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Yee v. Passline Services, LP

United States District Court, W.D. Texas, El Paso Division

January 22, 2018

DOLORES YEE, Plaintiff,



         On this day, the Court considered Defendant[1] 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.

          I. BACKGROUND

         The 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[2] of the law firm Mounce, Green, Myers, Safi, Paxson & Galatzan. Id.

         In the 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.

         In Yee's Complaint, she alleged that although she made monthly mortgage payments, Defendants, [3] 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.

         One day 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.[4] 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. Id.

         After Yee filed her Amended Complaint, Defendants Paxson and Mills Escrow each filed motions to dismiss because neither was a party to the Eviction Suit.[5] 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' motions.[6]

          II. ANALYSIS

         A. The Amended Complaint

         "It 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.

         While 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.

         B. Remand

         Paxson 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 ...

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