Redus v. University of the Incarnate Word

61 F. Supp. 3d 668, 2014 U.S. Dist. LEXIS 165959, 2014 WL 6656799
CourtDistrict Court, W.D. Texas
DecidedNovember 25, 2014
DocketCivil No. 5:14-cv-509-DAE
StatusPublished
Cited by3 cases

This text of 61 F. Supp. 3d 668 (Redus v. University of the Incarnate Word) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Redus v. University of the Incarnate Word, 61 F. Supp. 3d 668, 2014 U.S. Dist. LEXIS 165959, 2014 WL 6656799 (W.D. Tex. 2014).

Opinion

ORDER GRANTING PLAINTIFFS’ MOTION TO REMAND

DAVID A. EZRA, Senior District Judge.

Before the Court is a Motion for Remand filed by Plaintiffs Valerie Redus, individually, and Robert Redus, individually and as Administrator of the Estate of Robert Cameron Redus (collectively, “Plaintiffs”). (“Mot.” Dkt. #6.) On November 17, 2014, the Court held a hearing on the Motion. Brent C. Perry, Mason W. Herring, and Jorge A. Herrera, Esqs., represented Plaintiffs; Matthew F. Wymer, Laurence S. Kurth, and Renee F. McElhaney, Esqs., represented Defendants University of the Incarnate Word (“UIW”) and Christopher Carter (“Carter”); Robert A. Valadez, Esq.-, also represented Carter. After careful consideration of the memoranda in support of and in opposition to the Motion, and in light of the parties’ arguments at the hearing, the Court, for the reasons that follow, GRANTS Plaintiffs’ Motion to Remand (Dkt. # 6).

BACKGROUND

Although many of the facts of the case are disputed, the Court relies on Plaintiffs’ version of the facts, since the issues regarding the Motion to Compel stem from the parties’ arguments in support of remand. See Louisiana v. Am. Nat’l Prop. Cas. Co., 746 F.3d 633, 636 (5th Cir.2014) (holding that the court is bound to the facts as pled in the original petition when evaluating a motion to remand).

On Thursday evening, December 5, 2013, Cameron Redus (“Redus”), a student at UIW, finished classes and met up with friends to celebrate the end of the semes[671]*671ter. (“Pet.,” Dkt. # 1, Ex. 2 at 4.) At 1:30 a.m. on Friday, December 6, 2013, he left the Brass Monkey, a local bar, and drove in his Ford Ranger pickup truck to his residence in Alamo Heights. (Id.; “UIW Answer,” Dkt. # 1, Ex. 2 at 23-24.) Plaintiffs allege that Carter, a UIW campus police officer on duty that evening, followed Redus to his apartment complex without attempting to pull him over. (Pet. at 5.) Plaintiffs further allege that, without justification, Carter verbally confronted Redus in the complex’s parking lot — a confrontation that soon escalated into an altercation. (Id.)

Although the particulars of the altercation are disputed, it is undisputed that Carter ended the altercation by firing six bullets from his gun at Redus, five of which struck Redus and killed him. (Id.; UIW Answer at 30.) The Bexar County Medical Examiner concluded that two of the shots (one through Redus’s left eye and the other into his back) were fatal. (Pet. at 5; UIW Answer at 30.) Plaintiffs further allege that Alamo Heights police officers found Redus laying with his back on top of his legs, as if he had been kneeling, and that the entry wounds indicate that Redus was in a submissive position before Carter fired the final shot. (Pet. at 5.)

On May 6, 2014, Plaintiffs filed suit in the Bexar County District Court, 150th Judicial District, asserting claims of negligence, gross negligence, and respondeat superior liability against UIW and claims of negligence, negligence per se, and gross negligence against Carter in a wrongful death and survival action. (Pet. at 5-8.) In the petition, Plaintiffs sought damages under Texas Civil Practice and Remedies Code §§ 71.002 and 71.021, as well as exemplary damages under § 41.003(a). (Id. at 8.)

On June 4, 2014, Defendants removed the case to this Court, invoking the Court’s federal question jurisdiction. (Dkt. # 1.) Plaintiffs filed a Motion to Remand on June 26, 2014, arguing that the case be remanded to the state court, in part because this Court lacks subject matter jurisdiction over the case. (Dkt. # 6 at 5.) Defendants timely responded on July 3, 2014 (“Resp.,” Dkt. # 8), and Plaintiffs filed a reply on July 8, 2014 (“Reply,” Dkt. #9).

On November 17, 2014, the Court granted Defendants’ Motion for Leave to File a Sur-Reply to the extent that the Sur-Reply addressed the November 10, 2014 Supreme Court opinion Johnson v. City of Shelby, — U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014). (Dkt. # 48.) On November 19, 2014, Plaintiffs filed a Response to the Sur-Reply. (Dkt. # 49.)

LEGAL STANDARD

“It is axiomatic that the federal courts have limited subject matter jurisdiction and cannot entertain cases unless authorized by the Constitution and legislation.” Cowry v. Prot, 85 F.3d 244, 248 (5th Cir.1996). Unless the Court has diversity jurisdiction, a defendant may remove a case from state to federal court only if the case could have originally been filed in federal court. Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 295 n. 19 (5th Cir.2010) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Accordingly, a federal court must remand a ease back to state court (1) if there was a procedural defect rendering removal improper and the moving party raises the defect within thirty days of removal or (2) if the court lacks subject matter jurisdiction. 28 U.S.C. § 1447; see also BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 470 (5th Cir.2012). Because removal jurisdic[672]*672tion implicates federalism concerns, “[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 798 (5th Cir.2014) (internal quotation marks omitted) (quoting Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.2000)); Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.1997).

In the case of remand based on a procedural defect, the thirty-day period is strictly construed. Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284 (5th Cir.2004). “[A] motion for remand based on procedural defects that is brought more than 30 days after the removal of the action, is outside of the district court’s power to grant.” Id. Conversely, remand based on subject matter jurisdiction can occur at any time before final judgment. African Methodist Episcopal Church, 756 F.3d at 793. The party seeking removal bears the burden of demonstrating subject matter jurisdiction. Shearer v. Sw. Serv. Life Ins. Co., 516 F.3d 276, 278 (5th Cir.2008). To determine whether jurisdiction is present for removal, the court considers the claims in the state court petition as they existed at the time of removal. Louisiana, 746 F.3d at 636.

DISCUSSION

Plaintiffs argue for remand on two bases: first, Carter did not effectively consent to removal, rendering the removal procedurally defective, and second, Plaintiffs have not pled a federal cause of action in their Petition.1 (Mot. at 2.)

I. Remand Based on Procedural Defect

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
61 F. Supp. 3d 668, 2014 U.S. Dist. LEXIS 165959, 2014 WL 6656799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redus-v-university-of-the-incarnate-word-txwd-2014.