Opinion
No. SA-03-CA-0458-RF
July 24, 2003
ORDER GRANTING PLAINTIFFS' MOTION TO REMAND
Before the Court is Plaintiffs' Opposed Motion to Abstain and to Remand ("Motion to Remand"), filed on July 10, 2003. After due consideration, the Court is of the opinion that the Motion to Remand should be GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
This action comes before the Court with a long and winding procedural history. The Court recounts the relevant portions of that history here. Plaintiffs are former employees of Comal Independent School District ("Comal ISD") who worked in the Therapeutic Day Treatment Center ("TDTC"), which was developed to provide care to special education students. Plaintiffs initially filed suit in November 2001 in Comal County District Court, 274th Judicial District of Texas, claiming they were unfairly forced by Comal ISD to choose between resignation and termination. Three Plaintiffs chose resignation; the fourth chose termination. In their Original Petition, Plaintiffs alleged the following causes of action: (1) constructive termination; (2) denial of due process; (3) breach of contract; (4) intentional infliction of emotional distress; and (5) slander. Shortly thereafter, Plaintiffs sought dismissal of their suit without prejudice for the purpose of refiling in federal court. The request was granted by the state court on January 14, 2002.
See Def.'s Reply to Pls.' Resp. to Resp't's Req. for Att'y Fees, Case No. SA-02-CA-0437-FB (Docket #32), Ex. A.
See id., Ex. A.
Id., Ex. A ¶ 14, at 2.
Id. , Ex. C, at 1.
Id., Ex. C, at 3.
Plaintiffs refiled in this Court on May 2, 2002, and the case was assigned to the Honorable Fred Biery, United States District Judge. Plaintiffs alleged causes of action for: (1) constructive termination; (2) denial of due process; (3) breach of contract; and (4) denial of reputational rights. Defendant filed a motion to dismiss and a motion for summary judgment in that case. These motions were referred to United States Magistrate Judge Pamela A. Mathy. The Magistrate Judge construed Plaintiffs' due process claim as an alleged violation of Plaintiffs' Fourteenth Amendment rights, brought pursuant to 42 U.S.C. § 1983, and this interpretation was consistent with the parties' own statements.
See Pls.' Original Pet, Case No. SA-02-CA-0437-FB (Docket #1).
Id. at 4.
The Magistrate Judge recommended summary judgment in favor of Defendant with regard to Plaintiffs' federal due process claims on the grounds that Plaintiffs had failed adequately to establish both the existence of any protected liberty interest and the improper deprivation of that interest.
See Report and Recommendation, Case No. SA-02-CA-0437-FB (Docket #21).
Judge Biery accepted the recommendation and granted summary judgment to Defendant on Plaintiffs' federal due process claims on October 18, 2002. Since this order disposed of all of Plaintiffs' federal claims, Judge Biery noted the discretion reserved to a district judge in exercising supplemental jurisdiction over Plaintiffs' pendent state claims. Judge Biery opted not to retain the state claims and dismissed those claims without prejudice so that Plaintiffs could refile these claims in state court.
See Order Accepting Report and Recommendation, Case No. SA-02-CA-0437-FB (Docket #26).
Id. at 5 (citing Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999)).
id. (citing Bass, 180 F.3d at 246).
Following this action, Plaintiffs refiled their claim in Comal County District Court, 22nd Judicial District of Texas, attaching two additional individual defendants. Plaintiffs new state court petition alleged: (1) constructive termination; (2) denial of Comal ISO's due process proceedings as outline in the policy manual; (3) breach of contract; (4) reputational rights; (5) civil conspiracy; (6) interference with existing contract; (7) breach of fiduciary duty; (8) fraud; and (9) retaliation. Plaintiffs sought actual damages and attorney's fees. On June 2, 2003, Defendants removed the case to this Court on the basis that Plaintiffs' due process claim arises under the Constitution of the United States.
See Defs.' Notice of Removal, Attach. (Pls.' Original Pet.) (June 2, 2003).
Id., Attach.
Id., Attach.
Id. ¶ 3, at2.
Plaintiffs now seek to remand this case back to the state court of origin. They assert that their claim is a state due process claim, and they contend that Defendants had no plausible basis for believing Plaintiffs were alleging a federal claim. Defendants opposed the Motion to Remand. In their Response and Opposition, Defendants argue that Plaintiffs indeed raise a federal question. Defendants first assert that Plaintiffs employ the phrase "due process of law," which is found in the federal Constitution, rather than "due course of law," which is contained in the Texas Constitution. Defendants next argue that Plaintiffs only seek monetary damages, which Defendants contend are not available for violations of the Texas Constitution. Finally, Defendants point to the fact that Plaintiffs cite the federal venue statute in their state petition. The Court held a hearing on this matter on July 23, 2003,
Pls.' Opposed Mot. to Abstain and to Remand (July 10, 2003).
Defs.' Resp. and Opp'n to Pls.' Mot. to Abstain and to Remand, at 4 (citing U.S. CONST. amend. XIV, § 1 and TEX. CONST, art. I, § 19) (July 18, 2003).
Id.
Id. at 5 (citing 28 U.S.C. § 1391).
DISCUSSION
The federal removal statute allows removal by a defendant to federal court for any action "founded on a claim or right arising under the Constitution, treaties or laws of the United States. . . ." The burden of establishing federal jurisdiction rests with the defendant, and federal courts generally construe the removal statute strictly, since removal deprives the state court of an action properly before it. "A determination that a cause of action presents a federal question depends on the allegations of the plaintiffs well-pleaded complaint."
28 U.S.C. § 1441(b); see also 28 U.S.C. § 1331.
Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995) (citing Wilson v. Republic Iron Steel Co., 257 U.S. 92, 42 S.Ct. 35 (1921) and Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872 (1941)).
Id. at 366 (5th Cir. 1995).
Under the well-pleaded complaint doctrine, the plaintiff is "master of her complaint." In other words, a plaintiff with a choice between state and federal claims may decide what law to rely on. The one exception to the well-pleaded complaint doctrine is the artful pleading doctrine, which allows removal when the plaintiff, in fact, has "no state claim at all." Thus, if a plaintiff indeed has a viable state law claim, he may depend on it alone and thereby defeat attempts at removal.
Id. (citing Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480, 35 S.Ct. 658, 659 (1915)).
Id. (citing The Fair v. Kohler Die Specialty Co., 228 U.S. 22, 23, 33 S.Ct. 410, 411 (1913)).
Id. at 367.
Id. (citing Caterpillar, Inc. v. Williams, 482 U.S. 386, 391 n. 7, 107 S.Ct. 2425, 2429 n. 7 (1987)).
The Court now turns to the present Motion to Remand. The only relevant claim for purposes of this Motion is Plaintiffs' due process claim. Defendants do not assert that Plaintiffs raise any other federal question in their Original Petition, Plaintiffs' due process claim states, in its entirety:
DENIAL OF COMAL INDEPENDENT SCHOOL DISTRICT'S DUE PROCESS PROCEEDINGS AS OUTLINED IN THE POLICY MANUAL
Under the contractual relationship between Plaintiffs and Defendant, Plaintiffs contend they have a property right in their employment for the 2001-2002 school year. Termination of employment deprives Plaintiffs of that property right. According to the district's own policies, Defendant must have afforded Plaintiffs due process. Due process was not provided. Therefore, Plaintiffs were deprived of their property right without access to due process.
See Defs.' Notice of Removal, Attach. (Pis.' Original Pet.), at 3.
See Defs.' Notice of Removal, Attach. (Pis.' Original Pet.), at 3.
In Plaintiffs previous state petition, as well as in their previous federal petition, they employed nearly identical language. The claim differed, however, in two regards. First, the previous claim was merely entitled, "Denial of Due Process." Second, the third sentence began with the clause "By law," rather than a reference to "the district's own policies." Notwithstanding these differences, Defendants allege that Plaintiffs' claim arises under the United States Constitution.
See Pls.' Original Pet., Case No. SA-02-CA-0437-FB (Docket #1) ¶ 16, at 4.
Id.
Although the Court notes the absence of an express reference to the Texas Constitution in Plaintiffs' Original Petition, it reiterates that the burden lies with Defendants to show that the claim arises under federal law. The first argument advanced by Defendants is that Plaintiffs employ the phrase "due process," rather than "due course of law." Defendants concede that the clauses are essentially analogous, but nevertheless assert that "the textual difference between `due course' and `due process' is instructive in determining what body of law the plaintiff is asserting was violated." Defendants cite only one authority, University of Texas Medical School at Houston v. Than, as support for this position. A review of this case, however, reveals that it does not support Defendants' argument, but rather holds that the terms are "without meaningful distinction."
Carpenter, 44 F.3d at 365.
Defs.' Resp. and Opp'n to Pis.' Mot. to Abstain and to Remand, at 4.
Id.
901 S.W.2d 926, 929 (Tex. 1995).
Id.
This Court agrees. The distinction identified by Defendants is purely semantic and does not satisfy Defendants' burden of showing that Plaintiffs either expressly or implicitly allege a violation of federal due process. To the contrary, Plaintiffs amended the language of their previous due process claim to make specific reference to locally derived due process rights. The Court recognizes the fact that Plaintiffs' reference to Comal ISD's policies identifies only the source of the alleged property interest, rather than the character of the due process right which protects that interest. Nevertheless, Plaintiffs' recharacterization of their due process claim, when viewed in light of this Court's previous dismissal with prejudice of their federal due process claim, undermines Defendants' argument that Plaintiffs are actually disguising federal due process claims as state constitutional claims. The Court dismissed Plaintiffs' previous state law claims without prejudice in order to allow Plaintiffs to refile in state court. Plaintiffs amended their petition accordingly and refiled in state court, raising a valid state constitutional claim. Thus, the Court rejects Defendants' assertion that Plaintiffs are merely reasserting their former federal due process claim.
See Defs.' Notice of Removal, Attach. (Pls.' Original Pet.), at 3.
See Irby v. Sullivan, 737 F.2d 1418, 1421 (5th Cir. 1984) (holding that the "property interest can emanate from a statute, local ordinance, or rule, or from a mutually explicit understanding).
The Court further notes that, even if Defendants' suggestion were valid, Defendants would not be prejudiced. Since 28 U.S.C. § 1446(b) imposes no time limit on removal of a federal question case, Defendants may seek removal at some future date if it later becomes apparent that Plaintiffs are actually asserting a federal claim. The prior unsuccessful attempt does not preclude a subsequent successful removal.
See Dardeau v. West Orange-Grove Consol Indep. Sch. Dist., 43 F. Supp.2d 722, 726 (E.D. Tex. 1999).
Id.
Defendants' next argument is that Plaintiffs must be raising a federal due process claim because the Texas Constitution does not provide for monetary damages. The Court first notes that it does not necessarily accept Defendants' view of this issue. Regardless, however, the Court need not resolve the issue of what remedies are available for state constitutional violations. If the state court determines that Plaintiffs' due process claims are not properly brought or do not warrant the remedies Plaintiffs seek, that court may dismiss those claims or otherwise direct judgment against Plaintiffs. The unavailability of monetary damages for state constitutional claims does not automatically convert those claims into federal due process claims. Moreover, even if the constitutional claims are improper, Plaintiffs' request for monetary damages may still be warranted by their remaining state law claims. Thus, Defendants' second argument in favor of removal also fails.
Defs.' Resp. and Opp'n to Pis.' Mot. to Abstain and to Remand, at 4.
See Dardeau, 43 F. Supp.2d at 726 (citing Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1306 (5th Cir. 1995) ("This circuit has not passed on the question of whether an actionable `state constitutional tort' exists under Texas law, and we need not pass on the issue in this case.")).
See Grounds v. Tolar Indep. Sch. Dist., 872 S.W.2d 823, (Tex. App-Fort Worth 1994, writ denied) (holding that "[t]ort damages could flow out of the defendant's actions apart from the due process violation").
Finally, Defendants argue that Plaintiffs "affirm that a federal question is presented in their Original petition when they acknowledge that venue is proper in this Western Federal District." This argument is similarly unconvincing. First, it makes no reference to the due process claim in question. To the extent Defendants suggest that Plaintiff is implying a federal claim, the Court notes the checkered procedural history of this case. Plaintiffs added the federal venue reference after withdrawing their first petition from the state court and filing their prior federal action. Plaintiffs have otherwise preserved significant portions of the petition throughout its multiple incarnations. The reference to the federal venue statute in Plaintiffs' new state court petition appears to be simply an oversight on the part of Plaintiffs' counsel in failing to restore the reference to the state venue statute. The Court rejects Defendants' suggestion that the venue reference in any way bears on the nature of Plaintiffs' due process claims. In short, the Court finds that, as masters of their Complaint, Plaintiffs are entitled to deference in their pleading. Plaintiffs' current state petition makes no explicit reference to the federal constitution regarding their due process claim. Moreover, Plaintiffs do possess a valid state constitutional claim, and they are entitled to rely on this claim alone. Since Defendants bear the burden regarding removal, the Court will not construe the claim as federal in nature without adequate support. Nothing in either the history of the case or the language of Plaintiffs' pleadings supports any inference of a federal due process claim. Absent a federal question in Plaintiffs' Original Petition, the Court finds no basis for exercising jurisdiction over this case.
Defs.' Resp. and Opp'n to Pis.' Mot. to Abstain and to Remand, at 4.
Compare Def.'s Reply to Pls.' Resp. to Resp't's Req. for Att'y Fees, Case No. SA-02-CA-0437-FB (Docket #32), Ex. A (Pls.' Original Pet.) ¶ 9, at 2 with Pis.' Original Pet., Case No. SA-02-CA-0437-FB (Docket #1) ¶ 9, at 2.
As a final matter, the Court notes that both parties have filed requests for sanctions in connection with this Motion. The Court finds that all of the parties have proceeded in good faith in this manner, and nothing has risen to the level of sanctionable conduct. Accordingly, all requests for sanctions will be DENIED.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiffs' Original Petition, filed in Comal County District Court, 22nd Judicial District of Texas, does not raise a claim arising under federal law. Accordingly, removal of the case was improper, and the case should be remanded to the state court, pursuant to 28 U.S.C. § 1447(c).
It is therefore ORDERED that Plaintiffs' Opposed Motion to Abstain and to Remand is GRANTED.
It is ORDERED that this case is REMANDED to Comal County District Court, 22nd Judicial District of Texas.