28 F.3d 521 (5th Cir. 1994), 93-1546, Leffall v. Dallas Independent School Dist.

Docket Nº:93-1546.
Citation:28 F.3d 521
Party Name:Marsha LEFFALL, Individually and as the Surviving Parent of Dameon Steadham and/or Personal representative of the Estate of Dameon Steadham, Deceased, Plaintiff-Appellant, v. DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Defendants, Dallas Independent School District and Napoleon B. Lewis, Defendants-Appellees.
Case Date:August 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 521

28 F.3d 521 (5th Cir. 1994)

Marsha LEFFALL, Individually and as the Surviving Parent of

Dameon Steadham and/or Personal representative of

the Estate of Dameon Steadham, Deceased,




Dallas Independent School District and Napoleon B. Lewis,


No. 93-1546.

United States Court of Appeals, Fifth Circuit

August 15, 1994

Page 522

Joann N. Wilkins, Richard F. Werstein, Burford & Ryburn, Dallas, TX, for appellant.

Dennis J. Eichelbaum, Leonard J. Schwartz, Dallas, TX, for appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before KING and WIENER, Circuit Judges, and ROSENTHAL, [*] District Judge.

KING, Circuit Judge:

Eighteen-year-old Dameon Steadham was killed by random gunfire in the parking lot of a public high school after a school dance. The principal question posed by this appeal is whether the decision of the public school district and the high school principal to sponsor the dance despite their knowledge of the danger of such an occurrence violated Steadham's constitutional rights.

Page 523


The allegations of the complaint, which must be taken as true for purposes of reviewing a dismissal for failure to state a claim on which relief can be granted, included the following. On or about the evening of April 17, 1992, Dameon Steadham attended a dance held upon the grounds of Lincoln High School in Dallas, Texas. The dance was sponsored by Lincoln High School and an organization identified only as the "Parent Teacher Association." After the dance, a number of teenagers congregated in the Lincoln High School parking lot. Several individuals began to fire handguns randomly and recklessly into the air. In the course of the shooting, sixteen-year-old John L. Cofield, a student at Bryan Adams High School, accidentally and fatally shot Steadham in the head.

Steadham's mother, Marsha Leffall, brought the instant suit in Texas state court against the Dallas Independent School District (DISD), Cofield, Marilyn Clayter (Cofield's mother), and Napoleon Lewis (principal of Lincoln High School). The petition and amended petition alleged that at the time of the incident in question it was well-known that students attending schools in the DISD (and Lincoln High School in particular) often carried and fired dangerous weapons on school property. The petition also alleged that the Safety and Security Department of the DISD took inadequate measures to prevent the events leading to Steadham's death, assigning only two unarmed security guards to the Lincoln High School dance that night. The frequency of gunfire during and after school functions at Lincoln High School was so well-known that officials of the Dallas Police Department had previously asked Lincoln High School officials to refrain from sponsoring school functions until adequate police security could be provided.

After Leffall filed her original petition, the DISD and Lewis filed a motion for summary judgment on the basis of sovereign immunity. Leffall then amended her petition to include a claim based on 42 U.S.C. Sec. 1983 (without altering the factual allegations made in the original petition). The DISD and Lewis then removed the suit to federal district court and filed a motion in federal court to dismiss for failure to state a claim. Leffall filed a motion to remand the case to state court and replied to the defendants' motion to dismiss. Soon thereafter Leffall filed a motion for leave to file a second amended complaint.

At this point a problem in the record asserts itself. Leffall states in her brief before this court that she appended her second amended complaint to her motion for leave to amend; our review of the record on appeal shows this not to be the case. In a late-filed volume of supplemental record on appeal, we find a copy of a document styled "Plaintiff's Second Amended Original Complaint" and a letter to the clerk of the district court for the Northern District of Texas explaining that the second amended complaint had been stamped "received" instead of "filed." The second amended complaint pleaded Leffall's causes of action against the DISD and Lewis with greater particularity, clearly alleging callous indifference on the part of the DISD and Lewis and alleging that the inadequate security on the night of the dance was provided pursuant to a practice so widespread and well-established as to represent the policy of Lewis and the DISD. The second amended complaint also sought to add a cause of action based on breach of an implied warranty by the DISD and Lewis to paying dance patrons that the dance would be safe to attend and that the DISD and Lewis would provide security adequate to protect patrons from foreseeable criminal activity; this breach of warranty claim was stated in terms of Texas state law rather than in terms of federal law violations. Leffall later filed a motion to compel and for sanctions against the DISD and Lewis for discovery abuse, which was referred to a magistrate judge.

Before the magistrate judge could rule on Leffall's motion to compel and for sanctions, the district court denied Leffall's motions to remand and to amend her complaint and granted the motion to dismiss filed by the DISD and Lewis. Leffall filed a motion to reconsider and a second request for leave to amend her complaint (again, Leffall's third

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amended complaint appears only in the supplemental record on appeal), both of which were denied, and she timely filed her notice of appeal. She challenges the district court's denial of her motions to remand and to amend her complaint and the dismissal of her lawsuit against the DISD and Lewis.


We review a dismissal for failure to state a claim under the same standard used by the district court: a claim may not be dismissed unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994); Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994).

Because removal is an issue of statutory construction, we review a district court's determination of the propriety of removal de novo. Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir.1991). Removal statutes are to be strictly construed against removal. Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir.1986); Noble v. Bradford Marine, Inc., 789 F.Supp. 395, 396 (S.D.Fla.1992).

The decision to grant or deny a motion to amend is entrusted to the sound discretion of the district court. Norman, 19 F.3d at 1021; Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir.1991). This discretion, however, is limited by Federal Rule of Civil Procedure 15(a), which states that "leave shall be freely given when justice so requires." We have stated that the district court's discretion does not permit denial of a motion to amend unless there is a substantial reason to do so. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (Former 5th Cir. Nov. 1981). Two valid reasons we have recognized in the past are untimeliness and futility. E.g., Avatar Exploration, 933 F.2d at 320-21. If a district court does not give an explanation for its denial of a motion to amend, its reasons must be readily apparent in view of the liberal position of the federal rules on granting amendments. Dussouy, 660 F.2d at 597.



    We turn first to Leffall's contention that the district court erred in denying her motion to remand her lawsuit to state court. 1

    Leffall asserts and the appellees do not deny that she filed her original petition in Texas state court on November 10, 1992, and that Lewis was served with a copy of the original petition on December 9, 1992. Lewis and the DISD answered on November 24, 1992. Leffall filed her amended petition, which added the Sec. 1983 claim, in state court on January 26, 1993. Lewis and the DISD filed their notice of removal on February 4, 1993.

    Leffall contends that Lewis and the DISD filed their notice of removal outside the thirty-day time limit established by 28 U.S.C. Sec. 1446(b), which provides as follows:

    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....

    If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....

    The district court concluded that the defendants' notice of removal was timely, stating that "the federal question on which defendants predicate jurisdiction did not appear in the case until January 26, 1993." Leffall claims that the district court applied an incorrect standard to her original petition; in her view, the thirty-day clock began when Lewis received the original petition because

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    the original petition did not disclose that the case was not removable. For support she relies on Knudsen v. Samuels, 715 F.Supp. 1505, 1507 (D.Kan.1989), in which the court stated that "under 28 U.S.C. Sec. 1446(b), the question is not whether the initial pleading discloses the potential for removal but whether it discloses that the case is not removable."

    We have recently rejected the argument now advanced by Leffall in Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1402, 122 L.Ed.2d 774 (1993). In that case, Chapman sued...

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