                                                                                                                     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
                                                    2
      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




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