United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
FISH Senior United States District Judge.
the court is the plaintiff's motion to remand the case to
the state court from which it was previously removed (docket
entry 6). For the reasons stated below, the plaintiff's
motion is granted.
October 24, 2016, the plaintiff, the Commission for Lawyer
Discipline (“the Commission”), commenced this
action in the 193rd Judicial District Court of Dallas County,
Texas against the defendant, Christopher Graham
(“Graham”). See Defendant's Notice
of Removal (“Notice”) at 3 (docket entry 1). On
March 1, 2017, Graham removed the action to this court. See
id. at 1. On March 27, 2017, the Commission filed
the instant motion to remand. The Commission's Motion to
Remand (“Motion”) (docket entry 6). Graham did
not file a response. The motion is now ripe for decision.
Motion to Remand
U.S.C. § 1441(a) permits the removal of “any civil
action brought in a [s]tate court of which the district
courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The statute
allows a defendant to “remove a state court action to
federal court only if the action could have originally been
filed in federal court.” Anderson v. American
Airlines, Inc., 2 F.3d 590, 593 (5th Cir. 1993).
However, the removal statute must be strictly construed
because “removal jurisdiction raises significant
federalism concerns.” Willy v. Coastal
Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988); see
also Gutierrez v. Flores, 543 F.3d 248, 251 (5th
Cir. 2008). Therefore, “any doubts concerning removal
must be resolved against removal and in favor of remanding
the case back to state court.” Cross v. Bankers
Multiple Line Insurance Company, 810 F.Supp. 748, 750
(N.D. Tex. 1992) (Means, J.); see also Shamrock Oil &
Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941).
The party seeking removal bears the burden of establishing
federal jurisdiction. Willy, 855 F.2d at 1164. There
are two principal bases upon which a district court may
exercise removal jurisdiction: the existence of a federal
question, see 28 U.S.C. § 1331, and complete
diversity of citizenship among the parties. See 28
U.S.C. § 1332.
Graham has only alleged federal question as a basis for this
court's jurisdiction. See Notice ¶¶ 1,
3. However, Graham has failed to show that federal question
jurisdiction exists. In its complaint, the Commission alleged
that Graham violated the Texas Disciplinary Rules of
Professional Conduct 1.01(b), 8.02(a), and 8.04(a)(3). See
Disciplinary Petition and Request for Disclosure ¶¶
IV-V, attached to Notice; Motion at 2. None of the
claims alleged by the Commission in its well-pleaded
complaint arise “under the Constitution, laws, or
treaties of the United States.” See 28 U.S.C.
§ 1331; Stump v. Potts, 322 Fed. App'x.
379, 380 (5th Cir. 2009) (“It is not sufficient for the
federal question to be raised in the answer or in the
petition for removal.”). Thus, the court does not have
jurisdiction over this case.
Title 28, Section 1446(b), which governs the procedure for
removing civil cases, provides:
The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b). Here, Graham's notice of
removal was filed after section 1446(b)'s thirty-day
window. Graham was personally served on November 3, 2016.
See Motion at 2 (citing exhibit B). The deadline for
Graham to remove the action was therefore December 5, 2016.
Graham did not file a notice of removal until March 1st, 2017
-- nearly three months after the deadline passed. Therefore,
Graham's notice of removal is procedurally defective as
Commission seeks the costs incurred by having to oppose
Graham's removal. See id. at 6. Federal law
provides that “[a]n order remanding the case may
require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the
removal.” 28 U.S.C. § 1447(c). The Fifth Circuit
has stated that “[t]he application of § 1447(c)
requires consideration of the propriety of the removing
party's actions based on an objective view of the legal
and factual elements in each particular case.”
Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293
(5th Cir. 2000). In other words, in determining whether to
grant the Commission's request for costs incurred, the
court must determine “whether the defendant had
objectively reasonable grounds to believe the
removal was legally proper.” See ...