United States District Court, W.D. Texas, El Paso Division
ORDER GRANTING MOTION TO REMAND AND MOTIONS TO
R. MARTINEZ, UNITED STATES DISTRICT JUDGE
day, the Court considered Defendant Passline Services, LP's
[hereinafter "Passline"] "Motion to
Remand" (ECF No. 7), filed on December 13, 2017,
Defendant The Paxson Law Firm's [hereinafter
"Paxson"] "Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(6)" (ECF No. 5), filed on November
27, 2017, and Defendant Mills Escrow's "Motion to
Dismiss for Failure to State a Claim" (ECF No. 8), filed
on December 15, 2017, in the above-captioned cause. Pro se
Plaintiff Dolores Yee [hereinafter "Yee"] has not
filed a response to any of the motions as of the date of
entry of this Order. After due consideration, the Court is of
the opinion that all three motions should be granted.
Complaint in this case follows an eviction proceeding in
state court [hereinafter "Eviction Suit"] to eject
Yee from real property located at 1612 Plaza Central, El
Paso, Texas, 79912 [hereinafter "Property"] after a
foreclosure sale. The Eviction Suit was filed by Passline
against Yee. Passline claims to have purchased the Property
at a foreclosure sale, and thus sought possession of it
through the Eviction Suit. Mot. Remand Ex. A. Passline was
represented by Attorney Kurt G. Paxson of the law firm
Mounce, Green, Myers, Safi, Paxson & Galatzan.
Eviction Suit, the state court issued an order with its
findings and conclusions. Mot. Remand Ex. D. Specifically,
the state court found that Yee did not file an answer or make
an appearance and, thus, waived her right to a jury trial.
Id., The court also granted Passline possession of
the Property, ordered Yee to vacate the premises, and granted
Passline's request for attorney's fees and costs.
Id., Immediately following that order, Yee filed the
Complaint (ECF No. 3) in this matter.
Yee's Complaint, she alleged that although she made
monthly mortgage payments, Defendants,  including
Passline, engaged in an unlawful scheme to refuse to credit
her payments towards the mortgage. Compl. 5. This failure to
credit her payments ultimately caused the mortgage lender to
foreclose on the Property. Compl. 5-6. In the Complaint, Yee
alleged six different causes of action including breach of
contract, fraud, and wrongful foreclosure, all relating to
the Property. Id. at 4.
after filing the Complaint, on November 17, 2017, Yee sent a
letter directed to the District Court Clerk's Office
indicating that she wished to amend her Complaint "from
a Contract case to a civil rights removal." Am. Compl.
1, ECF No. 4. The Court will treat this letter as Yee's
Amended Complaint. Upon filing her Amended Complaint, this
case shifted from an original action in the District Court to
a removed state-court action. The letter claims that "the
Judge, the Clerk and Attorney of Record in [Justice of the
Peace] Court, #1 has [sic] committed an Act [under] [c]olor
[of] 18 USC § 242, and therefore has given me permission
to remove this case under civil rights 28 USC §
1443." Id. Specifically, Yee claims that she
was unlawfully deprived of her right to a jury trial.
Yee filed her Amended Complaint, Defendants Paxson and Mills
Escrow each filed motions to dismiss because neither was a
party to the Eviction Suit. Passline, the only party besides
Yee in the Eviction Suit, filed a Motion to Remand (ECF No.
7) and a "Motion for Hearing" (ECF No. 9). Yee has
failed to respond at all to any of the Defendants'
The Amended Complaint
is well-settled in the Fifth Circuit that an amended
complaint supersedes the original complaint, and the original
complaint has no legal effect, except to the extent that it
is incorporated by reference into the amended
complaint." Freilich v. Green Energy Res.,
Inc., 297 F.R.D. 277, 282 (W.D. Tex. 2014) (citing
Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996)).
The effect of Yee's letter to the District Court Clerk
requesting that her Complaint be changed "from a
[c]ontract case to a civil rights removal" resulted in
her abandonment of the original Complaint and functionally
served as a notice of removal. Yee did not incorporate her
original Complaint into her Amended Complaint, and thus her
original Complaint loses all legal effect.
the Court understands that pro se pleadings should be
construed liberally, Erickson v. Pardus, 551 U.S.
89, 94 (2007), there has been no indication that Yee wishes
to continue pursuing her original claims. First, the language
in the letter appears to indicate a clear desire to change
the nature of her lawsuit rather than simply to add to or
alter her previous claims. Yee stated that she wished to
"change" her contract case to a "civil rights
removal." Am. Compl. 1. It did not state that she wished
to add claims to her original Complaint or amend the claims
therein. Second, Yee has failed to respond to multiple
motions that are all premised on the assumption that the
Amended Complaint completely supersedes the original
Complaint. Thus, the Court assumes that Yee does not object
to the abandonment of the claims in her original Complaint.
has moved to remand this case because 28 U.S.C. § 1443,
the statute upon which Yee bases her removal, does not apply
in this situation. The ...