Summary
finding a pre-suit discovery petition lacks characteristics of a civil action
Summary of this case from Young v. Hyundai Motor Manufacturing Alabama, LLCOpinion
CIVIL ACTION NO. 3:99-CV-2735-X.
May 15, 2000.
MEMORANDUM OPNION AND ORDER
Before the Court is Petitioners' Motion to Remand ("Motion"), filed on December 8, 1999. For the reasons stated below, Petitioners' Motion is GRANTED, and this "civil action" is REMANDED to the 382nd District Court of Rockwall County, Texas. In addition, Respondents' Motion for Protective Order and Motion for More Definite Statement, both filed on December 8, 1999, are DENIED AS MOOT. All other relief is hereby DENIED.
I. FACTUAL BACKGROUND
On November 2, 1999, Petitioners filed a Rule 202 Petition to Investigate Claim ("Petition") pursuant to Rule 202 of the Texas Rules of Civil Procedure ("Tex. R. Civ P.") in the 382nd District Court in Rockwall County, Texas TEX. R. CIV. P. 202 provides in relevant part:
RULE 202. DEPOSITIONS BEFORE SUIT OR TO INVESTIGATE CLAIMS
202.1 Generally. A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.
The Petition sought depositions of Respondents' employees to investigate whether Petitioners could bring causes of action against Respondents under the Texas Tort Claims Act, 28 U.S.C. § 1983, Titles VII and IX of the Civil Rights Act of 1964, and Title II of the Americans with Disabilities Act. The Petition alleges that Christopher Cox and Seth Wilson, who are mentally challenged boys, were sexually assaulted by Respondent Lewis Thompson, a Texas Rehabilitation Commission ("TRC") vocation counselor who had counseled Cox and Wilson. Thompson has pleaded guilty to and is serving a jail sentence for criminal charges arising out of the sexual assaults. The Petition also alleges that TRC and/or its employees may have been aware at the time it hired Thompson that he had previously pleaded guilty to a charge of indecency with a child, but nevertheless hired him to counsel young boys of diminished mental capacity. In addition, the Petition alleges that while TRC and/or its supervisory personnel were aware, prior to the incident involving Cox and Wilson, that Thompson was engaged in obscene and improper activities at TRC's offices, such as viewing pornographic materials and publicly fantasizing about his clients, TRC and its supervisory personnel did nothing to reprimand him and to prevent the sexual assaults. Petitioners filed the Petition in order to investigate whether they have causes of action under state or federal law and because TRC refused to voluntarily provide any information.
A hearing before the Texas District Court on the Petition was scheduled for December 3, 1999. Respondents received notice of the Petition and hearing on November 17, 1999. On December 2, 1999, Respondents removed the Petition to this Court pursuant to 28 U.S.C. § 1441 (b). Shortly before the hearing on the Petition, Respondents served a copy of the notice of removal to Petitioners, precluding the Texas District Court from hearing and deciding on the Petition. Petitioners have not filed in any court a complaint or petition alleging a cause of action upon which relief can be granted.
II. ANALYSIS
"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable. . . ." 28 U.S.C. § 1441 (b). "[B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, see Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809, 106, 366 S.Ct. 3229, 3233, 92 L.Ed.2d 650 (1986), which mandate strict construction of the removal statute." Carpenter v. Wichita Falls Ind. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995) (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 107, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988)). The party removing the case to a federal district court has the burden of establishing the existence of federal subject matter jurisdiction over the removed case. See id. Any doubts as to the existence of federal subject matter jurisdiction are resolved by remanding the action to state court. See Nelon v. Mitchell Energy Corp., 941 F. Supp. 73, 74 (ND. Tex. 1996) (Means, J.).
Petitioners seek a remand of their Petition on two grounds. First, Petitioners argue that the Petition is not a "civil action" that can be removed under § 1441(b), and thus the Court lacks subject matter jurisdiction over the Petition. Petitioners also argue that the Petition does not assert any claims against Respondents, but merely seeks to depose certain employees of Respondents to determine whether they can assert any claims Second, Petitioners allege that the Petition is not removable because it is an ancillary proceeding related to an anticipated suit.
Respondents argue that the Petition is indeed a civil action properly removed to this Court. Respondents allege that the Petition is a bill of discovery seeking a court order requiring an individual to submit a deposition. Respondents add that a Rule 202 petition institutes a civil action that is removable to federal court if it is based on federal claims. They also argue that Texas state courts have viewed bills of discovery, or petitions for an order authorizing discovery to investigate claims, as "independent actions" that are not ancillary or supplemental to another unremoved suit. Finally, Respondents argue that the Petition is designed to circumvent their defense of qualified immunity to any claims that may be brought under § 1983. They assert that the Petition seeks to avoid the heightened pleading requirements imposed on § 1983 plaintiffs facing a defense of qualified immunity because Petitioners are either unwilling or unable to meet such pleading requirements.
While the parties have presented a novel issue for the Court, it is obvious that Respondents' arguments are without merit. First, the Petition is not a "civil action" under § 1441(b) because it asserts no claim or cause of action upon which relief can be granted. See In re Hinote, 179 F.R.D. 335, 336 (S.D. Ala. 1998) ("It is a request for discovery, nothing more "). It is merely a petition for an order authorizing the taking of a deposition for use in an anticipated suit. See TEX. R. CIV. P. 202.1(a). Second, even if it can be imagined that the Petition is a "civil action," it surely is not removable under § 1441(b) because it is not a civil action of which federal district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States. The petition simply seeks an order authorizing a deposition pursuant to the Texas Rules of Civil Procedure and contains no claim or right, much less one founded on the Constitution, treaties or laws of the United States. Finally, even if the Petition can be hypothesized as removable pursuant to § 1441(b), Respondents have not persuaded the Court that federal subject matter jurisdiction exists. Because the Court seriously doubts its jurisdiction over the Petition, a remand is necessary.
Respondents' strained arguments against Petitioners' Motion are meritless. Respondents' contention that a Rule 202.1 petition institutes a "civil action" and is removable if it is based on federal claims is baseless. There is no authority for construing a petition for discovery before trial as a "civil action" that can be removed under § 1441(b) because the petition or application cites potential federal claims. Analogizing the Petition as a bill of discovery, Respondents argue that Texas courts have construed bills of discovery as "independent actions" that are not ancillary or supplemental to another unremoved suit. This argument completely belies the Texas Supreme Court's construction of a Rule 202.1 petition as an ancillary proceeding, not a separate suit, that is incidental to, and in anticipation of, a suit. See Office Employees Int'l Union v. Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965); see also Valley Baptist Med. Ctr. v. Gonzalez, ___ S.W.2d ___ 2000 WL 22575 at *1 (Tex. Civ. App-Corpus Christi 1999, writ requested); Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc., 829 S.W.2d 369, 372 (Tex. Civ. App-Corpus Christi 1992, no writ). Moreover, even though federal courts have inherent power to issue bills of discovery, construing the Petition as a bill of discovery in order to justify removal is inconsistent with the plain language and strict construction of § 1441(b) and the notion that federal courts are courts of limited jurisdiction. See Carpenter, 44 F.3d at 365-66; Natural Gas Pipeline Co. v. Energy Gathering, Inc., 2F.3d 1397, 1407-08 (5th Cir 1993) ("[A] court may not exercise its inherent authority in a manner inconsistent with rule or statute.") (internal quotation marks and citation omitted). Finally, Respondents' argument that the Petition is designed to circumvent Respondents' potential defense of qualified immunity is without merit. There are no alleged claims against or defenses for Respondents. There is no reason why removal to this Court is necessary to preserve Respondents' potential defense of qualified immunity. Respondents completely fail to state why they cannot raise this argument under Tex. R. Civ. P. 202. According to Respondents' reasoning, one can probably get divorced without being married. Such is not the reasoning of this Court, and the Petition is simply a request for discovery that belongs where it was filed, in the 382nd District Court in Rockwall County.
III. CONCLUSION
For the reasons stated above, Petitioners' Motion for Remand is GRANTED, and this "civil action" is REMANDED to the 382nd District Court in Rockwall County, Texas. In addition, Respondents' Motion for Protective Order and Motion for More Definite Statement, both filed on December 8, 1999, are DENIED AS MOOT. All other relief is hereby DENIED.
It is SO ORDERED.