United States District Court, N.D. Texas, Dallas Division
ERNEST C. SMALLWOOD, JR., ET AL., Plaintiffs,
WILLOW WAY, LLC, ET AL., Defendants.
AMENDED FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
case has been referred to the undersigned United States
magistrate judge pursuant to 28 U.S.C. § 636(b) and a
standing order of reference. The undersigned WITHDRAWS his
March 6, 2017 Findings, Conclusions and Recommendation of the
United States Magistrate Judge [Dkt. No. 29] and issues the
following amended findings of fact, conclusions of law, and
recommendation on Plaintiffs' respective Agreed Motions
to Dismiss Certain Defendants [Dkt. Nos. 24 & 25], the
Court's subject matter jurisdiction, and Barrett Daffin
Frappier Turner & Engel, LLP 's Motion to Dismiss
[Dkt. No. 14].
Ernest C. Smallwood Jr. and Eartha Y. Smallwood
(“Plaintiffs” or “the Smallwoods”)
filed their Original Petition for Temporary Restraining Order
and Application for Temporary Injunction against Defendants
Willow Way, LLC (“Willow Way”), Bank of America,
N.A. (“BOA”), Richard Anderson (“Mr.
Anderson”), Anderson Vela, LLP (“Anderson
Vela”), and Barrett Daffin Frappier Turner & Engel,
LLP (“Barrett Daffin”) in the 116th District
Court, Dallas County (the “State Court”).
Willow Way, Mr. Anderson, and Anderson Vela (collectively,
the “Removing Defendants”) filed answers shortly
thereafter. See Dkt. No. 1 at 12, 87-91.
Removing Defendants subsequently removed this case to federal
court based solely on diversity jurisdiction under 28 U.S.C.
§ 1332. Id. at 2.
contend that the Court has diversity jurisdiction over this
action because (1) the amount in controversy is satisfied,
and (2) Plaintiffs are Texas citizens and Willow Way and Bank
of America are not. They acknowledge that Mr. Anderson,
Barrett Daffin, and Anderson Vela (the “Non-Diverse
Defendants”) may be Texas citizens, but contend that
their respective citizenships do not destroy diversity
because each has been fraudulently and improperly joined.
Daffin has since filed a Motion to Dismiss [Dkt. No. 14].
Court “ha[s] a duty to raise the issue of subject
matter jurisdiction sua sponte” and, where a case is
removed, “must determine whether the district court
would have had original jurisdiction had the case been filed
there.” H&D Tire & Auto-Hardware, Inc. v.
Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000).
upon this duty, the Court ordered the parties to submit
briefs explaining whether the Non-Diverse Defendants were
properly joined in this action. See Dkt. No. 6.
the Court determined whether the Non-Diverse Defendants were
properly joined, Plaintiffs moved to dismiss the Non-Diverse
Defendants. They explain that “[a]ll parties in this
action have agreed to [their respective] motion[s], ”
“as indicated by [each party's] signature” at
the end of each motion. Dkt. Nos. 24 at 1 & 25 at 1.
Plaintiffs then filed amended notices of dismissal under
Federal Rule of Civil Procedure 41(a)(1)(A)(i) as to Barrett
Daffin because that defendant has not answered or moved for
summary judgment. See Dkt. Nos. 27 & 28.
do not indicate whether they wish for the action to be
dismissed with or without prejudice. It is thus presumed that
Plaintiffs move to dismiss the action without prejudice.
See Fed. R. Civ. P. 41(a)(1)(B) (“Unless the
notice or stipulation states otherwise, the dismissal is
reasons explained below, the Court should find that (1)
Plaintiffs' respective motions to dismiss are permissible
unilateral voluntary or stipulated dismissals that are
effective without court action; (2) the Court has subject
matter jurisdiction over the action; and (3) Barrett
Daffin's motion to dismiss is moot.