United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITEJ2 STATES DISTRICT JUDGE
case is before the Court on the Motions for Remand [Docs. #
4, # 5, and # 7] filed by Plaintiff Erik Davis, to which
Defendants Joseph Galagaza and Jackson Lewis P.C.
(“Jackson Lewis”) filed a Response [Doc. # 6].
The Court has carefully reviewed the full record and the
applicable legal authorities. Based on that review, the Court
grants the Motions for Remand and
remands this case to the 151st Judicial
District Court of Harris County, Texas.
has a long history of litigation with Defendants. In 2009,
Plaintiff brought a race discrimination suit against Protect
Controls, Inc. (“PCI”). Plaintiff was represented
in that lawsuit by attorney John Sekumade. PCI was
represented by attorney Galagaza and the law firm of Jackson
Lewis. The parties through counsel settled their dispute. PCI
provided a check for Plaintiff’s settlement funds to
Sekumade, who then filed a stipulation of dismissal with
prejudice. Plaintiff alleges that Sekumade did not deliver
the settlement funds to him.
2011, Plaintiff filed suit against Sekumade, seeking to
recover the settlement funds from the 2009 suit. Sekumade did
not appear and, in 2013, Plaintiff obtained a default
judgment against him for over $1 million. It appears that
Sekumade now lives in Nigeria and that Plaintiff has been
unable to collect the default judgment.
2014, Plaintiff filed suit against Galagaza, Jackson Lewis,
and PCI in the 151st Judicial District Court of Harris
County, Cause No. 2014-66506 (“Davis
I”), alleging misrepresentation and concealment of
monies in connection with settlement of the 2009 suit. Among
other things, Plaintiff alleged that he had not signed the
settlement agreement, and that Defendants had
“concealed” a benefits check that was part of a
flexible spending account or ERISA plan. See Third
Amended Petition [Doc. 2], ECF p. 325. Plaintiff asserted
causes of action for fraud, intentional infliction of
emotional distress, aiding and abetting breach of fiduciary
duty, and civil conspiracy. See Id . at ECF pp.
326-28. Plaintiff did not assert a separate ERISA claim or
specifically seek ERISA-based damages. Plaintiff submitted a
Fourth Amended Petition on March 21, 2016, but the state
court judge in the 151st Judicial District Court denied
Plaintiff’s Motion for Leave to File that petition.
See Order [Doc. # 1-3], ECF p. 12. After full
discovery on the merits, the state court granted summary
judgment for Defendants and dismissed Plaintiff’s
claims with prejudice on April 4, 2016. On April 18, 2017,
the Fourteenth Court of Appeals affirmed the dismissal.
20, 2017, Plaintiff filed a new case in the 151st Judicial
District Court of Harris County, Texas, Cause No. 2017-48122
(“Davis II”). Plaintiff asserted causes
of action under ERISA, and sought monies he alleged
Defendants owed him as part of a flexible spending plan or
ERISA plan. See Plaintiff’s Original Petition
in Davis II [Doc. # 1-2 in Civil Action No.
17-2677]. Defendants removed Davis II to this Court,
where it was assigned Civil Action No. 17-2677. Defendants
filed a Motion for Summary Judgment, asserting that the new
lawsuit was barred by res judicata. By Memorandum
and Order entered April 13, 2018, the Court granted
Defendants’ Motion and dismissed Plaintiff’s
claims as barred by res judicata. By Memorandum and
Order entered June 14, 2018, the Court denied
Plaintiff’s Motion for New Trial, holding again that
the claims were barred.
August 1, 2019, well more than three years after the Third
Amended Complaint had been dismissed in April 2016, Plaintiff
submitted for filing a Fifth Amended Petition in the original
state court lawsuit, Davis I. The state court judge
in the 151st Judicial District Court scheduled a September
16, 2019, hearing regarding whether to allow the amended
petition to be filed. Prior to the hearing, on August 20,
2019, Defendants filed a Notice of Removal [Doc. # 1], and
the hearing was passed. The removed case was assigned to the
Hon. Ewing Werlein.
filed a timely Motion to Remand [Doc. # 4] on August 27,
2019, a second Motion to Remand [Doc. # 5] on September 3,
2019, and an “Emergency Motion to Remand” [Doc. #
7] on September 24, 2019. Defendants filed their Response
[Doc. # 6], which included a Notice of Related Case and
Motion to Transfer the case to the undersigned. By Order
[Doc. # 8] entered September 26, 2019, Judge Werlein
transferred this case to the undersigned as related to Civil
Action 17-2677, Davis II. The Motions to Remand are
now ripe for decision.
STANDARD FOR MOTION TO REMAND
United States Supreme Court has “often explained that
‘[f]ederal courts are courts of limited
jurisdiction.’” Home Depot U.S.A., Inc. v.
Johnson, __ U.S. __, 139 S.Ct. 1743, 1745 (May 28, 2019)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)); Rasul v. Bush, 542 U.S.
466, 489 (2004); Gonzalez v. Limon, 926 F.3d 186,
188 (5th Cir. 2019). “‘They possess only that
power authorized by Constitution and statute, which is not to
be expanded by judicial decree.’” Rasul,
542 U.S. at 489 (quoting Kokkonen, 511 U.S. at 377);
Gonzalez, 926 F.3d at 188. The court “must
presume that a suit lies outside this limited jurisdiction,
and the burden of establishing federal jurisdiction rests on
the party seeking the federal forum.” Id.
(quoting Howery v. Allstate Ins. Co., 243 F.3d 912,
916 (5th Cir. 2001)); Settlement Funding, L.L.C. v. Rapid
Settlements, Limited, 851 F.3d 530, 537 (5th Cir. 2017).
determine whether jurisdiction is present for removal, we
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); Cormier v. Allstate Ins. Co., 2011
WL 13301127, *5 (E.D. Tex. Mar. 11, 2011).
case, the live pleading in Davis I at the time of
removal was the Third Amended Petition, filed January 3,
2016. Defendants assert that the Third Amended Petition does
not include a federal claim, and this Court agrees. ERISA is
mentioned, in a single paragraph of the 28-page Third Amended
Petition, as “illustrat[ing] defendant’s
awareness of the fraudulent nature of the transactions”
in connection with the settlement of race discrimination
lawsuit, and one of the enumerated bases for applying the
discovery rule for purposes of the statute of ...