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Theller v. U.S. Bank National Association

United States District Court, N.D. Texas, Dallas Division

December 20, 2019

SAMUEL THELLER, Plaintiff,
v.
US BANK NATIONAL ASSOCIATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER, SENIOR JUDGE

         In this 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.

         I

         This 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.

         Defendant 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.[1] 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 new trial.

         Theller now moves to remand the case to state court. Defendant opposes the motion.[2]

         II

         Under 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).

         III

         Theller 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.

         Defendant 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. Resp. 5.

         Theller 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.

         IV

         Although 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[3]-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 ...


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