IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

PORESHA SHA-FAYE POLK, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-1814-S-BN 

§ 

MARIA CASTILLO and CHARLES HO, § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Poresha Sha-Faye Polk filed this pro se action in a Dallas County 

justice court. After Defendants Maria Castillo and Charles Ho answered in state 

court, see Dkt. No. 1-5 at 15-16, they removed this lawsuit to federal court on August 

17, 2022, relying on 28 U.S.C. §§ 1331, 1441, and 1446, because Polk alleged a federal 

question, see Dkt. No. 1 at 3, ¶ 7. 

The presiding United States district judge referred the removed action to the 

undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. 

On September 30, 2022, Polk filed a Motion to Dismiss. See Dkt. No. 14. As 

ordered, Defendants responded, and Polk replied. See Dkt. Nos. 15, 21, 22, 27. 

Considering the pendency of the motion to dismiss and Polk’s numerous other (and 

somewhat contradictory) motions filed after moving to dismiss this lawsuit, see Dkt. 

Nos. 18-20, 23-26, the Court temporarily prohibited Polk from filing other motions in 

this matter without first obtaining written leave of the Court, see Dkt. No. 28. 

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The undersigned now enters these findings of fact, conclusions of law, and 

recommendation that the Court should deny the pending motions for the reasons and 

to the extent set out below. 

I. The Court should deny as moot Polk’s motion to dismiss [Dkt. 

No. 14]. 

While Polk filed a Motion to Dismiss [Dkt. No. 14] on September 30, 2022, 

because Defendants answered prior to removal, voluntary dismissal is only allowed 

under either Federal Rule of Civil Procedure 41(a)(1)(A)(ii) on “a stipulation of 

dismissal signed by all parties who have appeared” or Federal Rule of Civil Procedure 

41(a)(2) “by court order, on terms that the court considers proper.” FED. R. CIV. P. 

41(a)(1)(a)(ii), (a)(2). Voluntary dismissal by stipulation or by court order is 

presumptively without prejudice unless the stipulation or order states otherwise. See 

id.

The Court therefore ordered Defendants to file a response to Polk’s motion or, 

in the alternative, a stipulation of dismissal in compliance with Federal Rule of Civil 

Procedure 41(a)(1)(A)(ii). See Dkt. No. 15. 

Defendants responded, requesting that the Court grant Polk’s motion but 

dismiss this lawsuit with prejudice, arguing, in sum, that “Defendants have expended 

significant energy in the litigation of this matter” and that “Plaintiff seeks dismissal 

of this matter to avoid continued litigation in federal court.” Dkt. No. 21. 

Considering their response in an order entered on October 25, 2022, the 

undersigned observed that he was “inclined to recommend that the Court enter an 

order under Federal Rule of Civil Procedure 41(a)(2) dismissing this action without 

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prejudice,” but, because, “after Polk filed the motion to dismiss her lawsuit – and 

prior to Defendants’ response – she made additional filings that appear to undercut 

a desire to voluntarily dismiss this lawsuit ... (requesting leave to amend and 

supplement the claims and seeking discovery),” the Court ordered Polk to file a reply. 

Dkt. No. 22; see also McGinnis v. Carnes, No. 3:22-cv-858-S-BN, 2022 WL 3701630 

(N.D. Tex. Aug. 4, 2022) (regarding where it may be appropriate to grant a Rule 

41(a)(2) dismissal with prejudice), rec. accepted, 2022 WL 3702039 (N.D. Tex. Aug. 

26, 2022). 

Polk replied, making various allegations but requesting more than once “that 

this Court [ ] allow this civil complaint to go forward.” Dkt. No. 27. Considering Polk’s 

reply, the Court should deny as moot the Motion to Dismiss [Dkt. No. 14]. 

II. The Court should deny Polk’s motion to remand [Dkt. No. 24]. 

Through a motion filed on October 31, 2022, see Dkt. No. 24; FED. R. CIV. P. 

5(d)(2)(A), Polk moves to remand this case to state court based on noncompliance with 

Federal Rule of Civil Procedure 81 and Local Civil Rule 81.1. This alleged 

noncompliance does not implicate the Court’s jurisdiction over this matter. So, 

because this motion to remand was not filed within 30 days of removal, it should be 

denied. See 28 U.S.C. § 1447(c). 

III. The Court should deny Polk’s motion for a declaratory judgment 

[Dkt. No. 26]. 

Polk moves for a declaratory judgment under Federal Rule of Civil Procedure 

57 but provides no factual allegations in support of that relief. See Dkt. No. 26. Nor 

does Polk plausibly allege facts to support declaratory judgment in the operative 

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complaint. This prevents granting the standalone motion for relief under Rule 57. 

See, e.g., Hill v. PHH Mortg. Corp., No. 4:19-CV-2909, 2022 WL 4001828, at *4 (S.D. 

Tex. Apr. 23, 2022) (“Because the Complaint is silent to the fact that Plaintiff has 

either made all payments since 2013 or that he missed payments since his 

bankruptcy case ended, Plaintiff has not plausibly plead that he is entitled to a 

declaratory judgment that PHH cannot foreclose on the Property. Accordingly, 

Plaintiff has not stated a claim upon which relief can be granted.”). The Court should 

therefore deny the motion without prejudice to Polk’s ability to amend the complaint 

to allege relief under Rule 57. 

IV. The Court should deny the remaining pending motions [Dkt. 

Nos. 18, 19, 20, and 25], construed as requesting leave to amend 

the complaint, without prejudice to the Court’s allowing Polk 

the opportunity to file one final amended complaint. 

Polk’s remaining pending motions – to amend under Federal Rule of Civil 

Procedure 15, to supplement, for discovery, and for a jury trial – should be liberally 

construed as a single request for leave to amend under Rule 15, which “gives plaintiffs 

a temporary right to amend their complaints” and, even after that right expires, 

“requires courts ‘freely give leave [to amend] when justice so requires.’” Carver v. 

Atwood, 18 F.4th 494, 498 (5th Cir. 2021) (citing FED. R. CIV. P. 15(a)(1), then quoting 

FED. R. CIV. P. 15(a)(2)). Considering the posture of this proceeding, granting Polk 

leave to file one final amended complaint is consistent with this standard and will 

further a more efficient disposition of this case. The Court should therefore deny Dkt. 

Nos. 18, 19, 20, and 25 without prejudice to the undersigned’s entering an order 

directing Polk to file, within a reasonable time to be set by the Court, a final amended 

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complaint if the Court accepts or adopts these recommendations. 

Recommendation

The Court should deny the pending motions [Dkt. Nos. 14, 18-20, 24-26]. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: February 28, 2023 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

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