Plaintiffs’ Motion to Remand
Page 1 of 5IN THE UNITED SATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISION
Jennifer Florence Dawson, JamesReagan Clark, Jared Schiffner,
individually and on behalf of others similarly situated
,Plaintiffs, v.City of Dallas,Defendant.
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CIVIL ACTION NO. 3:11-CV-03120-B
PLAINTIFFS
’
MOTION TOREMAND WITH MEMORANDUM IN SUPPORT
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);
see
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-
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Plaintiffs’ Motion to Remand
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matter jurisdiction identified in a motion for remand. 28 U.S.C. §1447(c);
see
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
Plaintiffs’
original complaint, or of
Plaintiffs’
filing their first amended complaint in state court. Nor, as of the time of this filing, has it occurred.
1
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);
see
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
supra
, assuming
arguendo
there isa tenuous connection to a federal question, state law predominates in thissuit.
See
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
1
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
jurisdiction.
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.”
Id.
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.
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