Opinion
No. 3-04-CV-2355-P.
January 20, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Before the court are the pro se pleadings filed by Robert and Effeunia Ivy purporting to be a removal of an action previously filed in Cause No. JE-0405-137-H in the Justice of the Peace Court for Precinct One of Dallas County, Texas.
Removal of an action to federal court is governed by the provisions of 28 U.S.C. § 1446. Procedure for removal. In pertinent part § 1446(c)(4) authorizes a federal court to order a summary remand of a case to the state court from which it was removed.
The papers and pleadings clearly demonstrate that the Ivys' removal is fatally flawed.
1. § 1446(a) requires a removing party to file with the notice of removal "a copy of all process, pleadings and orders served" on the removing party. Even a cursory review of the papers attached to the Ivys' notice of removal demonstrates that this requirement has not been met. For example, the petition filed by the Plaintiff Enterprise Properties in the state court action is not included.
2. § 1446(b) requires that the removal of a civil action be filed within thirty (30) days after a defendant's receipt of the initial pleadings filed in the state court. Despite the lack of completeness of the records from the justice of the peace court, the papers submitted with the Ivys' notice reflects that service of the state court proceedings was effected on November 12, 2003. The notice of removal in this case was filed on December 28, 2004.
3. § 1446(d) requires that "[p]romptly after the filing of such notice of removal . . . the defendants shall give written notice to all adverse parties." The papers before this court are devoid of any indication that this requirement has been met.
4. § 1446(a) requires in pertinent part that the notice of removal contain a short and plain statement of the grounds for removal. The Ivys' notice of removal purports to invoke this court's diversity jurisdiction. Without a copy of the petition filed by Enterprise Properties it is impossible to determine whether the amount in controversy satisfies the requirements of 28 U.S.C. § 1332(a). However, this court may take judicial notice of the fact that the monetary limits on the jurisdiction of a Texas justice of the peace is far less than the minimum amount in controversy required by § 1332(a).
5. Defendants in attempting to remove this action to federal court have failed to pay the $150.00 filing fee. Although Robert Ivy filed a motion to proceed in forma pauperis and both filed motions for court-appointed counsel, it is abundantly clear that they are not entitled to proceed without payment of the filing fee. Robert Ivy is currently employed in Dallas earning $3,564.00 a month and Effeunia Ivy is currently employed at the "Dallas School." RECOMMENDATION:
The court may take judicial notice of the fact that in a separate action filed by the Ivys in No. 3-04-CV-2380-K a magistrate judge of this court has found that they are not entitled to proceed in forma pauperis and has ordered that they pay the $150.00 filing fee. See order filed on January 2005.
For the foregoing reasons it is recommended that the District Court enter its order summarily remanding this action to Justice of the Peace Court, Precinct One of Dallas County, Texas.