Feinberg v. Costco Wholesale Corporation et al
| Paula Feinberg |
| Costco Wholesale Corporation doing business as Costco, Rob Barnes, Eric Doe, Jake Doe, JOHN DOE and Jane Does 5-10 |
| 3:2023cv01157 |
| May 19, 2023 |
| U.S. District Court for the Northern District of Texas |
| Ada Brown |
| David L Horan |
| Torts/Pers Prop: Other Personal Property Damage |
| 28 U.S.C. ยง 1441 Petition for Removal- Personal Injury |
| Plaintiff |
Docket Report
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Filing 12
-Notice Regarding Dfts.' Notice of Filing Notice of Removal filed by Rob Barnes, Costco Wholesale Corporation (Cox, John) Modified docket text on 7/11/2023 (oyh).
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Filing 11
ELECTRONIC ORDER:28 U.S.C. 1446(d) provides that, "[p]romptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." Under Section 1446(d), "Fifth Circuit case law consistently suggests that the state court is divested of jurisdiction when the state court receives either actual or constructive notice of the removal," and "[t]he Fifth Circuit case law has been quite consistent in holding that the state court ceases to have jurisdiction when the state court is given notice." Adame v. Echo Glob. Logistics, LLC, No. 3:21-cv-1464-L, 2022 WL 272121, at *4 (N.D. Tex. Jan. 12, 2022) (cleaned up), rep. & rec. adopted, 2022 WL 270857 (N.D. Tex. Jan. 28, 2022); accord Wolf v. Deutsche Bank Natl Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App'x 205, 208 (5th Cir. 2018) ("As this court has noted, however, the effect of removal is to deprive the state court of an action properly before it. [S]ee 28 U.S.C. 1446(d) (establishing that once a party files notice of removal with the state court, 'the State court shall proceed no further unless and until the case is remanded'). In other words, removal divests the state court of jurisdiction and precludes any state-court/federal-court conflict. This is because: When a case begins in state court and is later removed to federal court, there are not concurrent proceedings. The removal action takes the case from the state court and places it in federal court. Because the state court no longer has jurisdiction over the case, there is no jurisdictional conflict for the law to avoid or resolve. Here, once Deutsche Bank removed the case to federal court, no state court retained jurisdiction over the property; there were no concurrent proceedings." (cleaned up)).So, in the Fifth Circuit, "a removal is not effective until notice is given to the state court." Stephens v. Portal Boat Co., 781 F.2d 481, 482 n.1 (5th Cir. 1986); accord BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538 (2021) ("To remove a case, a defendant must comply with 28 U.S.C. 1446. Essentially, that statute requires the defendant to provide affected parties and courts with a notice stating its grounds for removal. 1446(a), (d). The combination of these actions 'effect[s] the removal.' 1446(d)."); Roman Catholic Archdiocese of San Juan, P.R. v. Acevedo Feliciano, 140 S. Ct. 696, 700 (2020) ("Once a notice of removal is filed, 'the State court shall proceed no further unless and until the case is remanded.' 28 U. S. C. 1446(d). The state court los[es] all jurisdiction over the case, and, being without jurisdiction, its subsequent proceedings and judgment [are] not... simply erroneous, but absolutely void..... [W]e have held that a removing party's right to a federal forum becomes 'fixed' upon filing of a notice of removal...." (cleaned up)).The Court ORDERS the removing defendant to -- if it has not already done so -- file, by no later than 7 days after the date of this order, a copy of the notice filed with the state court in compliance with 28 U.S.C. 1446(d).(Ordered by Magistrate Judge David L. Horan on 7/11/2023.)
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Filing 10
Appendix in Support filed by Rob Barnes, Costco Wholesale Corporation re #9 Response/Objection (Cox, John)
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Filing 9
RESPONSE filed by Rob Barnes, Costco Wholesale Corporation re: #7 MOTION to Remand to State Court (Cox, John)
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Filing 8
NOTICE of Dfts.' Rule 26(a)(1) Initial Disclosures filed by Rob Barnes, Costco Wholesale Corporation (Cox, John)
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Filing 7
MOTION to Remand to State Court filed by Paula Feinberg (Henley, Geoff)
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Filing 6
ELECTRONIC ORDER OF TRANSFER TO UNITED STATES MAGISTRATE JUDGE - Before the Court is the Parties' Joint Status Report, filed on June 19, 2023. [ECF No. 5] It appears the parties have consented in writing to trial of this case before a United States Magistrate Judge in accordance with the provisions of 28 U.S.C. 636(c). See Paragraph 14. It is therefore ORDERED by the Court that this case be, and it is hereby TRANSFERRED to United States Magistrate Judge David L. Horan in accordance with 28 U.S.C. 636(c), with any appeal therefrom to be taken to the United States Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. 636(c)(3). (Ordered by Judge Ada Brown on 6/20/2023) (chmb)
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Filing 5
Joint STATUS REPORT and Proposed Scheduling Order filed by Rob Barnes, Costco Wholesale Corporation. (Attachments: #1 Proposed Order Proposed Scheduling Order) (Cox, John)
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Filing 4
ELECTRONIC ORDER: The Court ORDERS the Parties in this proceeding to take notice that Judge Ada Brown shall adopt revised policies and procedures on July 1, 2023. The revised policies and procedures are posted on the Courts page on the Northern District of Texas Website. #RevisedJSR-Brown.pdf (uscourts.gov). If the Parties have any motion or response deadlines between now and July 1, 2023, which are affected by new briefing requirements, the Parties may proceed under the current policies and procedures. The Parties may further seek leave of Court for any filings due in July 2023 to comply with the Courts revised briefing requirements. (Ordered by Judge Ada Brown on 6/5/2023) (chmb)
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Filing 3
STATUS REPORT ORDER: Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, lead counsel are directed to meet and confer for the purpose of submitting a Joint Status Report as follows. (Joint Status Report Due Three (3) Weeks from the Date of this Order) (Ordered by Judge Ada Brown on 5/30/2023) (twd)
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Filing 2
New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Horan). Clerk to provide copy to plaintiff if not received electronically. (agc)
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Filing 1
NOTICE OF REMOVAL WITH JURY DEMAND filed by Costco Wholesale Corporation. (Filing fee $402; receipt number ATXNDC-13752243) In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the # Judges Copy Requirements and # Judge Specific Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: # Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: #1 Exhibit(s) Exhibit A, #2 Exhibit(s) A-1 - Petition, #3 Exhibit(s) A-2 - Email-Corresp., #4 Exhibit(s) Exhibit B-1 - Answer, #5 Exhibit(s) Exhibit B-2, #6 Exhibit(s) Exhibit C - LMT Affidavit, #7 Exhibit(s) Exhibit C-1, #8 Exhibit(s) Exhibit C-2, #9 Exhibit(s) Exhibit C-3, #10 Cover Sheet Civil Cover Sheet, #11 Cover Sheet Supplement Suppl. Cover Sheet, #12 Exhibit(s) Certificate of Interested Persons) (Cox, John)
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CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Costco Wholesale Corporation. See #1 -12 for Document. (Clerk QC note: No affiliate entered in ECF). (agc)
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