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U.S. Bank N.A. v. Jefferson

United States District Court, S.D. Texas, Houston Division

May 21, 2018

U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2006 GSAMP TRUST 2006-HE3 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-HE3, Plaintiff,
v.
DEZRA JEFFERSON and VINCENT JEFFERSON, Defendants.

          MEMORANDUM OPINION AND ORDER OF REMAND AND ORDER ENJOINING DEFENDANTS FROM FILING FUTURE NOTICES OF REMOVAL WITHOUT LEAVE OF COURT

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         On March 9, 2018, defendants, Dezra Jefferson and Vincent Jefferson, citing 28 U.S.C. §§ 1443, 1446, and 1447(b), removed this action from the County Court of Law No. 2 of Harris County, Texas, where it was pending under Cause No. 1094386.[1] On April 13, 2018, plaintiff, U.S. Bank National Association as Trustee under the Pooling and Servicing Agreement dated as of May 1, 2006 GSAMP Trust 2006-HE3 Mortgage Pass-Through Certificates Series 2006-HE3, filed Plaintiff's Motion to Remand and Brief in Support ("Plaintiff's Motion to Remand") (Docket Entry No. 9) seeking not only an order remanding this action but also injunctive relief. For the reasons stated below, Plaintiff s Motion to Remand and request for injunctive relief will be granted.

         I. Background[2]

         This action arises from a post-foreclosure eviction proceeding related to a single-family residence located at 19911 Chaste Tree Lane, Humble, Texas 77338 (the "Property"). Plaintiff filed its Original Petition for Forcible Detainer against the defendants on April 18, 2017, in the Justice of the Peace Court, Precinct 4, Place 2, Harris County, Texas.[3] Defendants were served with a Citation and copy of the plaintiff's petition on May 1, 2017.[4]Following a hearing attended by both the plaintiff and the defendants a judgment was granted in favor of plaintiff on May 9, 2017. The judgment stated that "[n]o writ of possession will issue before May 16, 2017."[5] On May 15, 2017, defendants filed their Notice to Appeal a Judgment in an Eviction Case in the Justice of the Peace Court, Harris County, Texas Precinct 4, Place 2.[6] On June 12, 2017, defendants' appeal received No. 1094386 in Harris County Court of Law No. 2.[7] On July 3, 2017, defendants removed No. 1094386 to federal court pursuant to 28 U.S.C. §§ 1443, 1446, and 1447(b).[8] On July 11, 2017, plaintiff filed Plaintiff's Motion to Remand, [9] which the court granted on October 27, 2017.[10]

         On November 9, 2017, defendants filed a Notice of Stay and Notice of Bankruptcy Case filing in the state court action.[11] On January 23, 2018, plaintiff filed a Motion for Relief from Stay stating that "[m]ovant . . . holds a security interest in: 19911 CHASTE TREE LANE, HUMBLE, TX 77338, "[12]

Movant purchased the Property on March 3, 2017 at 10:48 am at a foreclosure sale. A copy of the recorded foreclosure sale deed is attached hereto. The sale was completed when the foreclosure was conducted in accordance with the law and provisions of the deed of trust. . . The lien and loan were both extinguished by the foreclosure, and title of the Property was vested in Movant upon completion of the foreclosure sale. A Substitute Trustee's Deed was filed and recorded March 23, 2017, providing notice of the conveyance of title of the Property to movant.[13]

         On February 22, 2018, the Bankruptcy Court entered an Order Granting In-Rem Relief from Automatic Stay After Hearing, [14] and on March 1, 2018, the County Court at Law reactivated Case No. 1094386.[15] On March 9, 2018, the defendants removed the action to this court.[16]

         II. Notice of Removal

         Defendants removed this action pursuant to 28 U.S.C. §§ 1443, 1446, and 1447(b)

on grounds that the Defendants[] obtained an order from the United States District Court in 2012, case 04:12-cv-01944, whereby the . . . plaintiff [in] the action being removed to this Court, was a defendant in Case #04:12-cv-01944. Plaintiff previously stipulated to a judgment in favor of defendants, Dezra Jefferson and Vincent Jefferson. To date, they have never complied with the order of the Court or stipulated agreement. The Court further ruled that the United States District Court shall maintain jurisdiction of this issue to enforce the stipulated judgment. Additionally, plaintiff in this action w[as] previously ordered to present original documents showing that [it] had any standing to represent the trust pool. Plaintiff has ignored the order an[d] continued to ignore that [it] ha[s] no standing and additionally ha[s] avoided and evaded the United States District Court. [It] ha[s] committed not only fraudulent actions upon the Court but also malicious prosecution, violation of civil rights, banking fraud, mail fraud, wire fraud, conspiracy, and violation of 15 USC 1692. Plaintiff has repeatedly violated the order and continued attacking defendants as to obtain an order of eviction through the state courts of Texas. The federally secured rights guaranteed by 42 U.S.C. §§§ 1981, 1982 and 1983 the First, Fifth, Seventh, Ninth, and Fourteenth Amendments to the constitution are being directly and systematically impaired and infringed by the violation of the order issued in unconstitutional statutory laws and customs, practices, and policies having the force and effect of law in the State of Texas.[17]

Citing Dombrowski v. Pfister, 85 S.Ct. 1116 (1965), defendants argue that removal is proper under 28 U.S.C. § 1443(1)

because the Justice Courts of Harris County, and of Texas generally, have and enforce rules which are oppressive to economically disadvantaged defendants, as well as discriminatory to pro se litigants and accordingly do not equally respect or evenly enforce private rights to due process of law, even as defined by Texas State Law, effectively denying equal access to the Courts in violation of 42 U.S.C. §§ 1981-1982.[18]

         Asserting that "28 U.S.C. § 1443[, c]ivil rights removal differs from Federal Question or Diversity jurisdiction removal precisely because there is NO requirement that the diversity jurisdiction be apparent or the federal question be presented on the face of the complaint, "[19] defendants argue that "[r]emoval is to act as an injunction against civil rights violations in State Courts."[20] Defendants argue that jurisdiction exists under 28 U.S.C. § 1367[21] and that "[t]his Court is the proper forum to adjudicate this matter because of the 2012 United States District Court order clearly stating that fact."[22]

         III. Motion to Remand

         Plaintiff seeks remand because "1) the Notice of Removal filed by Defendants ... is untimely; 2) civil rights removal under 28 U.S.C. § 1443 is improper; and 3) diversity jurisdiction does not exist."[23] Plaintiff also argues that "[t]his case cannot be removed . . . because Defendants are in-state citizens."[24]

         A. Standard of Review

         Article III § 2 of the United States Constitution grants federal courts jurisdiction over "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . ." This Constitutional mandate is supplemented by 28 U.S.C. §§ 1331 and 1332. Section 1331 recognizes federal question jurisdiction in suits "arising under the Constitution, laws, or treaties of the United States." For this purpose "[a] suit arises under the law that creates the cause of action." Lowe v. Ingalls Shipbuilding, A Division of Litton Systems, Inc., 723 F.2d 1173, 1178 (5th Cir. 1984) (citations omitted). "[W]hat 'determines jurisdiction' is the 'nature of the claim' asserted, and 'not the possible defenses to that claim.'" Id. (quoting Cox v. International Union of Operating Engineers, 672 F.2d 421, 422 (5th Cir. 1982) (federal question jurisdiction is not satisfied merely because "the dispute is in some way connected with a federal matter")) . Section 1332 recognizes diversity jurisdiction over civil cases in which the amount in controversy exceeds $75, 000.00, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. Id. at 1177 ("The required diversity under section 1332(a)(1) must be complete: where one or more plaintiffs sue one or more defendants, each plaintiff must be of a different citizenship than each defendant.").

         The general removal statute allows a defendant to remove a case to the federal district court for the district and division within which the action is pending, provided that the district court possesses original jurisdiction. 28 U.S.C. § 1441(a). "'Original jurisdiction, in non-maritime claims, lies where the conditions of 28 U.S.C. §§ 1331 [federal question] ¶ 1332 [diversity] are satisfied.'" Halmekangas v. State Farm Fire and Casualty Co., 603 F.3d 290, 293 (5th Cir. 2010). Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. See Home Builders Association of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5th Cir. 1998). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Property and Casualty Insurance Co., 276 F.3d 720, 723 (5th Cir. 2002) . Any doubts as to the propriety of the removal should be construed strictly in favor of remand. Id.

         The procedures by which a defendant may remove an action to federal court are set forth in 28 U.S.C. § 1446. Pursuant thereto a notice of removal must be filed within 30 days after the defendant receives the initial pleading setting forth the claim for relief upon which the action is based, or within 30 days of service of summons if the state's rules of procedure do not require the defendant to be served, whichever period is shorter. 28 U.S.C. § 1446(b). The procedures following removal are set forth in 28 U.S.C. § 1447. Pursuant thereto "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c).

         B. Plaintiff Has Waived Procedural Defects of Removal

         1. Timeliness of Removal

         Plaintiff argues that this action should be remanded because defendants' removal was untimely.[25] Asserting that forcible detainer suits cannot originally be brought in county court, plaintiff argues that "[t]he deadline to remove began to run from the time of service of the justice of the peace suit for forcible detainer."[26] Citing the Constable Forcible Detainer Return of Service dated May 1, 2017, plaintiff argues that the thirty-day removal period began on May 1, 2017.[27]

         Although plaintiff correctly asserts that removal from state court must be effected within 30 days after the defendant receives the summons and a copy of the initial complaint/petition or an amended pleading from which it may first be determined that the action is or has become removable, 28 U.S.C. § 1446(b), an untimely notice of removal is a procedural defect that must be raised within 30 days. 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."). Since defendants removed this action on March 9, 2018, but plaintiff did not file a motion to remand until April 13, 2018, i.e., more than 30 days later, plaintiff has waived the untimeliness of the filing of the defendants' Notice of Removal. See Belser, M.D. v. St. Paul Fire and Marine Insurance Co., 965 F.2d 5, *8 (5th Cir. 1992) ("Because the untimely removal is not a jurisdictional defect, the procedural imperfection is waived if not raised in a timely motion to remand."). See also State of Louisiana v. Sparks, 978 F.2d 226, 233 n.11 (5th Cir. 1992) (objections to non-jurisdictional defects in removal are waived if not timely asserted).

         2. Forum Defendant Rule

         Citing ECF Document 1, p. 9, 1. 24-25, plaintiff argues that "[t]his case cannot be removed to federal court on the basis of diversity of citizenship because Defendants are in-state citizens."[28] ECF Document 1 is Defendants' Notice of Removal, and page 9 lines 24-25 thereof do not identify the defendants' state of citizenship.[29] Even if defendants are citizens of the State of Texas, plaintiff would not be entitled to remand for that reason because plaintiff failed to object to the removal within 30 days as reguired by 28 U.S.C. § 1447(c). Defendants removed this action on March 9, 2018, and plaintiff filed its Motion to Remand on April 13, 2018, more than 30 days after the action was removed from state court. Because plaintiff failed to challenge the removal in a timely manner, plaintiff has waived its right to object to the removal on grounds that the defendants are in-state or local defendants. See U.S. Bank National Association v. Rudd, Civil Action No. 3:10-2440-L, 2011 WL 539120, *3 (N.D. Tex. February 7, 2011) ("MT]he presence of an in-state defendant is a procedural defect that is waived unless raised within thirty days of removal.' Penman v. Snapper Div.. 131 F.3d 546, 548 (5th Cir. 1998) (citations omitted). '[A] motion for remand based on procedural defects that is brought more than 30 days after the removal of the action, is outside of the district court's power to grant.' Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 284 (5th Cir. 2004) (citation omitted).").

         C. Defendants Fail to Establish Federal Question Jurisdiction

         Plaintiff's complaint only alleges state-law claims and contains no claim arising under the Constitution, statutes, or treaties of the United States. Nevertheless, defendants removed on the basis of federal guestion jurisdiction asserting that removal is proper pursuant to 28 U.S.C. § 1443, the First, Fifth, Seventh, Ninth, and Fourteenth Amendments, and 42 U.S.C. §§ 1981-1983.

         Plaintiff argues that "[r]emoval under 28 U.S.C. § 1443(1) is improper because there exists no grounds for Civil Rights removal."[30] Plaintiff argues that

[d]efendants' Notice of Removal states that they are subject to discrimination because they are 'economically disadvantaged' and pro se litigants [, but d] iscrimination based upon these alleged categories is not removable under § 1443(1). Rather, removal under § 1443(1) is strictly limited to racial discrimination and denial of explicit federal statutory protections.[31]

         1. Civil Rights Removal

         Defendants removed this action asserting that removal is proper pursuant to 28 U.S.C. § 1443, the First, Fifth, Seventh, Ninth, and Fourteenth Amendments, and 42 U.S.C. §§ 1981-1983. In pertinent part, 28 U.S.C. § 1443 provides that

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof . . .

         The Supreme Court has construed 28 U.S.C. § 1443(1) in three cases. See State of Georgia v. Rachel, 86 S.Ct. 1783 (1966); City of Greenwood, Mississippi v. Peacock, 86 S.Ct. 1800 (1966); Johnson v. Mississippi, 95 S.Ct. 1591 (1975).

         In Rachel, 86 S.Ct. at 1783, twenty African-American individuals were prosecuted in state court for criminal trespass violations resulting from their attempts to obtain service at a privately-owned restaurant in Atlanta. Since federal law required such restaurants to serve persons of all races, the arrested individuals sought to remove the state court prosecutions to federal court under 28 U.S.C. § 1443(1). The Supreme Court held that the removal was proper upon determining that "the phrase 'any law providing for . . . equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality." Id. at 1790. The Court concluded that the statute invoked by the removing defendants, the Civil Rights Act of 1964, was a statute providing for equal civil rights. Id. The Court then addressed the second statutory requirement, i.e., that the state court defendant be "denied or cannot enforce" his or her rights in state court. Id. at 1791. The Court observed that in order to sustain removal the denial of rights had traditionally required a formal expression of state law indicating "that all courts in that State would disregard the federal right of equality with which the state enactment was precisely in conflict." Id. at 1796. The Court explained, however, that given the particular circumstances of that case, a firm prediction that the defendants would be denied federal rights in the state court could be made even absent a discriminatory state statute. Id. at 1796-1797.

         In Peacock, 86 S.Ct. at 1800, a case decided the same day as Rachel, the Court emphasized the limited nature of removal under 28 U.S.C. § 1443 by holding that the removing defendants failed to demonstrate that they would be denied federal rights in the state court. Id. at 1811-1816. In Peacock the defendants alleged that they were being prosecuted for obstructing public streets, assault and battery, and various other local crimes. Id. at 1803-1804 & nn.1-5. The defendants also alleged that they were arrested solely because of their race or because they were helping African-Americans assert their rights under various civil rights laws, that they were completely innocent of the charges brought against them, and that they would be unable to obtain a fair trial in state court. Id. at 1805 & n.6. The Court held that such allegations were insufficient to support removal under § 1443 because the defendants could not point to any federal law that conferred on them the right to engage in the conduct with which they were charged, and because there was no federal law that conferred immunity from state prosecution on such charges. Id. at 1812 & n.25. See also Johnson. 95 S.Ct. at 1591 (holding that removal was not appropriate under § 1443 where defendants alleged only that the statutes underlying the charges brought against them in state court were unconstitutional; that there was no basis in fact for the charges; and that their arrest and prosecution otherwise denied them their constitutional rights).

         In Johnson, 95 S.Ct. 1591, the Supreme Court made clear that a removal petition under 28 U.S.C. § 1443(1) must satisfy a two-pronged test:

First, it must appear that the right allegedly denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial eguality." . . . Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is "denied or cannot enforce" the specified federal rights "in the courts of (the) State." This provision normally requires that the "denial be manifest in a formal expression of state law, "... such as a state legislative or constitutional provision, "rather than a denial first made manifest in the trial of the case." . . . Except in the unusual case where "an equivalent basis could be shown for an equally firm prediction that the defendant would be Menied or cannot enforce' the specified federal rights in the state court, " ... it was to be expected that the protection of federal constitutional or statutory rights could be effected in the pending state proceedings, civil or criminal. Under § 1443(1), "the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court."

Id. at 1595-1596 (quoting Rachel, 86 S.Ct. at 1790, 1794, and 1796, and Peacock, 86 S.Ct. at 1811-1812) ...


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