Talavera v. Jackson et al
Filing
11
OPINION AND ORDER granting 3 MOTION to Remand (Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IGNACIO TALAVERA,
§
§
Plaintiff,
§
VS.
§
§
RONALD JACKSON and UNITED STATES §
§
POSTAL SERVICE
§
Defendants.
CIVIL ACTION NO. 4:14-CV-3595
OPINION AND ORDER
Pending before the Court is Defendants’ Motion for Remand. Doc. 3. Having considered
the motion, the response, the reply, and the applicable law, the Court grants the motion.
I.
Background
On June 19, 2012, Plaintiff Ignacio Talavera collided with a United States Postal Service
truck driven by Defendant Ronald Jackson. On March 17, 2014, Talavera filed a personal injury
suit against Defendants in the 270th Judicial District Court of Harris County, Texas. Doc. 1-2 at
2. The state court dismissed the suit for lack of subject matter jurisdiction. Doc. 1-2 at 28. The
state court subsequently reinstated the case for lack of notice of a hearing on the motion to
dismiss. Doc. 1-2 at 46. After Defendants re-filed their motion to dismiss, Doc. 3 at 2, Talavera
removed the case to this Court. Doc. 1.
II.
Discussion
In most cases removed from state court, it is the defendant, not the plaintiff, who
removes. Talavera asserts a right of removal under three statutes: 28 U.S.C. §§ 1441, 1446, and
2679(d)(2). Under § 1441(a), a civil action brought in state court “may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
1/2
embracing the place where such action is pending.” (Emphasis added); see Shamrock Oil & Gas,
Corp. v. Sheets, 313 U.S. 100, 106 (1941) (“[T]he plaintiff, having submitted himself to the
jurisdiction of the state court, [is] not entitled to avail himself of a right of removal conferred
only on a defendant who has not submitted himself to the jurisdiction.”). Section 1446(a) sets
forth procedures for removal under § 1441 by a “defendant or defendants.” Section 2679(d)(2)
provides:
Upon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out
of which the claim arose, any civil action or proceeding commenced upon such
claim in a State court shall be removed without bond at any time before trial by
the Attorney General to the district court of the United States for the district and
division embracing the place in which the action or proceeding is pending.
(Emphasis added.) Because Talavera is the plaintiff in this case, removal from state court under
§§ 1441, 1446, and 2679(d)(2) is improper.
IV.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that the Motion for Remand, Doc. 3, is GRANTED, and
ORDERED that the case is REMANDED to the 270th Judicial District of Harris
County, Texas. The Clerk shall mail a certified copy of this Order to the Clerk of the 270th
Judicial District of Harris County, Texas as required by 28 U.S.C. § 1447.
SIGNED at Houston, Texas, this 17th day of July, 2015.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
2/2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?