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Smallwood v. Willow Way LLC

United States District Court, N.D. Texas, Dallas Division

March 7, 2017

ERNEST C. SMALLWOOD, JR., ET AL., Plaintiffs,
v.
WILLOW WAY, LLC, ET AL., Defendants.

          AMENDED FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE

         This 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].

         Background

         Plaintiffs 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”).

         Defendants Willow Way, Mr. Anderson, and Anderson Vela (collectively, the “Removing Defendants”) filed answers shortly thereafter. See Dkt. No. 1 at 12, 87-91.

         The Removing Defendants subsequently removed this case to federal court based solely on diversity jurisdiction under 28 U.S.C. § 1332. Id. at 2.

         They 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.

         Barrett Daffin has since filed a Motion to Dismiss [Dkt. No. 14].

         The 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).

         Acting 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.

         Before 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.

         Plaintiffs 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 without prejudice.”).

         For the 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.

         Legal ...


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