Notice and Petition for Removal Based on Federal Question in Texas

What Is a Notice and Petition for Removal Based on Federal Question?

Background

Following removal, the federal court has exclusive jurisdiction over the action. (Henke Grain Co.,658 S.W.2d at 346.) The federal court must then assess whether it continues to possess some independent basis for jurisdiction. (Frank v. Bear Stearns & Co. (1997) 128 F.3d 919, 921–22 [noting that party invoking federal jurisdiction bears burden of establishing diversity or federal question jurisdiction over state law claims].)

How to Structure the Motion

Under Grable, in order for a state-law claim with an embedded federal question to “aris[e] under the Constitution, laws, or treaties of the United States” such that federal courts have subject-matter jurisdiction over that claim pursuant to section 1331, the state-law claim must:

raise a stated federal issue that is
actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.

(In re Haynes & Boone, LLP (2012) 376 S.W.3d 839, 844 citing Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (2005) 545 U.S. 308, 314.)

Response

Where a Federal Court finds that a federal-question jurisdiction does not exist, the case will be remanded to state court. (See In re Haynes & Boone, LLP (2012) 376 S.W.3d 839, 841.)

Where the court does not have subject matter jurisdiction, or where there are equitable grounds under Section 1452, remand is the proper remedy. (Frank v. Bear Stearns & Co. (1997) 128 F.3d 919, 921–22 [remanding for lack of subject matter jurisdiction]; 28 U.S.C.A. § 1452(b) [remand allowed on equitable grounds in bankruptcy court even where subject matter jurisdiction exists.])

The Court’s Decision

Our review of the removal process vis-a-vis state trial court jurisdiction ... is procedural, not substantive. (J.P. Morgan Chase Bank, N.A. v. Del Mar Props., L.P. (2014) 443 S.W.3d 455, 460-61.) The propriety of removal is a question entirely reserved to the federal courts. The reviewing court looks only to the mechanics of the process to see if removal was properly effectuated from a procedural standpoint. (Id.) Where record evidence shows that a party properly followed removal procedures, the appeals court may conclude state court jurisdiction has lapsed as a matter of law pending remand, even where no actual basis for continued federal jurisdiction ultimately exists in fact and the federal court remands. (Id.)

The Supreme Court of Texas held, in Minton v. Gunn, that the federal courts have exclusive subject-matter jurisdiction over a malpractice claim arising out of legal representation in a patent infringement action. (See Minton v. Gunn (2011) 355 S.W.3d 634, 646.) The Minton case originated in state court and was dismissed on a motion for summary judgment. (See id. at 638.) However, in addition to granting federal jurisdiction over cases arising under federal patent law, 28 U.S.C. § 1338(a) also specifically prohibits state courts from exercising jurisdiction over the same category of cases. The claimant thus raised a subject-matter jurisdiction objection on appeal, and that argument was ultimately vindicated by the Supreme Court, which concluded, “based upon the specific facts of this case,” that the embedded federal question “triggered exclusive federal patent jurisdiction,” requiring dismissal of the case without considering its merits. (In re Haynes & Boone, LLP (2012) 376 S.W.3d 839, 842 citing Minton, 355 S.W.3d at 646–47.)

Removal to Bankruptcy Court

The removal provision applicable to removal of state court actions to bankruptcy court, 28 U.S.C. § 1452, does not require removal of an entire action to bankruptcy court in every situation. (Ford Motor Co. v. Transport Indem. Co.(1981) 508 F. Supp. 1092.) A party cannot remove from a state trial court a proceeding to determine if such party is in contempt of that court. (See In re Williams (1980) 3 B.R. 401, 403.) (Stewart Title Co. v. Street (1987) 731 S.W.2d 737, 739 [holding that “the removal of the underlying case did not remove the contempt proceedings. To hold otherwise would invite removal by every party facing a contempt charge.”])

Vexatious Litigation and Removal

Because Appellants had filed four notices of removal of the same state case, the federal court found them to be vexatious litigants and it assessed a $100 sanction again them. The federal court prohibited them from filing another notice of removal or application to proceed in forma pauperis without first obtaining leave of court. (Restrepo v. Alliance Riggers & Constructors, Ltd. (2017) 538 S.W.3d 724, 748 n.10.)

Notice of Removal and Notice of Special Appearance

Rule 120a requires that a special appearance to contest personal jurisdiction be filed before a motion to transfer venue or any other plea, pleading, or motion. Tex.R.Civ.P. 120a. Although Notice of Removal before the special appearance waived the right to challenge personal jurisdiction; however, Texas case law holds otherwise. Curry v. Dell Publishing Co. (1969) 438 S.W.2d 887, 890. In Curry v. Dell Publishing Co., the court expressly held that the filing of a notice of removal did not waive a defendant's right to assert a special appearance. (Id. at 890.) The Curry court explained that filing a notice of removal is not a general appearance, but merely takes the case out of the hands of the state court. Id. Thus, the filing of the notice of removal was not a general appearance and did not waive appellees' special appearance.

Documents for Notice and Petition for Removal Based on Federal Question in Texas

Sort By

Miller Towing & Recovery, LLC vs. Houston Expediters LLC, Carlos Galicia Barreto, Cristobal Godoy and Houston Crushed Concrete, L.L.C. document preview

Original Petition - E-Filed Original Petition Document

9 pages

MILLER TOWING & RECOVERY, IN THE COUNTY COURT AT LAW Plaintiff NUMBER _____ HOUSTON EXPEDITERS LLC; CARLOS GALICIA BARRETO; CRISTOBAL GODOY and HOUSTON CRUSHED CONCRETE, L.L.C, Defendants MONTGOMERY COUNTY, TEXAS ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Miller Towing & Recovery, LLC (“Plaintif…

Case Name Miller Towing & Recovery, LLC vs. Houston Expediters LLC, Carlos Galic…