HSBC Bank USA National Association v. Shavers DO NOT DOCKET. CASE HAS BEEN REMANDED

Filing 8

MEMORANDUM AND ORDER GRANTED 3 MOTION to Remand (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

HSBC BANK USA NATIONAL
ASSOCIATION,
Plaintiff,
v.
CAROL L. SHAVERS
Defendant.

§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-13-0694

MEMORANDUM AND ORDER
This post-foreclosure case by Plaintiff HSBC Bank USA National Association
(“Plaintiff”) for forcible detainer is before the Court on Plaintiff’s Motion to Remand
[Doc. # 3]. Defendant Carol L. Shavers (“Defendant”) filed a Response [Doc. # 6],
and Plaintiff filed a Reply [Doc. # 7]. The Court has carefully reviewed the record,
the parties’ arguments, and the applicable law, and concludes the Motion to Remand
should be granted.
I.

BACKGROUND
On August 23, 2012, Plaintiff originally brought suit in Precinct 4 of the Harris

County, Texas Justice of the Peace Court against Defendant’s deceased husband,
Butch A. Shavers. See Original Petition for Forcible Detainer (“Aug. 23 Original
Petition”) [Doc. # 3, Exh. A], at 1, 4. The Justice of the Peace Court dismissed

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

Plaintiff’s case for want of prosecution on November 6, 2012. See Order to Dismiss
for Want of Prosecution [Doc. # 3, Exh. B].
On February 1, 2013, Plaintiff filed an Original Petition for Forcible Detainer
in Precinct 4 of the Harris County, Texas Justice of the Peace Court against Defendant
as the “Independent Executor of the Estate of Butch A. Shavers and/or all Occupants”
seeking a forcible detainer.1 See Original Petition for Forcible Detainer (“Feb. 1
Original Petition”) [Doc. # 3, Exh. C], at 1,4. On February 26, 2013, the Justice of the
Peace Court granted Judgment for the Plaintiff. See Judgment for Landlord [Doc. #
3, Exh. D]. Defendant removed the case to the United States District Court for the
Southern District of Texas on March 12, 2013. See Notice of Removal [Doc. # 1], at
1. Defendant asserts that this Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331 and 1441(b).
II.

FEDERAL QUESTION JURISDICTION
A.

Legal Standard

Congress allows for removal of a case from state court to federal court when a
plaintiff’s complaint alleges a claim “arising under” federal law. 28 U.S.C. § 1331;
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). Generally, “[t]he presence

1

Although not identified in the Feb. 1 Original Petition, it appears Plaintiff seeks to
assert a claim under Chapter 24 of the Texas Property Code.

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

2

or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint
rule,’ which provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392 (1987) (citation omitted); see also PCI Transp., Inc.
v. Fort Worth & W. R.R. Co., 418 F.3d 535, 543 (5th Cir. 2005). Under the wellpleaded complaint rule, the plaintiff is “the master of the claim” and may avoid federal
jurisdiction by exclusively relying on state law, even where a federal claim is also
available. Id. Moreover, a case may not be removed to federal court on the basis of
a federal defense, “even if both parties concede that the federal defense is the only
question truly at issue.” Id. at 393; see also Hoskins v. Bekins Van Lines, 343 F.3d
769, 772 (5th Cir. 2003).
A state claim is removable when “a state-law claim necessarily raise[s] a stated
federal issue, actually disputed and substantial, which a federal forum may entertain
without disturbing any congressionally approved balance of federal and state judicial
responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 314 (2005); see also Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 542 (5th
Cir. 2012) (quoting Grable, 546 U.S. at 314). “The removing party bears the burden
of showing that federal jurisdiction exists and that removal was proper.” Manguno
v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citations

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

3

omitted).
B.

Analysis

Defendant has not met her burden to establish that the Court has federal
question jurisdiction. Plaintiff does not assert claims arising under federal law against
Defendant. See Feb. 1 Original Petition, at 1-3. Defendant asserts that the Court has
federal question jurisdiction because her Fourteenth Amendment due process rights
were violated. See Response, at 2. “‘A defendant may not remove on the basis of an
anticipated or even inevitable federal defense, but instead must show that a federal
right is an element, and an essential one, of the plaintiff’s cause of action.” Hoskins,
343 F.3d at 772 (quoting Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362,
366 (5th Cir. 1995)). Defendant does not make this showing. The Court lacks federal
question jurisdiction.
III.

DIVERSITY JURISDICTION
A.

Legal Standard

While the United States Constitution requires only minimal diversity for federal
courts to have subject matter jurisdiction in cases that lack a federal question, U.S.
CONST. art. III, § 2, cl. 1; see Jones v. Petty-Ray Geophysical Geosource, Inc., 954
F.2d 1061, 1064 n.3 (5th Cir. 1992) (citing State Farm Fire & Cas. Co. v. Tashire,
386 U.S. 523, 530 (1967)), Congress has imposed a higher threshold. Under 28

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

4

U.S.C. § 1332, there must be complete diversity and at least $75,000 in controversy.
28 U.S.C. § 1332; McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004).
In order for there to be complete diversity, all persons and entities on one side of the
controversy must be citizens of states different from all persons and entities on the
other side of the controversy. McLaughlin, 376 F.3d at 353; Harrison v. Prather, 404
F.2d 267, 272 (5th Cir. 1968) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806)). “For diversity jurisdiction, the party asserting federal jurisdiction must
‘distinctly and affirmatively allege [ ]’ the citizenship of the parties. Failure
adequately to allege the basis for diversity jurisdiction mandates dismissal.” Howery
v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (citations omitted). “[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) (citation
omitted). The removing party must demonstrate that the federal court has subject
matter jurisdiction and that removal was proper. Manguno, 276 F.3d at 723 (citations
omitted).
B.

Analysis

Defendant also has not met her burden to show that the Court has diversity
jurisdiction. Defendant is a citizen of Spring, Texas. See Notice of Removal, at 4;
Eviction Case Appeal Bond [Doc. # 1, Exh. D], at 27; Homestead Declaration [Doc.

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

5

# 1, Exh. E], at 38. Under 28 U.S.C. § 1441(b):
When a plaintiff files in state court a civil action over which the federal
district courts would have original jurisdiction based on diversity of
citizenship, the defendant or defendants may remove the action to federal
court, provided that no defendant ‘is a citizen of the State in which such
action is brought.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (quoting 28 U.S.C. § 1441(b)) (citing
28 U.S.C. § 1441(a)).2 Plaintiff brought this action in Texas and Defendant is a
citizen of this state. Removal by an in-state defendant is not permitted. Therefore,
removal was not proper and the case must be remanded to state court. See In re 1994
Exxon Chem. Fire, 558 F.3d 378, 392-396 (5th Cir. 2009) (holding that the forumdefendant rule is a procedural requirement).
IV.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion to Remand [Doc. # 3] is GRANTED and

the case will be REMANDED to Precinct 4, Place 1 of the Harris County, Texas
Justice of the Peace Court.

2

28 U.S.C. 1441(b)(2) provides: “A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this title may not be removed if any
of the parties in interest properly joined and served as defendants is a citizen of the
State in which such action is brought.”

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

6

SIGNED at Houston, Texas, this 29th day of April, 2013.

P:\ORDERS\11-2013\0694MRemand.wpd

130429.0945

7