Gee v. Gee, 3:18-cv-2681-G-BN

Decision Date10 December 2018
Docket NumberNo. 3:18-cv-2681-G-BN,3:18-cv-2681-G-BN
PartiesSTEVE SAMUEL GEE, JR., Petitioner, v. STATE OF TEXAS and STACEY D. GEE Respondents.
CourtU.S. District Court — Northern District of Texas
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

On October 19, 2018, the Court remanded this action to state court and also determined that Stacey D. Gee is entitled to costs and actual expenses, including reasonable attorney's fees, under 28 U.S.C. § 1447(c), referring to the undersigned United States magistrate judge "the amount of such costs and actual expenses, including attorney's fees, to be awarded to Ms. Gee under Section 1447(c)" for findings and recommendation under 28 U.S.C. § 636(b)(1). Dkt. No. 22.

Ms. Gee filed a motion to support her request for Section 1447(c) costs and expenses, see Dkt. No. 24, as ordered by the Court, see Dkt. No. 23. And, in response, Steve Samuel Gee, Jr., the removing party, filed a Response to Willful First Amendment Retaliation and Clear Fraud Upon the Court, Rule 60(b) Motion to Set Aside Judgment for Clear Fraud Upon the Court by Judicial Officers, and Notice of Tort Claims [Dkt. No. 25] (the "Response and Rule 60(b) Motion").

The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the relief requested in the Response and Rule 60(b) Motion and award Stacey D. Gee $1,225.70 in costs and actual expenses, including reasonable attorneys' fees, under Section 1447(c).

Applicable Background

On October 19, 2018, the Court entered the following order:

Steve Samuel Gee, Jr. ("Mr. Gee"), a party to an ongoing divorce proceeding in the 422nd District Court in Kaufman County, Texas has again removed that proceeding to this court, citing as a basis 28 U.S.C. § 1443. The other party to that proceeding, Stacey D. Gee ("Ms. Gee"), has moved to remand and has requested her costs and expenses and that the court sanction Mr. Gee. See generally Response to Petition for Removal and Motion to Strike and/or Remand and Request for Sanctions ("Response") (docket entry 19); Motion for Remand and Request for Sanctions (docket entry 21).
In Gee v. Texas another judge of this court remanded Mr. Gee's first attempt to remove the divorce proceedings to federal court (also under Section 1443) and awarded Ms. Gee $5,002.60 in costs and actual expenses, including reasonable attorney's fees, under 28 U.S.C. § 1447(c). Gee v. Texas, No. 3:18-CV-0833-D, 2018 WL 3302817, at *1 (N.D. Tex. 2018) (Fitzwater, J.). The court takes notice of that proceeding to find that Mr. Gee's second removal to this court is frivolous.
As before, the constitutional challenges that Mr. Gee raises as either defenses to—or counterclaims in—the underlying state proceeding are not a basis for removal. See, e.g., Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998) ("When an action is brought to federal court through the § 1441 mechanism, for both removal and original jurisdiction, the federal question must be presented by plaintiff's complaint as it stands at the time the petition for removal is filed and the case seeks entry into the federal system. It is insufficient that a federal question has been raised as a matter of defense or as a counterclaim." (internal quotation marks omitted)). And Mr. Gee again fails to show that Section 1443 applies. See Gee v. Texas, No. 3:18-cv-833-D-BN, 2018 WL 3321257, at *5 (N.D. Tex. June 12, 2018) (Horan, Magistrate J.) ("Steve Gee also fails on the second prong set out above by not credibly showing that any 'provision of state law will cause the state courts to deprive [him] of the protection of federal constitutional or statutory rights.'" (citations omitted)), rec. adopted, 2018 WL 3302817 (N.D. Tex. July 5, 2018) (Fitzwater, J.); see also Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982) ("To gain removal to federal court under 28 U.S.C. § 1443, the defendant must show both that(1) the right allegedly denied it arises under a federal law providing for specific rights stated in terms of racial equality; and (2) the removal petitioner is denied or cannot enforce the specified federal rights in the state courts due to some formal expression of state law." (citing Johnson v. Mississippi, 421 U.S. 213, 219 (1975))).
It is therefore ORDERED that this action is again REMANDED to the 422nd District Court in Kaufman County, Texas.
The Court also imposes the following SANCTION on Mr. Gee: He may not again file a notice of removal as to this proceeding in this Court or any other federal court without first requesting and obtaining the written approval of a United States district or magistrate judge. His violation of this sanction will subject him to monetary sanctions to be determined by the court.
Further, it is ORDERED that Stacey D. Gee is awarded costs and actual expenses, including reasonable attorney's fees, under 28 U.S.C. § 1447(c). And, under 28 U.S.C. § 636(b)(1), the amount of such costs and actual expenses, including attorney's fees, to be awarded to Ms. Gee under Section 1447(c) is REFERRED to United States Magistrate Judge David L. Horan for findings and recommendation under 28 U.S.C. § 636(b)(1). The court retains jurisdiction over the determination of this award, but it otherwise remands the case.
The clerk of court shall effect the remand according to the usual procedure.

Dkt. No. 22.

Legal Standards and Analysis
I. Rule 60(b)

First, to the extent that Mr. Gee moves under Rule 60(b) for the Court to vacate its decision to remand this action to state court, because he removed the state proceeding under Section 1443, the Court may consider his motion as to the remand decision. See, e.g., J.P. Morgan Chase Bank, N.A. v. Innes, No. EP-13-CV-322-KC, 2013 WL 6097018, at *1 (W.D. Tex. Nov. 20, 2013) (citing 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court fromwhich it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise."); citation omitted); cf. Sanders v. Wright, 734 F. App'x 303, 304 (5th Cir. 2018) (per curiam) ("Although a remand order in a removed case is ordinarily not appealable, such an order is appealable if the action was removed pursuant to 28 U.S.C. § 1443, which permits removal in cases where constitutional rights cannot be enforced in state court. 28 U.S.C. § 1447(d); Robertson v. Ball, 534 F.2d 63, 66 (5th Cir. 1976).").

Rule 60(b) offers grounds for relief from a final judgment, order, or proceeding, see FED. R. CIV. P. 60(b), and provides that:

On motion and just terms, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Id.

Rule 60(b) motions are typically committed to the sound discretion of the district court. See Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) (noting that the United States Court of Appeals for the Fifth Circuit has "consistently held that the relief under Rule 60(b) is considered an extraordinary remedy and that the desire for a judicial process that is predictable mandates caution in reopening judgments" (internal quotation marks and alterations omitted).

"The burden of establishing at least one of the Rule 60(b) requirements is on [Mr. Gee] as the movant." Bahsoon v. Wells Fargo Bank, NA, No. 3:12-cv-2017-D, 2013 WL 1831786, at *1 (N.D. Tex. May 1, 2013) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 n.14 (5th Cir. 1994) (en banc)); see also Wallace v. Magnolia Family Servs., L.L.C., Civ. A. No. 13-4703, 2015 WL 1321604, at *2 (E.D. La. Mar. 24, 2015) ("The extraordinary relief afforded by Rule 60(b) requires that the moving party make a showing of unusual or unique circumstances justifying such relief." (citing Pryor v. U.S. Postal Servs., 769 F.2d 281, 286 (5th Cir. 1985))).

Mr. Gee specifically cites (b)(1), (b)(3), (b)(4), and (b)(6) as grounds for relief. See Dkt. No. 25 at 3.

"[I]n this circuit," Rule 60(b)(1) "may be invoked for the correction of judicial error, but only to rectify an obvious error of law, apparent on the record. Thus, it may be employed when the judgment obviously conflicts with a clear statutory mandate or when the judicial error involves a fundamental misconception of the law." Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987) (footnotes omitted).

Rule 60(b)(3) imposes a similarly heavy burden: "One who asserts that an adverse party has obtained a verdict through fraud, misrepresentation or other misconduct has the burden of proving the assertion by clear and convincing evidence. The conduct complained of must be such as prevented the losing party from fully and fairly presenting his case or defense. This subsection of the Rule is aimed at judgments which were unfairly obtained, not at those which are factually incorrect." Rozier v.Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978) (internal citations omitted); accord Nat'l City Golf Fin. v. Scott, 899 F.3d 412, 418-19 (5th Cir. 2018); see also Rozier, 573 F.3d at 1338 ("[I]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b) ... it is necessary to show an unconscionable...

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