McMullen v. Cain

Filing 15

REPORT AND RECOMMENDATIONS that the District Court REMAND this case to County Court at Law No. 3 of Williamson County, Texas. The Magistrate Judge FURTHER RECOMMENDS that the District Court impose a pre-filing injunction in this case requiring McMull en to obtain leave from a United States District Judge before filing any future notices of removal purporting to remove the case In the Interest of S.M.M., a Child, No. 11-3575-FCI (Co. Ct. at Law No. 3, Williamson County, Tex. Nov. 23, 2011); and fu rther, directing the Clerk of Court not to file any pleading purporting to remove this case unless it contains written permission from a United States District Judge to make that filing. ORDER DENYING 4 MOTION to Proceed in forma pauperis filed by Stuart McMullen. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
STUART McMULLEN

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V.
DEANNA CAIN

A-17-CA-0103-LY

ORDER ON IN FORMA PAUPERIS STATUS
AND REPORT AND RECOMMENDATION
OF THE MERITS OF THE CLAIMS
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Stuart McMullen’s Application to Proceed In Forma Pauperis

and Financial Affidavit in Support, filed on February 13, 2017 (Dkt. No. 4), as well as the various
documents he filed in support of his removal of this case, styled In the Interest of S.M.M.,a Child,
No. 11-3575-FCI (Co. Ct. at Law No. 3, Williamson County, Tex. Nov. 23, 2011). The District
Court referred the above-motion to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules of
the United States District Court for the Western District of Texas, Local Rules for the Assignment
of Duties to United States Magistrate Judges.
I. GENERAL BACKGROUND
This is the second time Stuart McMullen has attempted to remove his divorce and child
custody dispute to federal court. In the first instance, the undersigned recommended that the case
be remanded because the federal courts plainly lacked jurisdiction to address the merits of a divorce
and custody dispute. See Dkt. No. 16 in A-16-CV-716 LY (“McMullen I”). The Court further
recommended that the district judge sanction McMullen and order him to pay Deanna Cain $5,000
in attorney’s fees for the cost of responding to the frivolous removal of the case. In that earlier case,

McMullen removed the case two weeks before a final hearing before a state court on a child custody
modification action, motion for restraining order, and motion for sanctions. Sanctions were
recommended, because this Court found that “the removal petition was baseless and had no legal
support,” and “given the timing of the removal, it appears that it was calculated to delay the
inevitable unfavorable outcome [McMullen] is facing in state court.”

Id. at Dkt. No. 19. On

October 26, 2016, Judge Yeakel adopted the Report and Recommendation, remanded the case to
state court and awarded Defendant $5,000 in attorney’s fees. Id. at Dkt. No. 28. McMullen filed a
Notice of Appeal and requested leave to proceed on appeal without payment of costs, a request Judge
Yeakel denied on December 12, 2016. Id. at Dkt. No. 37.
In this second removal action, McMullen is repeating this same behavior. On February 13,
2017, he was once again scheduled to appear before the state court on a Motion to Enforce. See Dkt.
No. 1-1. On that same day, McMullen again removed the case, disrupting the County Court’s
proceedings once more. McMullen claims that this Court has jurisdiction pursuant to 28 U.S.C.
§§ 1443 “to prevent the lower state court from continuing to wantonly abuse both power and process,
including, inter alia, both prior and present unconstitutional attempts and acts to falsely sanction this
Petitioner.” Dkt. No. 1-3 at 4. As he did with the first removal, McMullen seeks leave to proceed
in forma pauperis, claiming that he has insufficient funds to pay the filing fee.
II. APPLICATION TO PROCEED IN FORMA PAUPERIS
There is no absolute right to proceed in federal court without paying a filing fee in civil
matters. Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969). “[R]ather, it is a privilege
extended to those unable to pay filing fees when the action is not frivolous or malicious.” Id. This
Court denied McMullen in forma pauperis status in his previous attempt at removal because he had
sufficient income to pay the filing fee. See Dkt. No. 6 in McMullen I. According to McMullen’s
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financial affidavit, his financial status has not changed in any material respect. McMullen’s
Application to Proceed In Forma Pauperis (Dkt. No. 4) is therefore DENIED.
III. JURISDICTION AND REMAND
When a case has been removed to federal court, the removal statute directs that “[i]f at any
time before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). “[F]ederal courts must address jurisdictional questions
whenever they are raised and must consider jurisdiction sua sponte if not raised by the parties.”
Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.), cert. denied, 534 U.S. 993 (2001).
“Though a court may not sua sponte remand a case for procedural defects, § 1447(c) makes clear that
a court must remand a case if it determines that it lacks subject matter jurisdiction.” Harrison v.
Crowley Mar. Corp., 181 F. Supp. 3d 441, 442, 443 (S.D. Tex. 2016). As explained in depth in its
previous Report and Recommendation, this Court lacks jurisdiction to review McMullen’s state
court child custody and divorce proceedings under both the Rooker-Feldman doctrine and the
domestic relations exception. See Dkt. No. 16 in McMullen I. Accordingly, the Court, sue sponte,
again recommends that the district judge remand this case to state court.
IV. PRE-FILING INJUNCTION
As noted, this is McMullen’s second attempt to frivolously remove a state court domestic
relations case to federal court. Despite being sanctioned the first time, McMullen frivolously
removed the case a second time. As noted, McMullen filed his notice of removal the same day he
was to appear before the County Court for a hearing on a Motion to Enforce. McMullen’s frivolous
removal is another attempt to delay and disrupt his divorce and child custody proceedings and to
harass his ex-wife, Deanna Cain. Sanctions are once again appropriate for this abusive and dilatory
behavior.
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The Fifth Circuit has held that “where monetary sanctions are ineffective in deterring
vexatious filings, enjoining such filings would be considered.” Farguson v. MBank Houston, N.A.,
808 F.2d 358, 360 (5th Cir. 1986) (citing Day v. Allstate Ins. Co., 788 F.2d 1110 (5th Cir. 1986)).
“The district court has the power under 28 U.S.C. § 1651(a) to enjoin litigants who are abusing the
court system by harassing their opponents.” Harrelson v. United States, 613 F.2d 114, 116 (5th Cir.
1980). “The court’s power to enter such orders flows not only from various statutes and rules
relating to sanctions, but the inherent power of the court to protect its jurisdiction and judgments and
to control its docket.” Farguson, 808 F.2d at 360. District courts are permitted to act sua sponte in
imposing restrictions on future filings. Qureshi v. United States, 600 F.3d 523, 526 (5th Cir. 2010).
However, the court must notify the litigant and provide him an opportunity to be heard on the matter
before imposing a sua sponte pre-filing injunction on the vexatious litigant. Id. Based upon the
foregoing, the undersigned Magistrate Judge RECOMMENDS that the District Court impose a prefiling injunction on McMullen requiring him to obtain permission from a United States District
Judge before filing any future notices of removal in the underlying case, and directing that if
McMullen fails to obtain such permission in advance, the Clerk of Court not file any pleading
purporting to remove the domestic relations case involving McMullen and Deanna Cain. So that
McMullen is given an opportunity to respond to this recommendation, the Court HEREBY
NOTIFIES McMullen that if he objects to such an injunction, he may file his objections to the
Report and Recommendation as set forth below.
V. RECOMMENDATION
Based upon the foregoing, the undersigned RECOMMENDS that the District Court
REMAND this case to County Court at Law No. 3 of Williamson County, Texas. The Magistrate
Judge FURTHER RECOMMENDS that the District Court impose a pre-filing injunction in this
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case requiring McMullen to obtain leave from a United States District Judge before filing any future
notices of removal purporting to remove the case In the Interest of S.M.M., a Child, No. 11-3575-FCI
(Co. Ct. at Law No. 3, Williamson County, Tex. Nov. 23, 2011); and further, directing the Clerk
of Court not to file any pleading purporting to remove this case unless it contains written permission
from a United States District Judge to make that filing.
VI. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466, 47274 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED this 23rd day of February, 2017.

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ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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