ACCEPTED
01-15-00011-CV
1/7/2015
FIRST COURT3:32:32 PM
OF APPEALS
Chris Daniel - District ClerkHOUSTON,
Harris County
TEXAS
Envelope No. 3685657
1/14/2015 11:22:17 AM
By: Phyllis WashingtonPRINE
CHRISTOPHER
Filed: 1/7/2015 3:32:32 PM
CLERK
NO. 2014-32179
TEXAS RIGHT TO LIFE § IN THE DISTRICT COURT
COMMITTEE, INC. § FILED IN
1st COURT OF APPEALS
§ HOUSTON, TEXAS
v. § 152N° JUDICIAL DISTRICT
1/14/2015 11:22:17 AM
§ CHRISTOPHER A. PRINE
BOBDEUELL § HARRIS COUNTY, ClerkTEXAS
DEFENDANT'S NOTICE OF INTERLOCUTORY APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant, BOB DEUELL, and files this Notice of Interlocutory Appeal,
pursuant to Texas Rules ofAppellate Procedure Sections 26.1 (b) and 28.1, from the federal court's
Order remanding this matter back to State court issued on December 23, 2014. Defendant would
respectfully show the Comi the following:
This case was removed to Federal Court on September 25, 2014 by the Defendant on the
basis of federal question was raised by the Plaintiff in its amended original petition in which it
assetied a cause of action under42 U.S.C. § 1983.
On November 5, 2014, Plaintiff filed its second amended petition dropping its claim under 42
U.S.C. § 1983 and its' Motion to Remand arguing that the Federal comi no longer had jurisdiction.
On December 23, 2014, Judge Miller granted Plaintiffs Motion to Remand, (attached hereto as
Exhibit A is a copy of Judge Miller's Order)
Defendant hereby appeals this Court's jurisdiction as the issues are oven11led as a matter of
law. Defendant asserts that tllis case should have been dismissed pursuant to a motion to dismiss
under the Texas Citizen Participation Act codified at Chapter 27 of the Texas Civil Practice &
Remedies Code. The Court did not mle on the motion to dismiss within the time petiod prescribed
Defs Notice of Appeal Page I
by Section 27.005 of the Texas Civil Practice & Remedies Code. Therefore, the motion is
considered to have been denied by operation of law, and the moving party m ay appeal. See §
27.008(a) Texas Civil Practice & Remedies Code.
Defendant intends this Interlocutory Appeal to be accelerated in accordance with Rule 28.1 of
the Texas Rules ofAppellate Procedure.
Defendant would further show the Court that this appeal stays commencement of a trial and
all other proceedings in the trial court pending resolution of the interlocutory appeal in the First
Court of Appeals, Houston, Texas pursuant to Section 51.014(b), Texas Civil Practice and Remedies
Code.
SIGNED this 7th day of January, 2015.
Respectfully submitted,
Denton Navarro Rocha Bernal Hyde & Zech, P.C.
attorneys & counse l ors at l aw • ra mpagel aw . com
A Professional Corporation
2500 W. William Cannon Drive, Suite 609
Austin, Texas 78745
512/279-6431
512/279-6438 (Facsimile)
george.hyde@rampage-aus.com
scott.tschirhart@rampage-aus.com
By:
GEORGE E. HYDE
State Bar No. 45006157
SCOTT M. TSCHIRHART
State Bar No. 24013655
Counsel for Defendant Bob Deuel!
Defs Notice of Appeal Page2
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has been served
upon the below named individual(s) as indicated, and according to the Texas Rules of Civil
Procedure on the 7th day of January, 2015.
James E. "Trey'' Trainor, III Electronic Notification
BEIRNE, MAYNARD & PARSON, L.L.P.
401 W. 15th Street, Suite 845
Austin, TX 78701
Joseph M. Nixon Electronic Notification
BEIRNE, MAYNARD & PARSON, L.L.P.
1300 Post Oak Blvd., 25th Floor
Houston, TX 77056-3000
GEORGE E. HYDE
SCOTT M. TSCHIRHART
Defs Notice of Appeal Page3
Case 4:14-cv-02754 Document 17 Filed in TXSD on 12/23/14 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TEXAS RIGHT TO LIFE COMMITTEE , INC., §
§
Plaintiff, §
§
v. § CIVIL ACTION H-14-02754
§
BOB DEUELL, §
§
Defendant. §
O RDER
This case was removed to federal court on September 25, 2014, on the basis of federal
question jurisdiction after plaintiff amended its original petition asserting a cause of action under 42
U.S.C. § 1983. Dkt. 1, p. 84. Since removal, plaintiff has filed its second amended petition,
dropping its claim under 42 U.S.C. § 1983. Dkt. 11. Plaintiff now seeks remand, arguing that this
court no longer has jurisdiction because it abandoned the only federal claim asserted in the case.
Dkt. 12. Defendant opposes remand on the bases that plaintiff’s motion to remand was untimely and
its second amended complaint should not be considered by the court because it was not filed with
consent of the defendant or with leave from the court. Dkt. 13. After considering the motion,
response, and applicable law, the court is of the opinion that the motion to remand should be
GRANTED.
The threshold issue is whether plaintiff properly filed its second amended complaint.
Plaintiff correctly argues that it was permitted to file its second amended complaint as a matter of
course under Federal Rule of Civil Procedure 15. Specifically, a party is permitted to amend its
pleading “once as a matter of course . . . 21 days after service of a motion under Rule 12(b).” FED .
R. CIV . P. 15(a)(1)(B). Defendant filed a Rule 12(b)(6) motion on October 15, 2014, and plaintiff
A
Case 4:14-cv-02754 Document 17 Filed in TXSD on 12/23/14 Page 2 of 3
filed its second amended complaint on November 5, 2014. Plaintiff’s amendment, therefore, was
timely and permitted as a matter of course without consent from defendant or leave from the court.
Since the only federal claim was eliminated from the suit, no federal question remains before
the court. However, the dismissal of the federal claim does not necessarily divest the court of
supplemental jurisdiction. 28 U.S.C. § 1367; Knatt v. Hosp. Serv. Dist. No. 1 of E. Baton Rouge
Parish, 373 F. App’x 438, 441 (5th Cir. 2010) (“The subsequent dismissal of all federal claims from
[plantiff’s] suit did not divest the district court of supplemental jurisdiction over the remaining state-
law claims.”). But under § 1367(c)(3), the general rule in this circuit is to dismiss or remand state-
law claims following dismissal of the federal claims they supplement. Parker & Parsley Petroleum
Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992). The court’s application of this rule is
guided by four factors identified by the Supreme Court, namely judicial economy, convenience,
fairness, and comity. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S. Ct. 614 (1988).
Here, all four factors weigh heavily in favor of remand. First, this case is in its infancy,
discovery has not begun, and this court has made no rulings on defendant’s motions to dismiss under
Chapter 27 of the Texas Civil Practice and Remedies Code. Id. at 350 (“[W]hen the federal-law
claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the
federal court should decline the exercise of jurisdiction.”). Second, the convenience factor weighs
in favor of remand, as there is no geographic hardship that would be imposed on the parties upon
remand to the Harris County district court from which the case originated. Brim v. ExxonMobil
Pipeline Co., 213 F. App’x 303, 306 (5th Cir. 2007). Third, the fairness factor weighs in favor of
remand. Remanding the case will not present a danger of conflicting rulings or reopening matters
litigated before this court because there have been no substantive rulings made by this court. And
lastly, as to the comity factor, while the court is competent to interpret Texas law, the court also
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Case 4:14-cv-02754 Document 17 Filed in TXSD on 12/23/14 Page 3 of 3
recognizes that principles of federalism require deference to Texas state courts to determine
quintessential matters of Texas law.
Accordingly, because the Carnegie-Mellon factors weigh strongly in favor of remand, the
court declines to exercise supplemental jurisdiction over plaintiff’s remaining state-law claim. This
action is REMANDED to the 152nd Judicial District Court of Harris County, Texas. Defendant’s
pending motions to dismiss (Dkts. 6, 16) are DENIED AS MOOT.
It is so ORDERED.
Signed at Houston, Texas on December 23, 2014.
___________________________________
Gray H. Miller
United States District Judge
3