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OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAMUEL G. BREITLING AND JO ANN

BREITLING,

§

§§

Plaintiffs, §

§

vs. §

§

CIVIL ACTION NO. 3:14-cv-3322-M

LNV CORPORATION, ET AL., §

§

Defendants. §

OBJECTIONS TO RECOMMENDATION AND BRIEF IN SUPPORT

Respectfully submitted,

/s/ Marc D. Cabrera

Robert T. MowreyState Bar No. 14607500

[email protected]

Jason L. SandersState Bar No. 24037428

[email protected]

Marc D. CabreraState Bar No. 24069453

[email protected]

LOCKE LORD LLP

2200 Ross Avenue, Suite 2200Dallas, Texas 75201-6776

T: (214) 740-8000

F: (214) 740-8800

ATTORNEYS FOR DEFENDANTS LNV

CORPORATION AND MGC MORTGAGE,

INC.

Case 3:14-cv-03322-M-BN Document 47 Filed 11/12/14 of 32 PageID 561



OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE i

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. FACTUAL BACKGROUND ..............................................................................................3

A. The Allegations Asserted Against Judge Tillery .....................................................4

B. The Factually and Legally Unrelated Claims Asserted Against

Defendants ...............................................................................................................6

C. Removal to Federal Court ........................................................................................7

D. The Recommendation ..............................................................................................7

III. OBJECTIONS TO RECOMMENDATION ........................................................................8

A. Legal Standard .........................................................................................................8

B. Defendants Object to the Recommendation Because the Magistrate

Judge Erred by Relying on Matters Outside of the Petition ....................................9

1. Only Claims Asserted in the Petition at the Time of RemovalAre Considered in Determining Whether Removal Jurisdictionis Present ....................................................................................................10

2. The Magistrate Judge Improperly Considered Matters Outside

of the Pleadings in Determining Removal Jurisdiction .............................12

C. Defendants Object to the Magistrate Judge's Conclusion That

Defendants Failed to Demonstrate That Judge Tillery is a NominalDefendant that Plaintiffs Improperly Joined ..........................................................13

1. Nominal Defendant / Improper Joinder Standard ......................................14

2. Judge Tillery is a Nominal Defendant That Has Been

Improperly Joined Because He is Entitled to Judicial Immunity ..............15

D. Defendants Object to the Magistrate Judge's Conclusion That theClaims Asserted Against Judge Tillery and Defendants Were Not

Fraudulently Misjoined ..........................................................................................19

1. The Claims Against Judge Tillery and Defendants Have Been

Fraudulently Misjoined ..............................................................................19

a. Fraudulent Misjoinder Standard ....................................................19

b. The Claims Asserted Against Judge Tillery and

Defendants are Both Factually and Legally Unrelated ..................21

IV. CONCLUSION ..................................................................................................................25




OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE ii

TABLE OF AUTHORITIES

CASES

Abel v. Surgitek ,975 S.W.2d 30, 38 – 39 (Tex. App. — San Antonio 1998), reversed on other grounds

by, 997 S.W.2d 598 ............................................................................................................21, 23

Adams v. McIlhany,

764 F.2d 294, 297 (5th Cir. 1985), cert. denied , 474 U.S. 1101 (1986) ............................16, 17

Ballard v. Wall ,

413 F.3d 510 (5th Cir. 2005) .............................................................................................16, 18

Blalock Prescription Ctr., Inc. v. Lopez – Guerra,

986 S.W.2d 658, 663 (Tex. App. — Corpus Christi 1998, no pet.) ..........................................21

Bradley v. Fisher ,13 Wall. 335, 347 (1872) .........................................................................................................15

Brewster v. Aramark Corp., No. 2:140-cv-0273, 2014 WL 3867284, at *2 (S.D. Ohio Aug. 6, 2014) .........................11, 13

Brown v. Southwestern Bell Tel. Co.,

901 F.2d 1250, 1254 (5th Cir. 1990) .......................................................................................12

Cohen v. Office Depot, Inc.,

204 F.3d 1069 (11th Cir. 2000) ...............................................................................................19

Centaurus Unity v. Lexington Ins. Co., 766 F. Supp. 2d 780, 789 – 90 (S.D. Tex. 2011) .................................................................20, 21

Centex Homes v. Lexington Ins. Co.,

No. 3:13-cv-719, 2014 WL 1225501, at *12 (N.D. Tex. Mar. 25, 2014) ................................12

Crockett v. R.J. Reynolds Tobacco Company,

436 F.3d 529, 533 (5th Cir. 2006) ...........................................................................................20

Culbertson v. Select Portfolio Servicing, Inc., No. 4:13 – CV – 268 – A, 2013 WL 3870286, at *1 (N.D. Tex. Jul. 25, 2013) ......................10, 12

DerMargosian v. Arpin America Moving Systems, LLC , No. 3:12-CV-4687-D, 2013 WL 787091, at *1 (N.D. Tex. Mar. 4, 2013) ................................8

Doucet v. State Farm Fire and Cas. Co., No. 1:09-CV-142, 2009 WL 3157478, at *1 (E.D. Tex. Sept. 25, 2009) ..................................8

Esperanzate v. Mortgage Electronic Registration Systems, Inc.,

No. G-12-043, 2012 WL 8968146, at *1 n .1 (S.D. Tex. Jul. 13, 2012) ...................................8




OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE iii

Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Services,

925 F.2d 866, 871 (5th Cir. 1991) ...........................................................................................14

Felder v. Countrywide Home Loans,

No. H-13-0282, 2013 WL 6805843, at *2 (S.D. Tex. Dec. 20, 2013)...............................10, 12

First Union Mortgage Corp. v. Smith,

229 F.3d 992, 996 (10th Cir. 2000) ...........................................................................................8

Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of N. Am.,

841 F.2d 1254, 1262 (5th Cir. 1988) .......................................................................................13

Guthrie v. Ball , No. 1:11-cv-333-SKL, 2014 WL 5089849, at *4 (E.D. Tenn. Oct. 9, 2014) ....................11, 13

Gutierrez v. La Joya Independent School Dist., No. M-12-266, 2012 WL 5464957, at *3 (S.D. Tex. Nov. 8, 2012) .......................................14

Gutierrez v. United Parcel Service, Inc., No. EP-08-CA-187-DB, 2008 WL 3887641, at *1-2 (W.D. Tex. Aug. 21, 2008) ............10, 12

Harlow v. Fitzgerald,

457 U.S. 800, 815-819 (1982) .................................................................................................15

Hayden v. Allstate Texas Lloyds,

No. H-10-646, 2011 WL 240388, at *6 (S.D. Tex. Jan. 20, 2011) ..........................................14

Helmer v. Astrue,

No. 1:07-CV-203-C ECF, 2008 WL 4682552, at *1 (N.D. Tex. Oct. 22, 2008) ......................8

Jernigan v. Ashland Oil Co.,

989 F.2d 813, 815 (5th Cir. 1993) ...........................................................................................14

Johnson v. Anderson,

No. 4:03-CV-1355-Y, 2004 WL 1908212, at *1 n. 1 (N.D. Tex. Aug. 25, 2004) ............11, 12

Johnson v. Kegans,870 F.2d 992, 995 (5th Cir.), cert. denied , 492 U.S. 921 (1989) .............................................16

Lopez-Welch v. State Farm Lloyds,

No. 3-14-CV-2416-L, 2014 WL 5502277, at *3 (N.D. Tex. Oct. 31, 2014) .....................11, 12

Malina v. Gonzales,

994 F.2d 1121, 1124 (5th Cir. 1993) ...........................................................................15, 16, 18

Mangum v. America's Servicing Co.,

No. G-11-237, 2011 WL 7429434, at *1 n.1 (S.D. Tex. Oct. 12, 2011) ...................................8

Manguno v. Prudential Prop. & Cas. Ins. Co.,

276 F.3d 720, 723 (5th Cir. 2002) .....................................................................................10, 12




OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE iv

Martinson v. Total Petrochemicals & Refining USA, Inc.,

No. H-14-555, 2014 WL 2169970, at *2-3 (S.D. Tex. May 23, 2014) .......................15, 20, 21

McAlester v. Brown,

469 F.2d 1280, 1282 (5th Cir. 1972) .................................................................................16, 18

McKay v. Boyd Const. Co.,

769 F.2d 1084, 1087 (5th Cir. 1985) .......................................................................................14

Medistar Twelve Oaks Partners, Ltd. v. American Economy Ins. Co.,

No. 2010 WL 1996596, at *2 (S.D. Tex. May 17, 2010) ..................................................10, 12

Mireles v. Waco,502 U.S. 9, 11-12 (1991) ...................................................................................................15, 16

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) .........................................................................................................15

Mitchell v. McBryde,994 F.2d 229, 230 (1991) .........................................................................................................16

Morlock, L.L.C. v. JPMorgan Chase Bank, N.A.,

No. H-13-0734, 2013 WL 5781240, at *4 (S.D. Tex. Oct. 25, 2013) ...............................10, 12

Mumfrey v. CVS Pharmacy, Inc.,

719 F.3d 392, 401 n.14 (5th Cir. 2013) ...................................................................................14

Nsight Technologies, LLC v. Federal Insurance Company,

No. 3:09-cv-6-WHB-LRA, 2009 WL 1106868, at *5 (S.D. Miss. April 23, 2009) ........ passim

Perio v. Titan Maritime, LLC ,

No. H-13-1754, 2013 WL 5563711, at *2 (S.D. Tex. Oct. 8, 2013) .................................10, 12

Pierson v. Ray,

386 U.S. 547, 554 (1967) .........................................................................................................15

Ridley v. Allstate Texas Lloyds,G-09-057, 2009 WL 3460312, at *1 (S.D. Tex. 2009) ..............................................................8

Salazar v. Lopez ,

No. 3:13-cv-188-M, 2013 WL 1124302, at *2 n.10 (N.D. Tex. Mar. 18, 2013) ...............20, 21

Schwartz v. U.S.,

733 F.Supp. 235, 236 (D. Md. 1990) .................................................................................11, 13

Smith v. Estate of Wagner ,

No. H-06-02629, 2006 WL 2729282, at *5 (S.D. Tex. Sept. 25, 2006) ..................................14

Sorbo v. United Parcel Service,

432 F.3d 1169, 1177 (10th Cir. 2005) ...............................................................................11, 13




OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE v

Suzlon Wind Energy Corp. v. Shippers Stevedoring Co.,

662 F. Supp. 2d 623, 656 (S.D. Tex. 2009) .............................................................................12

Tapscott v. MS Dealer Serv. Corp.,

77 F.3d 1353 (11th Cir. 1996) ...........................................................................................19, 20

Tex. Instruments, Inc. v. Citigroup Global Mkts., Inc.,

266 F.R.D. 143, 147 (N.D. Tex. 2010) ............................................................................ passim

In re U.S. Healthcare,

159 F.3d 142, 146 (3d Cir. 1998)...............................................................................................8

Wells Fargo Bank, N.A. v. American Gen. Life Ins. Co.,670 F. Supp. 2d 555, 563 (N.D. Tex. 2009) ................................................................20, 21, 23

Wheeler v. JPMorgan Chase Bank, Nat. Ass'n, No. 4:13-cv-364, 2013 WL 3965304, at *1 (S.D. Tex. Aug. 1, 2013) ..............................10, 12

Wisconsin Dept. of Corrections v. Schacht ,524 U.S. 381, 386, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998) ..................................................14

Williams v. Beemiller, Inc.,

527 F.3d 259 (2d Cir. 2008).......................................................................................................8

Yeldell v. GeoVera Specialty Ins. Co.,

No. 3:12-cv-1908-M, 2012 WL 5451822, at *3 (N.D. Tex. Nov. 8, 2012) .............................14

STATUTES

28 U.S.C. § 1331 ..........................................................................................................................7, 8

28 U.S.C. § 1367(a) .........................................................................................................................7

OTHER AUTHORITIES

FED. R. CIV. P. 72(b) ....................................................................................................................1, 8

FED. R. CIV. P. 20 ...........................................................................................................................20

FED. R. CIV. P. 20(a) .....................................................................................................................20

FED. R. CIV. P. 7(a) ...........................................................................................................11, 12, 13

FED. R. EVID. 201 .......................................................................................................................4, 25

TEX. R. CIV. P 40 ............................................................................................................................20

TEX. R. CIV. P 40(a) ...........................................................................................................20, 21, 23




OBJECTIONS TO R ECOMMENDATION AND BRIEF IN SUPPORT PAGE 4

A. THE ALLEGATIONS ASSERTED AGAINST JUDGE TILLERY

In their Petition, Plaintiffs assert claims against Judge Tillery for violation of the United

States Constitution and the Texas Constitution based on rulings that he made on a motion for

continuance, motion to transfer, and motion for summary judgment in a foreclosure lawsuit that

LNV filed against Plaintiffs in April 2014 in the 134th District Court, Dallas County, Texas,

styled LNV Corporation, Its Successors and Assigns v. Samuel G. Breitling, et al., No. DC-14-

04053 (the "Foreclosure Action").1 In support of their constitutional claims against Judge

Tillery, Plaintiffs assert the following allegations:

As a state officer, [Judge Tillery] acted under a state law in a manner violative of

the Federal Constitution . . . [Petition at p. 3].

***

On April 15, 2014 Defendant LNV Corporation (LNV) filed an ' In Rem'

foreclosure petition against the Plaintiffs in the District Court, 134th DistrictCourt, Dallas County. . . . On July 7, 2014 LNV filed a motion for default

summary judgment. On the same day Defendant Tillery signed an Order granting

LNV's default motion for "in rem" summary judgment. . . . On July 7, 2014 LNVfiled a motion for default summary judgment. On the same day Defendant Tillery

signed an Order granting LNV's default motion for "in rem" summary judgment.

[Petition at p. 4].

***

On July 9, 2014 I, Plaintiff Jo Ann Breitling, discovered that the court ordered an

"in rem" default summary judgment in behalf of LNV; and had closed the case. . .. I, Plaintiff Jo Ann Breitling, phoned the clerk's office and told her that the Judge

could not sign a default Order granting LNV summary judgment because we filed

a timely answer and by law a hearing had to be held. . . . The next day the Order

signed on July 7, 2014 was replaced by an "unsigned" Order and a hearing wasscheduled for August 4, 2014. [Petition at p. 5].

***

On July 31, 2014 the Plaintiff's filed a Motion to Transfer back to the DallasCounty 116th District Court where the Plaintiffs had been Plaintiffs in litigation

against Defendant MGC and where it was discovered that MGC claimed to be a

mortgage servicer for LNV. [Petition at p. 6].

***

1 Pursuant to Rule 201 of the Federal Rules of Evidence, Defendants respectfully request that the Court take judicial

notice of the Foreclosure Action.





Defendant Tillery immediately denied our motion for continuance. He provided

no judicially determined facts or conclusions of law to support his decision. We

were not permitted to give any oral argument or make any objection before hemade his decision. Any reasonable person who observed this would have cause to

doubt Defendant Tillery's impartiality. [Petition at p. 7].

*** Next Defendant Tillery denied Plaintiffs' motion to transfer. . . . as a result of

Defendant Tillery's decision to deny a continuance we were given no opportunity

to present our case in support of the transfer. Again Defendant Tillery providedno judicially determined facts or conclusions of law to support his decision.

Defendant Tillery's decision went against the preponderance of the evidence and

against the rule of law. Any reasonable person observing this would have cause to

conclude Defendant Tillery held a personal bias against us or was prejudicedconcerning the subject matter. [Petition at p. 8].

***Defendant Tilley said, "I am ruling in favor of LNV because you, the Breitlings,

did not answer their summary judgment." . . . I told Defendant Tilley, "We DID

answer. The attorneys answered before they withdrew and it was timely."

Defendant Tilley responded, "Well, I never saw an answer." [Petition at p. 9].

***

Any reasonable person would conclude that Defendant Tillery had intended togrant LNV a summary judgment before the hearing even began; . . . . Defendant

Tilley had the hearing scheduled only because I caught him denying us our due

process on July 9, 2014. The hearing on August 4, 2014 was nothing more than a

farce meant to give the appearance that we had a hearing. This does not meet theConstitutional requirement for due process of law. . . . On August 4, 2014 the

same day as the farce hearing a signed Order granting Defendant LNV's motion

for summary judgment was filed. [Petition at p. 10].

***

Plaintiffs filed Motion to Recuse and Disqualify Defendant Tillery. This motionwas . . . denied . . . . On August 27, 2014 Plaintiffs filed an amended Motion to

Recuse Defendant Tillery. Defendant Tillery refused to recuse himself . . . .

[Petition at p. 11].

***

Defendant Tillery made a decision to grant Defendant LNV a motion for

summary judgment allowing Defendant LNV to deprive us of our property. He

made his decision without reading any of our motions. He made his decisionagainst the preponderance of the evidence in our motions. He made his decision

against the rule of law cited in our motions. Any reasonable person would

conclude that Defendant Tillery had decided before he even entered the courtroom on August 4, 2014 that he would grant Defendant LNV their motion for

summary judgment. [Petition at p. 21].





B. THE FACTUALLY AND LEGALLY UNRELATED CLAIMS ASSERTED AGAINST

DEFENDANTS

Plaintiffs also assert various state and federal law claims against Defendants that

purportedly arise from the origination and servicing of their loan for the Property, which are

wholly unrelated to the factual and legal claims against Judge Tillery.

In support of their

purported claims against Defendants2 for violation of the Fair Debt Collection Practices Act

("FDCPA"), the Texas Debt Collection Practices Act (the "TDCA"), the Real Estate Settlement

Procedures Act ("RESPA"), and the Truth in Lending Act ("TILA"), Plaintiffs allege that: (1)

they purportedly did not timely receive any of the requisite disclosures at the closing of their

loan; (2) their signatures on unspecified loan documents were forged; (3) their rescission

document was postdated, and as a result, they were denied any right of rescission; (4) their

mortgage broker misrepresented that the loan's interest rate was temporary and that the interest

rate would be reduced in two years; (5) they did not receive notification of loan and servicing

transfers; and (6) the assignment of their deed of trust contains forgeries, false signatures, and

false statements. See Petition at pp. 12-14. Plaintiffs further allege that MGC purportedly: (1)

has not shown that it has the legal right to collect their payments; (2) did not properly apply

unspecified payments to the loan balance; and (3) charged unspecified excessive late fees. Id.3

2 Plaintiffs fail to clearly identify which of the Defendants purportedly violated these statutes and what specific

section or sections of these statutes were allegedly violated. See Doc. Nos. 13 and 22.

3 Plaintiffs additionally contend that they disputed the debt owed on the loan in response to a debt collection letter,

but that the validity of the debt was not investigated. See Petition at p. 14. Plaintiffs also assert claims for "abuse of

process" and "fraud upon the court" in connection with the filing of multiple summary judgment motions and a

purportedly overwhelming document production that allegedly caused Plaintiffs' former attorneys to withdraw from

representing them in a previous lawsuit that Plaintiffs filed in June 2011 against MGC in the 116th District Court,

Dallas County, Texas, styled Samuel G. Breitling and JoAnn Breitling v. MGC Mortgage, Inc. , No. DC-11-07087.

Id. at pp. 15-16. Plaintiffs further assert claims against Defendants for fraud and civil and criminal conspiracy

relating to the alleged failure to accept unspecified mortgage payments and charging of unspecified excessive late

fees. Id. at pp. 17-19. Plaintiffs also contend that unidentified mortgage-related documents were falsified before

recordation. Id.





C. R EMOVAL TO FEDERAL COURT

On September 15, 2014, Defendants removed the case to this Court on the basis of

federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28

U.S.C. § 1367(a). See Doc. Nos. 1, 15. Thereafter, on September 22, 2014, Judge Tillery filed

his Motion to Remand and Brief in Support ("Judge Tillery's Motion to Remand") requesting

that the Court remand only the claims against him back to state court because they are

independent of the claims being asserted against the other defendants. See Doc. No. 9 at pp. 1-

2. Judge Tillery also requested, solely in the alternative, that the entire case be remand back to

state court. Id. at p. 2.

On October 3, 2014, Defendants filed their Response to Judge Tillery's Motion to

Remand, wherein Defendants established that Judge Tillery's consent to removal was not

necessary because Plaintiffs improperly joined and fraudulently misjoined him in this lawsuit.

See Doc. No. 17.4 Thereafter, Plaintiffs filed a Motion to Remand After Determination of

Federal Questions Specific to Denial of Due Process and Equal Protection of Law Under the

United States Constitution ("Plaintiffs' Motion to Remand") requesting that the Court remand

this case back to state court after adjudicating their federal claims against Judge Tillery. See

Doc. No. 24.

D. THE R ECOMMENDATION

On October 29, 2014, the Magistrate Judge issued his Recommendation that this action

be remanded to state court, that Judge Tillery's Motion to Remand be granted, that the Joint

Motion to Sever be denied, and that Plaintiffs' Motion to Remand be denied as moot. See

Recommendation at pp. 1, 21.

4 Defendants and Judge Tillery also filed a Joint Motion to Sever and Brief in Support (the "Joint Motion to Sever")

requesting that the claims against Judge Tillery be severed and remanded back to state court for adjudication. See

Doc. No. 16.





the Recommendation, retain jurisdiction over this action, and deny Judge Tillery's Motion to

Remand and Plaintiffs' Motion to Remand.

1. Only Claims Asserted in the Petition at the Time of Removal Are Considered

in Determining Whether Removal Jurisdiction is Present

To determine whether jurisdiction is present for removal, the Fifth Circuit "consider[s]

the claims in the state court petition as they existed at the time of removal." Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (emphasis added); see also

Wheeler v. JPMorgan Chase Bank, Nat. Ass'n, No. 4:13-cv-364, 2013 WL 3965304, at *1 (S.D.

Tex. Aug. 1, 2013). A "long-standing rule requires district courts to utilize a plaintiff's active

pleadings at the time of removal" in determining whether subject matter jurisdiction exists.

Gutierrez v. United Parcel Service, Inc., No. EP-08-CA-187-DB, 2008 WL 3887641, at *1-2

(W.D. Tex. Aug. 21, 2008). In other words, "[r]emoval jurisdiction depends on the plaintiff's

state court pleadings at the time of removal." Morlock, L.L.C. v. JPMorgan Chase Bank, N.A.,

No. H-13-0734, 2013 WL 5781240, at *4 (S.D. Tex. Oct. 25, 2013) (emphasis added) (citing

Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 349, 83 L.Ed. 334 (1939) and Cavallini v.

State Farm Mutual Auto Ins., 44 F.3d 256, 264 (5th Cir. 1995)); Perio v. Titan Maritime, LLC ,

No. H-13-1754, 2013 WL 5563711, at *2 (S.D. Tex. Oct. 8, 2013) (same); Felder v.

Countrywide Home Loans, No. H-13-0282, 2013 WL 6805843, at *2 (S.D. Tex. Dec. 20, 2013)

(same); Culbertson v. Select Portfolio Servicing, Inc., No. 4:13 – CV – 268 – A, 2013 WL 3870286,

at *1 (N.D. Tex. Jul. 25, 2013) ("Defendants are correct in their assertion that subject matter

jurisdiction is established by the pleadings at the time of removal."); Medistar Twelve Oaks

Partners, Ltd. v. American Economy Ins. Co., No. 2010 WL 1996596, at *2 (S.D. Tex. May 17,

2010) (stating that "the motion to remand must be decided on the basis of the pleadings at the

time of removal" and that the "Original Petition determines this Court's jurisdiction . . . . ").

Thus, "[w]hen a defendant seeks to remove a case, the question of whether jurisdiction exists is





resolved by looking at the complaint at the time the [notice of] removal is filed." Lopez-Welch

v. State Farm Lloyds, No. 3-14-CV-2416-L, 2014 WL 5502277, at *3 (N.D. Tex. Oct. 31, 2014)

(emphasis added) (citing Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1254 (5th Cir.

1990) (holding that the issue of jurisdiction must be resolved by looking at the pleadings at the

time of removal)). "Limiting the determination of questions regarding removal jurisdiction to

the claims set forth in the state pleadings at the time of removal ensures finality and early

resolution of the jurisdictional issue, both of which reduce expense and delay to the parties and

court." Lopez-Welch, 2014 WL 5502277, at *3 (emphasis added) (citing Cavallini, 44 F.3d at

264).

Under Federal Rule of Civil Procedure 7(a), a "pleading" is a complaint, answer to a

complaint, answer to a counterclaim, answer to crossclaim, third-party complaint, answer to a

third-party complaint, or reply to an answer if ordered by the court. FED. R. CIV. P. 7(a). A

motion to vacate does not constitute a "pleading" as defined under Rule 7(a) of the Federal Rules

of Civil Procedure. See, e.g., Johnson v. Anderson, No. 4:03-CV-1355-Y, 2004 WL 1908212, at

*1 n. 1 (N.D. Tex. Aug. 25, 2004) (citing Bigelow v. RKO Radio Pictures, 16 F.R.D. 15, 17

(N.D. Ill. 1954) (distinguishing the portion of Rule 7(a) on "Pleadings" from Rule 7(b) on

"Motions," and noting that a "motion is not a pleading")); Sorbo v. United Parcel Service, 432

F.3d 1169, 1177 (10th Cir. 2005) (noting that "[p]leadings are categorically distinguished from

motions, see Rule 7(a) & (b) . . . ." ); Schwartz v. U.S., 733 F.Supp. 235, 236 (D. Md. 1990)

(stating that a motion to vacate "does not fall within the Rule 7(a) definition of 'pleadings'"); see

also Guthrie v. Ball , No. 1:11-cv-333-SKL, 2014 WL 5089849, at *4 (E.D. Tenn. Oct. 9, 2014)

("Courts do not recognize that motions . . . constitute a "pleading" under Rule 7(a)."); Brewster v.

Aramark Corp., No. 2:140-cv-0273, 2014 WL 3867284, at *2 (S.D. Ohio Aug. 6, 2014) ("a

motion . . . [is] not [a] "pleading[]" as defined by Rule 7(a) of the Federal Rules of Civil





Procedure."); Suzlon Wind Energy Corp. v. Shippers Stevedoring Co., 662 F. Supp. 2d 623, 656

(S.D. Tex. 2009) (stating that the "definition of 'pleading' under Rule 7(a) does not include 'a

motion to dismiss or motion for summary judgment.'"). Notably, the Magistrate Judge has

previously recognized that motions are not pleadings. See, e.g., Centex Homes v. Lexington Ins.

Co., No. 3:13-cv-719, 2014 WL 1225501, at *12 (N.D. Tex. Mar. 25, 2014) (stating motion to

strike under Rule 12(f) only applies to pleadings as defined by Rule (7) and citing authority

stating that "motions . . . and other documents outside of the pleadings are not subject to Rule

12(f).").

2. The Magistrate Judge Improperly Considered Matters Outside of thePleadings in Determining Removal Jurisdiction

In the Recommendation, the Magistrate Judge improperly relies on the prospective

injunctive relief requested against Judge Tillery in the Motions to Vacate, which do not

constitute pleadings, in determining that Defendants failed to meet their burden of showing that

there is no possibility that Plaintiffs would be able to establish any of the asserted causes of

action against Judge Tillery such that his consent to removal is not required under the nominal-

defendant doctrine. See Recommendation at pp. 13-15. Indeed, the Magistrate Judge improperly

relied on the prospective injunctive relief Plaintiffs requested against Judge Tillery in the

Motions to Vacate because "[w]hen a defendant seeks to remove a case, the question of whether

jurisdiction exists is resolved by looking at the complaint at the time the [notice of] removal is

filed." Lopez-Welch, 2014 WL 5502277, at *3 (emphasis added); see also Manguno, 276 F.3d at

723 (noting that the Fifth Circuit "consider[s] the claims in the state court petition as they

existed at the time of removal.") (emphasis added).7

7 See also Wheeler , 2013 WL 3965304, at *1; Gutierrez , 2008 WL 3887641, at *1-2; Morlock, L.L.C., 2013 WL

5781240, at *4; Perio, 2013 WL 5563711, at *2; Felder , 2013 WL 6805843, at *2; Culbertson, 2013 WL 3870286,

at *1; Medistar Twelve Oaks Partners, Ltd. , at *2; Brown, 901 F.2d at 1254. Further, the Motions to Vacate are not

considered pleadings. See FED. R. CIV. P. 7(a); see also Johnson, 2004 WL 1908212, at *1 n. 1 (distinguishing the

portion of Rule 7(a) on "Pleadings" from Rule 7(b) on "Motions," and noting that a "motion is not a pleading"));





But nowhere in the Petition do Plaintiffs request any injunctive relief or seek sanctions

against Judge Tillery. See generally Petition. Although Plaintiffs request, among other things,

that the state court "sanction Judge Tillery" and "remove him from the bench" in the Motions to

Vacate, the Magistrate Judge clearly should not have considered such prospective injunctive

relief in determining whether Defendants met their burden of establishing that Judge Tillery has

been improperly joined as a nominal defendant such that his consent is not required for removal.

Thus, Defendants were not, and are not, required to address any prospective injunctive relief

against Judge Tillery not asserted in the Petition in demonstrating that there is no possibility that

Plaintiffs would be able to establish any asserted causes of action against Judge Tillery.

Accordingly, the Magistrate Judge erred by considering matters outside of the Petition because

only the claims asserted against Judge Tillery in the Petition at the time of removal should be

considered in determining whether removal jurisdiction is present.

C. DEFENDANTS OBJECT TO THE MAGISTRATE JUDGE'S CONCLUSION THAT DEFENDANTS

FAILED TO DEMONSTRATE THAT JUDGE TILLERY IS A NOMINAL DEFENDANT THAT

PLAINTIFFS IMPROPERLY JOINED

Considering the claims asserted against Judge Tillery in the Petition, which are the only

claims relevant for determining whether Judge Tillery is a nominal defendant that has been

improperly joined, Defendants have demonstrated that Judge Tillery's consent to removal is not

required because he is a nominal defendant that has been improperly.

Although generally all defendants who are properly joined and served must join in the

removal petition, nominal parties are an exception this general rule and need not join in the

removal petition, which is the case here. See, e.g., Getty Oil Corp., Div. of Texaco, Inc. v.

Insurance Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988) (removal consent is not required of

Sorbo, 432 F.3d at 1177 ("[p]leadings are categorically distinguished from motions"); Schwartz , 733 F.Supp. at 236

(stating that a motion to vacate "does not fall within the Rule 7(a) definition of 'pleadings'"); Guthrie, 2014 WL

5089849, at *4 ("Courts do not recognize that motions . . . constitute a 'pleading' under Rule 7(a)."); Brewster , 2014

WL 3867284, at *2 ("a motion . . . [is] not [a] "pleading[]" as defined by Rule 7(a) of the Federal Rules of Civil

Procedure.").





a defendant who is fraudulently joined); Farias v. Bexar County Bd. of Trustees for Mental

Health Mental Retardation Services, 925 F.2d 866, 871 (5th Cir. 1991) (citing Robinson v.

National Cash Register Co., 808 F.2d 1119, 1123 (5th Cir. 1987)); see also Smith v. Estate of

Wagner , No. H-06-02629, 2006 WL 2729282, at *5 (S.D. Tex. Sept. 25, 2006) ("Indeed, a

removing defendant need not obtain the consent of . . . defendants the removing party claims

were fraudulently joined . . . "); Jernigan v. Ashland Oil Co., 989 F.2d 813, 815 (5th Cir. 1993)

(requiring the written consent of "improperly or fraudulently joined parties would be

nonsensical, as removal in those cases is based on the contention that no other proper defendant

exists."); Yeldell v. GeoVera Specialty Ins. Co., No. 3:12-cv-1908-M, 2012 WL 5451822, at *3

(N.D. Tex. Nov. 8, 2012) (Lynn, J.) ("A removing defendant need not obtain the consent of a

defendant it alleges was improperly joined."); Hayden v. Allstate Texas Lloyds, No. H-10-646,

2011 WL 240388, at *6 (S.D. Tex. Jan. 20, 2011) ("Where a defendant has been fraudulently

joined . . . his consent is not required for removal.").

1. Nominal Defendant / Improper Joinder Standard8

The Fifth Circuit has "held that the nominal-party analysis ultimately dovetails with that

of [improper joinder], requiring the removing party to show that 'there is no possibility that the

plaintiff would be able to establish a cause of action against the non-removing defendants in state

court.'"9 Gutierrez , 2012 WL 5464957, at *3 (quoting Farias, 925 F.2d at 871); see also

8 Defendants object to the Magistrate Judge's form over substance conclusion that Defendants' reliance on the

doctrine of improper or fraudulent joinder to excuse Judge Tillery's lack of consent is misplaced. See

Recommendation at p. 10. To the contrary, the Fifth Circuit has applied the improper joinder doctrine in the federal-question context. See McKay v. Boyd Const. Co. , 769 F.2d 1084, 1087 (5th Cir. 1985), abrogated on other grounds

by Wisconsin Dept. of Corrections v. Schacht , 524 U.S. 381, 386, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998)

(acknowledging that fraudulent joinder had only been applied previously in diversity cases, but finding "no reason

why a different rule would apply where codefendant's presence bars federal jurisdiction . . . ."). Additionally,

improper joinder arguments have been construed as assertions of the nominal defendant doctrine. See, e.g.,

Gutierrez v. La Joya Independent School Dist., No. M-12-266, 2012 WL 5464957, at *3 (S.D. Tex. Nov. 8, 2012)

(construing assertion of improper joinder in federal question case as an assertion of nominal defendant doctrine and

recognizing that the Fifth Circuit has applied the improper joinder doctrine in the federal-question context).

9 The Fifth Circuit has adopted the term "improper joinder" instead of "fraudulent joinder." Mumfrey v. CVS

Pharmacy, Inc., 719 F.3d 392, 401 n.14 (5th Cir. 2013).





Martinson v. Total Petrochemicals & Refining USA, Inc., No. H-14-555, 2014 WL 2169970, at

*2-3 (S.D. Tex. May 23, 2014) (citing Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th

Cir. 2004)) (quoting Travis v. Irby, 326 F.3d at 646 – 47 (5th Cir. 2003)); Tex. Instruments, Inc. v.

Citigroup Global Mkts., Inc., 266 F.R.D. 143, 147 (N.D. Tex. 2010) (citing cases).

2. Judge Tillery is a Nominal Defendant That Has Been Improperly Joined

Because He is Entitled to Judicial Immunity

There is no possibility that Plaintiffs will be able to establish any of the causes of action

asserted against Judge Tillery in the Petition. Judge Tillery is entitled to absolute judicial

immunity. The claims set forth against him in the Petition arise entirely from rulings that he

made on various motions while acting in his official and judicial capacities in the Foreclosure

Action. Consequently, and contrary to the Recommendation, Judge Tillery is merely a nominal

party that has been improperly joined and his consent to removal is not necessary.

"Absolute judicial immunity extends to all judicial acts that are not performed in the clear

absence of all jurisdiction." Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993); see also

Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (stating that a long line of United States Supreme

Court "precedents acknowledges that, generally, a judge is immune from a suit for money

damages."); Bradley v. Fisher , 13 Wall. 335, 347 (1872) (". . . it is a general principle of the

highest importance to the proper administration of justice that a judicial officer, in exercising the

authority vested in him, shall be free to act upon his own convictions, without apprehension of

personal consequences to himself."). "Like other forms of official immunity, judicial immunity

is an immunity from suit, not just from ultimate assessment of damages." Mitchell v. Forsyth,

472 U.S. 511, 526 (1985). Judicial immunity is not overcome by allegations of bad faith or

malice. Mireles, 502 U.S. at 11; Pierson v. Ray, 386 U.S. 547, 554 (1967) ("[I]mmunity applies

even when the judge is accused of acting maliciously and corruptly"); Harlow v. Fitzgerald, 457

U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified





immunity); Mitchell v. McBryde, 994 F.2d 229, 230 (1991) (allegations that a judge "acted

pursuant to a conspiracy and committed grave procedural errors is not sufficient to avoid

absolute judicial immunity.").

Absolute judicial immunity is overcome only in two narrow sets of circumstances,

neither of which exist in the instant case. Mireles, 502 U.S. at 11-12. First, "a judge is not

immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial

capacity." Mireles, 502 U.S. at 11 (citing Forrester v. White, 484 U.S. 219, 227-229 (1988);

Stump v. Sparkman, 435 U.S. 349, 360 (1978)). Second, "a judge is not immune for actions,

though judicial in nature, taken in the complete absence of all jurisdiction." Mireles, 502 U.S. at

12 (citing Stump, 435 U.S. at 356-357; Bradley, 13 Wall. at 351); Johnson v. Kegans, 870 F.2d

992, 995 (5th Cir.), cert. denied , 492 U.S. 921 (1989) (judges are absolutely immune for all

judicial acts "not performed in clear absence of all jurisdiction, however erroneous the act and

however evil the motive."). Thus, judicial immunity protects judges from lawsuits and claims

for money damages, in all actions taken in their judicial capacities, so long as they do not act in

complete absence of all jurisdiction.

In determining whether a judge's actions are "judicial in nature," courts consider four

factors: "(1) whether the precise act complained of is a normal judicial function; (2) whether the

acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3)

whether the controversy centered around a case pending before the court; and (4) whether the

acts arose directly out of a visit to the judge in his official capacity." Malina v. Gonzales, 994

F.2d 1121, 1124 (5th Cir. 1993); see also Ballard v. Wall , 413 F.3d 510 (5th Cir. 2005);

McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972). These factors are to be broadly

construed in favor of immunity, and the absence of one or more factors does not prevent a

determination that judicial immunity applies in a particular case. Adams v. McIlhany, 764 F.2d





294, 297 (5th Cir. 1985), cert. denied , 474 U.S. 1101 (1986). In some situations, immunity is to

be afforded even though one or more of the factors is not met. Id.

Taking into consideration the above factors, the alleged actions of Judge Tillery in the

Petition are unequivocally judicial in nature. The claims asserted against Judge Tillery in the

Petition for violation of the United States Constitution and Texas Constitution arise solely from

rulings that he made on a motion for continuance, motion to transfer, and motion for summary

judgment while acting in his official and judicial capacities:

Defendant Tillery immediately denied our motion for continuance. He

provided no judicially determined facts or conclusions of law to support his

decision. We were not permitted to give any oral argument or make any objection before he made his decision. Any reasonable person who observed this would

have cause to doubt Defendant Tillery's impartiality. [Petition at p. 7 (emphasis

added)].

***

Next Defendant Tillery denied Plaintiffs' motion to transfer. . . . as a result of

Defendant Tillery's decision to deny a continuance we were given no opportunity

to present our case in support of the transfer. Again Defendant Tillery providedno judicially determined facts or conclusions of law to support his decision.

Defendant Tillery's decision went against the preponderance of the evidence and

against the rule of law. Any reasonable person observing this would have cause to

conclude Defendant Tillery held a personal bias against us or was prejudicedconcerning the subject matter. [Petition at p. 8 (emphasis added)].

***

Defendant Tillery made a decision to grant Defendant LNV a motion for

summary judgment allowing Defendant LNV to deprive us of our property. He made his decision without reading any of our motions. He made his decisionagainst the preponderance of the evidence in our motions. He made his decision

against the rule of law cited in our motions. Any reasonable person would

conclude that Defendant Tillery had decided before he even entered the court

room on August 4, 2014 that he would grant Defendant LNV their motion forsummary judgment. [Petition at p. 21 (emphasis added)].

Similarly, in Plaintiffs' Motion to Remand, Plaintiffs argue that Judge Tillery violated

their "rights to due process and equal protection of the laws by issuing an order for summary

judgment . . . against the preponderance of the evidence and against rule of law." See Plaintiffs'

Motion to Remand at p. 2 (emphasis added). Plaintiffs additionally claim that Judge Tillery





"illegally sanctioned Defendant LNV with a 'paper' order . . . to use to deprive [them] of [the]

property." Id. at p. 3. Clearly, the acts complained of in the Petition as to Judge Tillery are

normal judicial functions that occurred in the courtroom. See, e.g., Malina, 994 F.2d at 1124

Ballard , 413 F.3d 510; McAlester , 469 F.2d at 1282. Moreover, the Petition is completely

devoid of any allegations demonstrating that Judge Tillery acted outside the scope of his judicial

duties. Again, the allegations in the Petition against Judge Tillery relate solely to his rulings on

various motions. See Petition at pp. 7, 8, 21. There is no question that Judge Tillery was acting

in a judicial capacity in making his rulings in the Foreclosure Action, and there is no doubt that

Judge Tillery had jurisdiction over the Foreclosure Action.

In light of the foregoing, there is no possibility for Plaintiffs' recovery against Judge

Tillery in this matter because he enjoys absolute judicial immunity. Because the actions

complained of were within the scope of his judicial duties, Judge Tillery is absolutely immune

from the claims asserted against him in the Petition. Consequently, Judge Tillery's consent to

removal is not required because he is a nominal party that has been improperly joined in this

lawsuit given Plaintiffs' inability to state a claim against him.

Thus, contrary to the Recommendation, Defendants have meet their burden of

establishing that Judge Tillery's consent to removal is not required because they have sufficiently

demonstrated that there is no possibility that Plaintiffs would be able to establish any asserted

causes of action against Judge Tillery in state court. Accordingly, the Court should sustain this

objection, reject the Recommendation, retain jurisdiction over this action, and deny Judge

Tillery's Motion to Remand and Plaintiffs' Motion to Remand.





D. DEFENDANTS OBJECT TO THE MAGISTRATE JUDGE'S CONCLUSION THAT THE CLAIMS

ASSERTED AGAINST JUDGE TILLERY AND DEFENDANTS WERE NOT FRAUDULENTLY

MISJOINED

In the Recommendation, the Magistrate Judge incorrectly concludes that the fraudulent

misjoinder doctrine does not apply to excuse Judge Tillery's lack of consent. See

Recommendation at p. 18. According to the Magistrate Judge, the claims against Judge Tillery

and Defendants are "not wholly distinct, nor are they so disconnected factually or legally as to

make their joinder a sham" because "a general description of these claims defies any conclusion

that any misjoinder by Plaintiff[s] of these claims was egregious . . . ." Id. at p. 19.

Defendants, however, object to the Magistrate Judge's conclusion that the fraudulent

misjoinder doctrine does not apply to excuse Judge Tillery's lack of consent. Defendants have

demonstrated that the misjoinder of: (1) the constitutional claims against Judge Tillery relating

to his rulings on various motions in the Foreclosure Action; and (2) the loan servicing and

origination claims asserted against Defendants in this lawsuit is sufficiently egregious to rise to

the level of fraudulent misjoinder such that Judge Tillery's consent to removal is not required.

Therefore, the Court should sustain this objection, reject the Recommendation, retain

jurisdiction over this action, and deny Judge Tillery's Motion to Remand and Plaintiffs' Motion

to Remand.

1. The Claims Against Judge Tillery and Defendants Have Been Fraudulently

Misjoined

a. Fraudulent Misjoinder Standard

District courts in this circuit have applied Tapscott v. MS Dealer Serv. Corp., 77 F.3d

1353 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d

1069 (11th Cir. 2000), with some assuming, without deciding, that fraudulent misjoinder is a

"possible ground to support a finding of improper joinder." Tex. Instruments, Inc., 266 F.R.D. at





147 (citing cases).10

"Courts in this district and others in the Fifth Circuit ask two conjunctive

questions in the fraudulent misjoinder analysis: (1) has one party been misjoined with another

party in violation of the applicable state's joinder rules; and (2) is any misjoinder sufficiently

'egregious' to rise to the level of a fraudulent misjoinder?" Martinson, 2014 WL 2169970, at *2;

see also Salazar v. Lopez , No. 3:13-cv-188-M, 2013 WL 1124302, at *2 n.10 (N.D. Tex. Mar.

18, 2013) (Lynn, J.); Centaurus Unity v. Lexington Ins. Co., 766 F. Supp. 2d 780, 789 – 90 (S.D.

Tex. 2011); Tex. Instruments, 266 F.R.D. at 147 – 48.

"A federal court applies state joinder law in assessing whether there has been a

misjoinder and whether such misjoinder rises to the level of improper joinder." Wells Fargo

Bank, N.A. v. American Gen. Life Ins. Co., 670 F. Supp. 2d 555, 563 (N.D. Tex. 2009) (citing

Accardo v. Lafayette Insurance Company, 2007 WL 325368, at *3 (E.D. La. Jan. 30, 2007)

(noting the different approaches on this point and concluding that because claims are joined

under state joinder law the propriety of such joinder should be evaluated under state joinder

law)).11

Under Rule 40(a) of the Texas Rules of Civil Procedure, multiple defendants may be

joined in a single case "if there is asserted against them jointly, severally, or in the alternative

any right to relief in respect of or arising out of the same transaction, occurrence, or series of

transactions or occurrences and if any question of law or fact common to all of them will arise in

10 "While the Fifth Circuit has yet to adopt expressly the fraudulent misjoinder theory, it has cited Tapscott with

approval, and indicated it would adopt the doctrine under the appropriate circumstances." Salazar , 2013 WL

1124302, at *1 (assuming, without deciding, that "fraudulent misjoinder is a . . . possible ground to support a findingof improper joinder.").

11 See also Salazar , 2013 WL 1124302, at *2 n.10 (noting that the Fifth Circuit has not decided whether state or

federal joinder rules should apply to the fraudulent misjoinder analysis, but district courts in Texas have nevertheless

"applied the Texas rules, 'in large part because the applicable Texas joinder rule is practically identical to Federal

Rule 20(a) and because the claimant was required to follow the state's joinder rules when it initially brought suit.'");

Crockett v. R.J. Reynolds Tobacco Company, 436 F.3d 529, 533 (5th Cir. 2006) ("Texas has adopted the same

requirements for proper joinder" as those in Federal Rule 20(a)); Tex. Instruments, Inc., 266 F.R.D. at 148 n.3 ("For

district courts in Texas, this question [of whether to apply state or federal joinder rules in a Tapscott analysis] is

largely academic. Texas's joinder rule is identical to its federal counterpart, Crockett . . . and Texas courts rely on

federal case law interpreting Federal Rule 20 to guide their interpretation of Texas Rule 40.").





the action." TEX. R. CIV. P 40(a); see also American Gen. Life Ins. Co., 670 F. Supp. 2d at 563;

Abel v. Surgitek , 975 S.W.2d 30, 38 – 39 (Tex. App. — San Antonio 1998), reversed on other

grounds by, 997 S.W.2d 598. Texas courts apply the logical relationship test to determine if

claims arise out of the same transaction, occurrence, or series of transactions or occurrences. See

Surgitek , 975 S.W.2d at 38. "To arise from the same transaction, at least some of the facts must

be relevant to both claims." Blalock Prescription Ctr., Inc. v. Lopez – Guerra, 986 S.W.2d 658,

663 (Tex. App. — Corpus Christi 1998, no pet.).

Misjoinder has been held to be "so egregious as to be fraudulent" where "a single plaintiff

or group of plaintiffs has joined multiple defendants in the same action and is asserting claims

against each defendant that are both factually and legally unrelated." Tex. Instruments, 266

F.R.D. at 148.

b. The Claims Asserted Against Judge Tillery and Defendants are Both

Factually and Legally Unrelated

In conducting a fraudulent misjoinder analysis, courts first determine whether a party has

been misjoined with another party in violation of the applicable state's joinder rules, and

thereafter determine whether the misjoinder is sufficiently egregious to rise to the level of

fraudulent misjoinder. Martinson, 2014 WL 2169970, at *2; Salazar , 2013 WL 1124302, at *2

n.10; Centaurus Unity, 766 F. Supp. 2d at 789 – 90; Tex. Instruments, 266 F.R.D. at 147-48.

In both the Nsight Technologies, LLC v. Federal Insurance Company, No. 3:09-cv-6-

WHB-LRA, 2009 WL 1106868, at *5 (S.D. Miss. April 23, 2009), and Palermo, 542 F. Supp. 2d

499, 524-25 (S.D. Miss. 2008) cases, the Southern District of Mississippi held that the

defendants were fraudulently misjoined where "a single plaintiff or group of plaintiffs joined

multiple defendants in the same action and asserted claims against the various defendants that

were both factually and legally unrelated." Tex. Instruments, 266 F.R.D. at 150. In Nsight , a

company sued its former employee for conversion, alleging that she had embezzled the





company's funds, and in the same action, the company also sued its insurer for bad-faith breach

of an employee-theft insurance policy. 2009 WL 1106868 at *1. "The court found that the

conversion claim and the breach-of-contract/bad-faith claim arose 'out of separate allegations of

wrongdoing occurring at separate times' and thus . . . held that the claims against the diverse

insurer and the non-diverse former employee had been fraudulently misjoined." Tex.

Instruments, 266 F.R.D. at 151 (quoting Nsight Technologies, LLC , 2009 WL 1106868 at *4).

The court in Nsight emphasized that the "two claims raised different factual issues, turned on

different legal issues, and would be proved by different evidence." Id. Accordingly, the Court

held that the conversion claim against the former employee and the breach of contract/bad faith

claims against the insurer should be severed. Nsight Technologies, LLC , 2009 WL 1106868 at

*5.

The Palermo case also "involved the joinder of legally and factually unrelated causes of

action against distinct groups of defendants." Tex. Instruments, 266 F.R.D. at 150. In that case,

plaintiffs sued two sets of defendants, but the claims against each set of defendants were legally

and factually unrelated. The plaintiffs "alleged wrongful discharge, simple negligence, slander,

and intentional infliction of emotional distress against the former employer and its agents ('the

employer defendants'), and they alleged medical-negligence and product-liability claims against

a group of health-care professionals and companies ('the medical defendants')." Id. (citing

Palermo, 542 F. Supp. 2d at 504-05). The "claims against the employer defendants arose out of

the former employee's termination from his job, and the claims against the medical defendants

arose out of a surgical procedure the employee underwent after being injured on the job." Id.

(citing Palermo, 542 F. Supp. 2d at 524). The court in Palermo held the claims against the

medical defendants had been fraudulently misjoined with the claims against the employer

defendants. Palermo, 542 F. Supp. 2d at 525.





In this case, the requirements of Rule 40(a) of the Texas Rules of Civil Procedure have

not been met. Plaintiffs do not assert a right to joint, several, or alternative relief against Judge

Tillery and Defendants. See generally Petition; see also American Gen. Life Ins. Co., 670 F.

Supp. 2d at 563; Surgitek, 975 S.W.2d at 38-39. Additionally, the claims against Judge Tillery

and Defendants do not arise out of the same transaction, occurrence, or series of transactions or

occurrences, and there are no questions of law or fact common to the claims against Judge

Tillery and Defendants that will arise in this action. Id.

Like in Nsight , where the court found that a conversion claim asserted against an

employee and a breach of contract/bad-faith claim asserted against an insurer arose out of

separate allegations of wrongdoing occurring at separate times, and similar to Palermo where the

claims against the employer defendants arose out of the former employee's termination, but the

claims against the medical defendants arose out of a surgical procedure the employee underwent

after being injured on the job, the claims in the instant case against Judge Tillery for

constitutional violations and the purported servicing and origination claims against Defendants

arise out of separate allegations of wrongdoing occurring at separate times. On the one hand, the

constitutional violation claims against Judge Tillery are based solely on the rulings that he made

in his official and judicial capacities in the Foreclosure Action, and on the other hand, the alleged

claims against Defendants arise out of the servicing and origination of Plaintiffs' loan before the

Foreclosure Action was commenced.

More specifically, Plaintiffs assert claims against Judge Tillery for violation of the United

States Constitution and Texas Constitution based on rulings that he made on various motions

while acting in his official and judicial capacities in the Foreclosure Action, wherein LNV

sought to foreclose on the Property. See Petition at pp. 3-11. Plaintiffs contend that Judge

Tillery has a personal bias against them and complain about his rulings from the bench on a





motion for continuance, motion to transfer, and motion for summary judgment. Id. The

purported claims against Defendants, however, are both factually and legally unrelated to those

asserted against Judge Tillery. In this regard, Plaintiffs assert various state and federal law

claims against Defendants relating to the servicing and origination of their loan.12

Contrary to the Magistrate Judge's conclusion, the loan servicing and origination claims

against Defendants are wholly distinct and so disconnected factually and legally from the claims

against Judge Tillery relating to his rulings on various motions such that their joinder is so

egregious that it is fraudulent. In holding that the conversion claim against the former employee

and the breach of contract/bad faith claim against the insurer were fraudulently misjoined, the

court in Nsight stressed that such "claims raised different factual issues, turned on different legal

issues, and would be proved by different evidence." Tex. Instruments, 266 F.R.D. at 151

(quoting Nsight Technologies, LLC , 2009 WL 1106868 at *4)

Here, the claims against Judge Tillery for constitutional violations and the purported loan

servicing and origination claims against Defendants, like the claims in Nsight and Palermo, raise

different factual issues, turn on different legal issues, and will be proven by different evidence.

In this regard, whether Judge Tillery was or was not acting in his official and judicial capacities

when he made his rulings on various motions in the Foreclosure Action is a different legal issue

12 Plaintiffs assert claims against Defendants for violations of the FDCPA, TDCA, RESPA, and TILA arising from

the origination and servicing of their loan for the Property based on the following allegations: (1) required

disclosures were not received at the closing of their loan; (2) their signatures on unspecified loan documents were

forged; (3) their rescission document was postdated, and as a result, they were denied any right of rescission; (4)

their mortgage broker misrepresented that the loan's interest rate was temporary and that the interest rate would be

reduced in two years; (5) they did not receive notification of loan and servicing transfers; and (6) the assignment oftheir deed of trust contains forgeries, false signatures, and false statements. See Petition at pp. 12-14. Plaintiffs

further allege that MGC purportedly: (1) has not shown that it has the legal right to collect their payments; (2) did

not properly apply unspecified payments to the loan balance; and (3) charged unspecified excessive late fees. Id.

Plaintiffs additionally contend that they disputed the debt owed on the loan in response to a debt collection letter, but

that the validity of the debt was not investigated. Id. at p. 14. Plaintiffs also assert claims for "abuse of process" and

"fraud upon the court" in connection with the filing of multiple summary judgment motions and a purportedly

overwhelming document production that allegedly caused Plaintiffs' former attorneys to withdraw from representing

them in a previous lawsuit that Plaintiffs filed in June 2011 against MGC. Id. at 15-16. Plaintiffs further assert

claims against Defendants for fraud and civil and criminal conspiracy relating to the alleged failure to accept

unspecified mortgage payments and charging of unspecified excessive late fees. Id. at pp. 17-19. Plaintiffs also

contend that unidentified mortgage-related documents were falsified before recordation. Id.





from whether Defendants are liable for the loan servicing and origination claims asserted against

them. Further, the claims against Judge Tillery and Defendants will be proven by different

evidence.

Additionally, the Magistrate Judge incorrectly concluded that the allegations and claims

against Defendants in this lawsuit are "matters at least related to the case against LNV out of

which Plaintiffs allege that their claims against Judge Tillery arose." See Recommendation at p.

20 (emphasis added). For clarification, the "case against LNV" to which the Magistrate refers is

actually the lawsuit that LNV filed against Plaintiffs to foreclose on the Property, i.e. the

Foreclosure Action. There is no previous "case against LNV." Regardless, it defies logic that

the allegations and claims against Defendants in this lawsuit are "matters at least related" to the

Foreclosure Action "out of which Plaintiffs allege that their claims against Judge Tillery arose"

because Plaintiffs asserted no loan servicing and origination counterclaims against Defendants in

the Foreclosure Action, wherein, again, LNV sought only to foreclose on the Property.13

Therefore, the joinder of Judge Tillery in this lawsuit constitutes fraudulent misjoinder,

and thus, his consent to remove this case to federal court is not required. Consequently, the

Court should sustain this objection, reject the Recommendation, retain jurisdiction over this

action, and deny Judge Tillery's Motion to Remand and Plaintiffs' Motion to Remand.

IV.

CONCLUSION

Based on the foregoing, the Court should sustain Defendants' objections to the

Recommendation, reject the Recommendation, retain jurisdiction over this action, deny Judge

Tillery's Motion to Remand and Plaintiffs' Motion to Remand, and grant Defendants such other

and further relief to which they may show themselves justly entitled.

13 Pursuant to Rule 201 of the Federal Rules of Evidence, Defendants respectfully request that the Court take judicial

notice of the docket sheet in the Foreclosure Action, which reveals that Plaintiffs asserted no counterclaims against

Defendants.




Respectfully submitted,

/s/ Marc D. Cabrera

Robert T. MowreyState Bar No. 14607500

[email protected] L. SandersState Bar No. 24037428

[email protected]

Marc D. CabreraState Bar No. 24069453

[email protected]

LOCKE LORD LLP

2200 Ross Avenue, Suite 2200Dallas, Texas 75201-6776

T: (214) 740-8000

F: (214) 740-8800

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing document

was served upon all counsel of record and pro se parties via the Court's CM/ECF system, regular

mail, and/or certified mail, return receipt requested on this 12th day of November 2014.

/s/ Marc D. CabreraCounsel for Defendants


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