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Mitchell v. Jefferson

United States District Court, E.D. Texas, Texarkana Division

March 27, 2018

JABREEKA MITCHELL a/k/a JABREEKA JEFFERSON
v.
VETRANO JEFFERSON, DEMETRA WYSINGER, ROSIE JEFFERSON, AND ROSELYN JEFFERSON

          ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          RODNEY GILSTRAP, UNITED STATES DISTRICT JUDGE.

         The 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.

         BACKGROUND

         State Court action

         On 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.[1] The Court provides the following background from the February 7, 2018 Notice of Removal and attachments thereto.

         According 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.

         On 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).

         Demetra 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.

         On 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.

         Notice of Removal

         On February 7, 2018, Demetra Wysinger, Rosie Jefferson, Roselyn Jefferson, and Vetrano Jefferson filed the Notice of Removal.[2] 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.

         The 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.” Id.

         The 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.

         REPORT AND RECOMMENDATION

         On 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).

         The 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.[3]

         Importantly, 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 state court.

         According 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.

         OBJECTIONS

         In 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.

         The 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 ...


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