UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MEADOWWOOD PARK RANCH

ESTATES, INC.,

Plaintiff,

VS.

MARK SMITH, ET AL.,

Defendants.

)

)

)

) CIVIL ACTION NO.

)

) 3:06-CV-0444-G

)

) ECF

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the plaintiff, Meadowwood Park Ranch

Estates, Inc. (“the plaintiff” or “Meadowwood”), and of the third-party defendants,

Paul Bergstrom, Karen McCright and Sam McCright (collectively, “the third-party

defendants”), to remand (“the motion to remand”) this case to the state district court

from which it was previously removed, and the motion of Charles Hoback

(“Hoback”) to intervene (“the motion to intervene”). For the reasons discussed

below, the motion to remand is granted and the motion to intervene is denied as

moot.

 

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1 Meadowwood also alleged nuisance in its state court petition, but that

claim is not relevant to this motion. 

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I. BACKGROUND

The plaintiff is the homeowners’ association for the Meadowwood Park Ranch

Estates subdivision (“the subdivision”), located in Kaufman County, Texas. See

Plaintiff’s Original Petition (“Petition”) ¶¶ 9, 11, attached to Defendants’ Notice of

Removal. All of the lots in the subdivision contain deed restrictions that prohibit

property owners from building any structures aside from single family residences,

garages or guest houses. Id. ¶¶ 11-12. The defendants, Mark and Melissa Smith

(“the Smiths”), own a lot in the subdivision, and the defendant, Netport Heath, Ltd.

(“Netport”) (collectively, “the defendants”), is a wireless internet service provider. Id.

¶¶ 12-13. 

In order to obtain wireless internet service, the Smiths contracted with Netport

to construct a ninety-foot tall antenna on the Smiths’ property in the subdivision. Id.

¶ 14; Plaintiff and Third-Party Defendants’ Brief in Support of the Motion to

Remand (“Plaintiff’s Brief”) at 2. Meadowwood responded by filing suit in the

422nd District Court of Kaufman County to enforce the deed restrictions of the

subdivision in accordance with § 202.004(b) of the Texas Property Code.1

 Netport,

in turn, filed an answer with affirmative defenses, special exceptions and

counterclaims alleging, inter alia, that the deed restrictions in question are barred by

§ 207 of the Telecommunications Act of 1996 (“the Act”) and rules promulgated by

 

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the Federal Communication Commission (“the FCC”) in accordance therewith. See

Netport’s Original Answer, Counterclaim & Third-party Petition (“Netport’s

Answer”) ¶¶ 3.1, 4.1 and 7.1. Netport then removed this action to federal court

based on its allegations regarding § 207.

II. ANALYSIS

A. Legal Standard for Remand

Title 28 U.S.C. § 1441(a) permits removal of “any civil action brought in a

State court of which the district courts of the United States have original

jurisdiction.” Under this statute, “[a] defendant may remove a state court action to

federal court only if the action could have originally been filed in the federal court.” 

Aaron v. National Union Fire Insurance Company of Pittsburg, Pennsylvania, 876 F.2d

1157, 1160 (5th Cir. 1989), cert. denied, 493 U.S. 1074 (1990) (citations omitted). 

Removal jurisdiction must be strictly construed, however, because it “implicates

important federalism concerns.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th

Cir. 1997); see also Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir.

1988). Furthermore, “any doubts concerning removal must be resolved against

removal and in favor of remanding the case back to state court.” Cross v. Bankers

Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992); see also

Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941); Healy v. Ratta,

 

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292 U.S. 263, 270 (1934). The burden of establishing federal jurisdiction is on the

party seeking removal. Frank, 128 F. 3d at 921-22; Willy, 855 F.2d at 1164.

District courts have federal question jurisdiction over civil cases “arising under

the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; Frank,

128 F.3d at 922. In determining whether a claim arises under federal law, the wellpleaded complaint rule allows a plaintiff to be the “master to decide what law he will

rely upon” in pursuing his claims. The Fair v. Kohler Die & Specialty Company, 228

U.S. 22, 25 (1913); Beneficial National Bank v. Anderson, 539 U.S. 1, 6 (2003); Aaron,

876 F.2d at 1160-61. Therefore, where potential remedies exist under both state and

federal law, a plaintiff may choose to proceed only under state law and avoid federal

court jurisdiction. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Carpenter v.

Wichita Falls Independent School District, 44 F.3d 362, 366 (5th Cir.1995). 

“There is an exception to the well-pleaded complaint rule, though, if Congress

‘so completely pre-empt[s] a particular area that any civil complaint raising this select

group of claims is necessarily federal in character.’” Arana v. Ochsner Health Plan, 338

F.3d 433, 437 (5th Cir. 2003) (en banc) (quoting Metropolitan Life Insurance Company

v. Taylor, 481 U.S. 58, 63-64 (1987)), cert. denied, 540 U.S. 1104 (2004). Complete

preemption “‘recharacterizes’ preempted state law claims as ‘arising under’ federal law

for the purposes of . . . making removal available to the defendant.” McClelland v.

Gronwaldt, 155 F.3d 507, 516 (5th Cir. 1998); see also Johnson v. Baylor University,

 

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214 F.3d 630, 632 (5th Cir.), cert. denied, 531 U.S. 1012 (2000). By contrast,

“conflict” or “ordinary” preemption “arises when a federal law conflicts with state law,

thus providing a federal defense to a state law claim, but does not completely preempt

the field of state law so as to transform a state law claim into a federal claim.” Arana,

338 F.3d at 439. Accordingly, “defenses, including a federal statute’s preemptive

effect, do not provide a basis for removal.” PCI Transportation, Inc. v. Fort Worth &

Western Railroad Co., 418 F.3d 535, 543 (5th Cir. 2005) (emphasis in original).

B. Jurisdiction

In order for this court to exercise jurisdiction over Meadowwood’s claim under

a theory of complete preemption, Fifth Circuit precedent requires the defendants to

show: (1) the statute contains a civil enforcement provision that creates a cause of

action that both replaces and protects the analogous area of state law; (2) there is a

specific jurisdictional grant to the federal courts for enforcement of the right; and

(3) Congress intended the federal action be exclusive. See PCI Transportation, 418

F.3d at 543-44; see also Hoskins v. Bekins Van Lines, 343 F.3d 769, 775-76 (5th Cir.

2003). However, the defendants must also meet the preliminary requirement of

showing that the plaintiff’s claim is governed by the federal law at issue. See Howery

v. Allstate Insurance Company, 243 F.3d 912, 916 (5th Cir.) (requiring a defendant to

“at the very least, have alleged facts . . . that establish federal subject-matter

 

 Case 3:06-cv-00444-G Document 28 Filed 11/07/06 Page 5 of 8 PageID 235
2 Section 1.4000 also protects antennas of any size that are “used to

receive television broadcast signals.” 47 C.F.R. § 1.4000(a)(1)(iii). However,

Netport has alleged only that the antenna at issue in this case was used to “receive

and transmit fixed wireless signals.” See Netport’s Answer ¶ 7.1(b). 

3 Furthermore, § 1.4000(c) includes a proviso that limits the protections

of the regulation to those antennas used to transmit fixed wireless signals that are

affixed with a warning label providing information regarding potential radio

frequency safety hazards and references to the applicable FCC limits for radio

(continued...)

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jurisdiction”), cert. denied, 534 U.S. 993 (2001). Because the defendants fail to meet

this preliminary requirement, this case must be remanded to the state district court.

Nowhere does Meadowwood’s complaint mention the federal law under which

Netport has sought to remove this action. Therefore, subject matter jurisdiction may

only be premised on Netport’s Answer, in which Netport contends that this case

hinges on an FCC regulation that prohibits “local governmental and private

restrictions that impair the installation, maintenance or use of antennas covered by the

rule.” See Netport’s Answer at ¶ 7.1(b) (emphasis added). However, Netport fails to

show that the antenna complained of in this case falls within the provisions of the

relevant regulation -- 47 C.F.R. § 1.4000. 

Section 1.4000, in relevant part, forbids the restriction of antennas (1) that

transmit fixed wireless signals, and (2) that are one meter or less in diameter or

diagonal measurement.2

 47 C.F.R. § 1.4000(a)(1)(i)-(ii). Although Netport has

alleged satisfaction of the first requirement, it has failed to explain how § 1.4000

protects the ninety-foot tall antenna at issue in this case.3

 See Netport’s Answer

 

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3

(...continued)

frequency exposure. 47 C.F.R. § 1.4000(c). Netport has not alleged that the antenna

at issue contains such a label. 

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¶ 7.1(b); Plaintiff’s Petition ¶ 15; Plaintiff’s Brief at 3. Consequently, Netport has

failed to meet its burden of clearly alleging facts to demonstrate subject matter

jurisdiction. See Howery, 243 F.3d at 916. 

Because Netport has not clearly alleged that § 1.4000 is applicable to the

plaintiff’s cause of action, it has not satisfied its burden of demonstrating subject

matter jurisdiction, and the court need not determine whether § 1.4000 completely

preempts Meadowwood’s claims under the Texas Property Code. 

III. CONCLUSION

For the reasons set forth above, the plaintiff’s motion to remand this action to

the 422nd District Court of Kaufman County, Texas is GRANTED. The clerk

shall mail a certified copy of this memorandum opinion and order to the district clerk

of Kaufman County, Texas. 28 U.S.C. § 1447(c).

Because this court lacks subject matter jurisdiction to consider Hoback’s

motion to intervene, that motion is DENIED as moot without prejudice to its refiling

in the state district court. 

 

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SO ORDERED.

November 7, 2006.

 

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