United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Report and Recommendation of the Magistrate Judge, which
contains her findings, conclusions and recommendation for the
disposition of this matter has been presented for
consideration. Docket No. 32. The Report and Recommendation,
filed on November 1, 2017, recommends that Plaintiff's
First Amended Motion to Remand (Docket No. 21) be granted.
Defendant filed written objections to the Report and
Recommendation on November 28, 2017 (Docket No. 36), and
Plaintiff filed a response on December 5, 2017 (Docket No.
Bayview Loan Servicing, LLC (“Bayview”),
originally filed this forcible detainer action in Justice of
the Peace Court, Precinct 1, Place 1, Hopkins County, Texas.
Docket No. 1 at 1. Judgment was granted in favor of Bayview
on December 9, 2016 and again on appeal in the County Court
of Hopkins County on January 8, 2017. Docket No. 32 at 1.
Defendant removed this case to federal court after losing her
appeal in the County Court of Hopkins County, Texas.
Id. Finding a lack of subject matter jurisdiction,
the Report and Recommendation recommends that the matter be
remanded to the County Court of Hopkins County. Id.
objections, Defendant, proceeding pro se, states
that she is asserting a defense or a counterclaim pursuant to
a federal statute. Docket No. 36 at 2. Federal question
jurisdiction, however, is only applicable when “the
plaintiff's statement of his own cause of action shows
that it is based upon [federal law].” Vaden v.
Discover Bank, 556 U.S. 56, 60 (2009) (quoting
Louisville & Nashville R. Co. v. Mottley, 211
U.S. 149, 152 (1908)). Pursuant to 28 U.S.C. § 1331,
“counterclaims, even if they rely exclusively on
federal substantive law, do not qualify a case for
federal-court cognizance.” Vaden, 556 U.S. at
61. Plaintiff's cause of action-forcible detainer- is
brought exclusively pursuant to Texas law.
even if federal question jurisdiction could be based on a
counterclaim pursuant to a federal statute, the claims
identified by Defendant in her written objections and in her
recently filed Amended Notice of Removal/Complaint (Docket
No. 35) are all claims that either were or could have been
litigated in Defendant's prior lawsuit in this court.
Previously, Defendant filed Civil Action No. 6:16-cv-1383,
styled Paselk v. Bayview Loan Servicing, LLC, et
al., on December 20, 2016, based upon the same facts
asserted by Defendant here. In that case, Defendant fully
litigated her claims against Bayview concerning the subject
property. The case was dismissed with prejudice on September
27, 2017. A litigant cannot pursue a second action that
arises from the same operative facts as those raised and
adjudicated, or that could have been adjudicated, in a prior
lawsuit. See Ocean Drilling & Exploration Co., Inc.
v. Mont Boat Rental Services, Inc., 799 F.2d 213, 216-17
(5th Cir. 1986); Nilsen v. City of Moss Point,
Mississippi, 701 F.2d 556, 560 (5th Cir.
1983) (en banc). Defendant's claims against Bayview are
barred by the doctrine of res judicata.
further asserts in her written objections to the Report and
Recommendation that diversity jurisdiction exists in this
case. Docket No. 36 at 2. As the removing party, the burden
is on Defendant to plead and prove that the parties are
completely diverse. Ray v. Bird and Son and Asset
Realization Co., 519 F.2d 1081, 1082 (5th
Cir. 1975). The pleadings in this case show that Defendant
resides in Hopkins County, Texas, but does not establish the
citizenship of Bayview. Moreover, removal on the basis of
diversity of citizenship is improper if, as here, the
defendant resides in the State in which the action is
brought. 28 U.S.C. § 1441(b)(2).
Defendant had established diversity of citizenship sufficient
to support removal, she has not established the requisite
amount in controversy. In the context of a forcible detainer
action following a foreclosure proceeding, the amount in
controversy is determined by the value of the right of
possession, and not the value of the property. See, e.g.,
Federal Nat'l Mort. Ass'n v. Loving, 2011 WL
2517267, at *4 (N.D.Tex. June 23, 2011). Defendant submits a
conclusory statement in her objections that the value of the
right of possession here exceeds $75, 000 (Docket No. 36 at
2), but she does not provide any facts to support that
conclusion. Defendant has not met her burden of showing that
the value of the right to occupy the property exceeds $75,
these reasons, having made a de novo review of the
written objections filed by Defendant in response to the
Report and Recommendation, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct
and the objections are without merit. Defendant has not met
her burden of establishing federal question jurisdiction or
diversity jurisdiction. As a result, this Court lacks subject
matter jurisdiction. It is therefore
that the Report and Recommendation filed on November 1, 2017
is ADOPTED and Defendant's objection is
OVERRULED. It is further
ORDERED Plaintiff's First Amended Motion
to Remand (Docket No. 21) is GRANTED and
this forcible detainer action is REMANDED to
the County Court of ...