United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
R. MARTINEZ, UNITED STATES DISTRICT JUDGE
day, the Court considered Defendant Giancarlo Messina's
"Notice of Removal" (ECF No. 1), filed on August
29, 2019; Plaintiff SSS Entertainment, LLC's "Motion
to Remand Matter to State Court" (ECF No. 7)
[hereinafter "Motion to Remand"], filed on
September 6, 2019; and Defendant Messina's "Response
to Plaintiffs Motion to Remand Subject to First Amended
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) and
12(b)(3)" (ECF No. 8) [hereinafter
"Response"], filed on September 12, 2019. After due
consideration, the Court is of the opinion that Plaintiff s
Motion to Remand should be denied for the reasons that
FACTUAL AND PROCEDURAL BACKGROUND
lawsuit arises out of a contract dispute. On April 15, 2019,
Plaintiff wired Defendant Carlos Bethancourt at least $209,
000 in an attempt to book the performer Enrique Iglesias for
a concert in El Paso, Texas. Notice Removal Attach. A at 2.
Over the course of the next "three months from March
," Defendant Bethancourt and his attorney
Defendant Messina indicated to Plaintiff that Defendants
would return Plaintiffs payment based on a "mutual
mistake." Id. at 3. Defendants did not return
these funds. Id.
a business with its home office in El Paso, Texas, filed suit
against Defendants in state court. Defendant Bethancourt is a
citizen of Uruguay who resides in Mexico, and Defendant
Messina is a lawyer who lives and practices law in the state
of Florida. In its complaint, Plaintiff alleged claims
including breach of contract, unjust enrichment, intentional
infliction of emotional distress, conversion, negligent
misrepresentation, and violations of the Texas Deceptive
Trade Practices Act. Id. at 4-7. For relief,
Plaintiff requested $209, 000 in actual damages, as well as
treble damages, punitive damages, and attorney's fees.
Id. at 8.
August 29, 2019, Defendant Messina filed his Notice of
Removal pursuant to 28 U.S.C. § 1332. Therein,
Defendant alleges that the citizenship and residency of
parties, as well as the amount in controversy, establish
diversity jursidiction. Notice Removal 3.
September 6, 2019, Plaintiff filed its Motion to Remand.
Plaintiff argues there is no basis for removal because its
complaint consists of "[c]auses of action which are
based in and upon Texas law." Mot. Remand 1. Plaintiff
claims there is no diversity jurisdiction because
"diversity jurisdiction is not alleged," and no
federal jurisdiction because "there is no federal
question on the face of the complaint." Id. at
September 12, 2019, Defendant Messina filed his Response to
Plaintiffs Motion to Remand. Defendant Messina argues that
"complete diversity exists" based on the
citizenship and residency of the parties. Resp. 2.
Additionally, Defendant indicates that Plaintiff alleges
actual damages of $209, 000, which satisfy the statutory
amount in controversy for diversity jurisdiction.
to 28 U.S.C. § 1441(a), federal law provides for the
removal of civil actions brought in a state court over which
the district court has original jurisdiction. "A federal
district court may exercise original jurisdiction over any
civil action that either satisfies diversity requirements or
that arises under the federal constitution, statutes, or
treaties ... ." Energy Mgmt. Servs., L.L.C. v. City
of Alexandria, 739 F.3d 255, 258-59 (5th Cir. 2014)
(citing 28 U.S.C. §§ 1331, 1332, 1369).
from state court raises significant federalism concerns.
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
2008). "Federalism concerns animate the rule requiring
strict construction of removal statutes." Beiser v.
Weyler, 284 F.3d 665, 674 (5th Cir. 2002). "The
removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper."
Manguno v. Prudential Prop. & Cos. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)).
Notice of Removal, Defendant Messina properly alleges (1)
complete diversity of citizenship among the parties, and (2)
an amount in controversy exceeding $75, 000. See 28
U.S.C. § 1332. Accordingly, the Court is of the opinion
that it has proper diversity jurisdiction over Plaintiffs
claims and Plaintiffs Motion to Remand should be denied.
diversity exists when an action is between citizens of
different States. 28 U.S.C. § 1332(a)(1). Pursuant to 28
U.S.C. § 1332(a), a corporation "is deemed to be a
citizen of both the state of its incorporation and the state
of its principal place of business." J. A. Olson Co.
v. City of Winona, Miss.,818 F.2d 401, 404 (5th Cir.
1987). Diversity also exists between "citizens of a
State and citizens or subjects of a foreign state" or
"citizens of different ...