United States District Court, S.D. Texas, Galveston Division
MEMORANDUM ORDER AND OPINION
C. Hanks Jr. United States District Judge.
lawsuit arises out of a divorce petition and custody dispute
filed by Amadonna Momper in the 306th Judicial District Court
of Galveston County, Texas, on November 1, 2016. On February
28, 2017, Scott Momper, pro se, filed a “Notice of
Petition; and, Verified Petition for Warrant of
contends that removal of the action from state court is
proper because this Court has jurisdiction over questions
arising under federal law, including the United States
Constitution. Momper contends that the case presents issues
relating to “various willful, systemic deprivations of
fundamental rights guaranteed by the Federal Constitution,
and/or by federal law, and which violations are civil
violations of 42 U.S.C. § 1983, and that are also
criminal violations of 18 U.S.C. §§ 241 and
242.” Along with his notice of removal, Momper has
attached the docket sheet from the state court action, as
well as a set of “Agreed Temporary Orders” the
state court entered on January 6, 2017. He does not, however,
attach the Original Petition for Divorce, nor the other
pleadings filed in state court, including a counter-petition
that he filed.
March 30, 2017, Amadonna Momper filed a motion to remand this
case back to state court. Dkt. 14. She contends that the
notice of removal was defective, untimely, and unwarranted.
The Court agrees.
to 28 U.S.C. § 1441(a), a defendant is permitted to
remove an action from a state court to a federal court only
if the action is one over which the federal court has
original jurisdiction. See 28 U.S.C. 1441(a). Since
federal courts are courts of limited jurisdiction, absent
jurisdiction granted by statute, federal courts lack the
power to adjudicate claims. See Stockman v. Federal
Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998)
(citing Veldhoen v. United States Coast Guard, 35
F.3d 222, 225 (5th Cir. 1994)). Thus, “[i]t is
incumbent on all federal courts to dismiss an action whenever
it appears that subject matter jurisdiction is
lacking.” Stockman, 138 F.3d at 151. Further,
the party seeking to invoke the jurisdiction of a federal
court carries the burden of establishing the existence of
federal jurisdiction. Id. Any doubt as to the
district court's jurisdiction must be resolved in favor
of remand. Bosky v. Kroger Tex., L.P., 288 F.3d 208,
211 (5th Cir. 2002). A remand for lack of subject matter
jurisdiction is permissible at any time before final
judgment, with or without a motion. 28 U.S.C. § 1447(c).
subject matter jurisdiction is limited to cases that either
“aris[e] under the Constitution, laws or treaties of
the United States” or involve matters where the amount
in controversy exceeds $75, 000, exclusive of costs and
interest, and diversity of citizenship exists. 28 U.S.C.
§ § 1331, 1332. This case was removed on the basis
of federal question jurisdiction, i.e., that the
case arises under federal law.
determining whether a claim “arises under”
federal law, courts are to reference the well-pleaded
complaint. See Merrell Dow Pharms. Inc. v. Thompson,
478 U.S. 804, 808, 106 S.Ct. 3229, 3232 (1986) (citing
Franchise Tax Board v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 9 -10, 103 S.Ct. 2841, 2846-47, 77
L.Ed.2d 420 (1983)). In this regard, an action is said to
“arise under” federal law within the meaning of
§ 1331 if a federal question is an ingredient of the
action or when the allegations involve a disputed question of
federal law or requires resolution of a substantial federal
question. See Carpenter v. Wichita Falls Indep. Sch.
Dist., 44 F.3d 362, 366 (5th Cir. 1995) (citing
Franchise Tax Board, 463 U.S. at 12, 103 S.Ct. at
“arising-under” provision for federal-question
jurisdiction is invoked “by and large by plaintiffs
pleading a cause of action created by federal law (e.g.,
claims under 42 U.S.C. § 1983).” Grable &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 312 (2005). But a court can determine that a
state-law claim “arises under” federal law if the
state law claim “necessarily raise[s] a stated federal
issue, actually disputed and substantial, which a federal
forum may entertain without disturbing any congressionally
approved balance of federal and state judicial
responsibilities.” Id. at 314. “In other
words, federal question jurisdiction exists where (1)
resolving a federal issue is necessary to resolution of the
state-law claim; (2) the federal issue is actually disputed;
(3) the federal issue is substantial; and (4) federal
jurisdiction will not disturb the balance of federal and
state judicial responsibilities.” Singh v. Duane
Morris LLP, 538 F.3d 334, 338 (5th Cir. 2008); see
also Bd. of Commissioners of Se. Louisiana Flood Prot.
Auth.-E. v. Tennessee Gas Pipeline Co., L.L.C., 850 F.3d
714, 721 (5th Cir. 2017) (“Only in a ‘special and
small category' of cases will federal jurisdiction exist
when state law creates the cause of action.”) (quoting
Gunn v. Minton, --- U.S. __, 133 S.Ct. 1059, 1064,
185 L.Ed.2d 72 (2013)).
Defect in Removal under § 1446(a)
Notice of Removal includes the state court docket sheet and a
small selection of the documents from state court. It does
not include “a copy of all process, pleadings, and
orders served upon such defendant or defendants in such
action.” 28 U.S.C.A. § 1446(a). It does not
include the Original Petition, the Temporary Restraining
Order, the Wage Withholding Order, or the Order Setting
Hearing. Such a defect, however, is not necessarily grounds
for remand. See Covington v. Indem. Ins. Co. of N.
Am., 251 F.2d 930, 933 (5th Cir. 1958); Banik v.
Tamez, 7:16-CV-00462, 2016 WL 6122729, at *9 (S.D. Tex.
Oct. 20, 2016) (setting out cases after Covington).
Timeliness of Removal
of removal must “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. § 1441(b).
Momper does not allege the date he was served or received a
copy of the initial pleading in the case, nor does the docket
sheet in the state court action reflect that service was
returned. However, Momper filed an original answer in the
state court on November 2, 2016, and a counter-petition on
November 14, 2016, but he did not file his Notice of Removal
until February 28, 2017. Accordingly, the Court finds that
the removal of this case was untimely. See, e.g., Bebee
v. Motorola Sols., Inc., 4:16-CV-763, 2017 WL 1180428,
at *2 (S.D. Tex. Mar. 29, 2017) (calculating timeliness of
removal from Texas state court by determining the date upon
which removing defendant made an appearance in the state
court action, noting that “Under Texas law, a defendant
may waive service (and therefore start the 30-day removal
clock) by entering an appearance.”) (citing City of
Clarksdale v. BellSouth Telecommunications, Inc., 428
F.3d 206, 210-11 (5th Cir. 2005)).
Lack of Subject ...