United States District Court, W.D. Texas, San Antonio Division
REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES
ELIZABETH S. ("BETS Y") CHESTNEY UNITED STATES
Honorable United States District Judge Fred Biery:
Report and Recommendation concerns the above-styled cause of
action. All dispositive pretrial matters in this case have
been referred to the undersigned for disposition pursuant to
Western District of Texas Local Rule CV-72 and Appendix C
[#4]. The undersigned has authority to enter this
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For
the reasons set forth below, it is recommended that this case
be remanded for lack of removal jurisdiction.
case was originally filed in the 837th Judicial District
Court for Bexar County, Texas by Plaintiff McCormack Baron
Management, Inc. (“McCormack”) on August 15, 2018
against Defendant James W. Myart, Jr. (Orig. Pet. [#1-3] at
47-49.) McCormack is the manager of property known as
Wheatley Park Senior Living in San Antonio, Texas.
(Id. at 48.) McCormack initiated this lawsuit by
filing an “Application for Protective Order”
against Myart to protect McCormack and its employees, agents,
representatives, and residents from Myart entering the
property based on a posted notice informing Myart he was
banned from the premises. (Id. at 48-49.) The
parties entered into an Agreed Protective Order on August 17,
2018, which prohibited Myart from “going within 500
feet of [McCormack's] businesses located at Wheatley Park
Senior Living, ” among other relief. (Protective Order
[#1-3] at 52-54.)
leases a portion of its apartment building to BiblioTech East
Library. (Kirkpatrick Aff. [#1-3] at 56.) Myart was seen at
the library on repeated dates from March 7, 2019 to May 8,
2019. (Id.) McCormack moved to hold Myart in
contempt for violation of the Protective Order, but the state
court denied the motion. (Contempt Mtn. [#1-3] at 71-73;
Order [#1-3] at 2.) Myart filed a “Cross-Action
Petition Application for Temporary Restraining Order and
Temporary Injunction” against McCormack, Nicole Love
(Manager of Wheatley Senior Living Center), Bexar County,
Bexar County Judge Nelson Wolff, Laura Cole, and Dr. Ivey on
June 12, 2019. (Myart Pet. [#1-3] at 25-36.) Myart's
Petition alleges that “Defendants have embarked on a
‘destroy James Myart' scheme of events including
but not limiting to having [him] arrested while he was
attempting to complete work at the Bibliotech Computer
Library.” (Id. at 27.) Myart asserts
violations of his right to equal protection and to be free
from unreasonable search and seizure pursuant to 42 U.S.C.
§ 1983, as well as state-law causes of action.
(Id. at 28-36.) The Court construes Myart's
Petition as asserting counter-claims against McCormack and
third-party cross-claims against Bexar County, Wolff, Cole,
and Ivey (hereinafter referred to as “the Bexar County
Bexar County Cross-Defendants removed this case to federal
court on July 19, 2019, asserting removal jurisdiction based
on the federal questions raised in Myart's
“Cross-Action.” (Notice of Removal [#1] at 2.)
McCormack and Love consented to the removal. (Id. at
3.) The Honorable United States District Judge Fred Biery
referred this case to the undersigned for all pretrial
proceedings, and the undersigned set this case for its
standard initial pretrial conference. (Order [#5].)
preparation for the conference, the undersigned initiated a
review of the case file, including a review of this
Court's subject matter jurisdiction. This Court has an
independent duty, at any level of the proceedings, to
independently examine the basis of its subject matter
jurisdiction sua sponte. Union Planters Bank Nat.
Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).
The undersigned has concluded this Court lacks subject matter
jurisdiction over this case and must therefore remand to the
837th Judicial District Court for Bexar County.
to 28 U.S.C. § 1331, district courts have original
jurisdiction over suits involving federal questions.
“[A]ny civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or defendants .
. . .” 28 U.S.C. § 1441(a). “The Supreme
Court has explained that ‘under the present statutory
scheme as it has existed since 1887, a defendant may not
remove a case to federal court unless the plaintiff's
complaint establishes that the case ‘arises under'
federal law.” Renegade Swish, L.L.C. v.
Wright, 857 F.3d 692, 695-96 (5th Cir. 2017) (quoting
Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983)). It
has been long held that whether a case arises under federal
law must be determined from the plaintiff's complaint,
irrespective of any defense raised by the defendant.
Franchise Tax Bd. of State of Cal., 463 U.S. at 10. In other
words, the critical question in evaluating removal
jurisdiction is whether the “action could have been
brought originally in federal court.” Home Depot
U.S. A., Inc. v. Jackson, 139 S.Ct. 1743 (2019),
reh'g denied, No. 17-1471, 2019 WL 3538074 (U.S. Aug. 5,
counterclaims, even if they rely exclusively on federal
substantive law, do not give rise to removal jurisdiction.
Vaden v. Discover Bank, 556 U.S. 49, 61-62 (2009).
See also Holmes Group, Inc. v. Vornado Air Circulation
Systems, Inc., 535 U.S. 826, 831 (2002) (“[A]
counterclaim . . . cannot serve as the basis for
‘arising under' jurisdiction”); Renegade
Swish, L.L.C., 857 F.3d at 697 (“Holmes Group and Vaden
extinguished any possibility that a counterclaim can
establish federal question jurisdiction.”) The Supreme
Court recently clarified that this reasoning applies, even
where the removing party is a “third-party
defendant” to a counterclaim, as here. Home Depot U.S.
A., Inc., 139 S.Ct. at 1750.
Bexar County Defendants-as third-party Defendants-erroneously
relied on the federal issues raised in Myart's
cross-claims to establish removal jurisdiction. These claims
cannot form the basis of this Court's subject matter
jurisdiction. See Id. McCormack's pleading does
not assert any federal cause of action and therefore could
not have been filed originally in federal court based on
federal subject matter jurisdiction. No. party has asserted
that there is diversity jurisdiction over this case.
Accordingly, there was no jurisdiction for removal, and the
District Court must remand for lack of subject matter
jurisdiction. Based on this recommendation, the undersigned
will cancel the scheduled pretrial conference in this case.
Conclusion and Recommendation
considered the pleadings and procedural history of this case
and the governing law on removal jurisdiction, the
undersigned recommends that this case be REMANDED to ...