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Filed Motion to Remand

Filed Motion to Remand

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Published by DallasObserver

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Published by: DallasObserver on Nov 14, 2011
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Plaintiffs’ Motion to Remand 
 Jennifer Florence Dawson, JamesReagan Clark, Jared Schiffner,
individually and on behalf of others similarly situated 
,Plaintiffs, v.City of Dallas,Defendant.
CIVIL ACTION NO. 3:11-CV-03120-B
Plaintiffs file this motion to remand and memorandum in support under 28 U.S.C.§1447(c).
 A. Introduction
1. Plaintiffs are
 Jennifer Florence Dawson, James Reagan Clark, Jared Schiffner,individually, and on behalf of others similarly situated; Defendant is the City of Dallas.2. On November 9, 2011 Plaintiffs sued Defendant in the 191st Judicial DistrictCourt of Dallas County, Texas, seeking declaratory relief. The need for such relief arose
as a result of Defendant’s tra
nsmitting a letter to Plaintiffs
counsel that appeared toconstitute an anticipatory repudiation of a settlement agreement entered into onOctober 17, 2011. That agreement was entered into as a result of an earlier suit, filed inthis court, in which Plaintiffs, similarly situated to those here,
challenged the City’s
Case 3:11-cv-03120-B Document 13 Filed 11/14/11 Page 1 of 5 PageID 179
Plaintiffs’ Motion to Remand 
Page 2 of 5
conditioning their exercise of rights under the 1st Amendment on the purchase of commercial general liability insurance.3. Defendant was served with Plaintiffs
original state court petition on November11, 2011. Defendant was served with Plaintiffs
first amended state court petition onNovember 11, 2011.4. Defendant timely filed its notice of removal on November 11, 2011.5. This court convened a status conference on November 14, 2011 at 9:30 a.m.during which the court
sua sponte 
articulated a concern it was without subject-matterjurisdiction in this matter, because the dispute can be clearly framed as a suit arising outof an anticipatory breach of the October 17, 2011 settlement agreement, and thus only tenuously concerns a federal question.6. The court requested the parties brief the issue of subject matter jurisdiction. Accordingly, Plaintiffs file this Motion for Remand with Memorandum in Support.
B. Argument
7. The court must strictly construe the removal statutes in favor of remand andagainst removal.
Diaz v. Sheppard 
, 85 F.3d 1502, 1505 (11th Cir. 1996);
Brown v. Francis 
,75 F.3d 860, 864-65 (3d Cir. 1996);
Hunter v. Philip Morris USA
, 582 F.3d 1039, 1042(9th Cir. 2009).8. The court may remand a case at any time on the basis of a defect to subject-
Case 3:11-cv-03120-B Document 13 Filed 11/14/11 Page 2 of 5 PageID 180
Plaintiffs’ Motion to Remand 
Page 3 of 5
matter jurisdiction identified in a motion for remand. 28 U.S.C. §1447(c);
Lowery v. Ala. Power Co.
, 483 F.3d 1184, 1213 n.64 (11th Cir. 2007).9. The court should remand this case to state court because(A) while the lawsuit may tenuously concerns a federal question, insofar as
the City of Dallas’
threatened actions could result in an abridgement of 
the Plaintiffs’ First Amendment rights, that abridgment had not
occurredeither at the time of filing 
original complaint, or of 
filing their first amended complaint in state court. Nor, as of the time of this filing, has it occurred.
 Accordingly, because the Plaintiffs’ seek 
declaratory relief in the form of a construction of certain terms andconditions within the settlement agreement entered into between theparties, and as a necessary precursor to that relief, seek to enjoin the City from breach based on a misconstruction of the agreement, which itclearly threatened in its November 8, 2011 letter, this civil action doesnot arise under federal law and should be remanded. 28 U.S.C. §1447(c);
Bernhard v. Whitney 
 Nat’l Bank
, 523 F.3d 546, 552 (5th Cir. 2008);
Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund 
, 500 U.S. 72, 89 (1991). Accordingly,
Defendant’s allegation that this case arises under
28 U.S.C.1343(a) is incorrect, and the federal court lacks subject matterjurisdiction;(B) notwithstanding the argument articulated
, assuming 
there isa tenuous connection to a federal question, state law predominates in thissuit.
28 U.S.C. §1441(c);
Lang v. Am. Elec. Power Co.
, 785 F. Supp.1331, 1334-35 (N.D.Ind. 1992). The relief sought by Plaintiffs is adeclaration of the rights and obligations between the parties in light of the October 17, 2011 settlement agreement, and a restraint and aninjunction pending such declaration, so as to prevent clearly threatenedaction as a result of 
the City’s
perception the Plaintiffs are in breach of 
 A tenuous connection is not sufficient: “…
the breach of an agreement that produced the dismissal of an earlier
federal suit” does not confer jurisdiction on a federal court
absent a provision in a court’s order retaining ancillary 
Kokkonen v. Guardian Life Ins. Co. of America,
511 U.S.375, 379 (1994). Here, the parties made no attemptto incorporate language in the dismissal order of the prior suit so as to create some species of ancillary jurisdictionin this
court, and t
here is no “independent basis for federal jurisdiction.”
at 382.
See also¸
 Jennifer Florence Dawson 
et al 
. Case 3:11-cv-02698-B, U.S. District Court for the Northern District of Texas, Docket Entry # 12.
Case 3:11-cv-03120-B Document 13 Filed 11/14/11 Page 3 of 5 PageID 181

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