United States District Court, N.D. Texas, Dallas Division
to U.S. Magistrate Judge 
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
the Court are Defendant JPMorgan Chase Bank, N.A.'s
Motion to Dismiss Plaintiff's Complaint, filed March
22, 2019 (doc. 5), and Plaintiff's Motion for
Remand, filed April 1, 2019 (doc. 9). Based upon the
relevant filings and applicable law, the plaintiff's
motion for remand and motion for default judgment should be
DENIED, and the defendant's motion to
dismiss should be GRANTED.
February 14, 2019, William Paul Burch (Plaintiff) filed this
lawsuit concerning title to the property located at 2531
Gerry Way, Lancaster, Texas 75134 (the Property), against JP
Morgan Chase Bank, N.A. (Defendant). (doc. 1-1 at
about January 19, 2007, Plaintiff and his wife executed a
promissory note (the Note) in favor of Freedom Mortgage
Corporation (Lender) in the amount of $66, 000.00 plus
interest, as well as a deed of trust (the Deed of Trust)
securing payment of the Note. (doc. 7-1 at 2-21.) The Deed of
Trust designated Mortgage Electronic Registration Systems,
Inc. (MERS) as “the beneficiary” and nominee for
Lender and its successors and assigns. (Id. at 3.)
On or about July 4, 2008, MERS assigned the Note and Deed of
Trust to Deutsche Bank National Trust Company as Trustee for
GSAA Home Equity Trust 2007-5, Asset-Backed Certificates,
Series 2007-5 c/o Litton Loan Servicing, LP (Litton).
(Id. at 23-25.)
December 1, 2008, Plaintiff and his wife filed for bankruptcy
under Chapter 11 of the United States Bankruptcy Code.
See In re William Burch and Juanita Burch, No.
08-45761-rfn11 (Bankr. N.D. Tex.) (the Bankruptcy). On
December 9, 2009, the bankruptcy court entered an order
confirming their Third Amended Plan of Reorganization, which
reaffirmed Litton's status as the mortgage holder on the
Property and required Plaintiff to enter into a new note in
the original principal amount of $33, 000 (Bankruptcy Plan).
(Id., doc. 246 at 14; doc. 1-1 at 10-11.) The
Bankruptcy was closed on September 11, 2012.
February 14, 2019, Plaintiff filed his original petition in
state court, asserting quiet title and trespass to try title
claims. (See doc. 1-1 at 8-13.) He sought to have
the lien on the Property be immediately released in his
favor, and judgment against Defendant “for all damages
described [t]herein, including actual damages, punitive
damages, attorney's fees, cost of suit, interest as
allowable by law and for such other relief, in law and
inequity, to which Plaintiff may be justly entitled.”
(Id. at 12-13.)
March 15, 2019, Defendant removed the suit on grounds of
diversity jurisdiction under 28 U.S.C. § 1332, and it
moved to dismiss Plaintiff's claims on March 22, 2019.
(See docs. 1, 5.) Plaintiff responded on April 12,
2019 (doc. 10), and Defendant replied on April 23, 2019 (doc.
12). On April 11, 2019, Plaintiff moved to remand the case to
state court. (doc. 9.) Defendant filed its response on May 1,
2019 (doc. 13), but Plaintiff did not file a reply.
MOTION TO REMAND
moves to remand on grounds that federal jurisdiction is
lacking. (doc. 9 at 2.)
civil action brought in state court may be removed to federal
court if the district court has original jurisdiction over
that action. 28 U.S.C. § 1441(a). A district court's
original jurisdiction is of two types: federal question
jurisdiction and diversity jurisdiction. 28 U.S.C.
§§ 1331, 1332. Federal question jurisdiction exists
in all civil actions arising under the Constitution, laws, or
treaties of the United States. Id. § 1331.
Diversity jurisdiction exists in all civil actions where the
amount in controversy exceeds $75, 000.00, exclusive of
interests and costs, and there is diversity of citizenship.
Id. § 1332(a). “Section 1447(c) provides
two grounds for remand: (1) a defect in removal procedure and
(2) lack of subject matter jurisdiction.” Burks v.
Amerada Hess Corp., 8 F.3d 301, 303 (5th Cir. 1993).
determine whether it has federal jurisdiction over the
removed case, the court must “consider the claims in
the state court petition as they existed at the time of
removal.” Manguno v. Prudential Prop. & Cas.
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing
Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d
256, 264 (5th Cir. 1995)). “The removing party bears
the burden of showing that federal jurisdiction exists and
that removal was proper.” Id. “This
burden extends not only to demonstrating a jurisdictional
basis for removal, but also necessary compliance with the
requirements of the removal statute.” Fraire v.
Budget Rent-A-Car of El Paso, Inc., No.
EP-10-CV-338-PRM, 2011 WL 3678584, at *2 (W.D. Tex. Mar. 31,
2011) (citing Burks, 8 F.3d at 303). If there is
“any doubt about the propriety of removal, [it] must be
resolved in favor of remand.” Gasch v. Hartford
Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
a court performs its duty to verify that it has jurisdiction,
it may be required to survey the entire record, including the
defendant's pleadings, and base its ruling on the
complaint, on undisputed facts, and on its resolution of
disputed facts.” Aquafaith Shipping, Ltd. v.
Jarillas, 963 F.2d 806, 808 (5th Cir. 1992) (citation
omitted); see also Smith v. Estate of Wagner, No.
CIV A H 06-02629, 2006 WL 2729282, at *3 (S.D. Tex. Sept. 25,
2006) (explaining that a “court . . . [may] consider
the defendant's notice of removal, other pleadings, and
the record as of the time of removal if necessary to shed
light on the plaintiff's pleadings”). “The
purpose of this careful survey, however, is to shed light on
the plaintiff's pleadings. The court's focus is on
the plaintiff's pleadings, not the
defendant's.” Aquafaith, 963 F.2d at 808.
initially contends that Defendant's answer to his state
court petition was due by March 12, 2019, but Defendant
failed to respond by that date, and instead removed this
action on March 15, 2019. (See doc. 9 at 2.) His
claim could liberally be construed as a challenge to the
timeliness of the removal, i.e., a defect in the removal
of a civil action or proceeding from a state court must occur
within thirty days after a defendant receives a pleading,
motion, or other paper that suggests the existence of federal
jurisdiction. 28 U.S.C. § 1446(b); see also Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344 (1999) (holding that the thirty-day deadline for removal
commences on the date that the summons or citation is
officially served). The Fifth Circuit has interpreted §
1446 to mean that “a defendant's right to removal
runs from the date on which it is formally served with
process.” Thompson v. Deutsche Bank Nat. Tr.
Co., 775 F.3d 298, 303 (5th Cir. 2014). Until formally
served with process, a defendant has no obligation to appear
in court or defend an action before it, and the thirty-day
removal period does not begin to run until that time.
Id. (citing Michetti Pipe, 526 U.S. at
Plaintiff contends that Defendant was formally served the
state court petition on February 19, 2019. It had thirty
days, until March 21, 2019, to remove the state case to
federal court. Defendant filed its notice of removal in
federal court on March 15, 2019, which complied with the
requirements of § 1446(a). (See doc. 1.)
Because Defendant's notice of removal was filed before
March 21, 2019, removal was timely. To the extent that
Plaintiff's motion to remand is premised on the alleged
untimeliness of the removal, it should be denied.
also argues that because he filed an application for entry of
default in state court on the same day the case was removed
based on Defendant's failure to timely answer, the case
needs to be remanded “back to the proper jurisdiction
of Dallas County Court so that the defendant can properly
respond to the Default Judgment.” (See doc. 9
divests the state court of its jurisdiction, and the federal
court acquires full and exclusive jurisdiction over the case
as though it had been originally commenced in the federal
court. See Moore v. Interstate Fire Ins. Co., 717
F.Supp. 1193, 1195 (S.D.Miss. 1989). By operation of law, all
motions pending in state court at the time of removal remain
pending as if they had been filed in federal court. See
Murray v. Ford Motor Co., 770 F.2d 461, 464 (5th Cir.
1985) (holding that a motion to set aside a default judgment
that was pending in state court prior to removal was a motion
that could be considered by the district court). If federal
jurisdiction exists and the defendant complies with the
necessary requirements of the removal statute, there is no
obligation to file an answer or response in the state court
proceeding. See 28 U.S.C. § 1441. In fact, a
defendant that learns of the litigation has the right to
remove the state action even before it is formally served.
See Thompson v. Deutsche Bank Nat'l Trust Co.,
775 F.3d 298, 303 (5th Cir. 2014). A pending state court
motion will not defeat removal. See Hundall v. Univ. of
Texas at El Paso (UTEP), No. EP-13-CV-00365-DCG, 2013 WL
12090353, at *3 (W.D. Tex. Dec. 10, 2013) (“It is
irrelevant when Plaintiff's state court motions were
filed because pending motions do not bar removal.”).
Plaintiff's motions for entry of default and default
judgment were pending at the time of removal, he has not
demonstrated either a defect in the removal procedure or a
lack of jurisdiction on this basis, and his motion for remand
should be denied.
MOTION FOR DEFAULT JUDGMENT
noted, Plaintiff moved for entry of default in state court on
March 15, 2019, and for default ...