JP Morgan Chase Bank, N.A. v. Innes et al

Filing 6

ORDER GRANTING 3 Motion to Remand to State Court Signed by Judge Kathleen Cardone. (mc6)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JPMORGAN CHASE BANK, N.A.,
Plaintiff,
v.
GRANT A. INNES and AUDIE
MOLINAR,
Defendants.

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EP-13-CV-322-KC

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ORDER

On this day, the Court considered Plaintiff’s Motion to Remand and to Deny or Dismiss
Defendants’ Notice of Removal (“Motion to Remand”), ECF No. 3, in the above-captioned case
(the “Case”). For the reasons set forth herein, the Motion is GRANTED.
I.

BACKGROUND
On August 16, 2012, Plaintiff JPMorgan Chase Bank, N.A. (“Plaintiff”) filed an Original

Petition and Application for Writ of Sequestration (“Petition”) against Defendants Grant A.
Innes and Audie Molinar (“Defendants”) in the 384th Judicial District Court of El Paso County,
Texas (the “State Court”). Pet. 3.1 Plaintiff alleged that Defendants breached a Motor Vehicle
Retail Installment Sales Contract and sought, among other things, repossession of the vehicle
from Defendants. Id. at 4-7.

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Defendants submitted numerous filings from the State Court proceeding as one exhibit to the Notice of Removal,
ECF No. 1. Those filings generally lacked page numbers. To avoid confusion, the Court will cite such filings by
their title, e.g., “Petition,” and the page number superimposed upon them by the ECF system.
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On June 18, 2013, Defendants removed the Case to the United States District Court for
the Western District of Texas. Mot. to Remand, Ex. P-3. On August 13, 2013, Judge
Guaderrama issued a sua sponte order (“Order”) remanding the Case to the State Court. Id. at 14. On August 23, 2013, Defendants filed a Motion for Leave to Amend and Vacate Remand
Order (“Motion to Vacate”), which Judge Guaderrama denied on August 29, 2013. Mot. to
Remand, Ex. P-4. On October 15, 2013, Defendants again removed the Case to this Court.
Notice of Removal 1.2 Defendants state that removal is proper “in accordance with the
provisions of 28 U.S.C. § 1443” because they “allege violations, by acts done under color of
authority, of their rights to due process and the equal protection of the laws which are secured
and guaranteed to them by the Fifth and Fourteenth Amendments to the United States
Constitution, as well as 42 USC 1983, 1985, and 1986, and 18 USC 241 and 242.” Id. at 3.
Plaintiffs further state that they have been denied due process and equal protection of the law in
the State Court, and that they cannot enforce their rights to due process and equal protection of
the law in the State Court. Id. On October 24, 2013, Plaintiff filed the instant Motion to Remand.
On November 5, 2013, Defendants filed a Motion to Deny Plaintiff’s Motion to Remand and
Deny or Dismiss the Notice of Removal (“Response”), ECF No. 5.
II.

DISCUSSION
A.

Standard

A defendant may remove a case to the federal district court in the division embracing the
place where such action is pending in state court if the district court has original jurisdiction over
the matter. 28 U.S.C. § 1441(a). Additionally, “some federal statutes authorize removal even
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Defendants filed an Amended Notice of Removal on October 22, 2013. ECF No. 2. It is not relevant to the
disposition of this matter.
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when no statutory grant of original jurisdiction to the federal courts permits an identical suit to be
commenced there. The civil rights removal statute, 28 U.S.C. § 1443, is one such statute.” Moore
v. Stehlak, No. ELH-12-2727, 2013 WL 3683838, at *5 (D. Md. July 11, 2013) (quotation marks
and citation omitted).
28 U.S.C. § 1443 allows the defendant in certain criminal or civil actions pending in state
court to remove the case to federal court. The statute reads in pertinent part:
Any of the following civil actions or criminal prosecutions, commenced in a State
court may be removed by the defendant to the district court of the United States
for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of
such State a right under any law providing for the equal civil rights of
citizens of the United States, or of all persons within the jurisdiction
thereof.
28 U.S.C. § 1443(1).3
To remove a case under 28 U.S.C. § 1443, the removing party must demonstrate that (1)
the right allegedly denied him arises under a federal law “providing for specific civil rights stated
in terms of racial equality;” and (2) that he cannot enforce the federal right in state court.
Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792
(1966)); accord City of Houston v. Club Fetish, No. H-13-0944, 2013 WL 1767777, at *3 (S.D.
Tex. April 24, 2013). “This provision has consistently been construed narrowly to require strict
satisfaction of both the ‘civil rights’ element and the ‘enforcement’ element intrinsic within it.”
Smith v. Winter, 717 F.2d 191, 194 (5th Cir. 1983). “The defendant bears the burden of
establishing its right to removal under § 1443.” Charter Sch. of Pine Grove, Inc., v. St. Helena
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Though Defendants do not specify that they seek removal under § 1443(1), the Court assumes that they do because
they cannot seek removal under § 1443(2), which “confers a privilege of removal only upon federal officers or
agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing
for equal civil rights.” City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966).
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Parish Sch. Bd., 417 F.3d 444, 448 (5th Cir. 2005). The well-pleaded complaint rule does not
apply to removals under § 1443. See, e.g., Rogers v. Rucker, 835 F. Supp. 1410, 1412 (N.D. Ga.
1993) (noting that § 1443 is a “statutory exception to the well-pleaded complaint rule.”).
Therefore, a federal question need not appear on the face of Plaintiff’s complaint for the Case to
be removable. See id.; Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction, the
district court must remand the case. 28 U.S.C. § 1447(c).
B.

Analysis

Defendants state in the Notice of Removal that they may remove under 28 U.S.C. § 1443
because the State Court has denied the rights guaranteed to them under the “Fifth and Fourteenth
Amendments to the United States Constitution, as well as 42 USC 1983, 1985, and 1986, and 18
USC 241 and 242.” Notice of Removal 3. They also allege generally “that they have been denied
due process and equal protection of the law.” Id. Plaintiff argues that remand is required because
a) there is no federal question jurisdiction; b) there is no diversity jurisdiction because the
amount in controversy requirement is not met; c) the Notice of Removal was not timely filed;
and d) Defendants’ proffered grounds for removal are barred by res judicata because Judge
Guaderrama rejected them in the Order and in the order denying the Motion to Vacate. Mot. to
Remand 1-2.
Though the cover sheet Defendants submitted with the Notice of Removal appeared to
indicate that the grounds for removal included federal question and diversity, Defendants
clarified in their Response that they seek removal only on the basis of 28 U.S.C. § 1443.
Response 7-8. They argue in the Response that Innes “fears being arrested and incarcerated by
officers of the [State Court] for being found in contempt,” and that remand may lead to his
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“incarceration, the loss of his private property, and an inability to enforce his God-given rights
with respect to said property.” Id. at 1-2. Defendants further argue that Innes is “seeking a way to
be heard on his claim, that the Plaintiff has agreed to having been paid in full via a private
settlement,” such that remand “would have the effect of denying to INNES the equal protection
of the law as he attempts to have his claim . . . adjudicated in a fair and impartial forum . . . .
[and] remov[e] all hope that INNES will have access to due process, and the opportunity to tell
his side of the story.” Id. at 2-3. Defendants assert that a deputy sheriff sent to repossess the
vehicle in question “working in collusion with the Plaintiff, and the State Court” attempted to
“unlawfully seize” the vehicle and issued an “implied threat” that Innes could be charged with
criminal contempt. Id. at 3-4. Defendants accuse the State Court judge of being “willing to
embrace the fraud rather than to investigate it or question it,” and claim that the judge’s decisions
are “indicative of the State Court’s willingness to participate in the violation of INNES’s right to
due process of law,” and that “a reasonable person would likely conclude that the Judge of the
State Court is not impartial.” Id. at 5. They finally enumerate the ways in which their rights to
due process have allegedly been violated, and argue that, because “the State Court is denying to
them equal rights and equal protection of the law under color of authority,” removal is permitted
under § 1443. Id. at 6-7.
Most of Defendants’ proffered grounds for removal fail because they do not concern
rights arising under federal laws “providing for specific civil rights stated in terms of racial
equality,” and thus do not satisfy the first prong of the Johnson test. See Johnson, 421 U.S. at
219. Defendants’ arguments based on their rights to due process and equal protection of the laws,
the Fifth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and
18 U.S.C. § 241 fail for this reason. “[D]ue process of law [is] not [a] specific right[] stated in
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terms of racial equality.” City of Houston, 2013 WL 1767777, at *3 (citing Gulf Water
Benefaction Co. v. Pub. Util. Comm’n of Tex., 679 F.2d 85, 86 (5th Cir. 1982)); see also Comm’n
for Lawyer Discipline v. Neely, No. H-8-569, 2008 WL 906529, at *2 (S.D. Tex. Apr. 3, 2008)
(holding that the “possibility of an unfair trial in state court . . . [is] not . . . sufficient to support
removal”). Likewise, “[a]n equal protection claim, because it does not arise under a law stated
specifically in terms of racial equality, will not support § 1443 removal jurisdiction.” Smith, 717
F. 2d at 199. “[T]he . . . Fifth . . . Amendment[] to the U.S. Constitution do[es] not provide for
specific civil rights stated in terms of racial equality.” City of Houston, 2013 WL 1767777, at *3
(citing Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “Broad . . . fourteenth amendment claims
and claims arising under non-racially oriented statutes such as 42 U.S.C. § 1983 do not satisfy
the first prong of the § 1443 test.” Id. (citing Smith, 717 F.2d at 194) (quotation marks omitted).
“Alleging a violation of [18 U.S.C.] § 241 does not meet the first prong of the § 1443 analysis
because § 241 does not contain language requiring that the conspirators act with intent to deprive
the victims of equal protection of laws or include any language relating to equal rights.” North
Carolina v. El-Bey, No. 5:10-CV-246-FL, 2010 WL 3860392, at *3 (E.D.N.C. Sept. 28, 2010).
The other three federal statutes Defendants cite at least plausibly provide for specific
civil rights stated in terms of racial equality, and hence may satisfy the first prong of the Johnson
test. 18 U.S.C. § 242 explicitly provides for civil rights stated in terms of racial equality.
“Whoever, under color of any law . . . willfully subjects any person . . . to the deprivation of any
rights, privileges, or immunities secured or protected by the Constitution or laws of the United
States, or to different punishments, pains, or penalties . . . by reason of his color, or race
[commits a crime].” 18 U.S.C. § 242. See also El-Bey, 2010 WL 3860392, at *3 (“[T]his
provision does use language that describes equal rights in terms of racial equality.”). It is unclear
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whether 42 U.S.C. § 1985(3)4 provides a specific civil right stated in terms of racial equality.
City of Houston, 2013 WL 1767777, at * 3. One circuit has ruled that it does not, while two
others have “explained that there are strong arguments on both sides in terms of jurisprudence
and have not reached the issue.” Id. (internal quote and citations omitted). The same ambiguity
applies to 42 U.S.C. § 1986, liability under which is derivative of § 1985(3). Id; 42 U.S.C. §
1986. The Court assumes without deciding that both § 1985(3) and § 1986 describe equal rights
in terms of racial equality, and these grounds for removal under § 1443 satisfy the first prong of
the Johnson test.
Defendants cannot, however, meet the second prong of the § 1443 test, which requires
that they demonstrate that they have been “denied or cannot enforce specified federal rights in
the state courts due to some formal expression of state law.” See City of Houston, 2013 WL
1767777, at *4 (citing Gulf Water Benefaction, 679 F.2d at 86). Defendants make only
conclusory assertions that various of their rights were violated and cannot be enforced in the
State Court. They provide no legal or factual support for their claims to that, for instance, the
Texas laws of contracts or replevin encompass a “formal expression of state law” that will deny
them or prevent them from enforcing their rights under 18 U.S.C. § 242 or 42 U.S.C. §§ 1985
and 1986. Id. In fact, Defendants make reference to these three statutes in only a single sentence
in their Notice of Removal and do not substantively address them. See Notice of Removal 3.
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The Court assumes that Defendants rely on Subsection Three of 42 U.S.C. § 1985 because it concerns the
deprivation of the equal protection of the laws.
If two or more persons in any State or Territory conspire or go in disguise on the highway or on
the premises of another, for the purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal privileges and immunities under
the laws; or for the purpose of preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State or Territory the equal protection
of the laws . . .
42 U.S.C. § 1985(3).
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Courts regularly hold that conclusory allegations such as these do not suffice to establish a right
to removal under § 1443. See, e.g., Barnes v. Lampkin, 990 F.2d 1253, 1993 WL 129787, at *1
(5th Cir. 1993) (unpublished). The Court therefore concludes that Defendants have failed to meet
their burden of demonstrating their right to removal under 28 U.S.C. § 1443. See Charter Sch. of
Pine Grove, 417 F.3d at 448.5
III.

Frivolous Removals

Defendants have now twice removed the Case immediately before key proceedings
against them were scheduled to take place in the State Court. They first removed the Case on
June 18, 2013, two days prior to a scheduled hearing on motions to show cause and for summary
judgment. See Register of Actions, Case No. 2012-DCV05396, JP Morgan Chase Bank, N.A., vs
GRANT A INNES and AUDIE MOLINAR, available at
http://casesearch.epcounty.com/PublicAccess/CaseDetail.aspx?CaseID=4593659 (“Docket”);
Mot. to Remand 3. After Judge Guaderrama remanded the Case, Defendants filed the instant
Notice of Removal on October 15, 2013, two days prior to the rescheduled hearing on the
motions to show cause and for summary judgment. See Docket; Mot. to Remand 3. Both of the
removals were entirely without merit. Though Defendants correctly note that Judge Guaderrama
did not directly rule on the Case’s removability under § 1443, Response 7-8, Judge Guaderrama
denied as futile Defendants’ request to amend their initial notice of removal to include essentially
the grounds stated in their current Notice of Removal. See Mot. to Remand, Ex. P-4 at 3 n.2.
Judge Guaderrama cited the Johnson test for evaluating the propriety of removals under § 1443,
and ruled that because Defendants “merely complain[] in a conclusory way of deprivations of

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Because the Court holds that remand is required, it does not address Plaintiff’s arguments as to the timeliness of
removal and res judicata.
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certain non-race-related civil rights including due process of law,” they “therefore[] fail[] to give
adequate grounds to invoke removal pursuant to 28 U.S.C. § 1443.” Id. (internal quotes and
citations omitted). Defendants have done nothing to cure those defects in the instant Notice of
Removal.
The timing of the two removals, coupled with Defendants’ failure to provide any legal
support for the instant removal – particularly in light of Judge Guaderrama’s explication of the
pertinent standard and case law – leads the Court to infer that, at minimum, the most recent
removal was frivolous and dilatory.
“[A]ll courts established by Act of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). Federal district courts have the power under this statute to “enjoin litigants
who are abusing the court system by harassing their opponents.” Ganheart v. Dep’t of Interior,
58 F.3d 636, No. 94-30652, 1995 WL 371028, at *1 (5th Cir. June 2, 1995) (unpublished) (citing
Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980)) (quotation marks omitted).
“[F]ederal courts possess inherent power . . . to regulate the activities of abusive litigants by
imposing carefully tailored restrictions under the appropriate circumstances.” Flores v. United
States, No. EP-10-CA-59-DB , ECF No. 6, at 5 (W.D. Tex. Feb. 22, 2010) (quotation marks and
citation omitted).
The Court accordingly imposes the following restrictions on Defendants to curtail their
dilatory conduct: Defendants must obtain leave from a United States District Judge before filing
any future notice of removal related to the Case, and they must attach copies of this Court’s order
and Judge Guaderrama’s orders to any notice of removal or filing seeking permission to file a

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notice of removal. The Court further cautions Defendants that future frivolous attempts at
removal may result in monetary sanctions.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Remand, ECF No. 3, is GRANTED.

The case shall be IMMEDIATELY REMANDED to the 384th Judicial District Court of El
Paso County, Texas. The Court further ORDERS that Defendants shall comply with the abovedescribed restrictions and refrain from filing frivolous notices of removal.
SO ORDERED.
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SIGNED this 7th day of November, 2013.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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