United States District Court, S.D. Texas, Houston Division
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,
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
LAKE UNITED STATES DISTRICT JUDGE.
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. 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.
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. Defendants were served with a Citation and
copy of the plaintiff's petition on May 1,
2017.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." 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. On June 12, 2017, defendants' appeal
received No. 1094386 in Harris County Court of Law No.
On July 3, 2017, defendants removed No. 1094386 to federal
court pursuant to 28 U.S.C. §§ 1443, 1446, and
1447(b). On July 11, 2017, plaintiff filed
Plaintiff's Motion to Remand,  which the court granted on
October 27, 2017.
November 9, 2017, defendants filed a Notice of Stay and
Notice of Bankruptcy Case filing in the state court
action. 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, "
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.
February 22, 2018, the Bankruptcy Court entered an Order
Granting In-Rem Relief from Automatic Stay After
Hearing,  and on March 1, 2018, the County Court
at Law reactivated Case No. 1094386. On March 9, 2018, the
defendants removed the action to this court.
Notice of Removal
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.
Citing Dombrowski v. Pfister, 85 S.Ct. 1116 (1965),
defendants argue that removal is proper under 28 U.S.C.
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.
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, " defendants
argue that "[r]emoval is to act as an injunction against
civil rights violations in State Courts." Defendants
argue that jurisdiction exists under 28 U.S.C. §
1367 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
Motion to Remand
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." Plaintiff also argues that
"[t]his case cannot be removed . . . because Defendants
are in-state citizens."
Standard of Review
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.").
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.
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).
Plaintiff Has Waived Procedural Defects of Removal
Timeliness of Removal
argues that this action should be remanded because
defendants' removal was untimely. 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." 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.
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).
Forum Defendant Rule
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." ECF Document 1 is Defendants'
Notice of Removal, and page 9 lines 24-25 thereof do not
identify the defendants' state of
citizenship. 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)
Defendants Fail to Establish Federal Question
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.
argues that "[r]emoval under 28 U.S.C. § 1443(1) is
improper because there exists no grounds for Civil Rights
removal." 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
Civil Rights Removal
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
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 . . .
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).
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.
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
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