Richardson v. Hattey et al
OPINION AND ORDER OF REMAND, granting 2 Motion to Remand. This case is REMANDED to the 334th District Court of Harris County Texas. Plaintiff is to file an appropriate request, with supporting documents, for costs and actual expenses, includingattorneys fees, within ten days. Defendant shall file a responsewithin ten days..(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
August 08, 2017
FOR THE SOUTHERN DISTRICT OF TEXAS
David J. Bradley, Clerk
§ CIVIL ACTION H-16-3064
H:20 INNOVATIONS, LLC, and
DONALD R. HATTEY,
OPINION AND ORDER OF REMAND
Pending before the Court in the above referenced cause for
breach of contract and fraud, removed from the 334th District Court
Plaintiff Kathleen Richardson’s First Amended Petition, in which
she sought a declaratory judgment and a new form of relief,
specific performance, is Plaintiff’s motion to remand and request
for award of costs for a frivolous removal under 8 U.S.C. §
Plaintiff is and has been during the pendency of this action
a citizen of Texas, while Defendants were and have been citizens of
Plaintiff’s Motion to Remand
Plaintiff’s motion to remand states that she filed this suit
in state court on June 2, 2016, and Defendants answered on July 8,
The parties agree that at that time, complete diversity
existed among the parties, but that Defendants “intentionally
elected not to remove.”
#2 at p. 2.
Plaintiff filed a First
Amended Petition on or about September 15, 2016.
In it she
asserted a “new cause of action,” i.e., a request for a declaratory
judgment, and sought a new form of relief, specific performance.
At the same time she states, “the First Amended Petition “changed
remedies of declaratory judgment and specific performance to the
same breach of contract already in the pleadings, for which the
Original Petition had only requested damages.”
#2 at p.2, ¶ 9.
She now contends that Defendants’ intentional election not to
remove the case after the Original Petition was filed waived their
right to remove under 28 U.S.C. § 1447(b)(3).
Plaintiff maintains that the sole issue here is whether the
“revival exception” applies as a result of her amendment.
U.S.C. § 1446(b)(3).
Citing Johnson v. Heublein, Inc., 227 F.3d
236, 241 (5th Cir. 2000)(“a lapsed right to remove an initially
removable case within thirty days is restored when the complaint is
amended so substantially as to alter the character of the action
and constitute essentially a new lawsuit”), as the “controlling
authority on the ‘revival exception,’” Plaintiff emphasizes that
the Fifth Circuit in Heublein, held that “the exception did apply
when the amended pleading bore ‘no resemblance whatsoever to the
allegations’ in the original complaint, aligned the parties in a
different manner, and stated a ‘virtually new, more complex, and
substantial case’ against the defendants.”
Id. at 242.” #2, p. 2,
Plaintiff argues that “[t]he amendment in this case does
none of those things.”
She points out that after Heublein
“courts have narrowly interpreted the revival exception.”
v. Houston Community College, Civ. A. No. H-12-3412, 2013 WL
871967, at *3 (S.D. Tex. Feb. 6, 2013), report and recommendation
adopted, 2013 WL 871976 (S.D. Tex. Mar. 7, 2013).
See id. at *4
(“While Plaintiff’s petitions have been somewhat of a moving
target, the essence of the factual allegations has not changed
consistently complained of an alleged wrongful termination of
Based on a thorough consideration of all
Plaintiff’s Fifth Amended Petition is so substantially different
from the preceding petitions to constitute a new lawsuit.”)(finding
the revival exception was not applicable to the case); Baych v.
Douglass, 227 F. Supp. 2d 620, 622 (E.D. Tex. 2002)(holding that
although three new defendants and new claims for fraud, civil
conspiracy, and violations of the Uniform Transfers Act were added,
the revival exception did not apply because the core of the lawsuit
still arose from an alleged breach of employment contract).
“[D]istrict courts have seldom found exceptional circumstances” to
support application of the revival exception, and when they have
the circumstances usually involved instances of lost files, bad
faith, and forum manipulation.”
Baych, 227 F. Supp. 2d at 622.
Defendants’ Response (#5)
Defendants maintain that the new declaratory judgment and
request for specific performance have substantially changed the
Intercollegiate (Big Ten) Conference A.A., 668 F.2d 962, 965 (7th
Cir. 1982)(recognizing the revival exception where “the plaintiff
files an amended complaint that so changes the nature of his action
as to constitute ‘substantially a new suit begun that day”), which
was adopted by the Heublein court, 227 F.3d at 241, Defendants
point out that Judge Posner observed that none of the various
formulations of the revival exception is “self-defining. The right
to revive must be determined in each case with reference to its
purposes and those of the 30-day limitation on removal to which it
is an exception, and against a background of general considerations
responsibilities between state and federal courts.”
After reviewing the record and the applicable law, the Court
concludes that Plaintiff is correct and that the amendment of the
Original Petition was minimal in the addition of two new forms of
relief, while the cause of action remained the same, as a matter of
law the revival exception clearly does not apply under the facts
Moreover “[a]bsent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeing removal.” Martin
v. Franklin Capital Corp., 546 U.S. 132, 140 (2005).
Defendants’ removal here.
Accordingly, the Court
ORDERS that this case is REMANDED to the 334th District Court
of Harris County, Texas, where it was originally filed under Cause
The Court further
supporting documents, for costs and actual expenses, including
attorney’s fees, within ten days.
Defendant shall file a response
within ten days.
SIGNED at Houston, Texas, this 7th day of August, 2017.
UNITED STATES DISTRICT JUDGE
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