United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER, SENIOR JUDGE
removed action, plaintiff Samuel Theller
(“Theller”) moves to remand on the basis that the
removal was untimely. Because subsequent decisions in state
court may dictate whether this case was timely removed, the
court grants the motion to remand, recognizing that defendant
may be able to remove this case anew.
lawsuit involves Theller's residence in Mesquite, Texas.
The removing defendant is PROF-2013-S3 LEGAL TITLE TRUST, BY
U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE
(hereafter “defendant, ” unless the context
indicates otherwise), who foreclosed on the residence in July
2017. Theller filed suit in state court on April 19, 2019 and
incorrectly named the defendant as “U.S. BANK, NATIONAL
ASSOCIATION . . . in its capacity as Trustee for the PROF
2013 LEGAL TITLE TRUST.” Theller served “U.S.
Bank, National Association, ” another incorrectly named
entity, by service on the Texas Secretary of State. Defendant
did not answer the suit. The state district court granted
Theller's motion for default judgment against the
defendant named in the lawsuit and sent “U.S. Bank,
National Association” notice of the default judgment on
June 24, 2019.
filed a motion for new trial, which the state district court
granted on October 3, 2019. Theller then filed a petition for
writ of mandamus in the Texas Court of Appeals seeking to
vacate the state district court's order granting a new
trial. After Theller filed the petition, defendant removed
the case to this court. On December 11, 2019 the Texas Court
of Appeals abated the mandamus proceeding because the state
district judge who granted the new trial had been elevated to
the court of appeals, and a successor judge will be appointed
to fill the vacancy. When a successor judge is appointed to
fill this vacancy, the new judge will have the opportunity to
reconsider the October 3, 2019 ruling granting the motion for
now moves to remand the case to state court. Defendant
opposes the motion.
28 U.S.C. § 1446(b)(1), “[t]he notice of a removal
of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is
based[.]” 28 U.S.C. § 1446(b)(1). “The
Supreme Court clarified this language in Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,
347-48 (1999), holding the time for removal commences on
formal service of process, ‘not by mere
receipt of the complaint unattended by any formal
service.'” Bd. of Regents of Univ. of Tex. Sys.
v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th
Cir. 2007) (quoting Murphy Bros., 526 U.S. at
347-48). Section 1446(b)'s 30-day limit on removal is a
procedural limitation. Nevertheless, it is mandatory and is
to be strictly construed. See Cervantez v. Bexar Cty.
Civil Serv. Comm'n, 99 F.3d 730, 732 (5th Cir.
1996); 14C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3731, at 672
(rev. 4th ed. 2018). While the 30-day limitation is a federal
rule, “the question whether the plaintiff has properly
served the defendant is determined by reference to the
applicable state law” in removed cases. Thevenet v.
Deutsche Bank Nat'l Tr. Co., 2017 WL 4475880, at *2
(N.D. Tex. Oct. 6, 2017) (Fitzwater, J.) (citing Murphy
Bros., 526 U.S. at 348).
contends that defendant's removal is untimely because it
“filed its Notice of Removal more than five months
after it was served” and “over three months after
i[t] filed its Motion for New Trial.” P. Mot. 3.
Theller emphasizes that defendant “filed the Notice of
Removal only after being served with [Theller's] Petition
for Writ of Mandamus.” Id.
responds that removal is timely because it was not properly
served. Defendant contends that, because Theller
“requested a citation which clearly names as the
defendant ‘U.S. BANK, NATIONAL ASSOCIATION,' not
the correct Defendant name ‘PROF-2013-S3 LEGAL TITLE
TRUST, BY U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE
TRUSTEE, ” defendant was never formally served, and
therefore the time limit for removal has not yet begun. D.
replies that because defendant never argued that it was
improperly named in state court, defendant is now estopped
from raising improper service as a defense to remand. He
maintains that, to the extent he did misname the defendant
(which he does not concede), the error was a misnomer under
Texas law, not a misidentification. Theller asserts that,
because defendant “clearly knew that it was sued”
and “never contended to the contrary until remov[al],
” defendant was properly served well over 30 days
before removing the case. P. Reply 6.
the parties dispute whether defendant was properly served and
whether the time for removal has elapsed as a result, it is
actually the disposition of the case-at least in the state
district court-that necessitates remand. Because the
state district court's ruling on reconsideration of the
motion for new trial may conclusively determine whether
defendant was properly served and ...