United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
GILSTRAP, UNITED STATES DISTRICT JUDGE.
above-entitled and numbered civil action was referred to
United States Magistrate Judge Caroline M. Craven pursuant to
28 U.S.C. § 636. On February 21, 2018, the Magistrate
Judge sua sponte entered a Report and Recommendation,
recommending the above case be remanded to the County Court
at Law of Bowie County, Texas. (Dkt. No. 7). The February 21,
2018 Report of the Magistrate Judge which contains her
proposed findings of fact and recommendations for the
disposition of such action has been presented for
consideration. Defendants Vetrano Jefferson, Roselyn
Jefferson, Rosie Jefferson, and Demetra Wysinger, proceeding
pro se, filed objections to the Report and Recommendation.
The Court has conducted a de novo review of the Magistrate
Judge's findings and conclusions.
November 3, 2016, Jabreeka Mitchell Jefferson filed an
Application for Independent Administration and Letters of
Administration Pursuant to Section 401.003 of the Texas
Estate Code (“the Application”). See In the
Matter of the Estate of Howard Jefferson, Jr., No. 41896CCL
(Dkt. No. 1-4). Over one year later, four alleged heirs,
proceeding pro se, removed the case to this
Court. The Court provides the following
background from the February 7, 2018 Notice of Removal and
to Jabreeka Mitchell Jefferson's Application in the
County Court at Law of Bowie County, Texas (“Bowie
County Court at Law”), Howard Jefferson, Jr.
(“decedent”) died intestate on May 7, 2016, as a
result of a fatal accident at the age of 61 years while
residing in Bowie County, Texas. Id. at 1. The
Application lists Roselyn Jefferson as the adult daughter of
decedent and Jabreeka Mitchell Jefferson as the
decedent's wife. Id. at 2.
April 3, 2017, the decedent's mother, Rosie Mae
Jefferson; his daughter, Roselyn Jefferson; his sister,
Demetra Wysinger; and his brother, Vetrano Jefferson (herein
“removing heirs”) filed in the Bowie County Court
at Law a Motion to Contest the Application to Probate Estate
of Howard Jefferson, Jr., Deceased in Bowie County, Texas.
(Dkt. No.1-5 at 1). On January 31, 2018, Demetra Wysinger
filed an Affidavit of Facts in the Bowie County Court at Law.
(Dkt. No. 1-6 at 3-8). In the Affidavit of Facts Concerning
the Identity of Heirs, Demetra Wysinger states she currently
lives in Dallas, Texas, but her permanent mailing address is
in Texarkana, Arkansas. (Dkt. No. 1-6 at 6).
Wysinger also filed in the County Court at Law a Motion to
Vacate Void Orders on January 31, 2018, asserting Demetra
Wysinger, Roselyn Jefferson, and Rosie Jefferson were not
properly served notice of a January 10, 2018 hearing. (Dkt.
No. 1-6 at 9-12). On February 1, 2018, Vetrano Jefferson
filed an Affidavit in the Bowie County Court at Law,
indicating he lives in Texarkana, Texas. (Dkt. No. 1-7 at
1-3). On February 6, 2018, Demetra Wysinger, Roselyn
Jefferson, Rosie Jefferson, and Vetrano Jefferson filed an
Application for Independent Administration and Letters of
Administration and Response to Jabreeka Mitchell's
Application Along with Challenge of Jurisdiction of the Court
to Hear Arkansas Probate Matter. (Dkt. No. 1-7 at 5-17).
Demetra Wysinger again provided an address in Dallas, Texas
and listed Vetrano Jefferson's address in Texarkana,
Texas. Id. at 5.
February 6, 2018, Demetra Wysinger, as spokesperson for the
removing heirs, filed an Affidavit in the Bowie County Court
at Law, asserting they missed the January 10, 2018 court date
because they were not served notice of the proceedings. (Dkt.
No. 1-10 at 1-2). Demetra Wysinger again stated she resided
in Dallas, Texas with a permanent mailing address in
Texarkana, Arkansas. The removing heirs asserted the Bowie
County Court at Law lacked jurisdiction to hear the case,
that fraud had been brought upon the court, and that their
due process rights had been violated. Id.
February 7, 2018, Demetra Wysinger, Rosie Jefferson, Roselyn
Jefferson, and Vetrano Jefferson filed the Notice of
Removal. In the Notice of Removal, the removing
heirs assert formal determination of property rights are at
issue “and must be adjudicated as a condition precedent
to a determination under the state case referenced.”
(Dkt. No. 1 at 1). The removing heirs state they intend to
“litigate the issue of the legality of the controversy
on federal issues/questions, ” the taking of real
property without due process and the violation of federal
rules and laws. Id. at 1-2. The removing heirs
assert they have and will continue to be damaged and injured
by actions brought by Jabreeka Mitchell Jefferson's
application for probate and the Bowie County Court at
Law's wrongful conduct in issuing a void order,
“which threaten forcible seizure in violation of the
14th amendment rights irrevocably causing damage.”
Id. at 4.
removing heirs request the Court temporarily restrain the
Dependant Administrator appointed illegally and acting under
“a voided order from acting upon the void order
rendered by the lower court. . . .” Id. at 4.
The removing heirs further claim fraud upon the court by the
officer of the court who represented them in the Bowie County
Court at Law case. Id. According to the removing
heirs, their former attorney “filed an Application to
contest rather than a notice of removal to proper
venue” which is what they thought he was going to do.
Id. at 5. The removing heirs further assert the
attorney missed a court date “due to no
notification.” Id. They request that
“after hearing on a temporary restraining order that
Jabreeka Mitchell and/or her agents and the lower court be
enjoined from prosecuting any continuance of a forcible
seizure on the subject property pending a trial on the merits
of this case, or that this case be dismissed for lack of
jurisdiction and ordered filed in its proper venue in the
State of Arkansas where the decedent resided.”
removing heirs further assert there is diversity
jurisdiction. Id. at 2. Specifically, the removing
heirs contend they are citizens of Arkansas and Jabreeka
Mitchell Jefferson is a citizen of Texas. Id. at 3.
February 21, 2018, the Magistrate Judge sua sponte issued a
Report and Recommendation, recommending the above case be
remanded to the Bowie County Court at Law. The Magistrate
Judge noted federal question jurisdiction “exists only
when a federal question is presented on the face of the
plaintiff's well-pleaded “complaint.” (Dkt.
No. 7 at 6)(quoting Aetna Health, Inc. v. Davila,
542 U.S. 200, 207 (2004)). According to the Magistrate Judge,
the Court considers only the removed pleading, here being the
Application. The Magistrate Judge found the removing
heirs' alleged constitutional claims that arise under
federal law are outside the Application filed in the Bowie
County Court at Law and could not be considered in
determining whether federal question jurisdiction exists. See
Wells Fargo Bank NA v. Agnew, No. 3:14-CV-1646-L,
2014 WL 2158420, at *3-4 (N.D. Tex. May 23, 2014).
Magistrate Judge further found the removing heirs could not
establish the Court has diversity jurisdiction over this
case. Among other things, the Magistrate Judge noted complete
diversity of citizenship is lacking. (Dkt. No. 7 at 8, n. 4).
Specifically, two of the complaining heirs, Demetra Wysinger
and Vetrano Jefferson (who has moved for dismissal) are
citizens of Texas, and Jabreeka Mitchell Jefferson, the
applicant, is also a citizen of Texas.
regardless of whether it is alleged there is federal question
or diversity jurisdiction, the Magistrate Judge found the
probate exception requires remand in this instance. The
Magistrate Judge noted a federal court has no jurisdiction to
probate a will or administer an estate or to interfere with
the probate proceedings or assume general jurisdiction of the
probate or control of the property in custody of the state
court. (Dkt. No. 7 at 7). She then noted that is exactly what
the removing heirs seek to do in this case. Id. The
Magistrate Judge found the Application filed by Jabreeka
Mitchell Jefferson is subject to ongoing probate proceedings,
and the dispute concerns property within the custody of a
to the Magistrate Judge, allowing the removing heirs'
action to move forward would affect the possession of
property in the custody of a state court. See Marshall v.
Marshall, 547 U.S. 293, 311 (2006). Because “the
probate exception reserves to state probate courts the
probate . . . of a will and the administration of a
decedent's estate” and “precludes federal
courts from endeavoring to dispose of property that is in the
custody of a state probate court, ” Id. at
311-12, the probate exception thus provides a
“mandatory basis” for remand. Benson v.
Benson, No. 5:15-CV-202-DAE, 2015 WL 3622335, at *8
(W.D. Tex. June 9, 2015). Thus, pursuant to the probate
exception, the Magistrate Judge concluded the Court has no
jurisdiction over this removed case.
their 16-page objections to the Report and Recommendation,
the removing heirs first assert this is not a case where the
probate exception deprives the federal court of jurisdiction
“because although the dispute will be classified as
estate property, it is not property in the possession of the
Texas state court from which this case was removed and if it
were in the proper state venue of Arkansas an affidavit for
small estate would be all [that is] needed to allow for an
agreed disbursement by the heirs and custody of property in
Arkansas state court would not be a necessity.” (Dkt.
No. 14 at 1). The removing heirs contend none of the
decedent's property is within the state of Texas.
According to the removing heirs, if Texas state court has
acquired any properties it would have been by illegal void
orders because Texas lacked jurisdiction. Id. The
removing heirs assert they need this federal court to
“settle the controversy which has arisen as to whether
the Texas court is violating the[ir] constitutional rights .
. . by attempting to seize possession of their inheritance
property rights under void jurisdiction, and in direct
violation of the state rules of Texas and U.S.
constitution.” Id. at 2.
removing heirs state the decedent died intestate “so
they are not asking the federal court to probate a will nor
[are they] asking the court to administer the estate;
however, [they] do ask that the court based on verifiable
evidence presented and due to fast approaching statute [sic]
of limitations date of May 7th . . . for the filing [of]
wrongful death negligence suit being that the . . . parties
are diversified and claiming that jurisdiction belongs in the
[removing heirs'] state of Arkansas while Texas is
claiming a void jurisdiction, asks the jurisdictional
controversy be resolved under federal jurisdiction and that
this court appoint the [removing heirs'] nominee,
Demetra Wysinger as the Administrator of the estate in the
interest of justice and fair play so that the affairs of the
estate may be settled.” Id. Alternatively, the
removing heirs ask the Court to either dismiss “the
case altogether or transfer [sic] it to the proper venue of
Arkansas since that state is the ...