United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
on the relevant filings and applicable law, the case should
be REMANDED to the 44th Judicial District
Court of Dallas County, Texas.
Inc. (Plaintiff) filed this action against Pacific Standard
Holdings, Carter Land Trust, Robert Perry II, and Mary Jill
Baker (collectively Defendants) in Cause No. DC-17-14324 in
the 44th Judicial District Court of Dallas County on December
7, 2017. (See doc. 3 at 1.)Plaintiff acquired
a loan agreement secured by the real property located at 7310
Waterbury Drive, Rowlett, Texas 75089 (Property).
(Id. at 6.)This loan agreement was initially
executed on March 6, 2008, by persons not associated with
this suit. (Id.) On October 8, 2013, the
Rowlett-Lakewood Pointe Homeowners Association (the HOA)
placed an assessment lien on the Property. (Id. at
8.) It foreclosed on the assessment lien on November 4, 2014,
and the Property was sold to 7310 Waterbury Landtrust.
(Id.) Eventually, 7310 Waterbury Landtrust conveyed
10 percent (10%) of the Property to Pacific Standard Holdings
and the remaining ninety percent (90%) to Carter Land Trust.
(Id.) Plaintiff further alleged that, in 2016,
Carter Land Trust conveyed to both Robert Perry II and Mary
Jill Baker ten percent (10%) of the Property each.
(Id.) Plaintiff seeks a declaratory judgment that
states its lien is superior to the HOA assessment lien, and
that the HOA foreclosure of the assessment lien, and
subsequent deed, remains subordinate to Plaintiff's lien.
(Id. at 9-10.)
same day the case was filed, an unknown individual acting on
behalf of Carter Land Trust removed this action to federal
court on the basis of diversity jurisdiction. (See
Id. at 5-6.) By order dated December 8, 2017, the
individual was advised that he could not represent Defendant
Carter Land Trust, an artificial entity, in this action.
(See doc. 5.) In response, an unidentified party
filed a motion to extend time to hire legal representation on
December 22, 2017. (doc. 6.) The motion was stricken by the
court that same day for failure to satisfy the requirement of
Rule 11(a), since the identity of the person signing the
motion was not apparent, and it was unclear whether counsel
had entered an appearance on behalf of Carter Land Trust.
(See doc. 7.) The party was also notified that the
removing party had failed to comply with the requirements of
28 U.S.C. § 1446 and Local Civil Rule 81.1 of the Local
Rules for the Northern District of Texas. (See doc.
April 9, 2018, the parties were ordered submit a proposed
scheduling order. (doc. 9.) Plaintiff's proposed
scheduling order, filed on August 6, 2018, contended that the
individual who purported to represent defendant Carter Land
Trust is Mr. Ira Davis. (See doc. 10.) It attached
court opinions showing that Davis was enjoined from filing
any pleadings in the United States District Court for the
Eastern District of Texas, as well as any court within
Tarrant County, without prior approval. (See doc.
10, Exhibits A-B.) A status conference was scheduled for
August 17, 2018. (doc. 11.) No one appeared for the
conference on behalf of any defendant or otherwise contacted
the court. (doc. 12.) At the hearing, counsel for the
plaintiff stated that both of the individual defendants had
told her that they were unaware of any transfer of an
interest in the Property to them, and that they did not
authorize anyone to represent them in this action. Counsel
contended that the case was improperly removed and should be
than fourteen days since the date of the December 22, 2017
order have passed, no amended notice of removal has been
filed, and no counsel has entered an appearance on behalf of
Carter Land Trust.
notice of removal asserts that federal jurisdiction exists
based on diversity of citizenship. (See doc. 3 at
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). They “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.” Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001). “The
removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper.”
Manguno v. Prudential Prop. and Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002). “[A]ny doubt about the
propriety of removal must be resolved in favor of
remand.” Gasch v. Hartford Acc. & Indem.
Co., 491 F.3d 278, 281-82 (5th Cir. 2007). Courts have
“a continuing obligation to examine the basis for their
jurisdiction.” See MCG, Inc. v. Great W. Energy
Corp., 896 F.2d 170, 173 (5th Cir. 1990). They may
sua sponte raise the jurisdictional issue at any
time. Id.; EEOC v. Agro Distrib., LLC, 555
F.3d 462, 467 (5th Cir. 2009) (even without an objection to
subject matter jurisdiction, a court must consider sua
sponte whether jurisdiction is proper).
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).
removed under § 1332 must have complete diversity of
citizenship. Lincoln Property Co. v. Roche, 546 U.S.
81, 84 (2005). “Complete diversity” means that a
plaintiff may not share citizenship with any defendant.
Whalen v. Carter, 954 F.2d 1087, 1094 (5th
Cir.1992). A party asserting diversity jurisdiction must
“distinctly and affirmatively” allege the
citizenship of the parties. Getty Oil Corp. v. Ins. Co.
of N. Am., 841 F.2d 1254, 1259 (5th Cir.1988) (citing
McGovern v. Am. Airlines, Inc., 511 F.2d 803, 805
(5th Cir. 1991)).
the notice of removal does not “distinctly and
affirmatively” allege the citizenship of each of the
four defendants. Moreover, the notice does not allege the
citizenship of the members of either of the defendants which
are non-corporate artificial entities. See SGK
Properties, L.L.C. v. U.S. Bank Nat'l Ass'n for
Lehman Bros., 881 F.3d 933, 940 (5th Cir. 2018)
(diversity jurisdiction in a suit against a non-corporate
artificial entity depends on the citizenship of all its
members) (citing Americold Realty Trust v. Conagra Foods,
Inc., __U.S.__, 136 S.Ct. 1012 (2016)). The removing
party has not met its burden to show diversity of
INVOLUNTARY REMAND OF ...