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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION DA VINCI INVESTMENT LIMITED PARTNERSHIP, Plaintiff, v. CITY OF ARLINGTON, TEXAS, CHARLIE PARKER, KATHRYN WILEMON, SHERI CAPEHART, JIMMY BENNETT, and MICHAEL GLASPIE, Defendants.

Civil Action No.

DEFENDANTS' NOTICE OF REMOVAL AND BRIEF

Defendants City of Arlington, Texas (the "City"), Charlie Parker, Kathryn Wilemon, Sheri Capehart, Jimmy Bennett, and Michael Glaspie (the "Individual Defendants") (collectively, the "Defendants"), hereby give notice of their removal, under 28 U.S.C. 1441, of Plaintiff's state-court action from the Texas state district court in which it was originally filed to the United States District Court for the Northern District of Texas, Fort Worth Division. In support hereof, Defendants respectfully show the Court the following: I. Preliminary. Statement 1.1. This Notice of Removal is filed within thirty (30) days of service of the pleading

that first asserts a federal question claim, and is consented to by all Defendants who have been served with summons or who have made an appearance in this civil action. 1.2. On November 1, 2013, Plaintiff Da Vinci Investment Limited Partnership

("Plaintiff") filed Plaintiff's Original Petition ("Plaintiff's Petition") in the 48th Judicial District Court of Tarrant County, Texas, Cause No. 048-269023-13, in which Plaintiff seeks damages
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from Defendants for: (1) an alleged unlawful taking in violation of article I, 17 of the Texas Constitution, (2) an alleged violation of Plaintiff's equal protection rights under the Fourteenth Amendment to the United States Constitution, and (3) an alleged violation of Plaintiff's substantive due process rights in violation of the Fourteenth Amendment to the United States Constitution. See Index of State Court Documents ("Index"), at Tab 2. Plaintiff asserts its Fourteenth Amendment claims under 42 U.S.C. 1983 ("1983"). Id. 1.3. On November 27, 2013, Defendants timely answered Plaintiff's Petition.
See

Index, at Tab 7. In Plaintiff's Petition, Plaintiff alleges federal claims under the Fourteenth Amendment to the United States Constitution and 1983, and seeks damages, costs, attorney's fees and other relief against Defendants under both federal and state law. See Plaintiff's Petition, Tab 2, at pp. 6-8. As a result of Plaintiff's alleging federal claims in this action, Defendants file this notice of removal, as more fully explained in Section II, below. Promptly after the filing of this Notice, Defendant will be filing notice of this removal with the state court. See 28 U.S.C.
1446(d). Defendants also hereby fi le, concurrently with this Notice of Removal, all "process,

pleadings and orders" served in this case under 28 U.S.C. 1446(a), and filed in the state court, under N. Dist. Local Rule 81.1. See, generally, Index. II.
Argument and Authorities

The removal of civil actions from state court to federal court is governed by 28 U.S.C. 1441, which provides in pertinent part:
Generally. Except as otherwise expressly provided by Act of Congress, (a) any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

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28 U.S.C. 1441(a) (Sapp. 2013), The federal question jurisdiction of the federal district courts

is also described in 28 U.S.C. 1331, as follows: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. 1331 (2006). Even more specifically, 28 U.S.C. 1343 describes the federal district court's jurisdiction regarding civil rights allegations: (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * 4,

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, or any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. 28 U.S.C. 1343(a) (2006). In this case, Plaintiff alleges claims under a federal statute, 42 U.S.C. 1983, seeking redress for alleged deprivations of federally protected constitutional rights under the Fourteenth Amendment to the United States Constitution. See Index, at Tab 2, pp. 6 8. A cause of action
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for the deprivation of civil rights is provided in 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the

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District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. 1983 (2012). The deadline for filing a notice of removal of a civil action is found in 28 U.S.C. 1446: (b) Requirements; generally. (1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ... . 28 U.S.C. 1446(b)(1) (Supp. 2013), Plaintiff's Petition alleging a claim under federal law was filed on November 1, 2013, and served on the City and Defendants on November 8 and 14, 2013.

See Index, Tabs 2 - 6. This removal is, therefore, timely.


Plaintiffs action is one over which this court has original jurisdiction pursuant to 28 U.S.C. 1331 and 1343(a), and may be removed to this Court by Defendants pursuant to 28 U.S.C. 1441(b). Pursuant to federal law, federal courts have original jurisdiction over all civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. 1331 and I343(a). Plaintiff's claims under federal law are removable to this Court. Id. Plaintiffs state claim (under Article I, 17 of the Texas Constitution) is also removable under this Court's supplemental jurisdiction.

See 28 U.S.C. 1367(a) (2006)("[I]n any civil

action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . ."). Plaintiffs state law claim has been brought together with Plaintiff's claims under 1983. Section 1441(c) provides: Whenever a separate and independent claim or cause of action within the jurisdiction conferred by Section 1331 or this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
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28 U.S.C. 1441(c) (Supp. 2013). Plaintiffs inverse condemnation claim under article I, 17 of the Texas Constitution arises from the same factual bases alleged in Plaintiffs Petition.
See

Index, Tab 2, pp. 2-6. Since Plaintiff's state law claim derives from a "common nucleus of operative facts and form[s] the same case or controversy," supplemental jurisdiction exists.
See

28 U.S.C. 1367(a); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
Federal question removal is governed by the "well-pleaded complaint" rule. According to this judicially-created rule, federal jurisdiction exists when a federal question is present on the face of the properly pleaded complaint, unaided by the answer or the petition for removal. Gully
v. First Nat'l Bank in Meridian, 229 U.S. 109, 113 (1936). See also Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. I, 9-11 (1983). Even though state law may create a

plaintiff's cause of action, a case "might still 'arise under' the laws of the United States if a wellpleaded complaint established that [a plaintiffs) right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd., 463 U.S. at 13. "Where a plaintiffs right to relief depends upon construction or application of the Constitution or laws of the United States, and that federal claim is more than just colorable, but includes a reasonable foundation, jurisdiction lies in federal court." Smith v. Kansas City Title &
Trust Co., 255 U.S. 180, 199 (1921); Owens v. First City Nat'l Bank of Beaumont, 714 F.Supp.

227, 229 n.9 (E.D. Tex. 1989). Plaintiff, by asserting a violation of its rights under the Fourteenth Amendment, and by seeking damages and attorney's fees under 1983, has raised a federal claim in this cause.
See

Plaintiffs Petition, Index, at Tab 2. This Court is the proper court to which to remove Plaintiffs action under 1441(a) because it is the district court of the United States for the district and division embracing the 48th Judicial District Court of Tarrant County, Texas, where Plaintiffs

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action is pending. Defendants are entitled to remove Plaintiff's action to this Court under 1441 because Plaintiff's action presents a "federal question" that is within the Court's original jurisdiction under 28 U.S.C. 1331 and I343(a), which are claims that could have originally been filed in a federal district court. See Merrell Dow Pharms, Inc. v. Thompson, 478 U.S. 804 (1986); Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 281 (1918).

Consent of All Defendants


Defendants were served on November

and 14, 2013.

See Index, at Tab2-6.

Notwithstanding the different dates of service, all Defendants answered in this case on November 27, 2013. See Index, Tab 7. Likewise, all Defendants hereby join in and/or consent to the removal of this action. See 28 U.S.C. 1446(b)(2) (Supp. 2013). As a result of this timely notice, Defendants are entitled to remove this action to this Court. WHEREFORE, PREMISES CONSIDERED, Defendants City of Arlington, Texas, Charlie Parker, Kathryn Wilemon, Sheri Capehart, Jimmy Bennett, and Michael Glaspie respectfully request that this action be removed from the 48th Judicial District Court of Tarrant County, Texas, to the United States District Court for the Northern District of Texas, Fort. Worth Division.

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Respectfully submitted, By: /s/ Edwin P. Voss, Jr. Edwin P. Voss, Jr. State Bar No. 20620300 evossriDhh law .net

Robert F. Brown State Bar No. 03164725 rbrowniThhlaw.net Edwin P. Voss, Jr. State Bar No. 20620300 evoss@bhlaw.net BROWN & HOFMEISTER, L.L.P. 740 E. Campbell Road Suite 800 Richardson, Texas 75081 214-747-6100 (Telephone) 214-747-6111 (Telecopier) ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

A copy of the foregoing document was served by First Class Mail on counsel for Plaintiff, Messrs. Kelly Jones and Michael Hassett, JONES HASSETT, P.C., 440 North Center, Arlington, Texas 76011, on the 5th day of December, 2013.

By:

/s/ Edwin P. Voss, Jr. Edwin P. Voss, Jr.

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