United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
action filed by two plaintiffs now proceeding pro se
and removed from the 168th Judicial District Court of Dallas
County on January 17, 2019, see Dkt. No. 1, has been
referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b) and a
standing order of reference from United States District Judge
January 24, 2019, Defendants PNC Bank, N.A. and Select
Portfolio Servicing, Inc. moved to dismiss Plaintiffs Natalie
Yammine and Wally Yammine's claims under Federal Rule of
Civil Procedure 12(b)(6). See Dkt. Nos. 6, 7, &
8. But, because Defendants filed their Rule 12(b)(6) motion
after filing a state court answer, see Dkt. No. 1-1
at 20-22; Dkt. No. 1-4 at 2, the Court will “treat the
motion as a motion for judgment on the pleadings under
[Federal Rule of Civil Procedure] 12(c), ” Obazee
v. Bank of N.Y. Mellon, No. 3:15-cv-1082-D, 2015 WL
4602971, at *1 (N.D. Tex. July 31, 2015) (citing Fed.R.Civ.P.
12(b) (“A motion asserting [failure to state a claim
upon which relief can be granted] must be made before
pleading if a responsive pleading is allowed.”);
collecting cases); see also Fisher v. Dallas Cnty.,
No. 3:12-cv-3604-D, 2014 WL 4797006, at *8 (N.D. Tex. Sept.
26, 2014) (“[T]he intent of [Federal Rules of Civil
Procedure 12(g)(2) and (h)(2)] is to make clear that a party
can raise by Rule 12(c) motion the defense of failure to
state a claim on which relief can be granted.”).
February 22, 2019, the Yammines filed a pro se
motion to remand, requesting that the Court “return
[this] case [to state court because] citations were not
served [as] yet.” Dkt. No. 12 (further requesting that
the Court strike Defendants' answers and motions, and
informing the Court that their “Attorney had emergency
March 7, 2019, the Court abated the then-pending deadlines in
this action and ordered Jerome Stein, Esq., retained counsel
for the Yammines, to file by April 8, 2019 either a status
report to the Court or a motion to withdraw as counsel for
the plaintiffs. See Dkt. No. 17; see also
Dkt. No. 18 (order canceling March 20 pretrial scheduling
conference). Mr. Stein failed to file either by April 8. But,
on April 3, the Court imposed reciprocal discipline on Mr.
Stein, suspending him from practicing in the Northern
District of Texas from April 1, 2019 to September 30, 2020.
See In re Jerome N. Stein, No. 3:19-mc-17-B (N.D.
that Mr. Stein's suspension effectively left the Yammines
proceeding pro se, the Court set this matter for a
telephonic status conference, directing counsel for
Defendants to provide a dial-in number, to be emailed to the
Court and provided to the Yammines. See Dkt. No. 25.
The Court conducted the status conference on May 10, 2019,
but only with counsel for Defendants, who represented to the
Court that they provided the dial-in number to the Yammines
through regular and certified mail and that the certified
mail was refused. See Dkt. No. 26.
Court then reset the response and reply deadlines as to the
pending motions. See Dkt. No. 27. Defendants filed a
response to the motion to remand and a reply in support of
their motion for judgment on the pleadings. See Dkt.
Nos. 28 & 34. And the Yammines filed a response to the
motion for judgment on the pleadings and a reply in support
of their motion to remand. See Dkt. Nos. 32 &
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should deny the motion
to remand, grant the motion for judgment on the pleadings,
and dismiss the Yammines' claims without prejudice to Ms.
Yammine's filing, within a reasonable time to be set by
the Court, an amended complaint limited to her claims for
fraudulent misrepresentation and negligent misrepresentation.
Standards and Analysis
Motion to Remand
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
Statutes that authorize removal are meant to be strictly
construed, and any doubt as to the propriety of removal
should be resolved in favor of remand. See Hood ex rel.
Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 89 (5th
Cir. 2013); In re Hot-Hed Inc., 477 F.3d 320, 323
(5th Cir. 2007).
removing party bears the burden of establishing jurisdiction.
See Miller v. Diamond Shamrock Co., 275 F.3d 414,
417 (5th Cir. 2001). A federal court's jurisdiction is
limited, and federal courts generally may hear only a case of
this nature if it involves a question of federal law or where
diversity of citizenship exists between the parties.
See 28 U.S.C. §§ 1331, 1332.
removed this action under both Sections 1331 and 1332.
See Dkt. No. 1 at 2-4. But the Yammines' basis
for remand does not rest on jurisdiction. Instead they
contend - through a motion filed more than 30 days after the
28 U.S.C. § 1446 notice of removal was filed - that
remand is appropriate because state-court “citations
were not served [as] yet.” Dkt. No. 12.
this basis for remand, not based on the Court's subject
matter jurisdiction, is untimely. See 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).”). But,
even if the motion to remand was timely, it would
Generally, service of process is not an absolute prerequisite
to removal. Section 1446(b) expressly provides for removal of
a civil action or proceeding within thirty days after the
receipt by the defendant, “through service or
otherwise, of a copy of an amended pleading, motion, or order
or other paper from which it may first be ascertained that
the case is one which is or has become removable.” We
read § 1446(b) and its “through service or
otherwise” language as consciously reflecting a desire
on the part of Congress to require that an action be
commenced against a defendant before removal, but not that
the defendant have been served. Indeed, 28 U.S.C. §
1448, which provides that service may be completed in
district court for any removed case from state court in which
any one or more of the defendants was not served with process
or in which the service was not perfected prior to removal,
reinforces a less demanding view of the service
“requirement” prior to removal. And under Texas
law, an action has commenced when a petition is filed.
See Tex. R. Civ. P. 22.
Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th
Cir. 2000) (footnote omitted); see alsoPerez v.
ZTE (USA), Inc., No. 3:18-cv-2948-B, 2019 WL 1429654, at
*2 (N.D. Tex. Mar. 29, 2019) (concluding “that
Delgado applies even outside the context of the
[Foreign Sovereign Immunities Act]”: “The Fifth
Circuit went on to bolster its reasoning by interpreting
§ 1441(d), a section that pertains specifically to
actions against foreign states and ‘does not
differentiate between parties who have been served and those
who have not.' But even though the Fifth Circuit cited