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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLIE HAWKINS, §

§

Plaintiff, §

§

V. § No. 3:22-cv-1918-M-BN

§

WELLS FARGO BANK, N.A., §

§

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the undersigned United States magistrate judge 

for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference 

from United States District Judge Barbara M. G. Lynn. 

Charlie Hawkins has filed a motion to remand to state court. See Dkt. No. 5.

Wells Fargo Bank, N.A. filed a response. See Dkt. No. 11. The undersigned now enters 

the following findings of fact, conclusions of law, and recommendation that the Court 

grant the motion to remand to state court.

Background

This case concerns a lien on a Hawkins’s property in Rowlett, Texas. Hawkins 

filed the case in the 439th Judicial District Court of Rockwall County, Texas on April 

28, 2022. See Dkt. No. 1, Ex. D. Hawkins never formally served Wells Fargo. On May 

27, 2022, Wells Fargo filed an answer in state court. See Dkt. No. 1, Ex. E.

Ninety-five days later, on August 30, 2022, Wells Fargo removed the case to 

this Court, alleging that the Court possesses diversity jurisdiction under 28 U.S.C. § 

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1332. See Dkt. No. 1. It adequately alleged that Hawkins was a citizen of Texas, that 

it was a citizen of South Dakota, and that the amount in controversy exceeded 

$75,000. Hawkins then filed this motion to remand to state court. See Dkt. No. 5.

Legal Standard

A defendant may remove an action filed in state court to federal court if the 

action is one that could have originally been filed in federal court. See 28 U.S.C. § 

1441(a). The federal courts’ jurisdiction is limited, and federal courts generally may 

only hear a case of this nature if it involves a question of federal law or where 

diversity of citizenship exists between the parties. See 28 U.S.C. §§ 

1331, 1332; cf. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 

(1999) (discussing federal courts’ independent duty to examine their own subject 

matter jurisdiction). “As a general rule, absent diversity jurisdiction, a case will not 

be removable if the complaint does not affirmatively allege a federal claim.” Beneficial 

Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003).

The removing party bears the burden of establishing jurisdiction. See Miller v. 

Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir.2001). “[T]he basis upon which 

jurisdiction depends must be alleged affirmatively and distinctly and cannot be 

established argumentatively or by mere inference.” Getty Oil Corp. v. Ins. Co. of 

N.A., 841 F.2d 1254, 1259 (5th Cir.1988) (citing Ill. Cent. Gulf R. Co. v. Pargas, 

Inc., 706 F.2d 633, 636 & n. 2 (5th Cir.1983)). “If at any time before final judgment it 

appears that the district court lacks subject matter jurisdiction, the case shall be 

remanded.” 28 U.S.C. § 1447(c).

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Notice of removal must be filed by the removing party within 30 days of 

defendant's receipt of service of the initial state-court pleading. See 28 U.S.C. § 

1446(b). This thirty-day period to remove a case from state court does not begin to 

run until simultaneous service of the summons and complaint, or receipt of the 

complaint, through service or otherwise, after and apart from service of the summons, 

but, absent waiver of service, not by mere receipt of the complaint unattended by any 

formal service. See Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 348-51 

(1999).

Under Texas Rule of Civil Procedure 106, acceptable service is accomplished 

by “delivering to the defendant, in person, a true copy of the citation” or “mailing to 

the defendant by registered or certified mail ... a true copy of the citation.” Tex. R. 

Civ. P. 106. The citation, unless directed otherwise by the court, must be delivered in 

person or by certified or registered mail. See id.; see also Cross v. Grand Prairie, No. 

3:96-cv-446-P, 1998 WL 133143, at *6 (N.D. Tex. Mar. 17, 1998). While a court does 

not have power over a party named as defendant in the absence of service, the 

defendant can waive service. See Murphy Bros., Inc., 526 U.S. at 350-51 (“In the 

absence of service of process (or waiver of service by the defendant), a court ordinarily 

may not exercise power over a party the complaint names as defendant.... Unless a 

named defendant agrees to waive service, the summons continues to function as 

the sine qua non directing an individual or entity to participate in a civil action or 

forgo procedural or substantive rights.” (citations omitted)).

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For a federal court to have jurisdiction over a state action based on diversity, 

each plaintiff's citizenship must be diverse from each defendant's citizenship, and the 

amount in controversy must exceed $75,000. See 28 U.S.C. §§ 1332(a), (b).

Analysis

I. Wells Fargo’s removal to federal court was untimely.

Hawkins does not dispute that diversity jurisdiction exists. Rather, he asserts

that Wells Fargo’s removal is untimely. The undersigned agrees. 

Murphy Brothers makes clear that a plaintiff triggers the removal clock once 

they make formal service. See Murphy Bros., 526 U.S. at 354. It also indicates that 

state law provides the method of service. See id. (categorizing “the various state 

provisions for service of the summons and the filing or service of the complaint”).

The United States Court of Appeals for the Fifth Circuit confirmed this in City 

of Clarksdale v. BellSouth Telecommunications, Inc., stating that, “[a]lthough federal 

law requires the defendant to file a removal motion within thirty days of service, the 

term ‘service of process’ is defined by state law.” 428 F.3d 206, 210 (5th Cir. 2005).

“[W]e look to state law to verify that service of process effectively brought the 

defendant within the state court's jurisdiction” because, “[f]or a federal district court 

to have jurisdiction over a case removed from state court, the state court must first 

have jurisdiction.” Id. at 210 n. 6 (citing Woodham v. Northwestern Steel & Wire 

Co., 390 F.2d 27 (5th Cir. 1968); then Lambert Run Coal Co. v. Baltimore & Ohio 

R.R., 258 U.S. 377, 382 (1922)). 

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The Texas Rules of Civil Procedure provide that an appearance in state court

has “the same force and effect as if [a] citation had been duly issued and served as 

provided by law.” TEX. R. CIV. P. 120. And “[a]n answer shall constitute an appearance 

of the defendant so as to dispense with the necessity for the issuance or service of 

citation upon him.” TEX R. CIV. P. 121.

An answer in a Texas state court has the same effect as if the defendant had 

been served as provided by law. Formal service starts the thirty-day removal clock.

Therefore, a state-court answer has the effect of starting the removal clock.

Three Texas federal district courts that have issued decisions analyzing this 

issue have come to this conclusion. “In each case, these courts have held that Section 

1446(b)’s thirty-day removal period for a defendant who had not been formally or 

properly served commenced to run on the date on which the defendant filed an answer 

in state court.” Esquivel v. LA Carrier, 578 F. Supp. 3d 841 (W.D. Tex. 2022) (citing 

Cerda v. 2004-EQRI, LLC, No. SA-07-CV-632-XR, 2007 WL 2892000, at *3 (W.D. Tex. 

Oct. 1, 2007); George-Baunchand v. Wells Fargo Home Mortg., Inc., No. CIV.A. H-10-

3828, 2010 WL 5173004, at *3-4 (S.D. Tex. Dec. 14, 2010); Chambers v. Greentree 

Servicing, LLC, No. 3:15-cv-1879-M-BN, 2015 WL 4716596, at *4 (N.D. Tex. Aug. 7, 

2015)).

Wells Fargo removed this case to federal court ninety-five days after filing its 

answer in state court. And so the removal was untimely.

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Wells Fargo relies on Murphy Brothers to contend that an answer in state court 

does not start the thirty-day removal clock. Its reliance on this case for that 

contention is misguided.

In Murphy Brothers, the plaintiff filed a complaint in state court. Three days 

later it faxed a courtesy copy of the complaint to one of the defendant’s vice 

presidents. Fourteen days later, the plaintiff formally served the defendant. Thirty 

days after that formal service, the defendant removed to federal court. The Supreme 

Court held that the removal clock was started by “simultaneous service of the 

summons and complaint, or receipt of the complaint, ‘through service or otherwise,’

after and apart from service of the summons but not by mere receipt of the complaint 

unattended by formal service.” Murphy Bros., 526 U.S. at 354 (quoting 28 U.S.C. § 

1446(b)).

Murphy Brothers makes clear the actions that a plaintiff can and cannot take 

to start the removal clock. Wells Fargo is correct that the Court holds that formal 

service is required for the plaintiff to trigger the removal clock and that the phrase 

“service or otherwise” is not meant to allow plaintiffs to trigger the removal clock 

before service. Id. at 354-55. 

But Murphy Brothers does not take up the question of what actions a defendant 

can take to start the removal clock. The Court partially answers this question when 

it clarifies that, “[u]nless a named defendant agrees to waive service, the summons 

continues to function as the sine qua non directing an individual or entity to 

participate in a civil action or forgo procedural or substantive rights.” Id. at 351. If a 

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named defendant waives service, the removal clock will start. But Murphy Brothers

is silent as to the effect on the removal clock where the named defendant has already 

decided to participate in the civil action by appearing in the case.

Courts therefore look to the state definition of service of process to determine 

what actions by a defendant who has decided to participate in the civil action dispense 

with the need for formal service of process. In Texas, an answer does just that. And 

so Wells Fargo cannot rely on Murphy Brothers to argue that an answer does not start 

the removal clock.

Because Wells Fargo removed the case to federal court more than thirty days 

after filing an answer in state court, the Court should remand this case to state court.

II. Hawkins should not be awarded attorney’s fees

Hawkins seeks to recover his attorney’s fees, expenses, and costs incurred for 

obtaining a remand of this action to state court. See Dkt. No. 5 at 4. “An order 

remanding the case may require payment of just costs and any actual expenses, 

including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The 

“decision to grant or deny attorneys’ fees under Section 1447(c) is 

discretionary.” Western Healthcare, LLC v. Nat'l Fire & Marine Ins. Co., No. 3:16-cv565-L, 2016 WL 7735761 at *2 (N.D. Tex. Dec. 28, 2016) (citing Admiral Ins. Co. v. 

Abshire, 574 F.2d 267, 280 (5th Cir. 2009)), rec. adopted, No. 3:16-cv-565-L, 2017 WL 

118864 (N.D. Tex. Jan. 12, 2017). The standard for awarding fees under Section 

1447(c) “turns on the reasonableness of the removal,” “irrespective of the fact that it 

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might ultimately be determined that removal was improper.” Id.; Valdes v. Wal-Mart 

Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000).

Under this standard, “[a]bsent unusual circumstances, courts may award 

attorney's fees under § 1447(c) only where the removing party lacked an objectively 

reasonable basis for seeking removal [at the time removal was sought.] Conversely, 

when an objectively reasonable basis exists, fees should be denied.” Martin v. 

Franklin Capital Corp., 546 U.S. 132, 141 (2005) (citing Hornbuckle v. State Farm 

Lloyds, 358 F.3d 538, 541 (5th Cir. 2004); Valdes, 199 F.3d at 293). There is no 

“automatic entitlement to an award of attorney's fees,” but bad faith is not “a 

prerequisite to awarding attorney fees and costs.” Valdes, 199 F.3d at 292 (citation 

omitted). “A fee award is inappropriate if the removing party ‘could conclude from 

[existing] case law that its position was not an unreasonable one.’” Probasco v. WalMart Stores Texas, L.L.C., 766 F. App’x 34, 37 (5th Cir. 2019) (quoting Valdes, 199 

F.3d at 293).

The issue of whether a state-court answer triggers the thirty-day removal clock 

has not been taken up by the Supreme Court or the United States Court of Appeals 

for the Fifth Circuit, so there is no binding precedent clearly stating that Wells Fargo 

could not remove under these circumstances. See also Mary v. Allstate Texas Lloyd's, 

No. 3:16-cv-3383-L-BN, 2017 WL 7735066 at *10 (N.D. Tex. Oct. 5, 2017) (declining 

to award attorney’s fees where the law regarding remand was not wellestablished), rec. adopted, No. 3:16-cv-3383-L-BN, 2017 WL 6462009 (N.D. Tex. Dec. 

19, 2017).

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And, although Murphy Brothers does not address whether a state court 

appearance will start the removal clock, it was at least not unreasonable for Wells 

Fargo to read the case as holding that there is no way for the removal clock to start 

other than by formal service on the defendant. 

The undersigned recommends the Court conclude that, although incorrect, 

Wells Fargo had objectively reasonable grounds to remove this action because it did 

not think that that its time to remove had lapsed. And so Hawkins is not entitled to 

recover attorney’s fees, expenses, and costs incurred as a result of the removal of this 

case to federal court. 

Recommendation

The Court should grant Plaintiff’s motion to remand to state court and remand 

this action to the 439th Judicial District Court of Rockwall County, Texas, from which 

it originated.

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 

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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: November 30, 2022

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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