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Yammine v. PNC Bank National Association

United States District Court, N.D. Texas, Dallas Division

July 19, 2019

NATALIE YAMMINE and WALLY YAMMINE, Plaintiffs,
v.
PNC BANK NATIONAL ASSOCIATION and SELECT PORTFOLIO SERVICING, INC., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         This 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 Ed Kinkeade.

         On 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.”).

         On 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 medical conditions”).

         On 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. Tex.).

         Recognizing 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.

         The 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 & 33.

         The 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.

         Legal Standards and Analysis

         I. Motion to Remand

         A 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).

         The 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.

         Defendants 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.

         First, 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 nevertheless fail.

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 ...


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