Opinion
SA-2003-CA-790-RF
October 20, 2003
ORDER GRANTING MOTION TO REMAND AND DISMISSING PLEA TO THE JURISDICTION AND PLEA IN ABATEMENT AS MOOT
BEFORE THE COURT is Plaintiff's Motion for Remand and Request for Hearing (Docket No. 10) as well as Defendants `response (Docket No. 13). A hearing on the motion to remand was granted, and oral arguments heard on October 14, 2003. After consideration of the arguments of both parties and after Plaintiff's amendment of complaint, the Court is of the opinion that the Motion to Remand should be GRANTED. Based upon a finding that the Motion to Remand encompasses Plaintiff's other pleas with respect to jurisdiction, both Plaintiff's' Plea in Abatement (Docket No. 11) and Plea to the Jurisdiction or in the Alternative Motion to Refuse Jurisdiction (Docket No. 8) are DISMISSED AS MOOT.
Factual and Procedural Background
Plaintiff filed this cause in the 1 50th Judicial District of Bexar County Court in Texas, alleging assault, false arrest, false imprisonment, and unlawful seizure of property under color of state law by Defendant City of Leon Valley ("the City"), individually named Defendants, including police officers, employees of the police department, a City attorney, and ten unnamed Defendants who allegedly conspired with the other Defendants in a deprivation of Plaintiff's rights.
In his original complaint filed August 8, 2003, Plaintiff complained of a series of events arising out of an interaction with police officers on the evening of August 9, 2001. Plaintiff alleged that he was unreasonably detained, seized without a warrant and assaulted by officers. (Pi's Original Complaint, at 3). He further alleged that his firearm was unlawful seized and that he was falsely imprisoned and forced to sign a municipal citation for an expired drivers license under duress. ( Id. at 4). Plaintiff claimed all of the officers' conduct was unlawful because the officers failed to act under a valid "Statement of Officer (anti-bribery statement) . . . as required by Article 16, § 1 of the Texas Constitution. . . ." ( Id.).
Plaintiff complained of criminal charges entered against him for "unlawful carrying of weapon" and related proceedings because officers allegedly made false statements about the events leading up to the charge. ( Id.). In addition, Plaintiff complained that upon the dismissal of the criminal charge certain real property, firearm ammunition, was not returned to him. ( Id. at 5).
Finally, Plaintiff complained of the proceedings in municipal court of Leon Valley relating to the charge of an "exp. driver license." (Id.). Essentially, he alleged a violation of his due process rights, in that the court failed to provide him a copy of the complaint prior to the hearings. ( Id.). In the context of this proceeding, Plaintiff complained that the prosecution, Ms. Lanfear, and others violated the law by acting without a validly filed "anti-bribery statement and oath of office." ( Id. at 6). Plaintiff claimed that all of the above was committed in violation of his civil rights as secured by both the Texas and United States Constitution. ( Id. at 9).
Defendants collectively removed the action to this Court pursuant to 28 U.S.C. § 1441(b) and, in response to Plaintiff's motion to remand, argue that Plaintiff's cause is substantially a federal one, properly before this Court with supplemental jurisdiction over the attendant state law claims. At the hearing held on October 14, Plaintiff presented the Court with a proposed amended complaint, which he had filed in state court. The complaint, then proposed because the Court had not yet granted leave to file an amended complaint, largely removed claims based upon the United States Constitution or on federal law. Plaintiff alleged only claims founded on the Texas Constitution or Texas law. The Court granted Plaintiff leave to file the amended complaint and instructed Plaintiff that if all federal claims were removed, then the Court would lack subject matter jurisdiction and would therefore remand.
Discussion
28 U.S.C. § 1441(b) provides this Court with removal jurisdiction over causes of action that fall within the Court's original jurisdiction under 28 U.S.C. § 1331. In addition, causes of action that do not fall within the original subject matter jurisdiction of the district court may still be removable if they arise out of a common nucleus of operative fact.
"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b).
"The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
See 28 U.S.C. § 1441(c); United Mine Workeers of America v. Gibbs, 383 U.S. 715, ??? (1966); Nabors v. City of Arlington, et al, 688 F. Supp. 1165, 1167-1169 (E.D. Tex. 1988).
In light of Plaintiff's filed first amended complaint, Plaintiff alleges only state law claims. Therefore, this Court could not have enjoyed original jurisdiction over the case under section 1331 and lacks removal jurisdiction under section 1441. For these reasons, the Court will remand the matter to state court.
See Docket No. 19, First Amended Complaint filed on October 15, 2003.
The Court cautions Plaintiff though. Upon remand, any effort to amend his complaint and assert claims grounded in federal law will trigger removal. "[T]here is no question that section 1983 cases filed in state court may be removed to federal court because they are cases that could have originally been filed in federal court." "Whether the district court has jurisdiction can be determined from the `face of the plaintiff's well-pleaded complaint' — from the pleading itself, without the requirement of evidence or a merits inquiry." Were Plaintiff to amend his complaint again and assert a substantively federal claim, then this Court could assert removal jurisdiction if the matter were properly removed.
Cervantez v. Bexar County Civil Service Comm'n, 99 F.3d 730, 733 (5th Cir. 1996).
Beiser v. Weyler, 284 F.3d 665, 671 (5th Cir. 2002) (citation omitted).
In light of the arguments presented at the hearing and Plaintiff's amended complaint, the Court need not resolve all of the issues raised by the parties' briefs, addressing the issue of remand prior to the complaint's amendment. However, the Court will briefly address the major points that were raised again by the parties at the hearing.
First, Plaintiff argues that removal is improper because he was denied due process in the service of the removal notice. Plaintiff explicitly alleges a violation of his federal constitutional rights as grounds for this Court's lack of jurisdiction. "Defendants' failure to provide Garrison with effective notice and an opportunity to be heard is a violation of Garrison's right of due process of law secured under the Article 1, § 13 of the Texas Constitution; Fifth and Fourteenth Amendments of the Constitution of the United States. . . ." By Plaintiff's own admission, he received Defendants' Notice of Removal via certified mail on August 23, 2003, but he claims that notice was faulty and his due process rights violated because Defendants failed to provide him with an opportunity to be heard. Plaintiff's argument with respect to a hearing on the removal is inapposite. Based upon Plaintiff's own admission, the Court finds that proper notice of removal was supplied to Plaintiff. The absence of a hearing upon a notice of removal does not effect a court's determination of its own subject matter jurisdiction.
Pl's Motion to Remand, at 3.
Id. at 2.
Plaintiff next argues that Defendants' Notice of Removal contains false statements. Incorporating by reference his Plea to the Jurisdiction (Docket No. 8), Plaintiff points the Court to an error in Defendants' Petition for Removal. The last paragraph of the brief states: "Petitioners pray that the above entitled and numbered cause now pending in the 112th Judicial District Court of Pecos County, Texas be removed to this Court." Instead, Defendants intended to remove the matter from the 150th Judicial District Court of Bexar County, Texas, as stated at the hearing. The Court finds this error, in the context of the entire case file and procedural history and in the face of the matter's proper removal to this Court, to be typographical and insufficient grounds for an objection to removal.
Ds' Petition for Removal, at 3.
Finally, Plaintiff asks this Court to remand on the basis that he will be denied counsel by removal. For purposes of the hearing on the motion to remand, Plaintiff has designated Mr. Ralph Cooper as counsel, and the Court entered an order allowing counsel to appear pro hac vice. The Court's Order would provide for Plaintiff's representation were his case to be tried in this forum. However, the decision to remand is an issue of subject matter jurisdiction, not one of representation. Therefore, the Court is free to resolve the issue of subject matter jurisdiction without reference to the forum's effect on a party's ability to obtain or retain counsel.
See generally Louisville N.R. Co. v. Mottley, 211 U.S. 149(1908). See also Beiser v. Weyler, 284 F.3d at 670-72.
Conclusion
For the reasons state above, it is hereby ORDERED that Plaintiff's Motion to Remand is GRANTED. The Clerk is ORDERED to EFFECT the remand.It is further ORDERED that Plaintiff's Plea in Abatement and Plea to the Jurisdiction are DISMISSED AS MOOT.