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Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 1 of 6 PageID #: 157
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`§§
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`§§§
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`AMH ROMAN TWO TX, LLC,
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`Relator
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`RICHARD HOWARD, IV
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`
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`CAUSE NO. 4:15cv817
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`REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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`Pending before the Court is AMH Roman Two Tx, LLC’s First Amended Motion to Remand
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`Proceeding (Dkt. 4). As set forth below, the Court finds that the motion should be GRANTED and
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`the case should be remanded.
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`AMH is the Plaintiff in a separate Justice of the Peace Court forcible detainer action whereby
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`it seeks possession of real property in McKinney, Texas. Respondent, the Honorable Mike
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`Yarborough, is the Judge presiding over AMH’s Justice of the Peace Court forcible detainer action.
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`Richard Howard is the foreclosed-upon mortgagor and answering Defendant in the Justice of the
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`Peace Court forcible detainer action. According to AMH, Howard has continued to occupy the
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`Subject Property as a tenant at sufferance following sale to AMH.
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`After Howard removed the forcible detainer action to this Court and it was remanded (see
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`4:15cv273), AMH filed this separate mandamus proceeding in the County Court at Law seeking an
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`order to compel the Justice of the Peace to proceed to trial in the forcible detainer action. Howard
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`1
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`Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 2 of 6 PageID #: 158
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`then removed the mandamus proceeding to this Court.1
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`Howard cited 28 U.S.C. §§ 1332(a), 1441(b) and 1146 as grounds for removal. See Dkt. 1.
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`The parties to the underlying action, as listed by Howard in his notice of removal, are AMH Roman
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`Two Tx, LLC Realtor (sic) as Plaintiff; Richard Howard as Defendant; and Judge Mike Yarborough
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`as Defendant. Howard argues that the Court has diversity jurisdiction over his claims because it is
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`a civil action between citizens of different states and because the subject real property has a current
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`fair market value of $452,500. Howard also argues that this Court has supplemental jurisdiction over
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`certain state law claims.
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`AMH, the Relator in this underlying mandamus action seeks remand, arguing the Court lacks
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`removal jurisdiction. The Court agrees.
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`STANDARD
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`A court is required to strictly construe the removal statute in favor of remand and against
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`removal. 28 U.S.C. § 1447; In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007). Federal district
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`courts are of limited jurisdiction and may hear only those cases authorized by a federal statute, the
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`Constitution, or U.S. treaty. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S. Ct.
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`1673, 1675, 128 L. Ed.2d 391 (1994); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
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`When there is no subject-matter jurisdiction, remand is mandatory. 28 U.S.C. § 1447(c).
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`1In addition to 4:15cv273, which was remanded, some of the parties are also involved in
`4:15cv526 also pending before the undersigned. The Court will address any dispositive issues in
`that suit separately.
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`2
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`Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 3 of 6 PageID #: 159
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`ANALYSIS
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`Howard’s removal fails for various reasons, and remand is mandatory here. First, the
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`removal is barred by 28 U.S.C. § 1441(b) and the “forum defendant rule.” Section 1441(b) states,
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`in part, that a case removed on diversity may only be removed “if none of the parties in interest
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`properly joined and served as defendants is a citizen of the State in which such action is brought.”
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`28 U.S.C. § 1441(b). Howard has listed a McKinney, Texas address as his address and states in his
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`civil cover sheet that is a Texas resident. See Dkt. 1 at 2, 5 and Dkt. 1-1. That AMH Roman Two
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`TX, LLC may be a non-Texas citizen is of no import. Howard is a Texas citizen and thus cannot
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`remove over AMH’s timely objection.
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`Further, Howard has not shown that the amount in controversy exceeds $75,000, and it is his
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`burden to make such a showing. Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d 636, 638-39 (5th
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`Cir. 2003). Even if the Court were to base the amount in controversy in this mandamus action on
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`the amount in controversy in the related forcible detainer action — which Howard has not shown
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`any authority to show the Court should — a forcible detainer action only seeks possession of
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`property. The amount in controversy is not the fair market value of the property but instead is
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`general is reasonable rental value. Dews v. Floyd, 413 S.W.2d 800, 805, 413 S.W.2d 800 (Tex. Civ.
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`App. 1967, writ dism’d); see also Hart v. Keller Props., 567 S.W.2d 888, 889, 567 S.W.2d 888
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`(Tex. Civ. App. 1978) (“The rule is settled that the measure of the lessor’s damages for withholding
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`possession pending appeal of the forcible detainer action is the reasonable rental value.”).
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`Moreover, Defendant has not shown how this Court would otherwise have federal question
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`jurisdiction over the underlying petition for writ of mandamus. Removal was improper, and the case
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`3
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`Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 4 of 6 PageID #: 160
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`must be remanded.
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`Howard has the burden of proof in demonstrating that removal to federal court is proper.
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`Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). He has not done so, and
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`given the record here, cannot do so. It is, therefore, recommended that this case be remanded to the
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`County Court at Law Number 3, Collin County for further proceedings.
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`The Court now turns to Plaintiff’s request for an award of fees. Under 28 U.S.C. § 1447(c),
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`“[a]n order remanding the case may require payment of just costs and any actual expenses, including
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`attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The standard for awarding
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`attorney’s fees under § 1447(c) should be determined on “the reasonableness of the removal.”
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`Martin v. Franklin Capitol Corp., 546 U.S. 132, 136-141 (2005). Id. at 141 (citing Hornbuckle v.
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`State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004); Valdes v. Wal-Mart Stores, Inc., 199 F.3d
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`290, 293 (5th Cir. 2000)). When determining whether a court should award attorney’s fees and costs
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`after a motion to remand is granted, “[a]bsent unusual circumstances, courts may award attorney’s
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`fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for
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`seeking removal.” Id.
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`The Court finds that there was no objectively reasonable basis for seeking removal in this
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`case. As the Court has already noted, on July 6, 2015, a different judge of this District remanded the
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`forcible detainer action removed by Howard. See 4:15cv273. In the order remanding that case —
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`setting forth many of the grounds for remand here — the Court ordered that “any defendant,
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`including Richard Howard IV, claiming an interest in the property located at 7004 Westchester
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`Court, McKinney, Texas, 75070 is forbidden from filing a Notice of Removal of any state court
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`4
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`

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`Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 5 of 6 PageID #: 161
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`eviction action to any federal civil district court without prior written approval from this Court.”
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`Dkt. 10 in 4:15cv273. Although Howard did not remove the eviction action, he was well advised
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`of the Court’s removal jurisdiction.
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`AMH should be awarded costs and expenses in the amount of $875.00 against Richard
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`Howard IV, for which let execution issue. To the extent AMH asks the undersigned to conduct a
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`show-cause contempt hearing in this matter for violation of the Court’s order in 4:15cv273 (see Dkt.
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`7), the Court declines to conduct such a hearing in this matter. The Court finds that an award of fees
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`is sufficient deterrent as to the removal of this mandamus proceeding. Howard is cautioned however
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`that future removals of any matters relating to the forcible detainer actions may warrant much
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`harsher sanctions.
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`RECOMMENDATION
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`AMH Roman Two Tx, LLC’s First Amended Motion to Remand Proceeding (Dkt. 4) should
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`be GRANTED, this action should be remanded to Collin County Court at Law #3, and AMH should
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`be awarded costs and expenses in the amount of $875.00 against Richard Howard IV, for which let
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`execution issue.
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`Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
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`and file written objections to the findings and recommendations of the magistrate judge. 28
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`U.S.C.A. § 636(b)(1)(C).
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`A party is entitled to a de novo review by the district court of the findings and conclusions
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`contained in this report only if specific objections are made, and failure to timely file written
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`objections to any proposed findings, conclusions, and recommendations contained in this report shall
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`5
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`

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`Case 4:15-cv-00817-RC-DDB Document 8 Filed 01/27/16 Page 6 of 6 PageID #: 162
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`bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
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`by the district court, except on grounds of plain error, provided that the party has been served with
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`notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
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`148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
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`superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
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`from ten to fourteen days).
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`6

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