Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 1 of 12 PageID #: 355
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` UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF TEXAS
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`CIVIL ACTION NO. 1:16-CV-28
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`TODD D. BRYSON,
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`Plaintiff,
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`versus
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`WELLS FARGO BANK, N.A.,
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`Defendant.
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`MEMORANDUM AND ORDER
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`Pending before the court is Plaintiff Todd D. Bryson’s (“Bryson”) Motion to Remand (#5),
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`in which Bryson seeks remand to state court of his action against Wells Fargo Bank, N.A. (“Wells
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`Fargo”). After considering the motion, the response, the reply, the pleadings, and the applicable
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`law, the court is of the opinion that Bryson’s motion should be granted.
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`I.
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`Background
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`Bryson, a Texas resident, filed this case in the 60th Judicial District Court of Jefferson
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`County, Texas, against Wells Fargo and Action Restoration, Inc. (“Action”), a corporation with
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`its principal place of business in Texas, on November 6, 2014. In 2008, Bryson secured a loan
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`from Wachovia Bank, which was subsequently acquired by Wells Fargo, for approximately
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`$700,000.00 on an eleven-acre tract of land that included a residence (the “property”). At the
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`time, Bryson was the Chief Executive Officer of Action, and Action agreed, by contract, that it
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`would be responsible for making Bryson’s loan payments. Subsequently, Bryson and Action
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`parted ways, and Action, without notifying Bryson, ceased making loan payments to Wells Fargo.
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`Consequently, Wells Fargo began foreclosure proceedings against the property. Action attempted
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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 2 of 12 PageID #: 356
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`to stop the foreclosure proceeding but was unsuccessful, and the property was sold at a foreclosure
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`sale to Wells Fargo on April 1, 2014.
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`In his petition, Bryson asserted claims of wrongful foreclosure against Wells Fargo and
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`breach of contract against Action. Bryson also sought declaratory relief against both Wells Fargo
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`and Action as well as temporary and permanent injunctive relief against Wells Fargo. Action
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`subsequently filed for Chapter 11 bankruptcy protection on December 11, 2014, in the United
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`States Bankruptcy Court for the Eastern District of Texas (the “Bankruptcy Court”). In re Action
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`Restoration, Inc., No. 14-10620 (Bankr. E.D. Tex. Dec. 16, 2015).1
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`On July 23, 2015, the Bankruptcy Court approved a Compromise and Settlement
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`Agreement (the “settlement agreement”) between Action and Bryson, which disposed of all claims
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`between them. After the Bankruptcy Court’s approval of the settlement, the 58th Judicial District
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`Court of Jefferson County, Texas, became the proper forum for the distribution of the settlement
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`funds. Bryson v. BRRW Farm & Ranch, Inc., No. A-196,616 (58th Dist. Ct. Jefferson County,
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`Tex.).2 On July 27, 2015, Wells Fargo filed a Plea in Intervention in the 58th District Court to
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`1 Following Action’s filing of bankruptcy, Wells Fargo attempted to remove the case to federal
`court on March 11, 2015, based on 28 U.S.C. § 1334, which grants district courts jurisdiction over cases
`“related to” bankruptcy proceedings. On June 3, 2015, the court remanded the case back to state court.
`The court found that although the district court had jurisdiction pursuant to 28 U.S.C. § 1334, Wells
`Fargo’s removal was untimely and, in any event, remand was proper based upon the theories of equitable
`remand and permissive abstention. See Bryson v. Wells Fargo Bank, N.A., No. 1:15-cv-105 (E.D. Tex.
`June 3, 2015).
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`2 Bryson brought suit against Action and BRRW Farm and Ranch concerning a related matter,
`which is still pending.
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`2
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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 3 of 12 PageID #: 357
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`recover monies due to Bryson as a result of the settlement, and, on August 3, 2015, Wells Fargo
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`filed an objection to the payment of Bryson’s contingent attorney’s fees.3
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`On December 29, 2015, Action’s lawyers filed a Notice of Nonsuit against Action in the
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`underlying case, which was approved by Bryson’s counsel.4 The state court judge entered an
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`Order of Nonsuit the following day. Wells Fargo filed its notice of removal of the case to this
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`court on January 28, 2016, asserting that removal is proper based on diversity jurisdiction.
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`On February 29, 2016, Bryson filed the instant motion to remand, in which he contends
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`that the case became removable on July 23, 2016, when the Bankruptcy Court approved the
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`settlement agreement and that Wells Fargo was aware of the settlement, yet failed to seek removal
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`within 30 days. Bryson also argues that Wells Fargo’s removal is untimely because it was filed
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`more than one year after the suit was initially filed and that he did not act in bad faith in nonsuiting
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`Action in December 2015. In response, Wells Fargo argues that the Bankruptcy Court’s order
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`approving the settlement agreement did not trigger the 30-day removal clock and that the one-year
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`bar to removal of diversity actions does not apply because Bryson acted in bad faith by delaying
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`in filing its nonsuit of Action.5
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`3 Wells Fargo claims it had no knowledge of the settlement agreement, but it appears that counsel
`for Wells Fargo—although not the same lawyers appearing in this case for Wells Fargo—was present at
`the hearing on August 4, 2015, where the settlement agreement between Bryson and Action was discussed
`on the record.
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`4 Under Texas law, a nonsuit operates as a voluntary dismissal, without prejudice, of a party’s
`claims. See TEX. R. CIV. P. 162; Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex. App.—Amarillo 1997,
`no writ).
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`5 On March 24, 2016, the court ordered Brsyon to file a reply to Wells Fargo’s response
`specifically addressing why he waited to nonsuit Action until December 2015. See Docket No. 13. Bryson
`filed his reply on March 24, 2016.
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`3
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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 4 of 12 PageID #: 358
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` II.
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`Analysis
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`A.
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`Removal Jurisdiction
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`“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, ___ U.S. ___, 133
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`S. Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
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`(1994)); accord Hotze v. Burwell, 784 F.3d 984, 999 (5th Cir. 2015); Scarlott v. Nissan N. Am.,
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`Inc., 771 F.3d 883, 887 (5th Cir. 2014); Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d
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`290, 292 (5th Cir. 2010). “They possess only that power authorized by Constitution and statute,
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`which is not to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377 (citations omitted).
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`The court “must presume that a suit lies outside this limited jurisdiction, and the burden of
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`establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate
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`Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001) (citing Kokkonen, 511
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`U.S. at 377); accord Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); Clayton v. Conoco Phillips
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`Co., 722 F.3d 279, 290 (5th Cir. 2013). In an action that has been removed to federal court, a
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`district court is required to remand the case to state court if, at any time before final judgment,
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`it determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Carlsbad Tech.,
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`Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009); Grupo Dataflux v. Atlas Global Grp., L.P., 541
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`U.S. 567, 571 (2004); Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 592 (5th Cir.
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`2015); African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014).
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`When considering a motion to remand, “[t]he removing party bears the burden of showing
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`that federal jurisdiction exists and that removal was proper.” Barker v. Hercules Offshore Inc.,
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`713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276
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`F.3d 720, 723 (5th Cir. 2002)); accord African Methodist Episcopal Church, 756 F.3d at 793;
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`4
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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 5 of 12 PageID #: 359
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`Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013); see 13E CHARLES A.
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`WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3602.1 (3d ed. 2013).
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`“This extends not only to demonstrating a jurisdictional basis for removal, but also necessary
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`compliance with the requirements of the removal statute.” Roth v. Kiewit Offshore Servs., Ltd.,
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`625 F. Supp. 2d 376, 382 (S.D. Tex. 2008) (quoting Albonetti v. GAF Corp. Chem. Grp., 520
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`F. Supp. 825, 827 (S.D. Tex. 1981)); accord Fort Worth & W. R.R. Co. v. Stevenson, No. 3:15-
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`CV-0906-B, 2015 WL 38679706, at *1 (N.D. Tex. June 22, 2015); Crossroads of Tex., L.L.C.
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`v. Great-West Life & Annuity Ins. Co., 467 F. Supp. 2d 705, 708 (S.D. Tex. 2006). Non-
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`jurisdictional defects in the removal procedure, such as removal by an in-state defendant, however,
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`are waived unless raised in a motion to remand within thirty days after removal. 28 U.S.C. §
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`1447(c); Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284 (5th Cir. 2004); Denman by
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`Denman v. Snapper Div., 131 F.3d 546, 548 (5th Cir. 1998) (citing In re Shell Oil Co., 932 F.2d
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`1518, 1523 (5th Cir. 1991)). “Only state-court actions that originally could have been filed in
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`federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams,
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`482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)); see Mumfrey, 719 F.3d at 397.
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`“The removal statute ties the propriety of removal to the original jurisdiction of the federal
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`district courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see 28 U.S.C.
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`§ 1441(a); Camsoft Data Sys., Inc. v. S. Elec. Supply, Inc., 756 F.3d 327, 333 (5th Cir. 2014);
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`Barker, 713 F.3d at 228. Because removal raises significant federalism concerns, the removal
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`statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor
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`of remand. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); African
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`Methodist Episcopal Church, 756 F.3d at 793; Barker, 713 F.3d at 212.
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`5
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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 6 of 12 PageID #: 360
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`B.
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`Diversity Jurisdiction
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`Federal courts have subject matter jurisdiction and are authorized to entertain causes of
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`action only where a question of federal law is involved or where there is diversity of citizenship
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`between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and
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`costs. 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006); Lincoln
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`Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
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`U.S. 546, 552 (2005); Energy Mgmt. Servs., LLC v. City of Alexandria, 739 F.3d 255, 258-59
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`(5th Cir. 2014); Halmekangas, 603 F.3d at 294. In order to determine whether jurisdiction is
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`present in a removed action, the claims set forth in the state court petition are considered as of the
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`date of removal. Standard Fire Ins. Co. v. Knowles, ___ U.S. ___, 133 S. Ct. 1345, 1349 (2013);
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`Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 391 (1998); Campbell v. Stone Ins., Inc., 509 F.3d
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`665, 669 n.2 (5th Cir. 2007); McGowin v. ManPower Int’l, Inc., 363 F.3d 556, 558 n.1 (5th Cir.
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`2004). In removed cases where, as here, there is no suggestion that a federal question is involved,
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`subject matter jurisdiction exists only if there is complete diversity among the parties and the
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`amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332; Lincoln Prop. Co., 546 U.S.
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`at 89; Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996);
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`Halmekangas, 603 F.3d at 294.
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`Complete diversity requires that no plaintiff be a citizen of the same state as any defendant.
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`Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc., 519 U.S. at 68; Vaillancourt v. PNC Bank
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`Nat’l Ass’n, 771 F.3d 843, 847 (5th Cir. 2014). “In cases removed from state court, diversity of
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`citizenship must exist both at the time of filing in state court and at the time of removal to federal
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`court.” Uglunts v. Am. Servs., Inc., No. 3:12-CV-4388-D, 2013 WL 3809681, at *1 (N.D. Tex.
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`6
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 7 of 12 PageID #: 361
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`July 23, 2013) (quoting Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)); see Borden v. Allstate
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`Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009). Furthermore, removal is appropriate only if none
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`of the parties properly joined and served as defendants is a citizen of the state in which the action
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`was brought. African Methodist Episcopal Church, 756 F.3d at 793; Gasch v. Hartford Accident
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`& Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (citing 28 U.S.C. § 1441(b)(2)); In re 1994
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`Exxon Chem. Fire, 558 F.3d 378, 391 (5th Cir. 2009); Crockett v. R.J. Reynolds Tobacco Co.,
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`436 F.3d 529, 531-32 (5th Cir.), cert. denied, 548 U.S. 907 (2006).
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`Here, there is no question that complete diversity exists between Bryson and Wells Fargo.
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`Bryson is a citizen of Texas. Wells Fargo is a national banking association with its primary office
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`in South Dakota. Consequently, Wells Fargo is citizen of South Dakota. See Wachovia Bank,
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`N.A. v. Schmidt, 546 U.S. 303, 307 (2006) (holding that a national bank is a citizen of the state
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`in which its main office is located, as described in its articles of association); Tu Nguyen v. Bank
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`of America, N.A., 539 F. App’x 325, 327 n.1 (5th Cir. 2013). Further, it is apparent from the
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`pleadings that the amount in controversy exceeds $75,000.00, which the parties do not dispute.
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`Therefore, the sole remaining question is the timeliness of Well Fargo’s Notice of Removal.
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`C.
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`Timeliness of Removal
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`“The timing of removal is controlled by 28 U.S.C. § 1446(b).” Mumfrey, 719 F.3d at
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`397; accord Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278
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`(5th Cir. 2007). Section 1446(b) provides, in pertinent part:
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`(3)
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`Except as provided in subsection (c), if the case stated by the initial
`pleading is not removable, a notice of removal may be filed within 30 days
`after receipt by the defendant, through service or otherwise, of a copy of
`an amended pleading, motion, order or other paper from which it may first
`be ascertained that the case is one which is or has become removable.
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`7
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 8 of 12 PageID #: 362
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`28 U.S.C. § 1446(b). Thus, “if the initial pleading sets forth a claim that triggers the removal
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`clock, the defendant must file notice of removal within thirty days of receiving it.” Mumfrey, 719
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`F.3d at 397-98; see § 1446(b)(1). If the initial pleading does not trigger removal, however, “a
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`notice of removal must be filed within thirty days of the defendant’s receipt of a document from
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`which it may ascertain that the case is, or has become, removable.” Mumfrey, 719 F.3d at 398;
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`see § 1446(b)(3).
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`Nevertheless, § 1446(b)(3) expressly provides a limitation on removal of certain cases, as
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`specified in subsection (c). Thus, cases based on diversity jurisdiction, such as this one, may not
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`be removed more than one year after the commencement of the action unless the district court
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`finds that the plaintiff acted in bad faith to prevent removal. 28 U.S.C. 1446(c); see H.R. Rep.
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`No. 112-10, at 15 (2011). This rule, commonly called the “one-year bar,” is “intended to
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`‘reduc[e] the opportunity for removal after substantial progress has been made in state court.’”
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`Tedford v. Warner-Lambert Co., 327 F.3d 423, 426 n.8 (5th Cir. 2003) (citing H.R. Rep. No.
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`100-889, at 72 (1988)) (referencing the prior version of the one-year bar). In 2011, Congress
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`amended the removal statute and expressly added the bad-faith exception to the one-year bar.
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`Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat.
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`758 (2011); see Ehrenreich v. Black, 994 F. Supp. 2d 284, 288-89 (E.D.N.Y. 2014). Currently,
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`the statute provides, in relevant part:
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`A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred
`by section 1332 more than 1 year after commencement of the action, unless the district
`court finds that the plaintiff has acted in bad faith in order to prevent a defendant from
`removing the action.
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`28 U.S.C. § 1446(c)(1). The determination of bad faith is left to the discretion of the district
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`court, but “the exception to the bar of removal after one year is limited in scope.” H.R. Rep. No.
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`8
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 9 of 12 PageID #: 363
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`112-10, at 15; see A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 211-12 (3d
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`Cir. 2014) (holding that equitable tolling of the one-year bar was inappropriate where no
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`“extraordinary circumstances” were present).
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`While the time limit for removal is not jurisdictional and may be waived, the failure to file
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`a notice of removal within thirty days may render removal improper. See Schexnayder, 394 F.3d
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`at 284; Johnson v. Heublein, Inc., 227 F.3d 236, 244 (5th Cir. 2000); Cervantez v. Bexar Cty.
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`Civil Serv. Comm’n, 99 F.3d 730, 734 (5th Cir. 1996). Likewise, the one-year bar in diversity
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`cases is procedural and may be waived if the plaintiff fails to seek remand within 30 days of
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`removal. Smith v. Mylan Inc., 761 F.3d 1042, 1045 (9th Cir. 2014); see Music v. Arrowood
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`Indem. Co., 632 F.3d 284, 288 (6th Cir. 2011) (analyzing the prior version of § 1446(c)); Barnes
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`v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.), cert. denied, 506 U.S. 999 (1992)
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`(same). Unless the plaintiff waives the applicable time limit or there is some equitable reason not
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`to apply it, “a defendant who does not timely assert the right to remove loses that right.” Tedford,
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`327 F.3d at 426 n.8 (concerning the one-year bar); Cervantez, 99 F.3d at 734 (addressing
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`untimely removal after 30 days from receipt of an “other paper” triggering removal); Benesmart,
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`Inc. v. Total Fin. Grp., No. 12-2645, 2012 WL 6020340, at *3 (E.D. La. Dec. 3, 2012)
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`(discussing untimely removal more than 30 days after service of an initial pleading); see A.S. ex
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`rel. Miller, 769 F.3d at 211-12 (finding that the one-year bar is procedural and subject to
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`“equitable tolling”) (citing Tedford, 327 F.3d at 428-29; Podobnik v. U.S. Postal Serv., 409 F.3d
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`584, 591 (3d Cir. 2005)); see also 28 U.S.C. § 1447(c) (noting that a plaintiff must file a motion
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`to remand within 30 days of removal on the basis of any defect other than a lack of subject matter
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`jurisdiction). Where a notice of removal is determined to be untimely and the deficiency is not
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`9
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 10 of 12 PageID #: 364
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`waived by the plaintiff, the removal is improvident, and remand is proper. See Cervantez, 99
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`F.3d at 734; Benson v. Benson, No. 5:15-CV-202, 2015 WL 3622335, at *3 (W.D. Tex. June 9,
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`2015) (citing Royal v. State Farm Fire & Cas. Co., 685 F.2d 124, 127 (5th Cir. 1982)).
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`Turning to the case at bar, the court need not address whether the settlement agreement
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`triggered the 30-day removal clock because Wells Fargo is attempting to remove the case more
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`than one year after it was commenced.6 As noted above, this action was commenced on November
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`6, 2014, and Wells Fargo did not file its Notice of Removal until January 28, 2016, approximately
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`three months after the one-year deadline had passed. Bryson then timely filed his Motion to
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`Remand. See 28 U.S.C. § 1447(c) Thus, the one-year bar requires remand, absent bad-faith
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`conduct by Bryson. See 28 U.S.C. § 1446(c)(1).
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`Wells Fargo argues that Bryson acted in bad faith because he was “extremely dilatory in
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`dismissing non-diverse defendant Action.” In support of its position that Bryson’s conduct
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`constituted bad faith, Wells Fargo relies principally on three cases: Tedford, 327 F.3d at 423-429;
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`Lawson v. Parker Hannifin Corp., No. 4:13-cv-923-O, 2014 WL 1158880 (N.D. Tex. Mar. 20,
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`2014); and Shriver v. Sprintcom, Inc., 167 F. Supp. 2d 962 (S.D. Tex. 2001). None of these
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`cases is directly analogous to the situation here because each includes additional facts indicating
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`that the plaintiffs in those cases were acting in bad faith to prevent removal.
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`In Tedford, the Fifth Circuit found that a plaintiff’s conduct constituted bad faith where the
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`plaintiff, mere hours after learning that the defendant intended to seek removal, amended her
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`pleading to add a non-diverse defendant, her own doctor, and then signed and post-dated a notice
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`6 It is undisputed by the parties that the case was not removable at the time of Bryson’s initial
`pleading because Action was a non-diverse, in-state defendant. See, e.g., African Methodist Episcopal
`Church, 756 F.3d at 793.
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`10
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 11 of 12 PageID #: 365
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`of nonsuit against the doctor. Tedford, 327 F.3d at 427. The court and the defendants were
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`unaware of the post-dated nonsuit until after the one year deadline had passed. Id. at 428. In
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`Lawson, the court found that a plaintiff acted in bad faith when the plaintiff failed to serve the
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`defendant until seven months after filing suit, did not move for a default judgment when the
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`defendant failed to appear or answer the plaintiff’s petition, and never sought discovery against
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`the defendant. 2014 WL 1158880, at *6. Finally, in Shriver, the court found bad faith when a
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`plaintiff non-suited the non-diverse defendant “beyond the eleventh hour,” essentially the night
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`before the trial in state court was set to begin. 167 F. Supp. 2d at 963-64. Also, the plaintiff in
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`Shriver had previously dismissed his initial suit when it was removed to federal court and then re-
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`filed essentially the same suit in state court but added a non-diverse defendant. Id. at 962-63.
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`Here, Wells Fargo cannot point to any of the clearly egregious types of facts detailed in
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`Tedford, Lawson, or Shriver. To the contrary, it appears that Bryson’s claims against Action were
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`arguably meritorious, as evidenced by the settlement agreement, and that Bryson actively pursued
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`his claims against Action—at least until Action sought and obtained bankruptcy protection.7 It also
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`appears from the record that Wells Fargo was aware of the bankruptcy proceedings and was at
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`least on notice of the settlement agreement so as not to be completely surprised by the nonsuit of
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`Action.
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`7 Wells Fargo has not argued that the one-year bar should be tolled based on Action’s bankruptcy;
`however, one district court in this circuit has discussed the issue, albeit in dicta. See Lopez v. Trujillo,
`475 B.R. 550, 558-62 (N.D. Tex. 2012). In Lopez, the district court rejected a defendant’s argument that
`an automatic bankruptcy stay should toll the one-year bar based on Fifth Circuit precedent and the language
`of the removal statute. Id. at 560. Importantly, as noted in Lopez, the addition of the bad faith exception
`in the 2011 amendment further supported the position that an automatic bankruptcy stay does not toll the
`one-year bar. See Lopez, 475 B.R. at 560; see also 28 U.S.C. § 1446(c).
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`11
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`

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`Case 1:16-cv-00028-MAC Document 15 Filed 03/31/16 Page 12 of 12 PageID #: 366
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`While Bryson waited until five months after the Bankruptcy Court approved the settlement
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`agreement to nonsuit Action, Wells Fargo has failed to show how this conduct, in and of itself,
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`amounts to bad faith. Although the settlement agreement was approved on July 23, 2015, the
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`Bankruptcy Court did not issue its order confirming the Chapter 11 bankruptcy plan until October
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`7, 2015, and Action was not discharged from bankruptcy until December 16, 2015.
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`Consequently, the bankruptcy case was still ongoing until 13 days before the notice of nonsuit was
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`filed by Action’s attorneys on December 29, 2015. Thus, it does not appear that Bryson acted in
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`bad faith to prevent removal of this case.
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`Additionally, the court must be mindful of the overarching principle that the removal
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`statutes must be strictly construed and all doubts resolved in favor of remand. See, e.g., African
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`Methodist Episcopal Church, 756 F.3d at 793; Barker, 713 F.3d at 212. Accordingly, the court
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`declines to find that Bryson acted in bad faith to prevent removal. Therefore, § 1446(c) bars
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`Wells Fargo’s untimely removal, and remand to state court is warranted.
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`III.
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`Conclusion
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`An evaluation of the relevant facts and controlling law reveals that Wells Fargo’s Notice
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`of Removal was untimely. Therefore, this case was improvidently removed, and remand is
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`required. Accordingly, Bryson’s Motion to Remand is GRANTED. This action will be remanded
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`to the 60th Judicial District Court of Jefferson County, Texas. A separate order of remand will
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`be issued.
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`12