Dardeau v. West Orange-Grove Consol. School Dist.

• Decision Date: 29 March 1999
• Docket Number: No. 1:98-CV-1675.,1:98-CV-1675.
• Citation: 43 F.Supp.2d 722
• Parties: Dale and Barbara DARDEAU, Individually and as Next Friends for Hayley Dardeau, a Minor v. WEST ORANGE-GROVE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Donald Jeffries, Individually and in his Official Capacity as Superintendent of the Orange-Grove Consolidated Independent School District, and Joy Holland, Individually.
• Court: U.S. District Court — Eastern District of Texas

Page 722

43 F.Supp.2d 722

Dale and Barbara DARDEAU, Individually and as Next Friends for Hayley Dardeau, a Minor v. WEST ORANGE-GROVE CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Donald Jeffries, Individually and in his Official Capacity as Superintendent of the Orange-Grove Consolidated Independent School District, and Joy Holland, Individually.

No. 1:98-CV-1675.

United States District Court, E.D. Texas, Beaumont Division.

March 29, 1999.

COPYRIGHT MATERIAL OMITTED

Laurence Wade Watts, Watts & Associates, Houston, TX, for Dale Dardeau, Individually & as Next Friend for plaintiffs.

Paul William Hunn, Walsh Anderson et al, Austin, TX, for defendants.

MEMORANDUM OPINION ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND OVERRULING PLAINTIFF'S OBJECTIONS

HEARTFIELD, District Judge.

Pending is plaintiffs' motion to remand. Pursuant to 28 U.S.C. § 636(b), this motion was referred to United States Magistrate Judge Earl S. Hines for conclusions of law and recommendation for disposition. On February 19, 1999, the magistrate judge issued a report recommending that plaintiffs' motion to remand be granted. The magistrate judge concluded that the court lacked subject matter jurisdiction to decide the instant suit.

The court has received and considered the Report and Recommendation of the United States Magistrate Judge, along with the record in this matter. Defendants timely filed objections to this report on March 5, 1999. This requires a de novo review of the specific portions of the report to which objections have been made. See FED.R.CIV.P. 72(b).

I. OBJECTIONS

First, defendants object to the four reasons advanced by the magistrate judge for concluding that plaintiffs' pleadings, in light of the well-pleaded complaint doctrine, do not invoke federal question jurisdiction. The magistrate judge recited the following reasons for his conclusion: (1) the lack of an express reference to the U.S. Constitution in the original petition; (2) the lack of an express reference to 42 U.S.C. § 1983 in the original petition; (3) inclusion of an express citation to the Texas Constitution in the original petition; and (4) plaintiff's current assurances, as masters of their complaint that they did not use the term "due process" in their original petition to allege a federal constitutional claim. Defendants contend that none of the four factors support remand of the instant suit.

Next, the defendants object to the magistrate judge's application of the artful pleading doctrine to the instant controversy. Defendants state that the artful pleading doctrine is inapplicable to the instant case because the doctrine applies only where a federal cause of action completely preempts a state cause of action.

II. DISCUSSION

A. Defendants' Objections under the Well-Pleaded-Complaint Doctrine

As to the first three reasons provided by the magistrate judge in concluding that plaintiffs did not invoke federal question jurisdiction, defendants contend that plaintiffs' failure to make reference in their original petition to the United States Constitution or 42 U.S.C. § 1983, coupled with their inclusion of an express reference to the Texas Constitution are insufficient reasons to support remand.

In support of their argument, defendants assert that Texas pleading rules only require a "short statement of the cause of action sufficient to give fair notice of the claim involved." TEX.R.CIV.P. 47. Quoting Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993), defendants state that "[a] court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated." Id.

However, as noted by the magistrate judge, federal law directs that the party who brings the suit is master of what law is invoked. See Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913). The well-pleaded-complaint doctrine provides that federal question jurisdiction exists only when "there appears on the face of the complaint some substantial, disputed question of federal law." See Carpenter v. Wichita Falls Independent School Dist., 44 F.3d 362, 365 (5th Cir.1995). Further, because federal courts generally construe removal statutes strictly to prevent encroachment on state courts' jurisdiction, the burden is on the removing party to establish jurisdiction and suitability for removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941).

Here, plaintiffs' lack of express reference to the United States Constitution or section 1983 in their state petition creates considerable doubt as to whether plaintiffs asserted a federal cause of action. Well-pleaded-complaint jurisprudence does not, as defendants suggest, allow for removal on the basis of inferences drawn from what is specifically stated in the state court petition. See Carpenter, 44 F.3d at 366. If, as in the instant suit, plaintiff chooses not to assert a federal claim, then the defendant cannot remove to federal court based on the mere possibility that a federal claim was asserted. See id.

If plaintiffs, in their petition, are disguising a federal claim under the guise of state law, defendants will not be prejudiced. Title 28 U.S.C. § 1446(b) imposes no time limit on removal of federal question cases. They may be removed at any time prior to entry of judgment within 30 days of a defendant's receipt of an order, filing, or other paper from which it may first be ascertained that the case is or has become removable. FDIC v. Taylor, 727 F.Supp. 326 (S.D.Tex.1989) (emphasis added). The fact that a prior attempt to remove was unsuccessful does not preclude a subsequent successful removal.¹

Defendant next challenges the magistrate judge's report by stating that because the Texas Constitution does not recognize a cause of action for monetary damages, plaintiffs only basis for recovery would be under the U.S. Constitution. See, e.g., Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1306 (5th Cir.1995), cert. denied sub nom, 517 U.S. 1191, 116 S.Ct. 1680, 134 L.Ed.2d 782 (1996)). As support, defendants point to plaintiffs' interrogatory answer that addresses the amount of damages sought for each cause of action. In their response plaintiff's state that they seek damages in the amount of $200,000 for constitutional violations. Thus, defendants conclude that plaintiffs have invoked federal question jurisdiction.

A review of Fifth Circuit case law does not definitively support defendants argument. In Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299 (5th Cir.1995), cert. denied sub nom, 517 U.S. 1191, 116 S.Ct. 1680, 134 L.Ed.2d 782 (1996)), the case defendants cite for support, the Court of Appeals stated in dictum that "Texas does not appear to recognize violations of its constitution as an independent tort." Eugene, 65 F.3d 1299, 1306 (5th Cir.1995), cert. denied sub nom, 517 U.S. 1191, 116 S.Ct. 1680, 134 L.Ed.2d 782 (1996)). The Court of Appeals, however, stated that "[t]his circuit has not passed on the question of whether an actionable `state constitutional tort' exists under Texas law." Id. Thus, the issue of whether Texas courts recognize state constitutional torts is an undecided one.

In any event, the well-pleaded-complaint doctrine pertains solely to what appears on the face of the complaint without reference to interrogatory answers or other extraneous evidence. In their state petition, plaintiffs seek injunctive relief and not monetary damages for a violation of their state constitutional rights. Alternatively, plaintiffs seek monetary damages for a number of common law torts. Because subject matter jurisdiction is determined at the time of removal defendants cannot now point to an interrogatory answer to support their argument that plaintiffs have sought monetary damages for state constitutional violations and therefore have invoked federal question jurisdiction.

As to the fourth reason advanced by the magistrate judge, defendants object to the conclusion that the terms "due process" and "due course of law" are synonymous and can be used interchangeably to invoke rights under the Texas Constitution. Defendants disagree with the Magistrate Judge's reliance on Mabee v. McDonald, 107 Tex. 139, 148, 175 S.W. 676, 680 (1915) rev'd on other grounds, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608 (1917), for the maxim that the "due course" clause in the Texas Constitution is in all respects synonymous with the "due process" clause in the United States Constitution. Instead, defendants contend that the Mabee court held that protections afforded by the "due course of law clause" in the Texas Constitution are coterminous with those afforded by the "due process" clause of the United States Constitution.

Defendants' argument ignores and is contrary to the precise language employed by the Mabee court. In discussing the genesis of the words "due process," the Mabee court stated:

[T]he phrase [due process] came to us from England.... [In the United States] it operates upon every department of federal and state government — executive, legislative, and judicial. The same expression, or some words of similar import, such as `due course of the law of the land, have been embodied in the Constitution of almost every American state. `Due process of law,' as used in the fourteenth amendment, and `due course of the law of the land,' as used in article 1, § 19, of the Constitution of Texas, and in the Constitutions of many of her sister states, according to the great weight of authority, are, in nearly if not all respects, practically synonymous.

Id. (citations omitted).

Further, as support for their argument that the terms "due process" and "due course" are distinct, defendants cite an unpublished order addressing a motion for a preliminary injunction entered in Penny Thomas v. Johnson City Indep. Sch. Dist., No. A-98-CA-246-SS (W.D.Tex. May 4, 1998). In Thomas, the plaintiff alleged a violation of his due process rights and...