United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Honorable United States District Judge Fred Biery:
Report and Recommendation concerns Plaintiff Eddie
Treviño's (“Treviño”) Motion to
Remand [#3], Treviño's Motion for Leave to File
Complaint [#18], Treviño's Amended Motion to
Remand [#22], and Treviño's Second Amended Motion
to Remand [#27]. On May 13, 2019, the Honorable Fred Biery
referred all pretrial proceedings in this case to the
undersigned for disposition pursuant to Rule 72 of the
Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas [#8]. The undersigned
has authority to enter this Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons
set forth below, it is recommended that Treviño's
Motion to Remand and Amended Motion to Remand be DENIED AS
MOOT, and that Treviño's Second Amended Motion to
Remand be DENIED. In addition, Trevino's Motion for Leave
to File Complaint is GRANTED. Finally, it is also recommended
that the Court decline to continue to exercise supplemental
jurisdiction over Treviño's state-law claims, and
that this case be REMANDED to the 150th Judicial District
Court of Bexar County, Texas.
Factual and Procedural Background
issue is whether the Court has subject-matter jurisdiction
over this case. The relevant procedural history is as
follows. On October 4, 2016, Treviño was injured in a
trip-and-fall accident in San Antonio, Texas. (Pl.'s
Fifth Am. Pet. at 2.) Treviño filed a petition
against Steinreal Corporation in the 150th Judicial District
Court of Bexar County, Texas, alleging claims for negligence
and statutory violations of the Texas Commission on Human
Rights Act (“the TCHRA”) and the Texas
Accessibility Standards of the Texas Architectural Barriers
Act (“the TABA”). Treviño thereafter filed
a first amended petition, which added Arthur Newman, who was
deceased, and Harry E. Newman, doing business as El Dorado
Village, as defendants. Treviño then filed a second
amended petition, which added Steinreal 1 Family Limited
Partnership, doing business as Naco Centro, as a defendant.
Treviño ultimately non-suited his claims against
Steinreal Corporation. Treviño subsequently filed a
third amended petition, which added Kathleen Kinder,
Representative of the Estate of Arthur Newman, as a
defendant. Treviño then filed a fourth amended
petition. On February 25, 2019, Treviño filed a fifth
amended petition, which is the live pleading in this case.
March 19, 2019, Defendants Harry E. Newman, doing business as
El Dorado Village, and Kathleen Kinder, Representative of the
Estate of Arthur Newman (“the Newman Defendants”)
filed their Notice of Removal [#1] in this Court via the Case
Management/Electronic Case Files (CM/ECF) system, and
provided Treviño with a copy of the removal petition.
(Doc. 4, Ex. B at 1.) The Notice of Removal invoked this
Court's federal-question jurisdiction. (Notice of Removal
[#1] at ¶ 3.) Later that day, Treviño filed a
sixth amended petition in state court. On March 20, 2019, the
Newman Defendants filed their removal petition with the clerk
of the state court.
filed a motion to remand [#3], arguing that this Court does
not have subject-matter jurisdiction over this action because
there is no federal question in this case. The Newman
Defendants filed a response [#4], Treviño filed a
reply [#5], and the Newman Defendants filed a sur-reply
[#12]. The Court held an initial pretrial conference on June
18, 2019, at which argument was heard on Treviño's
Motion to Remand. On June 21, 2019, Treviño filed a
motion for leave to file an amended complaint [#18]. On July
8, 2019, Treviño filed an amended motion to remand
[#22]. On August 28, 2019, Treviño's filed a
second amended motion to remand [#27].
explained more fully below, the Court has subject-matter
jurisdiction over this case because Treviño's
complaint states a federal question. However, Treviño
subsequently amended his complaint to remove all federal
claims, and the Court should decline to continue to exercise
supplemental jurisdiction over Treviño's state-law
claims and remand this matter to state court.
Treviño's Second Amended Motion to Remand
courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “It is to be presumed that a cause
lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id. (internal citations
omitted). Because the Newman Defendants invoked the
jurisdiction of the federal courts by removing
Treviño's state-court case to federal court, they
must prove that federal jurisdiction existed at the time of
removal. See Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002) (“The
removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.”).
Newman Defendants filed a notice of removal in this Court on
March 19, 2019, asserting that Treviño's complaint
raised a federal question. The federal removal statute allows for
the removal of “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). To
determine whether jurisdiction is present for removal, the
court considers the claims in the state-court petition as
they existed at the time of removal. See Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th
Cir. 1995) (“[A] complaint amended post-removal cannot
divest a federal court of jurisdiction.”). “The
removal statute is . . . to be strictly construed and any
doubt as to the propriety of removal should be resolved in
favor of remand.” In re Hot-Hed Inc., 477 F.3d
320, 323 (5th Cir. 2007).
district courts have original jurisdiction over civil cases
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. To determine
whether a case “arises under” federal law, courts
apply the “well-pleaded complaint” rule, under
which “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's
properly pleaded complaint.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987); see also Willy
v. Coastal Corp., 855 F.2d 1160, 1165 (5th Cir. 1988)
(“In cases removed to federal court, the
plaintiff's well-pleaded complaint, not the removal
petition, must establish that the case arises under federal
law.”). A well-pleaded complaint presents a federal
question when it “establishes either that federal law
creates the cause of action or that the plaintiff's right
to relief necessarily depends on resolution of a substantial
question of federal law.” Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Tr. for S.
Cal., 463 U.S. 1, 27-28 (1983).
moves to remand this action to state court for lack of
subject-matter jurisdiction. In response, the Newman
Defendants argue that Treviño's complaint states a
claim created by federal law. The undersigned
December 17, 2018, Treviño filed a fourth amended
petition, which added a section titled “Application for
Permanent Injunction and Declaration.” (Pl.'s
Fourth Am. Pet. at 7.) The last sentence of that section
provides, in pertinent part: “Plaintiff hereby seek
[sic] an Order: (1) directing the Defendant(s) to modify
their premise to bring it into compliance with State law . .
. .” (Id. at 7.) Treviño filed a fifth
amended petition on February 25, 2019, which added the
following language to the beginning of the above-quoted
On or about July 26, 1990, Congress enacted the American with
Disabilities Act (“ADA”), 42 U.S.C. Sec. 12101 et
seq. Commercial enterprises were provided one and a half
years from enactment of the statute to implement its
requirements. The effective title III of the ADA was January
26, 1992, 42 U.S.C. Sec. 12181, 20 C.F.R. Sec. 36. 508(A).
Pursuant to 42 U.S.C. Sec. 12181(7) and 28 C.F. R. Sec.
36.104, the premises are places of public accommodation in
that it is a business that is owned and operated by a private
entity and that provides goods and services to the public.
The Defendant have discriminated and continue to discriminate
against the Plaintiff and others who are similarly situated
by denying safe access and equal enjoyment of the facilities
in derogation of 42 U.S.C. Sec. 12101 et seq.
The ADA is codified at 28 C.F.R. Part 36, Texas Architectural
Barriers Act (Tex. Govt. Code Sec. 469, et seq., Tex. Human
Resource Code Sec. 121.003.
Am. Pet. at 7-8.) Treviño's Fifth Amended Petition
also amended the last sentence of the Application for
Permanent Injunction and Declaration section to state, in
pertinent part: “Plaintiff hereby seek [sic] an Order:
(1) directing the Defendant(s) to modify their premise to