Notice and Petition for Removal Based on Diversity Jurisdiction in Texas

What Is a Notice and Petition for Removal Based on Diversity Jurisdiction?

Background

Under 28 U.S.C. § 1441(a) any state court civil action over which a federal court would have original jurisdiction may be removed from state to federal court. “The party seeking to assert federal jurisdiction . . . has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists.” (New Orleans & Gulf Coast Railway Co. v. Barrois (2008) 533 F.3d 321, 327.) Jurisdictional facts must be judged as of the time of the filing of the state court petition. (White v. FCI USA, Inc. (2003) 319 F.3d 672, 674.) “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” (Manguno v. Prudential Property and Casualty Ins. Co. (2002) 276 F.3d 720, 723.)

Diversity Jurisdiction

Federal district courts have original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75,000, exclusive of interest and costs. (28 U.S.C. § 1332(a).) When removal is premised upon diversity jurisdiction, courts determine the amount in controversy in light of “the claims in the state court petition as they existed at the time of removal.” (Manguno, 276 F.3d at 723.) Generally, the amount alleged in the state court petition determines the amount in controversy so long as it was pled in good faith. (Allen v. R & H Oil & Gas Co. (1995) 63 F.3d 1326, 1335.) If the jurisdictional amount is not apparent from the face of the state court petition, the court may rely on summary judgment-type evidence. (St. Paul Reinsurance Co., Ltd. v. Greenberg (1998) 134 F.3d 1250, 1253.)

If a defendant shows that on the face of the state court petition or by a preponderance of the evidence the amount in controversy exceeds $75,000, the plaintiff may defeat removal by showing with legal certainty that the claims alleged are for less than $75,000. (De Aguilar v. Boeing Co. (1995) 47 F.3d 1404, 1412.)

State Court Rule

Texas Rule of Civil Procedure 47(c) requires plaintiffs to state in an original petition the range of monetary relief sought among five pre-defined ranges. The lowest range is “monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.

How to Structure the Motion

Pursuant to title 28, section 1446 of the United States Code, a defendant desiring to remove a civil action from a state court shall file in the district court of the United States for the district and division within which such action is pending “a notice of removal . . . containing a short and plain statement of the grounds for removal.” See 28 U.S.C.A. § 1446(a) (West, Westlaw through July 9, 2015).

The procedure for removal under 28 U.S.C.S. § 1446 is summerized as follows:

Subsection (a) requires that a defendant must file a verified removal petition “in the district court of the United States for the district and division within which such action is pending” together with the process, pleadings, and orders served on him in the action;
Subsection (b) requires the petition for removal to be filed within 30 days of the time when, from the papers in the case, it can be ascertained that the case is removable;
Subsection (d) requires a bond; and
subsection (e) states:

Promptly after the filing of such petition for removal of a civil action and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

(Cliff v. Bonner (1989) 770 S.W.2d 97, 98.)

Local Rules

Local rules may require the Defendant to attach and incorporate as an exhibit an Index of Matters Being Filed (the “Index”) containing any process, pleadings, orders and the docket sheet of the state court. (See, e.g., Local Rule 81(5) for Harris County.)

Response

A Texas plaintiff who wishes to avoid removal by limiting their recovery to less than $75,000 as a matter of law must file a binding stipulation or affidavit with his original state petition. (St. Paul Reinsurance, 134 F.3d at 1254 n.18.)

The Court’s Decision

It is well established under the federal decisions that when the right of removal is grounded upon diversity of citizenship and the amount in controversy ... the cause does not become removable unless such diversity existed at the time when the suit was brought. (American Surety Co. v. Ritchie (1945) 191 S.W.2d 137, 142.) But there is a divergence of opinion as to whether this rule also applies to the amount in controversy. (Id.)

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. (J.P. Morgan Chase Bank, N.A. v. Del Mar Props., L.P. (2014) 443 S.W.3d 455, 460-61 citingFrank 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].)

Documents for Notice and Petition for Removal Based on Diversity Jurisdiction in Texas

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FREED & FREED INTERNATIONAL LTD vs. NEXUS MEDICAL LLC, et al document preview

PLTF OBJECTION TO DEF AMENDED MOTION FOR SUMMARY JUDGMENT - Motion - Summa…

5 pages

FILED 4/5/2024 5:54 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS …

Case Name FREED & FREED INTERNATIONAL LTD vs. NEXUS MEDICAL LLC, et al