Boyce v. CitiMortgage, No. SA:13-CV-832-XR, slip op. (W.D. Tex. Jan. 22, 2014)(Rodriguez, J.)

Kidwai v. Federal National Mortgage Assn, No. SA:13-CV-972-XR, slip op. (W.D. Tex. Jan. 22, 2014)(Rodriguez, J.)

The wave of foreclosure cases shows no sign of letting up, suggesting that home mortgages will remain, at least for a time, the new asbestos.  Judge Rodriguez, however, made some progress, remanding two in one day:

In Boyce v. CitiMortgage, the lender timely and legitimately removed the case on the basis of diversity jurisdiction; however, the District Court concluded, based on its review of the four Hengens factors—Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)—that the property owner should be afforded leave to add the foreclosure trustee as a non-diverse defendant on the allegation that he was negligent in failing to conduct an impartial sale after all the notice and other foreclosure requirements were satisfied.  Slip op. at 6-19.  On that basis, the District Court granted the property owner’s motion to remand.  Id. at 19.

In Kidwai v. Federal National Mortgage Assn., the property owners filed a state court suit against a non-diverse law firm in addition to the lender and others involved in the mortgage servicing and foreclosure process.  Slip op. at 1-6.  When the law firm was dismissed on summary judgment in state court, one of the defendants removed with the consent of the others.  Id.  More than a year had passed, however, meaning removal was barred unless the removing party could show bad faith within the meaning of 28 U.S.C. § 1446(b)(3).  The District Court reviewed both sides’ charges against the other and concluded that the record did not adequately support a finding of bad faith; therefore, the District Court remanded the case.  Id. at 4-9.

Sanders v. Christus Santa Rosa PASC, No. SA:13-CV-250-XR, slip op. (W.D. Tex. Jan. 17, 2014)(Rodriguez, J.)

The line between actionable sexual harassment and “simple teasing, offhand comments, and isolated incidents” is sometimes elusive.  Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).  But a summary judgment determination that a case falls into the latter category must be a long shot when the alleged harasser “admitted to showing the Plaintiff a video clip of a horse sodomizing a woman.”  Slip op. at 8. 

Not surprisingly, Judge Rodriguez made quick work of the defendant surgery center’s motion in this case, finding that the plaintiff nurse (a) adequately described her complaint and exhausted her Texas Workforce Commission (TWC) administrative remedies, (b) timely filed suit after filing her charges with the TWC and Equal Employment Commission, (c) produced sufficient evidence of actionable sexual harassment, and (d) demonstrated that the surgery center’s mild response to her complaint was insufficient to prove the Faragher two-prong affirmative defense.  Slip op. at 4-12.

Wright v. McHugh, No. SA:13-CV-449-DAE, slip op. (W.D. Tex. Jan. 17, 2014)(Rodriguez, J.)

Wright was a civilian veterinarian employed by the Army to care for animals used in training for emergency and combat medical care.  Slip op. at 2. Her sitcom-caliber behaviors prompted counseling and reprimands, and she attributed these issues to an attention disorder.  Id. at 3-5.  After Wright over-anesthetized a goat, however, matters quickly went downhill and she was terminated. Id. at 5.  She turned to the EEOC to hear out her discrimination and reprisal claims, but failed to file a formal complaint within the allotted time.  But the Army rescinded its first termination notice in favor of another and Wright tried again.  Id. at 7.  The EEOC rejected her discrimination claims as untimely, but permitted the reprisal claim on the theory that the second termination letter reset the clock.  Id. at 7-8.  The District Court reached the same result in dismissing Wright’s discrimination claims under Rule 12(b)(6).  Id. at 10-19.  Additionally, it found that Wright’s failure to object to the EEOC’s framing of the issue constituted an abandonment of her discrimination claims.  Id. at 22-23.  Thus, only Wright’s reprisal claim survived Rule 12(b)(6) dismissal.  Id. at 23.