Tisdale v. Pagourtzis
| Decision Date | 07 December 2020 |
| Docket Number | 3:20-cv-171,3:20-cv-141,3:20-cv-140 |
| Parties | CYNTHIA TISDALE, et al., Plaintiffs, v. ANTONIO PAGOURTZIS, et al., Defendants. ROSIE YANAS, et al., Plaintiffs v. ANTONIO PAGOURTZIS, et al., Defendants. CHASE YARBROUGH, et al., Plaintiffs v. ANTONIOUS PAGOURTZIS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
These three cases arise from the 2018 Santa Fe High School shooting. The plaintiffs in Tisdale v. Pagourtzis, 3:20-cv-140, are the estate of Cynthia Tisdale, a teacher killed in the shooting, the estate of Cynthia's husband, and two of their children.1 The plaintiffs in Yanas v. Pagourtzis, 3:20-cv-131, are the parents of six children killed in the shooting and a student and teacher who were wounded.2 The plaintiffs in Yarbrough v. Pagourtzis, 3:20-cv-171, are Chase Yarbrough, a student injured in the shooting, and his parents.3
The claims in the cases are substantially identical. The plaintiffs in all three cases (collectively, "the plaintiffs") sued Antonios Pagourtizs, the shooter, and his parents for various negligence and intentional-tort claims.4 The plaintiffs also sued Luckygunner, LLC, Red Stag Fulfillment, LLC, MollenhourGross, LLC, Jordan Mollenhour, and Dustin Gross (collectively, the "Tennessee defendants"). The plaintiffs allege these defendants sold and sent ammunition to the shooter. Specifically, the plaintiffs allege that the Tennessee defendants (1) negligently sold ammunition to the shooter without confirming or investigating whether he was old enough to purchase it and (2) conspired to intentionally not know their customers' ages, in violation of a federal criminal statute.5
The Yarbrough and Yanas plaintiffs originally filed their cases in County Court at Law No. 3 in Galveston County.6 The Tisdale plaintiffs originally filed in probate court in the same county.7
The Tennessee defendants removed the Tisdale and Yanas cases to this court on May 1, 2020,8 and Yarbrough on May 20.9
On June 1, the Tisdale and Yanas plaintiffs moved to remand their cases back to their respective original state courts.10 On June 19, the Yarbrough plaintiffs did the same.11 The shooter's parents agreed to remand.12 The Tennessee defendants responded to the plaintiffs' motions,13 and the plaintiffs replied.14 On October 15, the court heard arguments on all three motions in a single teleconference.15 Afterwards, the plaintiffs and the Tennessee defendants submitted post-hearing letter briefs.16
Having considered the plaintiffs' and defendants' briefing, the arguments of counsel, and the applicable law, the court grants the plaintiffs' motions and remands each case to its respective original state court.
"Federal courts are courts of limited jurisdiction" and "must presume that a suit lies outside this limited jurisdiction." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). "[T]he burden of establishing federal jurisdiction rests on the party seeking the federal forum." Id. The law authorizes removal only where original jurisdiction already exists—whether based on diversity of citizenship or a federal question. 28 U.S.C. § 1441(a); see also id. §§ 1331 (federal-question jurisdiction), 1332 (diversity-of-citizenship jurisdiction). The Tennessee defendants removed the Tisdale and Yanas cases based on federal-question jurisdiction.17 They removed the Yarbrough case based on both diversity and federal-question jurisdiction.18 In Yarbrough, the Tennessee defendants later withdrew their argument for diversity jurisdiction, leaving federal-question jurisdiction as the only basis for removal.19
The Supreme Court has explained that for purposes of determining federal-question jurisdiction, a case "arises under" federal law in two ways. Gunn v. Minton, 568 U.S. 251, 257-58 (2013); Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 27-28 (1983); see 14C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3562 (4th ed. October 2020 Update). First, federal-question jurisdiction obviously exists when "federal law creates the cause of action asserted." Gunn, 568 U.S. at 258.
But when state law, rather than federal law, supplies the plaintiffs' causes of action, "arising under" jurisdiction may exist only in a "special and small category" of cases in which the state-law claims turn on questions of federal law. Id. The Supreme Court instructs that "federal jurisdiction over a state-law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Id. (citing Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 313-14 (2005)). Because the Court first articulated the four parts of this inquiry in the Grable case, they are referred to as "the Grable factors."
When the only basis for removal is federal-question jurisdiction, the defendants must unanimously agree to remove. 28 U.S.C. § 1446(b)(2)(A) (). There are three exceptions to this unanimity requirement: "(1) where the defendant was not yet served with process at the time the removal petition was filed; (2) where a defendant is merely a nominal, unnecessary or formal party-defendant; and (3) where the removed claim is a separate and independent claim under 28 U.S.C. § 1441(c)." Moreno Energy, Inc. v. Marathon Oil Co., 884 F. Supp. 2d 577, 582-83 (S.D. Tex. 2012) (footnotes omitted). The third exception is at issue here.
Section 1441(c) provides a mechanism to excuse failure to secure unanimous consent by severing and remanding certain qualifying state-law claims from the removed civil action. 28 U.S.C. § 1441(c). More specifically, the statute provides that where a federal-question claim is joined with a claim that is not "within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute," the action "may be removed if the action would be removable without the inclusion of the claim [that lacks federal original or supplemental jurisdiction]," but a district court "shall sever" and remand such a claim to the "State court from which the action was removed." Id. § 1441(c)(1)(B), (c)(2); see Vinson v. Schneider Nat. Carriers, Inc., 942 F. Supp. 2d 630, 636 (N.D. Tex. 2013); see also WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 3722.3.
Thus, for the question whether certain state-law claims may be severed and remanded under 28 U.S.C. § 1441(c), the court must determine whether it lacks "supplemental jurisdiction" over the state-law claims. See Experience Infusion Ctrs., LLC v. Lusby, CV H-17-1168, 2017 WL 3235667, at *3 (S.D. Tex. July 31, 2017). That determination is made by considering whether the state-law claims share a "common nucleus of operative fact" with the purported federal-question claims. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008); see also 28 U.S.C. § 1367(a) ().
Finally, courts must resolve "any doubt as to the propriety of removal . . . in favor of remand" because of the "significant federalism concerns" removal raises. In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007); see also Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008).
Because diversity jurisdiction is unavailable, the Tennessee defendants' first hurdle—under both sections 1441(a) and 1441(c)—is to establish that the plaintiffs' claims feature a federal question within the meaning of 28 U.S.C. § 1331. See 28 U.S.C. § 1441(a), (c).
The Tennessee defendants argue that "the crux" of plaintiffs' claims against them is that they violated 18 U.S.C. § 922(x)(1)(B). That statute provides that it "shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a juvenile— . . . ammunition that is suitable for use only in a handgun." 18 U.S.C. § 922(x)(1)(B).
The plaintiffs' causes of action against the Tennessee defendants, however, are all purely state-law claims—i.e., ordinary negligence, negligence per se, gross negligence, civil conspiracy, and state corporate veil piercing.20 Section 922, meanwhile, is a criminal-code provision and does not create a private right of action. See Estate of Pemberton v. John's Sports Center, Inc., 135 P.3d 174, 181 (Kan. Ct. App. 2006) ().
Because the plaintiffs' case does not include any federal cause of action, the court must determine whether it falls into that "special and small category" of cases in which the state-law claims necessarily turn on questions of federal law. Gunn, 568 U.S. at 258; see Grable, 545 U.S. at 313-14. To do so, the court must apply the Grable factors.
The first factor is whether the federal issue is "necessarily raised." Gunn, 568 U.S. at 258. The court agrees with the plaintiffs that the interpretation or application of section 922(...
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