Zbranek v. Hofheinz

• Decision Date: 13 November 1989
• Docket Number: Civ. A. No. B-89-00836-CA.
• Citation: 727 F. Supp. 324
• Parties: J.C. ZBRANEK, and Zbranek & Height, P.C. v. Fred HOFHEINZ, Richard London, Juanita D. Smith.
• Court: U.S. District Court — Eastern District of Texas

727 F. Supp. 324

J.C. ZBRANEK, and Zbranek & Height, P.C. v. Fred HOFHEINZ, Richard London, Juanita D. Smith.

Civ. A. No. B-89-00836-CA.

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

November 13, 1989.

Richard D. Baker, Zbranek & Height, Liberty, Tex., for plaintiffs.

Bill Richey, Michael D. Matthews, Griffin & Matthews, Beaumont, Tex., Stephen D. Bain, Hofheinz & London, Houston, Tex., for defendants.

MEMORANDUM OPINION

COBB, District Judge.

On September 18, 1989, defendants Hofheinz and London removed this case from the 253rd Judicial District Court, Liberty County, Texas, to this court. On October 6, 1989, the defendants filed an amended petition for removal, adding that defendant Smith also sought removal. On September 28, 1989, the plaintiffs filed a motion to remand. For the following reasons, that motion is GRANTED, and this case REMANDED to the 253rd Judicial District Court.

CHRONOLOGY

On July 18, 1989, the plaintiffs filed an action in state court, alleging various state law tort claims, including tortious interference with the plaintiffs' property, intentional harassment, wrongful filing of lis pendens against plaintiffs' property, and slander of title. The defendants Hofheinz and London were served July 20, 1989, and filed their answer in state court on July 27, 1989. They were joined in that answer by defendant Smith, although she apparently was not served until August 22, 1989. The defendants participated in extensive proceedings which followed in state court, including an injunction hearing on July 27, 1989; a hearing on special exceptions September 13, 1989; and the defendants filed a motion for summary judgment July 27, 1989, a motion to quash a subpoena for depositions on August 8, 1989, and filed an amended answer on August 8, 1989.

THE LAW

The defendants filed their original state court answer on July 27, 1989. The defendants Hofheinz and London did not remove this case until September 18, 1989, and the defendant Smith did not join the petition for removal until October 6, 1989. The defendants only have thirty days from the time they receive notice of the claim to remove it. 28 U.S.C. § 1446(b). Calculating from the date of filing of the joint answer, the defendants obviously failed to remove within thirty days. In fact, at best the defendants waited fifty-three days to file their petition for removal, and in the cases of defendant Smith, an additional eighteen days passed before she joined the petition for removal.¹ Because more than thirty days passed from the filing of the petition for removal, this court finds that removal was improvident, and remand is mandated. See Royal v. State Farm Fire and Casualty Co., 685 F.2d 124 (5th Cir. 1982).

In addition, by actively invoking the state court's jurisdiction in seeking an injunction, summary judgment and an order requiring re-pleading by plaintiffs, defendants lost their right to remove. Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986).

The defendants argue that they were unable to determine the existence of a federal (and therefore removable) claim from the plaintiff's original complaint. According to the defendants, they realized the plaintiffs had a civil rights claim during the special exceptions hearing held September 13, 1989. They argue their thirty days to remove began September 13, and so their removal was timely. 28 U.S.C. § 1446(b) requires that where the claim stated by the initial pleading is not removable, removal must be filed within thirty days of receipt of the "amended pleading, motion, order or other paper ..." from which the removant could ascertain a federal claim existed. The defendants allege that at the September 13 special exceptions hearing, plaintiffs' counsel handed defendants' counsel a copy of an annotation from ALR Fed. dealing with civil rights actions. Apparently defendants believe this annotation qualifies as an "other paper" under 28 U.S.C. § 1446(b). The defendants have directed this court to no cases which support this proposition.²

Faced with a similar question, Judge MacLaughlin of the District of Minnesota held that two United States Supreme Court decisions did not constitute an "other paper" within the meaning of 28 U.S.C. § 1446(b). Johansen v. Employee Benefit Claims, Inc., 668 F.Supp. 1294 (D.Minn. 1987). As Judge MacLaughlin pointed out, "every court which has faced the issue present in this case has construed the phrase `or other paper' as referring solely to documents generated within the state court litigation itself." Id. at 1296. An ALR annotation, while a useful research tool, clearly cannot be construed as generated by the state court litigation. The defendants' removal cannot be timely on the basis of that paper.

Additionally, a federal court is bound to consider the stage of the state court litigation in ruling on a motion to remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). The state court litigation...