United States District Court, E.D. Texas, Sherman Division
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
D. JORDAN, UNITED STATES DISTRICT JUDGE
case was referred to United States Magistrate Judge Christine
A. Nowak pursuant to to 28 U.S.C. § 636. Judge Nowak has
presented for consideration a Report and Recommendation (Dkt.
#8), containing proposed findings of fact and recommendations
that Defendant's application to proceed in forma
pauperis (Dkt. #3) be granted, Defendant's Notice of
Removal (Dkt. #1) be dismissed for lack of jurisdiction, and
the cause be remanded to the Justice Court, Precinct 3, Place
2 of Collin County, Texas.
considered the report of the United States Magistrate Judge,
and no objections to the report having been timely filed, the
Court ADOPTS in part the Report and
Recommendation of the Magistrate Judge,
DISMISSES this case for lack of
subject-matter jurisdiction, and DENIES as
moot Defendant's Motion for Leave to Proceed
in forma pauperis.
courts are courts of limited jurisdiction,' possessing
‘only that power authorized by Constitution and
statute.'” Gunn v. Minton, 568 U.S. 251,
256, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
Accordingly, courts have an “independent obligation to
assess our own jurisdiction before exercising the judicial
power of the United States.” MidCap Media Finance,
L.L.C. v. Pathway Data, Incorporated, 929 F.3d 310, 313
(5th Cir. 2019) (citing Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583, 119, S.Ct. 1563, 143 L.Ed.2d 760
state court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant.” Caterpillar Inc. v. Williams, 482
U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing
28 U.S.C. § 1441(a)). When an action has been removed to
federal court, a district court must remand the case to state
court if, at any time before final judgment, it determines
that it lacks subject-matter jurisdiction. 28 U.S.C. §
1447(c); see also, e.g., Humphrey v. Tex. Gas
Serv., No. 1:14-CV-485, 2014 WL 12687831, at *2 (E.D.
Tex. Dec. 11, 2014).
there is no diversity of citizenship among the parties, a
federal court has original jurisdiction over claims that
“aris[e] under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
“Arising under” in this context means that the
claim must be presented as a part of the plaintiff's
well-pleaded complaint, not as an actual or anticipated
defense. See Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 152, 29 S.Ct. 44, 53 L.Ed. 126
(1908) (“Although such allegations show that very
likely, in the course of the litigation, a question under the
Constitution would arise, they do not show that the suit,
that is, the plaintiff's original cause of action, arises
under the Constitution.”).
instant case is a forcible detainer action between two Texas
citizens. (Dkt. #4). “Forcible detainer actions are
governed by the Texas Property Code and are questions of
state, not federal, law.” Nahlawi v.
Burton-Dabney, No. 4:14-CV-609, 2015 WL 139764, at *2
(E.D. Tex. Jan. 9, 2015) (citing Tex. Prop. Code Ann. §
24.001, et seq.). The Defendant's attempt to
remove based on perceived civil rights violations (Dkt. #1)
is insufficient to confer jurisdiction. See Powers v. S.
Cent. United Food & Commercial Workers Unions, 719
F.2d 760, 764 (5th Cir. 1983) (“[N]either the
defendant's answer nor its petition for removal may serve
as the basis for federal jurisdiction. . . .”). Because
the parties are not diverse and the complaint raises no
claims arising under the Constitution or other federal laws,
this Court is without subject-matter jurisdiction. The case
must, therefore, be remanded to state court.
these reasons, the Court ADOPTS in part the
Report and Recommendation of the Magistrate Judge,
specifically the Magistrate Judge's recommendation that
Defendant's Notice of Removal be dismissed for lack of
subject-matter jurisdiction. It is therefore
ORDERED that Defendant's Notice of
Removal (Dkt. #1), purporting to remove Cause Number
32-EV-19-00591, pending before the Justice Court, Precinct 3,
Place 2 of Collin County, Texas, is DISMISSED FOR
LACK OF JURISDICTION. Defendant's Motion for
Leave to Proceed in forma pauperis (Dkt. #3) is
DENIED as moot.