Opinion
Civil Action No: SA-03-CA-989-XR
December 12, 2003
ORDER
On this date, the Court considered Plaintiffs Motion to Remand (docket no. 8). After careful consideration, the Court will DENY that motion. Other pending motions are discussed in the Conclusion paragraph of this Order.
Facts and Procedural Background
On September 9, 2003, Plaintiff, proceeding pro se, filed this lawsuit in the County Court at Law in Kendall County, Texas. In that petition he alleged that defendants Druce and Novak were attorneys and citizens of Washington, D.C. He alleged that they committed legal malpractice in connection with their representation of him. Specifically, he alleges that an associate of the two defendants made amendments to the substantive claims of his patent application without his consent or knowledge, and that this alleged malpractice "vitiated Plaintiffs United States Patent." Plaintiff further sought in his original petition a declaratory judgment that the "patent is enforceable, unenforceable, or simply a nullity, whichever is the feet."
On October 8, 2003, Defendants removed this lawsuit to the United States District Court, Western District of Texas, San Antonio Division. Defendants claim removal is proper based on diversity jurisdiction. They argue that Plaintiff is a citizen of the State of Texas and that they are residents of Virginia. Further, they note that Plaintiff seeks $25 million in damages. Additionally, they argue that because Plaintiff sought a declaratory judgment regarding a patent that a federal question was raised under 35 U.S.C. § 2, 151 and 153.
On October 9, 2003, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively a motion for more definite statement. They argue that this suit should be dismissed because essentially the same matters were raised and disposed of in Harthcock v. Royston, Rayzor, Vickery Williams, et. al.; Cause No. SA 01-CV-995 FB. Alternatively, Defendants argue that Plaintiffs allegations in the current petition are vague and do not provide adequate information regarding the names of attorneys who were allegedly negligent and the dates the various acts allegedly occurred.
On October 21, 2003, Plaintiff filed a First Amended Complaint. In that Amended Complaint he alleges, in part, the following:
4. At the time of removal of this instant lawsuit from State court, there existed no actual controversy between the parties as to whether the acts of the Defendants, as alleged in Plaintiffs Original Petition, affected the enforceability of U.S. Patent No.: US 6,347,368 B1.
5. At the time of removal of this instant lawsuit from State court, there existed no actual claim in Plaintiffs Original Petition that arose or arises under the Constitution or Laws of the United States.
6. The United States District Court for the Western District of Texas, San Antonio Division, lacks subject matter jurisdiction to adjudicate this instant lawsuit.
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10. The acts of Defendants which give rise to this action have affected the enforceability of Plaintiff's United States Patent No.: US 6,347,368 Bl.
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25. [Plaintiff admits that Defendants are nonresidents of the State of Texas.]
26. Final disposition of this cause of action has not been reached and any final judgment that may exist never reached the merits and/or was decided unfairly.
In his Amended Complaint, Plaintiff does not seek any declaratory action regarding the patent as discussed above.
On October 22, 2003, Plaintiff filed a Response to the Defendants' Motion to Dismiss pursuant to Rule 12(b)(6), or in the alternative a Motion for More Definite Statement. Plaintiff misconstrues Defendants' motions in a number of respects. Defendants are not arguing in their motion that the County Court of Kendall County lacks any monetary jurisdiction to hear Plaintiffs claims. Defendants are not arguing that this Court lacks personal jurisdiction over the Defendants. In addition to these misconceptions, Plaintiff also states that at the time of removal, there existed no actual controversy between the parties on any issue, patent or otherwise, which arises under the Constitution or Laws of the United States. Plaintiff concludes by contending that Defendants' motions are moot because he filed an amended complaint.
Defendants made that argument in a plea to the jurisdiction filed in the County Court of Kendall County, Texas.
On November 3, 2003, Plaintiff filed a Motion to Remand. He argues the following: (1) Relying upon Fed.R.Civ.P. 6(a), 28 U.S.C. § 1441(b) and 1446(b), as well as Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. Plaintiff argues that at the time Defendants filed their removal, they had not been formally served, and thus they are precluded from filing any removal until they are properly served; (2) Defendants' removal was defective because Plaintiff alleged in his Petition and Amended Complaint that Defendants were citizens of Washington, D.C. (not Virginia) and Plaintiff never stated his citizenship in any Petition or Complaint; (3) he never raised a federal question in his Original Petition; (4) he did not claim $25 million in damages, and (5) removal was defective because not all papers filed in the state court were included in the removal.
526 U.S. 344(1999).
On November 12, 2003, Defendants filed their Response to Plaintiffs Motion to Remand, or in the alternative, Motion for Leave to File Amended Notice of Removal. Defendants argue the following: (1) there exists no statute or rule that precludes the filing of a removal after suit has been filed in state court, but before formal service is complete; (2) Defendants properly made factual allegations supporting diversity jurisdiction, (3) Defendants complied with 28 U.S.C. § 1446(a) by filing all necessary papers when it removed this action; and (4) Plaintiffs motion is without merit and he should be sanctioned pursuant to Fed.R.Civ.P. 11.
Analysis
Plaintiffs premature removal claim 28 U.S.C. § 1446 states, in part, as follows:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
Pursuant to section 1446(b) if removeability can be determined from the face of the state court petition, a notice of removal must be filed within 30 days. This is a deadline for the filing of a notice of removal. The Court disagrees with Plaintiffs understanding of Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. In Murphy Bros., Michetti Pipe Stringing, Inc. filed a complaint in Alabama state court seeking damages for an alleged breach of contract and fraud by Murphy Bros., Inc. Michetti did not serve Murphy then, but three days later it faxed a "courtesy copy" of the file-stamped complaint to a Murphy vice president. Michetti officially served Murphy under local law by certified mail. Thirty days after service but 44 days after receiving the faxed copy of the complaint, Murphy removed the case under 28 U.S.C. § 1441 to the federal district court. Michetti moved to remand the case to the state court on the ground that Murphy filed the removal notice 14 days too late under § 1446(b). Because the notice had not been filed within 30 days of the date on which Murphy's vice president received the facsimile transmission, Michetti asserted, the removal was untimely. The District Court denied the remand motion on the ground that the 30-day removal period did not commence until Murphy was officially served with a summons.
On interlocutory appeal, the Eleventh Circuit reversed and remanded, instructing the district court to remand the action to state court. Emphasizing the statutory words "receipt . . . or otherwise," the Eleventh Circuit held that the defendant's receipt of a faxed copy of the filed initial pleading sufficed to commence the 30-day removal period. However, concerned with the possible unfairness and denial of due process with such a facsimile rule, the Supreme Court held that a defendant's deadline to remove was not triggered by a mere receipt of a fax courtesy copy. No where did the Supreme Court disallow a defendant the ability to remove a lawsuit before service was complete but rather the Supreme Court protected the defendant by tolling the time limit until service was received. Plaintiffs objection that Fed.R.Civ.P. 6(a), 28 U.S.C. § 1441(b) and 1446(b), and Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. precludes the Defendants' removal because they had not been formally served at the time of removal is OVERRULED.
Diversity Jurisdiction
Defendants states that they are citizens of Virginia. As noted above, Plaintiff claims that the defendants are citizens of Washington, D.C. In any event, all parties agree that the defendants are not Texas citizens.
Plaintiff claims that he has not identified the status of his citizenship. Defendants contend that Plaintiff is a citizen of Texas. Plaintiff admits in his state court Petition that during the events he complained of he resided in Kendall County, Texas. In his state court Petition, and in all filings in this federal court, he provides a Piano, Texas address. Plaintiff does not allege that he is a citizen of either Virginia or Washington, D.C.
Plaintiff further alleges that he did not specify any monetary amount of damages in his Petition. Plaintiff argues that the Defendants failed to establish that the amount in controversy exceeded the $75,000 amount in controversy requirement. But Plaintiffs argument is without merit since the prayer paragraph of his state court petition clearly sought $25 million in damages.
The Court finds that diversity jurisdiction exists because the amount in controversy exceeds $75,000, exclusive of interest and costs, and the suit involves a controversy between citizens of different states.
Federal Question Jurisdiction
Plaintiff has deleted from his Amended Complaint any request for a declaratory judgment action regarding the patent discussed above. Because the Defendants do not argue in their Response to Plaintiffs Motion to Remand that federal question jurisdiction exists, the Court will not discuss whether federal question jurisdiction existed at the time of removal.
Failure to comply with 28 U.S.C. § 1446(a) claim
Section 1446(a) provides:
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Plaintiff claims that Defendants failed to file in this court a copy of "all process, pleadings, and orders served upon such defendant or defendants in such action." Specifically, Plaintiff claims that complete copies (front and back) of the citations issued in state court were not filed in this court. As Plaintiff notes above, Defendants removed this case prior to service of process. Section 1446(a) onlyrequires filing of documents served upon the defendants. Plaintiffs objection that Defendants' removal was defective because copy of citations were not filed in this court is OVERRULED.
Conclusion
Plaintiffs Motion to Remand (docket no. 8) is DENIED.
Defendants' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (docket no. 3) will be carried. The parties are ORDERED to provide further briefing to the Court as to whether the Plaintiffs earlier lawsuit (SA 01-CV-995 FB) and its subsequent dismissal order was dispositive as to DRUCE and NOVAK regarding Plaintiffs negligence (legal malpractice) claim. Initial briefing is due by January 9, 2004, with Reply Briefs due by January 20, 2004.
Defendants' Motion for More Definite Statement (docket no. 3) is DENIED.
Defendants' Motion for Sanctions (contained in docket no. 9) is DENIED. However, Plaintiff is admonished that his pro se status will not excuse him from any future sanctions should he in the future file any pleading, motion or paper that fails to comply with Federal Rule of Civil Procedure 11.