Texas, Office of the Attorney General v. Briseno (In re Briseno)

571 B.R. 214
CourtUnited States Bankruptcy Court, S.D. Texas
DecidedApril 19, 2017
DocketCASE NO: 17-70073; ADVERSARY NO. 17-7004
StatusPublished
Cited by2 cases

This text of 571 B.R. 214 (Texas, Office of the Attorney General v. Briseno (In re Briseno)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas, Office of the Attorney General v. Briseno (In re Briseno), 571 B.R. 214 (Tex. 2017).

Opinion

MEMORANDUM OPINION GRANTING THE STATE OF TEXAS’ EXPEDITED MOTION FOR REMAND

[Resolving ECF No. 4]

Eduardo V. Rodriguez, United States Bankruptcy Judge

I. INTRODUCTION

Pending before the Court is a single motion, the State of Texas’ Motion to Remand, which was filed on March 7, 2017. [ECF No. 2]; [ECF No. 4] (amending [ECF No. 2]) (the “Motion”). The Motion states that Adelina Briseno and Alejandra Melendez (collectively, the “Defendants”) improperly removed the state court proceeding in violation of 28 U.S.C. § 1452(a)’s prohibition against removal of civil actions by governmental units that are enforcing police or regulatory powers. See generally [ECF No. 4]. The Court conducted an evidentiary hearing on March 24, 2017, at which time both parties presented their arguments and evidence. In consideration of the arguments presented in the hearings on these matters, all other evidence in the record, and relevant case law, for the reasons stated in this Memorandum Opinion, this Court determines that States of Texas’ Motion should be granted.

II. FINDINGS OF FACT

This Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Bankr. P. 7052, which incorporates Fed. R. Civ. P. 52, and 9014. To the extent that any Finding of Fact constitutes a Conclusion of Law, it is adopted as such. To the extent that any Conclusion of Law constitutes a Finding of Fact, it is adopted as such.

On February 17, 2017, the State of Texas (“Plaintiff’), by and through the Consumer Protection Division of the Texas Attorney General’s Office’s, filed its complaint in state court, thereby initiating the instant case. [ECF No. 4 at ¶ 2]; see also [ECF Nos. 1-2, 1-3]. The complaint alleges that Defendants operated Briseno Construction, through which they entered into contracts with customers for the construction of homes on such customers’ property and took deposits from customers before subsequently failing to meet deadlines in some of the contracts, in such a way as to have “engaged in false, misleading, and deceptive acts and practices declared unlawful.” See generally [ECF No. 1-3] (the “Complaint”). Plaintiff seeks both monetary and non-monetary relief. Id. at 3, 11-13. On February 21, 2017, a temporary restraining order, as requested by Plaintiff, prohibited Defendants from engaging in certain acts for 14 days. See generally [ECF No. 1-4].

On February 27, 2017, Adelina Briseno (“Briseno”) filed her initial petition for bankruptcy under chapter 11, title 11 of the United States Code.1 [Case No.' 17-70073, ECF No. 1], Contemporaneously, [217]*217Alejandra Melendez (“Melendez”) likewise filed her initial petition for bankruptcy under chapter 11. [Case No. 17-70072, ECF No. 1]. In Melendez’s and Briseno’s cases, both filed their respective bankruptcy as being involved in “Briseno Construction” (the “Business”). Id. at 1; [Case No. 17-70073, ECF No. 1 at 1].

On March 1, 2017, Plaintiff filed its “Notice of Memorandum of Law Filed in State Court Proceeding” in both bankruptcy cases. [ECF No. 7]; [Case No. 17-70072, ECF No. 7] (collectively, the “Notice”). In its Notice, Plaintiff sought to apprise the Court of the ongoing litigation in state court that, according to its legal analysis, was not subject to the provisions of the automatic stay as an allegedly valid exercise of Texas’ police and regulatory powers. Id; see also [ECF No. 7-1]; [Case No. 17-70073, ECF Nos. 7, 7-1].

On March 6,2017, Defendants filed their Application of Removal wherein they state that the state court case has been removed pursuant to 28 U.S.C. §§ 1334, 1452(a). See generally [Case No. 17-7004, ECF No. 1] (the “Application”).

On March 7, 2017, Plaintiff filed its Motion to Remand that was subsequently amended. [ECF Nos. 2, 4]. Plaintiff argues that the state court proceeding was improperly removed when the Defendants filed their Application because the removal statute precludes the removal of actions “by a governmental unit to enforce such governmental unit’s police or regulatory power...” [ECF No. 4 at 3]. According to Plaintiff, the present action is an exercise of its “police and regulatory power” and supports its argument by citing to Fifth Circuit authority. Id. at 4 (citing to In re Halo Wireless, Inc., 684 F.3d 581, 589 (5th Cir. 2012)). Moreover, Plaintiff states that, pursuant to 28 U.S.C. § 1447(c), when a case has been improperly removed the court “lacks proper subject matter jurisdiction to hear the case and the action must be remanded.” Id. Due to the significance and importance of the arguments lodged by Plaintiff, the Court set a hearing on the Motion for March 31, 2017. [ECF No. 3].

On March 20, 2017, Briseno filed her response. See [ECF No. 11]. The following day, Melendez filed her response. [ECF No. 12]. Defendants’ responses present the same argument: namely that Article III of the United States Constitution and 28 U.S.C. § 1251 deprives the state court of jurisdiction over the instant matter. See generally [ECF Nos. 11, 12] (collectively, the “Response”). Defendants’ Response also cite to two cases to support the notion that § 1251 deprives the state court of jurisdiction. See Nebraska v. Colorado, — U.S. -, 136 S.Ct. 1034, 194 L.Ed.2d 545 (2016) (Thomas, J., dissenting); Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500-05, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971).

On March 22, 2017, Briseno, as the removing defendant, filed her First Amended Application of Removal. [ECF No. 14] (the “Amended Application”). In Briseno’s Amended Application, she states that the state court case has been moved to federal court “pursuant to 28 U.S.C §§ 1334, 1441, and 1452(a) ...” Id. at 1. Briseno also reiterates the same jurisdictional argument made in the Response. Compare id. at 2 with [ECF No. 11] and [ECF No. 12].

Contemporaneous to Briseno’s Amended Application being filed, Plaintiff filed its reply to Defendants’ Response. [ECF No. 15] (the “Reply”). Plaintiff argues that Defendants’ Response fails to address the main thrust of their Motion, i.e, the police and regulatory exception in § 1452(a), and focus on “spurious arguments ... to validate their unmoored Removal Pleading.” Id. at 2. Plaintiff proceeds to analyze the [218]

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

Related

Untitled Case
S.D. Texas, 2026
Topfer v. Topfer (In re Topfer)
587 B.R. 622 (M.D. Pennsylvania, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
571 B.R. 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-office-of-the-attorney-general-v-briseno-in-re-briseno-txsb-2017.