Opinion
Civil Action No. 3: 04-CV-1186-B.
May 5, 2005
MEMORANDUM ORDER
Before the Court is Plaintiff's Motion to Vacate Order of Remand (doc. 15), filed February 24, 2005. After review of the pleadings and arguments of the parties, the Court DENIES Plaintiff's Motion.
I. BACKGROUND
On April 29, 2004, Plaintiff David Sampsel ("Sampsel") filed suit against Defendant Centrix Financial, L.L.C. ("Centrix") in the 193rd Judicial District Court of Dallas County, Texas, alleging various state law claims regarding the repossession of his car and a claim under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq. ("FCRA"). Centrix removed the suit to federal court on June 2, 2004 on the basis of federal question jurisdiction. Sampsel then filed a Motion to Dismiss his claims under the FCRA on July 28, 2004, which this Court granted on September 20, 2004.
The Court then requested that the parties present their respective positions on the issue of remand by September 25, 2004. By letter to the Court dated September 22, 2004, Sampsel stated he intended to move for remand if the Court did not remand on its own motion. Centrix was opposed to remand, but requested attorneys' fees and costs associated with removal in the event of remand. The Court requested a response from Sampsel, which he provided; however, at no point in his response did Sampsel indicate that he would be unable to pay any attorneys' fees awarded. The Court remanded the case on October 26, 2004 and awarded Centrix approximately $2,600.00 in attorneys' fees for the work it did in federal court that would not carry over into state court. Four months later, Sampsel filed the instant motion asking the Court to vacate its remand order because he cannot pay the attorneys' fees and does not know how to proceed with his litigation.
II. ANALYSIS
The Court first notes that, unlike what is suggested by Sampsel, it has not stayed this litigation pursuant to Rule 41 of the Federal Rules of Civil Procedure, nor has it required Sampsel to pay the attorneys' fees before proceeding with his suit in state court. Thus, there should be no bar to Sampsel's state court action.
Next, Sampsel does not indicate under what Rule or authority he is moving. If the Court treats this as a motion to alter or amend a judgment, it is clearly untimely pursuant to Rule 59. FED. R. CIV. P. 59(e) (requiring such motions to be filed within ten days of judgment). Further, Sampsel does not raise any grounds that would be covered by a motion under Rule 60, nor does he cite any case law that would permit such a motion four months after the Court entered its order.
Centrix urges the Court to find that its remand order is unreviewable pursuant to 28 U.S.C. § 1447(d). However, the Fifth Circuit has clearly held that remand orders under 28 U.S.C. § 1367(c), as this one was, are reviewable. Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir. 2004).
Sampsel's motion merely raises arguments that could have or should have been raised when this Court originally considered the issue of remand and attorneys' fees. As such, the Court DENIES Sampsel's motion.
SO ORDERED.