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Case 3:11-cv-03120-B Document 13

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Jennifer Florence Dawson, James Reagan 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 District

Court of Dallas County, Texas, seeking declaratory relief. The need for such relief arose as a result of Defendants transmitting a letter to Plaintiffs counsel that appeared to constitute an anticipatory repudiation of a settlement agreement entered into on October 17, 2011. That agreement was entered into as a result of an earlier suit, filed in this court, in which Plaintiffs, similarly situated to those here, challenged the Citys
Plaintiffs Motion to Remand
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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 November

11, 2011. Defendant was served with Plaintiffs first amended state court petition on November 11, 2011. 4. 5. Defendant timely filed its notice of removal on November 11, 2011. 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-matter jurisdiction in this matter, because the dispute can be clearly framed as a suit arising out of 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 and

against 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 subjectPage 2 of 5

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 occurred either 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 and conditions within the settlement agreement entered into between the parties, and as a necessary precursor to that relief, seek to enjoin the City from breach based on a misconstruction of the agreement, which it clearly threatened in its November 8, 2011 letter, this civil action does not arise under federal law and should be remanded. 28 U.S.C. 1447(c); Bernhard v. Whitney Natl Bank, 523 F.3d 546, 552 (5th Cir. 2008); see Intl Primate Prot. League v. Admrs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991). Accordingly, Defendants allegation that this case arises under 28 U.S.C. 1343(a) is incorrect, and the federal court lacks subject matter jurisdiction; notwithstanding the argument articulated supra, assuming arguendo there is a tenuous connection to a federal question, state law predominates in this suit. 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 a declaration of the rights and obligations between the parties in light of the October 17, 2011 settlement agreement, and a restraint and an injunction pending such declaration, so as to prevent clearly threatened action as a result of the Citys 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 courts order retaining ancillary jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.375, 379 (1994). Here, the parties made no attempt to incorporate language in the dismissal order of the prior suit so as to create some species of ancillary jurisdiction in this court, and there 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.

Plaintiffs Motion to Remand

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the settlement agreement. Plaintiffs action is brought under Tex. Civ. Prac. & Rem. Code 37.001 et seq. That section, the Uniform Declaratory Judgments Act, (UDJA) permits a litigant to seek a declaration of rights, status, and other legal relations whether or not further relief is or could be claimed. Subject matter and parties with standing contemplated by the Act, and the scope of relief provided comprise: a deed, will, written contract, or other writings constituting a contract or [persons] whose rights, status or legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. It further provides: a contract may be construed either before or after there has been a breach. 2 Because the dispute between the parties here is, in essence, one sounding in a dispute over construction of the terms and conditions of the October 17, 2011 settlement agreement between the parties, it is more properly adjudicated in state court with reference to state law, particularly where state law predominates over tenuouslyconnected federal issues. C. Conclusion & Prayer 10. Accordingly, because this court lacks subject matter jurisdiction over this case, and moreover because state law predominates in this suit, Plaintiffs ask the court to grant this motion, remand this suit to the state court where it was originally filed, and award plaintiff court costs, expenses, and attorney fees.


In City of Crowley v. Ray, (Tex. App. Fort Worth) 2010 WL 1006278 (not designated for publication), the court recognized the UDJA should be liberally construed and administered to fulfill its purpose to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. The court further stated: [t]he enumerations in Sections 37.004 [of the UDJA] ... do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty.

Plaintiffs Motion to Remand

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Respectfully submitted by: By: /s/ Jonathan F. Winocour


State Bar No. 24037730


9400 N. Central Expressway, Suite 1204 Dallas, Texas 75231 (214) 575-6060 (214) 575-6220 (FAX)


This is to certify that on this the 14th day of November, 2011, a true and correct copy of the foregoing instrument was forwarded to all counsel of record via this courts Electronic Case File management system. By: /s/ Jonathan F. Winocour
Plaintiffs Motion to Remand
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