Hansen et al v. Alonzo et al

Filing 10

MEMORANDUM AND ORDER DENIED without prejudice. 4 Joint MOTION for Summary Judgment (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
REBECCA D. HANSEN and
ALFRED C. HANSEN,
Plaintiffs,

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v.
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THE BANK OF NEW YORK
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MELLON FKA THE BANK OF NEW §
YORK, AS TRUSTEE FOR THE
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CERTIFICATEHOLDERS OF THE
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CWABS INC., ASSET BACKED
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CERTIFICATES, SERIES 2002-004, §
et al.,
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Defendants.
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CIVIL ACTION NO. H-14-0156

MEMORANDUM AND ORDER
This foreclosure case is before the Court on the Motion for Final Summary
Judgment [Doc. # 4] (“Motion”) of Defendants The Bank of New York Mellon f/k/a
The Bank fo New York, as Trustee for the Certificate-Holders of the CWABS Inc.,
Asset Backed Certificates, Series 2002-004 (“BONY”), Salvador Alonzo (“Alonzo”),
Bertha I. Martinez (“Martinez”), and Rex Kesler (“Kesler,” and together with BONY,
Alonzo, and Martinez, the “Moving Defendants”). Plaintiffs Rebecca Hansen and
Alfred Hansen (together, “Plaintiffs’) have filed a Response [Doc. # 9], to which the

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Moving Defendants have filed a Reply [Doc. # 8].1 Reviewing Plaintiffs’ Original
Petition [Exh. B.2 to Doc. # 1] (“Original Petition”) and the parties’ briefing, the
Court sua sponte raises the issue of the Court’s subject matter jurisdiction over this
case. Finding no subject matter jurisdiction, the Court remands this case to the state
court and denies without prejudice the Moving Defendants’ Motion.
I.

BACKGROUND
On October 4, 2013, Plaintiffs filed this action against BONY, Alonzo,

Martinez, Kesler, and EH Pooled Investments, LP (“EH,” and together with BONY,
Alonzo, Martinez, and Kesler, “Defendants”) in the 270th Judicial District Court of
Harris County, Texas. See Original Petition, at 1. Plaintiffs assert a claim to set aside
the substitute trustee’s deed against BONY and Kesler, id., ¶¶ 20-26, and a claim of
quiet title against all Defendants, id., ¶¶ 27-31. Plaintiffs also seek a declaratory
judgment against all Defendants that Defendants’ foreclosure on Plaintiffs’ property
was fraudulent. Id., ¶¶ 32-37.

1

Plaintiffs filed their Response to the Motion on March 27, 2014, as indicated by the
file-stamp on the first-page of the Response. Because Plaintiffs are pro se, they apparently
sent a copy of their Response to the Office of the Clerk for the United States District Court
for the Southern District of Texas. That Response was never entered on the docket, and the
Court was only alerted to the Response by a footnote in the Moving Defendants’ Reply. See
Reply, at 2 n.1. The Court has since received a copy of the Response from the parties and
filed it on the docket. This error on the part of the Clerk’s Office accounts for the
misnumbering of the briefs on the docket sheet.
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2

Defendants were served with the Original Petition on December 23, 2013.
Defendants Alonzo and Martinez removed the case to this Court on January 22, 2014.
There is no indication that the other Defendants (i.e., BONY, EH, and Kesler)
consented to removal.
II.

LEGAL STANDARD
“A case is properly dismissed for lack of subject matter jurisdiction when the

court lacks the statutory or constitutional power to adjudicate the case.” Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted). A court may
raise the question of its own subject-matter jurisdiction sua sponte and must dismiss
the action if it finds itself without subject-matter jurisdiction. See FED. R. CIV. P.
12(h)(3) (“If the Court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”); Giles v, NYLCare Health Plans, Inc., 172 F.3d
332, 336 (5th Cir. 1999) (“[A] court sua sponte must raise the issue if it discovers it
lacks subject matter jurisdiction.”).
III.

ANALYSIS
Alonzo and Martinez (the “Removing Defendants”) removed this case to

federal court on the basis of federal-question jurisdiction.2 See Notice of Removal,

2

“When a civil action is removed solely under section 1441(a), all defendants who
have been properly joined and served must join in or consent to the removal of the action.”
(continued...)
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¶¶ 6, 12-15. The Removing Defendants contend that “[r]emoval is proper since a
[f]ederal [q]uestion has been raised in these pleading[s] and prior pleading[s] filed
before this Court under 4:12-cv-02497.” Id., ¶ 12. Specifically, the Removing
Defendants argue that Plaintiffs are “collaterally estopped from filing this action or
a similar action arising from the real estate transaction based on the doctrine of res
judicata” and that “it would [be] improper for the State Court to also render a decision
which may create [inconsistencies].” Id., ¶¶ 12-13.
Generally, “[t]he presence 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). Under the well-pleaded complaint rule, the plaintiff is the master of his
complaint and may avoid federal jurisdiction by exclusively relying on state law, even
where a federal claim is also available. Id. 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 Hoskins v. Bekins Van

2

(...continued)
28 U.S.C. § 1446(b)(2)(A). The Court notes that Alonzo and Martinez removed this case
under Section 1441(a), but there is no indication that the other Defendants consented to
removal.
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Lines, 343 F.3d 769, 772 (5th Cir. 2003) (same).
The Court lacks federal-question jurisdiction in this case. Plaintiffs’ Original
Petition alleges only state law claims. The Removing Defendants do not indicate
which of Plaintiffs’ claims raises a federal question and the Court perceives none.
There is no federal question presented on the face of Plaintiffs’ pleadings. Morever,
even if the Removing Defendants’ res judicata defense were deemed a “federal
defense,” that alone would be insufficient to confer federal-question jurisdiction on
this Court.

Thus, this case does not fall within the Court’s federal-question

jurisdiction.3
The Court also lacks diversity jurisdiction over this case. Federal district courts
have original jurisdiction over all civil actions where the matter in controversy
exceeds $75,000 and is “between citizens of a state and citizens or subjects of a
foreign state.” 28 U.S.C. § 1332(a)(2). “It is well-established that the diversity statute
requires ‘complete diversity’ of citizenship: A district court cannot exercise diversity
jurisdiction if one of the plaintiffs shares the same state citizenship as any one of the
defendants.” Vargas v. Stone Container Corp., 144 Fed. App’x 365, 367 (5th Cir.

3

The Removing Defendants also cite 28 U.S.C. § 1369 and 28 U.S.C. § 1441(e)(1) as
bases for jurisdiction. Neither confers jurisdiction in this case because this case does not
arise from “a single accident, where at least 75 natural persons have died in the accident at
a discrete location.” 28 U.S.C. § 1369(a); see also 28 U.S.C. § 1441(e)(1) (citing § 1369).
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2005) (citing Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992)). According to
the Original Petition, Plaintiffs are residents of Texas and Defendants EH, Alonzo,
Martinez, and Kesler all live or do business in Texas. See Original Petition, ¶¶ 2, 4-6.
No Defendant has argued that any of the non-diverse Defendants was improperly
joined such that the citizenship of that party (or those parties) should be excluded in
considering the Court’s diversity jurisdiction. Because the parties are not completely
diverse, the Court lacks diversity jurisdiction over this case.4
As there is no federal question or diversity jurisdiction in this case, the Court
lacks the power to adjudicate the claims and this case must be remanded to state court.
IV.

CONCLUSION AND ORDER
The Court lacks subject matter jurisdiction over this action. Accordingly, it is

hereby
ORDERED that this case is REMANDED to the 270th Judicial District Court
of Harris County, Texas. It is further
ORDERED that Defendants The Bank of New York Mellon f/k/a The Bank fo
New York, as Trustee for the Certificate-Holders of the CWABS Inc., Asset Backed
Certificates, Series 2002-004, Salvador Alonzo, Bertha I. Martinez, and Rex Kesler’s

4

Because the Court finds that the parties are not completely diverse, the Court does
not reach Plaintiffs’ argument (in response to the Moving Defendants’ Motion) that they have
not alleged damages exceeding $75,000. See Response, at 2-3.
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Motion for Final Summary Judgment [Doc. # 4] is DENIED without prejudice.
SIGNED at Houston, Texas, this 18th day of April, 2014.

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