that unnecessarily reflects on the moral character of an individual
or states anything in repulsive language that detracts from the
dignity of the court.”

2 Moore’s Federal Practice § 12.37[3] at

12-97; see also Cobell v. Norton, 224 F.R.D. 266, 280 (D.D.C.
2004).

“[A] Rule 12(f) motion to dismiss is proper when the

defense is insufficient as a matter of law.”

Kaiser Aluminum &

Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045,
1057 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983).
Contrary

to

Hooper’s

objections,

the

documents

and

the

allegations are directly relevant to the central issue of the
removal, Hooper’s citizenship and whether Hooper is diverse from
Plaintiff, a Texas partnership, as well as to this Court’s subject
matter jurisdiction. Moreover, while Hooper objects to Plaintiff’s
“smear tactics,” his own submissions are hardly devoid of name
calling. The Court does not find the allegations, supported by
uncontroverted

documents,

to

be

scandalous

or

prejudicial

to

Defendant where they are accurately representative. Thus the Court

-9-

denies the motion to strike.
Hooper’s Response to the Motion to Remand (#9)
Hooper’s response to the motion to remand correctly points out
that for purposes of determining diversity of jurisdiction, an
individual‘s citizenship is equivalent to domicile.6
Moore,

213

F.2d

446,

448

(5th

Cir.

1954);

Preston

Stine v.
v.

Tenet

Healthsystem Memorial M.C., 485 F.3d 793, 797-98 (5th Cir. 2007).
See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)(“[W]ith few
exceptions, state citizenship for diversity purposes is regarded as
synonymous with domicile.”). It is well established that residence
alone is not enough to prove citizenship.

Stine, 213 F.2d at 448.

Domicile is determined by a two-part test:

(1) the residence of

the party in a state and (2) the intent of the party to remain
there.
(1989).

Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49
“[A] person who has the clear intent to change domicile

does not accomplish the change until he is physically present in
the new location with that intent. . . . In most cases, the
difficult issue is not presence but whether the intent to change

6

Courts have often opined that a person’s domicile is “the
place where the individual has a true, fixed home and principal
establishment, and to which, whenever that person is absent from
the jurisdiction, he or she has the intention of returning.” 13E
Charles A. Wright, et al., Federal Practice & Procedure § 3612 at
523 (3d ed. West 2009). It “has both a physical and a mental
dimension and is more than an individual’s residence, although
the two typically coincide.” Id. at 523-27. A person has only
one domicile for diversity purposes at a particular time even if
he has several residences in different states. Id. at 528-29.
-10-

domicile can be shown.”

Prot, 85 F.3d at 250.

“There is no

durational residency requirement in the establishment of domicile;
once the presence in the new state and intent to remain there are
met, the new domicile is instantaneously established.”

Acridge v.

Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 448 (5th
Cir. 2003).
Diversity jurisdiction must exist at the time a suit is filed
in state court, and, if it is removed, at the time of removal to
federal court.

Prot, 85 F.3d at 248-49.

Diversity jurisdiction

existing at these times will not be destroyed by subsequent changes
in citizenship of the extant parties.

Id. at 249.

There is a presumption that a person’s current residence is
also his domicile and that a married man is domiciled where his
wife and family live.

13E Charles A. Wright, et al., Federal

Practice & Procedure § 3612 at 554-55.
“A person’s domicile persists until a new one is acquired or
it is clearly abandoned. . . . There is a presumption in favor of
the continuing domicile which requires the party seeking to show a
change in domicile to come forward with enough evidence to that
effect to withstand a directed verdict.”
omitted).

Id. at 250 (citations

“[T]he party attempting to show a change assumes the

burden of going forward on that issue.

The ultimate burden on the

issue of jurisdiction rests with the . . . party invoking federal
jurisdiction,” here Hooper.

Prot, 85 F.3d at 251.

-11-

The court should examine a variety of factors in determining
domicile, with none determinative, including the individual’s place
of voting registration, where he pays taxes, location of his real
and personal property, his driver’s and other licenses, bank
accounts, membership in clubs and churches, where his places of
business or employment are, and where he maintains a home for his
family.

Id.

This Court notes, moreover, in determining whether

diversity jurisdiction exists, the court may examine evidence in
the record and receive affidavits, deposition testimony or live
testimony regarding the facts underlying the citizenship of the
parties.

Prot, 85 F.3d at 249.

The Court further observes that the Fifth Circuit has also
opined in Prot, “A litigant’s statement of intent is relevant to
the determination of domicile, but is entitled to little weight if
it conflicts with the objective facts.”

Id. at 251.

Thus aspects

of Hooper’s affidavit (#9, Exhibit 1), unsupported by corroborating
evidence and controverted by documents submitted by Plaintiff, are
not significant.
Hooper argues that Plaintiff has made no showing of his
domicile at the time the suit was filed or at the time it was
removed; in other words Plaintiff has failed to show that Defendant
intended to change his domicile from New York to Texas.

He points

out that in the history of documents submitted by Plaintiff, there
is a gap between 2005-2007.

He claims he moved from Texas to New

-12-

York with his family then, established his domicile in New York,
surrendered

his

Texas

driver’s

license,

obtained

a

New

York

driver’s license, established an office in New York, and was
admitted to the New York bar in 2006.

He contends that Plaintiff

bears the burden of showing he subsequently intended to become a
Texas citizen, but has not satisfied it.

Hooper provides his

affidavit (Ex. 1) to establish the change in domicile to New York
in 2006, which he claims moots all the documents Plaintiff has
submitted to show his citizenship prior to 2007.
maintains

that

those

that

determining his domicile.

remain

are

not

He further

persuasive

as

to

(Plaintiff’s Exhibit 10 shows Defendant

executed a deed of trust on a Texas property; Exhibit 11 shows that
he executed a deed of Texas property; Exhibits 12-13 showing he
executed deeds of trust on Texas property; Exhibit 14 shows that
Defendant owns a property on Allen Parkway, not in Fulshear, Texas
as Plaintiff claims; regarding Exhibit 15, contrary to Plaintiff’s
allegation that Hooper made this statement in a lawsuit, Hooper
maintains that he was not a party to the lawsuit and did not make
the statement7; Exhibit 17, despite Plaintiff’s claim that he swore

7

The Original Petition in the suit, brought by Elleana
Hooper against Deutsche Bank National Trust Company, et al.,
stated, “In or around July, 2008, Mrs. Hooper, her husband, and
daughter began seeking a house to purchase in Fulshear, Texas to
reside in and raise their family.” The Court observes that the
document reflects that Hooper was the attorney of record, signed
and filed the Original Petition of Plaintiff Elleana Hooper, his
wife, and the statement refers to him as her husband. Moreover
after this evidence of the couple’s intent, the petition goes on
-13-

under oath that he was a resident of Texas, Hooper responds that he
did

state under oath that he was a “resident” of Fort Bend County,

but residency is insufficient to prove citizenship, and Hooper’s
affidavit under oath swears that National TitleNet LC’s office was
in Fort Bend County, but makes no mention of its citizenship;
Exhibits 18, 20, and 21 claim Defendant is a resident for the
purpose of being a registered agent for his law firm, but Plaintiff
again confuses residency with citizenship, and a corporation can
only be a citizen of its state of incorporation and state of its
“nerve center.”
Hooper submits the following documents (Exhibit B) to show
that he never intended to abandon New York as his domicile:

a

redacted copy of his current New York driver’s license, proof of
ownership

of

property

in

New

York,

proof

of

his

current

registration as an attorney in New York, correspondence to his
office in New York, a copy of a lease for the sole real property
owned by Defendant in Texas, and a copy of deeds to properties in
Katy

and

Fulshear

showing

that,

contrary

representations, Hooper does not own them.

to

Plaintiff’s

He claims that all

these evidence that, at the time the suit was filed and at the time
it was removed, he was domiciled in New York, maintains Hooper.

to state that Plaintiff did purchase from Deutsche Bank National
Trust Company a residential dwelling located at 32722 Whitburn
Trail, Fulshear, Texas and closed on or about August 4, 2008,
less than a month later.
-14-

Hooper’s Response to Plaintiff’s Motion for Leave to
Conduct Discovery and For Sanctions (#10)
Hooper points to the first part of Federal Rule of Civil
Procedure 26(d)(1)(“A party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f) except
. . . when authorized by these rules, by stipulation, or by court
order.” The scheduling conference for this suit is set on April 4,
2012, but the parties have not yet set a date for the 26(f)
conference, which must be conducted no later than March 17, 2012.
Moreover none of the situations requires that Court to grant leave
here.

He further states that he has resisted Plaintiff’s request

for an early deposition because he believes this suit is “a
‘shakedown’ filed solely for the purpose of harassment” and claims
the complaint is “so vague as to render it nearly meaningless.” No
details are given regarding the address, date, and terms of the
lease and no copy of the lease is attached to the petition.

As

noted earlier, in state court Hooper filed a special exception and
Plaintiff changed the style to read Michael Hooper dba The Hooper
Law Firm.

Hooper suggests that Plaintiff did not file a copy of

the lease because it wanted to sue National TitleNet LLC (“NTN”),
which was the actual party to the lease, and that it wanted to take
an early deposition to see if

NTN was still in business and

whether it had assets to satisfy a judgment.

Hooper claims that

Plaintiff’s counsel did not know where NTN and its owners were, but

-15-

knew that Defendant had been NTN’s attorney, so counsel “trumped up
a bogus lawsuit so it could haul Defendant into a deposition to
find out if there were any assets left at NTN for the vultures.”
He claims that after Plaintiff found that Defendant had discovered
the ruse, it amended its petition and its style in this meritless
lawsuit.
As for sanctions, Hooper insists that Plaintiff fails to
provide a legal argument to support its “ridiculous” request for
fees for forty hours of work from December 22, 2011, completed in
less than 24 hours, with a trip to Dallas on December 23, 2011 to
file his “emergency” motion.

Hooper insists that the sanctions

inquiry examines the due diligence performed by counsel, the
factual correctness of his assertions, and whether the legal
argument is warranted by existing law or a good-faith arguments for
changing it.
(1990).8

Cooter & Gell v. Hartmarx Corp., 496 U.S, 384, 399

Hooper asserts that he is a citizen of New York for the

purposes of removal based on diversity jurisdiction and has shown
how the Fifth Circuit factors for domicile support his claim.
Therefore

there

is

no

ground

on

which

to

find

his

actions

sanctionable.
Plaintiff’s Reply (#11)
Plaintiff contends that Texas Rule of Disciplinary Conduct

8

This Court would point out that Cooter & Gell was
addressing sanctions under Rule 11, not § 1447(c), and the
standards are quite different. See previous footnote.
-16-

3.03 requires attorneys to be candid with the court not only in
refraining from making false statements to the court, but also in
disclosing facts that are contrary to the lawyers’ positions so the
court is not misled, especially where nondisclosure leads to a
fraud on the court.

Plaintiffs charges that Hooper cannot claim

that he misled the court in trying to zealously represent his
client because he is the client. Plaintiff contends that Defendant
failed to tell the court the following facts:

(1) he has not lived

in New York in almost five years, since his house was foreclosed in
2007; (2) he has lived in Texas consistently since February 6, 2007
when he purchased and then moved into his house in Katy, Texas with
his wife; (3) his “New York office” is not listed anywhere (not on
his letterhead, not on his website, not on his corporate FaceBook
page, not with the Texas Secretary of State, not with the Texas
Bar, not with the New York Bar, and not on any of his pleadings;
instead all references are to his Texas office; (4) after leaving
New York in 2007, he filed a lawsuit claiming that he and his wife
purchased the Fort Bend County house because they intended to “live
there and raise their kids there”; (5) after filing this lawsuit,
and contrary to his assertion in this case, he swore under oath
that he was a resident of Fort Bend County, Texas; (6) he owns two
properties in Texas, his home and his rental property; (7) his cars
are registered in Texas; (8) his full-time place of work has been
in Texas since 2007; and (9) he has consistently claimed under oath

-17-

that he was a “Resident of Texas” to the Secretary of State,
something a New York citizen cannot do.
Plaintiff points out that the New York driver’s license
submitted by Hooper, with a redacted street number and name, in
Elmira, New York (#9-2, Ex. B) is not proof that he is domiciled in
New York, but only confirms that he is breaking the law.9

As

noted, Hooper moved back to Texas on February 6, 2007 when he and
his wife purchased a house in Katy, Texas (#5, Ex. 10), after his
home in New York state went into foreclosure that year (#11, Ex.
2).

On August 1, 2008 he and his wife moved to Fulshear, Texas

(#5, Exhibit 12).

In a lawsuit that he filed for his wife in Fort

Bend County, Texas on July 23, 2009, Eleanna Hooper v. Deutsche
Bank, N.A. et al., he stated, “In or around July, 2008, Mrs.
Hooper,

her

husband,

and

daughter

began

seeking

a

house

in

Fulshear, Texas to reside in and raise their family” and purchased
such a home within a month (#6, Ex. 15 at p.3).

Hooper owns his

home and his rental property in Texas, his cars are registered in
Texas, since 2007 his full-time place of work has been in Texas,

9

Plaintiff observes that after Hooper moved back to Texas in
2007 he had 30 days under the Texas Transportation Code § 521.029
to surrender his New York driver’s license and to obtain a Texas
driver’s license. That he still uses the New York license
illegally is not grounds to support removal. Moreover it states
that the address for his house in Elmyra, New York is a duplex
located at 803, also known as 805, Holdridge Street (#9, Ex. 2,
pp. 2-3, quitclaim deed on Holdridge property). Although the
property records for that county are not on line, Loopnet shows
that the current owners are Allen and Maureen Costello. #11,
Exhibit 1).
-18-

and

he has consistently claimed under oath that he is a resident

of Texas to the Secretary of State.
Court’s Decision
Giving Hooper the benefit of the doubt and assuming, but not
finding, that Hooper met his burden to show a change in domicile
from Texas to New York, the Court concludes that Plaintiff has met
its burden to show with objective documentation that Hooper changed
his domicile from New York to Texas in 2007 and has remained
domiciled in Texas ever since. Hooper, in turn, has failed to meet
his ultimate burden of showing that he is domiciled in New York and
that this Court lacks subject matter jurisdiction.

Plaintiff has

shown with uncontroverted documents that in 2007 Hooper’s home in
New York went into foreclosure, that he and his wife moved back to
Fulshear,

Texas

and

the

next

year

purchased

a

house

refinanced that home in 2009, and are living there now.

there,

In a suit

against the sellers, as attorney of record for his wife in her suit
against them, Hooper drafted and signed the pleading that stated
that his wife and he sought a home in which they intended to live
and to raise their children, and that they purchased one within a
month.

Even the facts alleged regarding Plaintiff’s service of

this suit on him support his domicile in Texas. Hooper presents no
evidence

other

than

his

redacted

New

York

driver’s

license,

apparently using the address of the home that went into foreclosure
in 2007, of continuing domicile in New York, including of ongoing

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full-time work in New York, ownership of New York property, paying
taxes in New York, registration to vote in New York, registration
of his vehicles in New York, a home in New York, the presence of
his family in New York, etc.
In sum the Court concludes that Hooper is domiciled in Texas,
not in New York, that there is no diversity jurisdiction here, and
this case must be remanded for lack of subject matter jurisdiction
under 28 U.S.C. § 1447(c).
Plaintiff has requested an award of sanctions under Rule 11.
Rule 11(c)(2) requires that a motion for sanctions be made separate
from any other motion and that the movant serve a copy of such a
motion on the opposing party twenty-one days before filing it with
the Court. “Compliance with the service requirement is a mandatory
prerequisite to an award of sanctions under Rule 11,” in order “to
give the parties at whom the motion is directed an opportunity to
withdraw or correct the offending contention.”

In re Pratt, 524

F.3d 580, 586 and n.20 (5th Cir. 2008), citing Elliott v, Tilton,
64 F.3d 213, 216 (5th Cir. 1995), and Tompkins v. Cyr, 202 F.3d 770,
788 (5th Cir. 2000).

The certificate of service on the emergency

motion indicates that Plaintiff failed to do so here, so the Court
must deny the motion for Rule 11 sanctions.
This Court notes that title 28 U.S.C. § 1447(c) provides, “An
order remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of

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the removal [emphasis added by the Court].”

See Howard v. St.

Germain, 599 F.3d 455, 457 (5th Cir. 2010), citing Miranti v. Lee,
3

F.3d 925, 927-28, (opining that both costs and attorney’s fees

against the removing party may be imposed if the court finds that
removal is improper under § 1447(c), Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005)(holding that “the standard for
awarding fees should turn on the reasonableness of the removal” and
“[a]bsent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal”), and Hornbuckle v. State
Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004)(attorney’s fees
should be denied if an objectively reasonable basis for removal
exists).
removal

According to the Fifth Circuit, the propriety of the
should

be

examined

“at

the

time

of

the

removal,

irrespective of the fact that it might ultimately be determined
that the removal was improper.”

Valdes, 199 F.3d at 293.

Such an

award is discretionary with the court and there is no automatic
entitlement to an award of fees.

Valdes v. Wal-Mart Stores, Inc.,

199 F.3d 290, 292 (5th Cir. 2000).

The court should focus on the

propriety of the removal, not on motive.

Valdes, 299 F.3d at 292.

The court “may award fees even if removal is made in subjective
good faith.”

Id.

Here at the time Hooper removed this suit he knew that he was
domiciled in Texas, not New York, and there was no reasonably

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objective

basis

jurisdiction.
services

for

removing

the

case

based

on

diversity

The Court finds that an award of fees and costs for

required

by

the

wrongful

removal

is

appropriate.

Nevertheless, the Court finds that Plaintiff’s counsel’s affidavit
is not specific enough for the Court to consider what hours were
spent on what tasks and on what matters counsel expended money.
Thus the Court will require additional information.
Accordingly, for the reasons indicated above, the Court
ORDERS that Hooper’s motion to strike (#8) is DENIED.

The

Court further
ORDERS that Plaintiff’s motion to remand (part of #5) is
GRANTED and this case is REMANDED to the County Court at Law No. 1,
Fort Bend County.

The Court further

ORDERS that Plaintiff’s motions to compel discovery and to
extend time to conduct discovery (part of #5) are MOOT.

Finally

the Court finds that an award of fees and costs under § 1447(c) is
appropriate, but
ORDERS Plaintiff’s counsel within twenty days to supplement
his affidavit with specific information about how much time and how

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much money he spent on what legal services and what costs.10
SIGNED at Houston, Texas, this

23rd

day of

February , 2012.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

10

This Court may retain jurisdiction to impose sanctions
regardless of the existence of subject-matter jurisdiction and
whether it is no longer pending. Cooter & Gell v. Hartmax Corp.,
496 U.S. 384, 395 (1990); Will v. Coastal Corp., 503 U.S. 131,
139 (1992).
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