Allen v. Bank of Am., N.A.

• Decision Date: 19 March 2014
• Docket Number: No. 3:12–cv–5202–M.,3:12–cv–5202–M.
• Citation: 5 F.Supp.3d 819
• Parties: Vickey R. ALLEN, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

5 F.Supp.3d 819

Vickey R. ALLEN, Plaintiff,

v.BANK OF AMERICA, N.A., et al., Defendants.

No. 3:12–cv–5202–M.

United States District Court,

N.D. Texas,

Dallas Division.

Signed March 19, 2014.

Jack B. Peacock, Jr., David M. Vereeke, Laura Leigh Pickens, Gagnon, Peacock & Vereeke, PC, Tracy M. Turner Gagnon, Peacock, Shanklin & Vereeke, PC, Dallas, TX, for Plaintiff.

Kent A. Bowersock, Frank J. Catalano, Nathan T. Anderson, McGlinchey Stafford, PLLC, Dallas, TX, Renee T. Wilkerson, Winston & Strawn LLP, Houston, TX, for Defendants.

ORDER

BARBARA M.G. LYNN, District Judge.

The United States Magistrate Judge made Findings, Conclusions and a Recommendation in this case. No objections were filed. The District Court reviewed the proposed Findings, Conclusions and Recommendation for plain error. Finding none, the Court ACCEPTS the Findings, Conclusions and Recommendation of the United States Magistrate Judge.

Defendant has failed to meet its burden to establish that federal jurisdiction exists over Plaintiff's action. Because the Court lacks subject matter jurisdiction over this action, as removed and docketed as Case No. 3:12–cv–5202–M–BN, the Court GRANTS Plaintiff's Motion to Remand [Dkt. No. 7] and remands the action—including any pending motions—to County Court at Law No. 1, Dallas County, Texas, from which it was removed. All pending motions in this federal case are termed.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN, United States Magistrate Judge.

This case has been referred to the United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and an order of reference from District Judge Barbara M.G. Lynn. The undersigned magistrate judge issues the following findings of fact, conclusions of law, and recommendation on Plaintiff Vickey R. Allen's Motion to Remand [Dkt. No. 7].

Background

In light of the parties' various filings since the time of this case's removal to this Court, thoroughly reviewing the case's procedural history here will be helpful for the analysis that follows.

On November 16, 2012, Plaintiff Vickey R. Allen filed suit in Texas state court against Bank of America, N.A. (“BOA”) and Tederal D. Jefferson, individually and doing business as Come As You Are Community Development (“Jefferson”). See Dkt. No. 1–4. Plaintiff alleged various causes of action under Texas state law against BOA related to her mortgage and separately against Jefferson. See id. Plaintiff's petition did not state a specific amount of damages. See id.

BOA and Jefferson were each served with Plaintiff's state court petition on November 20, 2012. See Dkt. Nos. 1–6 & 1–7; accord Dkt. No. 1–12 at 2 (acknowledging that no parties remained unserved at the time that the case was removed).

On December 20, 2012, BOA timely removed the case to this Court. See Dkt. No. 1; accord28 U.S.C. § 1446(b)(1) (“The notice of removal of a civil action or proceeding shall be filed within 30 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 30 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.”). In the Notice of Removal of Action Pursuant to 28 U.S.C. §§ 1331 and 1441(c) (Federal Question), BOA asserted as its sole ground for removal that this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and the action may be removed by BOA pursuant to 28 U.S.C. § 1441(c) because Plaintiff alleges a cause of action for specific performance under 24 C.F.R. 203. See id. at 3. BOA further asserted that, pursuant to 28 U.S.C. § 1367, this Court has supplemental jurisdiction over Plaintiffs additional claims because “they derive from the same set of facts forming her claims under 24 C.F.R. 203.” See id. In its Notice of Removal, BOA also explained that it “is currently attempting to obtain confirmation of consent to removal of this action from Tederal D. Jefferson, individually and dba Come As You Are Development, who is the remaining defendant named in Plaintiff's state court action.” Id. at 4. BOA raised no other grounds for removal or this Court's jurisdiction. See Dkt. No. 1.

BOA had not answered in state court. See Dkt. No. 1 at 2; Dkt. No. 1–12 at 2. On December 27, 2012, the Court granted BOA an unopposed extension of time to March 20, 2013 in which to answer or otherwise respond to Plaintiff's petition. See Dkt. No. 5.

On January 18, 2013–29 days after BOA filed its Notice of Removal of Action Pursuantto 28 U.S.C. §§ 1331 and 1441(c) (Federal Question) [Dkt. No. 1]—Plaintiff timely filed a Motion to Remand under 28 U.S.C. § 1447(c). See Dkt. No. 7; accord28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”). Plaintiff's motion argues that her state court petition does not include any claim involving a substantial question of federal law. See Dkt. No. 7 at 2. Specifically, Plaintiff asserts that BOA “attempts to remove this case on the incorrect assertion that Plaintiff has asserted a cause of action for specific performance under 24 C.F.R. 203,” but, Plaintiff argues, “[s]pecific performance is not a cause of action, instead Plaintiff has requested the remedy of specific performance for the breach of the Deed of Trust contract.” Id. Plaintiff further argues that, even if her state-law breach of contract claim implicates significant federal issues—where Plaintiff admits that her breach of contract claim is based in part on the fact that BOA violated provisions of the federal Fair Housing Act (“FHA”) that regulate the note and deed of trust—the federal issues are not sufficiently substantial to invoke federal question jurisdiction. See id. at 2–4.

Eleven days later, Plaintiff and BOA filed a Joint Motion to Abate, in which they represented that Plaintiff and BOA “are currently and actively exploring settlement, including, but not limited to, the viability of a modification of Plaintiff's mortgage” and “respectfully request the Court to abate this matter up to and including April 29, 2013, so that Defendant may review Plaintiff's request for a loan modification.” Dkt. No. 8 at 1. Judge Lynn granted the requested abatement and ordered the case administratively closed. See Dkt. No. 10. Judge Lynn then granted three subsequent joint motions to extend the abatement but ultimately ordered that the stay of the case until October 28, 2013 would be the final stay or abatement that the Court would grant. See Dkt. Nos. 12, 14, & 16.

On October 28, 2013, the case was reopened, and the stay was lifted. On October 29, 2013, BOA filed a Motion to Dismiss Plaintiff's Original Petition, pursuant to Fed.R.Civ.P. 12(b)(6). See Dkt. No. 17. On November 19, 2013, Plaintiff filed a response to BOA's Rule 12(b)(6) motion, see Dkt. No. 21, and also, based on the right to amend under Fed.R.Civ.P. 15(a)(1)(B) within 21 days of service of a Rule 12(b) motion, Plaintiff filed her First Amended Complaint, see Dkt. No. 20.

Plaintiff's First Amended Complaint still names BOA and Jefferson as defendants and includes the same factual allegations against Jefferson as her state court petition, compare id. at 4, with Dkt. No. 1–4 at 5, as well as against BOA, compare Dkt. No. 20 at 2–5, with Dkt. No. 1–4 at 3–6. But, notwithstanding the pending Motion to Remand, Plaintiff also alleged that “[t]he Court has jurisdiction of this lawsuit pursuant to 28 U.S.C. 1332(a)(1) because the Plaintiff and the Defendant are citizens of different states and the amount in controversy exceeds $75,000.00, exclusive of costs and interest.” Dkt. No. 20 at 2. The First Amended Complaint, however, retained the demand for specific performance and allegation that the Deed of Trust “is governed by Federal law,” citing federal regulations under 24 C.F.R. §§ 203.604(b), 203.604(e)(2), and 203.556(b). Compare Dkt. No. 1–4 at 6–7, with Dkt. No. 20 at 15. But, in her First Amended Complaint, Plaintiff did not include any alleged causes of action or specific request for relief against Jefferson, as she had in her state court petition. Compare Dkt. No. 1–4 at 15–18, 19, with Dkt. No. 20. In her reply in support of her Motion to Remand, Plaintiff later acknowledged this omission and explained that Jefferson was still a named defendant and that, where “[a] scheduling order has not even been entered in this case, and Plaintiff has not yet had the opportunity to conduct discovery,” “Plaintiff still has the ability to amend her pleading to add various causes of action against Defendant Tederal D. Jefferson.” Dkt. No. 30 at 4.

The case was then referred to the undersigned magistrate judge for pretrial management, and the undersigned issued a briefing order on Plaintiff's pending Motion to Remand. See Dkt. No. 23. On December 5, 2013, BOA responded to Plaintiff's Motion to Remand and argued that it had properly removed this action based on Plaintiff's state court petition, which brought a claim for specific performance based on alleged violations of the Code of Federal Regulations. See Dkt. No. 28.

Defendant asserted that, in the petition, “Plaintiff expressly alleges that the issues underlying Count One are governed by federal law and specifically cites to provisions of the Fair Housing Act (‘FHA’) that were allegedly violated by Bank of America” and “requests that Defendants be ordered to specifically perform under various sections of the Code of Federal Regulations”; as such, BOA argues that, “[b]ecause Count One is premised entirely on alleged violations of the Code of Federal Regulations, removal on the basis of federal-question jurisdiction was proper.” Id. at 3. BOA...