Suarez v. U.S. Bank, N.A., as Trustee, No. 5:2019cv01339 - Document 18 (W.D. Tex. 2020)
Court Description: ORDER GRANTING IN PART/DENIED IN PART re 4 Motion to Dismiss for Failure to State a Claim and Motion for Sanctions filed by U.S. Bank, N.A., as Trustee, Plaintiff Felix Suarez is ENJOINED from filing any civil lawsuit in the San Antonio Division of the US District Court for the Western District of Texas unless he first seeks leave and obtains permission from a district judge in this district. Before filing any new lawsuit in this division,Plaintiff must file a motion for leave to f ile the action, along with a proposed complaint, which motion shall be randomly assigned to a Judge in the division for disposition. It is further Ordered that Plaintiffs counsel is ORDERED to pay $2,500 in attorneys fees to Defendant. Signed by Judge Xavier Rodriguez. (wg)
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undless and filed for purposes of either harassment or delay. 8 6 Though the Court uses its inherent power to issue sanctions, the Court also finds Texas Rule of Civil Procedure 13 to be an appropriate vehicle for the imposition of such sanctions. That rule, which governs even cases removed to federal court, see Wesolek v. Layton, No. H-12-3210, 2014 WL 1030176, at *12 (S.D. Tex. Mar. 14, 2014), requires a court to find that the state court pleading was groundless and brought either in bad faith or for purposes of harassment. TEX. R. CIV. P. 13. “Groundless” means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Harrison v. Harrison, 363 S.W.3d 859, 863 (Tex.App.—Houston [14th Dist.] 2012, no pet.). Plaintiff makes no argument—and indeed cannot make any such argument— that his claims are now viable despite having been dismissed, repeatedly, by prior court orders, and when neither the facts nor the law have changed. Plaintiff’s response to Defendant’s motion for sanctions does not respond to the claim for attorney’s fees. Rather, Plaintiff’s response is limited to the scope of any pre-filing injunction the Court may impose. See docket no. 17. 7 In an identical suit brought by Plaintiff’s wife, Joyce Suarez, Judge Ezra dismissed the lawsuit, finding, in part, that because no foreclosure sale occurred, Mrs. Suarez failed to allege a violation of § 51.002. Suarez, 2015 WL 7076674, at *3 (“Plaintiff has not made a claim that a subsequent foreclosure sale has occurred. Accordingly, Plaintiff has not made a claim pursuant to Texas Property Code § 51.002 upon which relief can be granted.”). 8 6 Plaintiff’s breach of contract claim is also groundless; in Plaintiff’s second suit, Judge Biery granted summary judgment on that claim “because there was no valid and enforceable loan modification agreement between the parties.” Docket no. 4-5 at 4. It is clear that Plaintiff’s purpose in filing these successive suits is to prevent the foreclosure of the property, but the Fifth Circuit has warned against “gaming the system” to prolong possession of property in the face of foreclosure through the filing of meritless lawsuits, warning that such “machinations to…delay foreclosure proceedings” merit sanctions. See Germain v. US Bank, N.A., 920 F.3d 269, 277–78 (5th Cir. 2019).9 Second, the Court finds that a pre-filing injunction is appropriate, though such an injunction shall be limited to Plaintiff’s re-filing in the Western District of Texas and not, as Defendant seeks, an injunction extending to state court. Through litigation related to this property as well as other properties, Plaintiff has a clear history of filing harassing and duplicative lawsuits without a good faith basis, and those filings have imposed significant burdens on this Court and others; lesser sanctions would not adequately deter his conduct. Baum, 513 F.3d at 189. Accordingly, the Court finds a pre-filing injunction to be appropriate. Though the Court limits the pre-filing injunction to the Western District of Texas, the Court reminds Plaintiff that “an injunction may be modified to impose more stringent requirements on a [party] when the original purposes of the injunction are not being fulfilled in any material respect.” Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 503 (5th Cir. 1980). CONCLUSION Defendant’s Motion for Sanctions (docket no. 4) is GRANTED IN PART and DENIED IN PART. Plaintiff Felix Suarez is ENJOINED from filing any civil lawsuit in the San Antonio Division of the United States District Court for the Western District of Texas unless he first seeks leave and Plaintiff’s other lawsuits related to a different property are further indicative of Plaintiff’s use of judicial proceedings to “game the system” to prevent the foreclosure of his and his wife’s properties. 9 7 obtains permission from a district judge in this district. Before filing any new lawsuit in this division, Plaintiff must file a motion for leave to file the action, along with a proposed complaint, which motion shall be randomly assigned to a Judge in the division for disposition. The Clerk is instructed to not accept any new lawsuit filed by Felix Suarez in this district unless and until such motion is filed and granted. Aware of Plaintiff’s pattern of filing in state court only to have Defendant remove to this Court, the Court WARNS Plaintiff—and Plaintiff’s counsel— that further frivolous filings in any future filed or removed case may also result in the imposition of further monetary and non-monetary sanctions. Finally, Plaintiff’s counsel is ORDERED to pay $2,500 in attorney’s fees to Defendant.10 It is so ORDERED. SIGNED this 14th day of April, 2020. XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE The Court finds it appropriate to impose the sanctions here on Plaintiff’s counsel, who displays a long history of filing foreclosure lawsuits—both in this division, district, and beyond— in which he follows a familiar pattern: bringing the lawsuit in state court, upon which the defendant removes to federal court and files a motion to dismiss. As here, Plaintiff then voluntarily withdraws that lawsuit and re-files in state court, upon which the defendant—again—removes to this court and files a motion to dismiss on res judicata grounds, upon which Plaintiff’s counsel either again voluntarily withdraws or fails to respond or otherwise prosecute the case. See, e.g. Martell v. Wells Fargo Bank, No. 1:18-CV-280-RP (voluntarily dismissed and re-filed in state court; No. 1:18-CV-1020-RP (dismissed for failure to prosecute after defendant files motion to dismiss on res judicata grounds). Plaintiff’s counsel repeatedly files the same form-pleading to prevent a foreclosure sale, and it is consistently dismissed for the same reason: the failure to state a claim. See, e.g. Lewis v. U.S. Bank, N.A., No. 1:17-CV-1162-RP, 2018 WL 3544797 (W.D. Tex. July 3, 2018). 10 8
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