Two weeks after remanding this collection case to state court, the District Court denied the defendants’ motion for reconsideration. In a succinct and restrained opinion, the District Court explained why its application of 28 U.S.C. § 1443’s two-prong test was not “patently ridiculous,” as the defendants labeled it. Slip op. at 2-4.
Judge Cardone Denies Remand in Unusual Case
Perez v. Bank of America, No. EP-13-CV-285-KC, slip op. (W.D. Tex. Nov. 7, 2013)(Cardone, J.)
This opinion highlights one of the few circumstances in which proper service is pivotal. The property owners in this foreclosure litigation sued the bank, Freddie Mac, and an individual, but they acknowledged that Freddie Mac and the individual were merely nominal parties. Id. at 1-2. Process was forwarded to the bank’s North Carolina headquarters by certified mail, but the property owners did not serve the bank’s registered agent in Texas. Id. at 2. The bank filed an answer in state court in which it made no objection to service, id. at 4 n.3, but later removed to federal court. The owners argued that the case should be remanded because more than thirty days had elapsed since process was delivered to the bank’s headquarters. Id. at 4. But the District Court concluded that only “formal service of process” triggers the 30-day removal period. Id. at 5 (quoting City of Clarksdale v. Bell-South Telecomms., Inc., 428 F.3d 206, 210 (5th Cir. 2005)). The District Court also concluded that (a) Freddie Mac properly joined in the removal even though it had been formally served more than 30 days beforehand, and (b) the individual defendant’s joinder in removal was not required because he was improperly joined. Id. at 8-10.
Judge Cardone Remands Case After Second Removal
The District Court remanded this debt collection case sua sponte after the defendants’ first removal. Slip op. at 2. They removed again under 28 U.S.C. § 1443, contending that the bank and state district court were violating their due process and equal protection rights. Id. at 2-3. The District Court determined that most of the defendants’ claims did not implicate denial of a right arising under federal law for specific civil rights based on racial equality; thus, those claims failed to satisfy the first prong of section 1443’s two-prong test. Id. at 5-7. The District Court then determined that all of the defendants’ claims failed to satisfy the second prong—an inability to enforce the federal right in state court “due to some formal expression of state law.” Id. at 7-8 (quoting City of Houston v. Club Fetish, No. H-13-0944, 2013 WL 1767777, at *4 (S.D. Tex. April 24, 2013). The District Court also found that the defendants’ removal was frivolous and imposed restrictions on their ability to remove a case in the future. Id. at 8-10.