IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAMUEL G. BREITLING AND §

JO ANN BREITLING, §

§

Plaintiffs, §

§

vs. § CIVIL ACTION NO. 3:14-cv-3322-M

§

LNV CORPORATION, ET AL., §

§

Defendants. §

§

______________________________________________________________________________

PLAINTIFF’S MOTION TO REMAND AFTER DETERMINATION OF FEDERAL

QUESTIONS SPECIFIC TO DENIAL OF DUE PROCESS AND EQUAL PROTECTION

OF LAW UNDER THE UNITED STATES CONSTITUTION

______________________________________________________________________________

Now come Plaintiffs, pro-se, and motion this court to remand our case back to the State District

Court after adjudicating the Federal Questions specific to Defendant Dale Tillery denying us our

rights to due process and equal protection of the laws under the Fifth and Fourteenth

Amendments to the Constitution of the United States of America and thereby depriving us of our

property.

We filed a petition as Plaintiffs in the State District Court. Defendants LNV Corporation (LNV)

and MGC Mortgage Inc. (MGC) with consent of Defendants Dovenmuehle Mortgage Inc. (DMI)

and Codilis & Stawiarski P.C. (C&S) filed a motion to remove to Federal Court. Defendant Dale

B. Tillery (Tillery) motioned the court to remand and we have objected to his motion.

We did not ―fraudulenty‖ enjoin Tillery to our complaint as claimed by Defendants LNV and

MGC. We filed two post judgment motions in the foreclosure action LNV brought against us in

the 134th

District court styled as: LNV Corporation vs. Samuel G. Breitling et al; Cause# DC-14-

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04053 in The District Court Dallas County Texas. Our motions to vacate a void order for

summary judgment favoring LNV is attached to our petition. We claimed that Tillery had

violated our rights to due process and equal protection of law by issuing an order for summary

judgment in favor of LNV against the preponderance of the evidence and against the rule of law.

Our motions were never adjudicated in that court.

LNV and MGC claim in their amended notice of removal that Federal Court is appropriate under

28 U.S.C. §§ 1331 and 1446. We disagree. We contend that the Defendants LNV and MGC

removed to the Federal Court because they knew this would place us as pro-se litigants in an

exceptionally disadvantaged position compared to them; and that they would be in a position to

once again thwart our efforts to be heard by a court on the merits of our case at an evidentiary

hearing. These defendants know the odds of our case being dismissed solely on procedural error

(common for pro-se litigants) are significantly higher in Texas Federal court than in State court.

Causes of action originating from property rights and foreclosure are typically considered cases

where State courts have exclusive jurisdiction. State courts almost always have the power to hear

cases involving events that took place in the state where the court sits or if defendants reside in

or are served with a summons and complaint in that state.

The gist of LNV and MGC cause for removal seems to center around our claims of TILA and

RESPA violations; and around our claims against Tillery. The focus of their memorandum of

law and allegations pertaining to Tillery are allegations of fraudulent joiner. Most of the case law

they cite to support their legal position and arguments pertain to either fraudulent joinder as a

means to defeat removal to Federal court based on diversity or on judicial immunity. LNV and

MGC‘s logic seems flawed because Federal jurisdiction based on diversity is not applicable to

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the case at hand whether or not Tillery is joined. (The Federal Court does have original

jurisdiction of our Constitutional claims against Tillery; but not on the remaining issues.)

Plaintiffs reside in Texas, Defendants LNV, MGC and C&S each have a corporate headquarters

located in Texas, and Defendant Tillery resides in Texas. The events giving rise to the cause of

action took place in Texas. It is axiomatic that diversity jurisdiction requires complete diversity

between plaintiffs and defendants. In other words, for diversity jurisdiction to exist, no plaintiff

may be a domiciliary of the same state as any defendant. Therefore diversity jurisdiction cannot

apply to this case.

Our addition of Tillery as a defendant is not fraudulent. He acted against his oath of office and

against the United States Constitution and, apparently with intent, to deny us our rights to due

process and equal protection of the laws; and in doing so he illegally sanctioned Defendant LNV

with a ―paper‖ order they then proceeded to use to deprive us of our property.

Tillery‘s reputation for dishonesty, lack of integrity and unlawful actions is not above reproach:

http://www.gavelbangers.com/judges/texas/trial-level/tillery/dale

Hon. Dale B. Tillery

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A word exists to describe when an attorney “gives good rulings only to attorneys that have

given him money and lunches and taken him out for drinks”; it is BRIBERY.

TEXAS PENAL CODE

TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION

CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE

Sec. 36.02. BRIBERY.

(a) A person commits an offense if he intentionally or knowingly offers, confers, or agrees to

confer on another, or solicits, accepts, or agrees to accept from another:

(2) any benefit as consideration for the recipient's decision, vote, recommendation, or

other exercise of official discretion in a judicial or administrative proceeding;

(3) any benefit as consideration for a violation of a duty imposed by law on a public

servant or party official; or

(e) An offense under this section is a felony of the second degree.

Our case is not the only case where Tillery has made arbitrary rulings (i.e. against the

preponderance of the evidence and against the rule of law). Tillery has a long history of actions

that raise questions about his ethical standards and his adherence to the professional code of

conduct for attorneys. A lawsuit initiated by Tillery and his law firm before he was elected to the

office of Judge has become well cited for demonstrating that a client may void a contingent fee

contract that violates section 82.065 by expressing his intent to do so before the attorney has

fully or substantially performed. Tillery & Tillery v. Zurich Ins. Co., 54 S.W.3d 356, 359 (Tex.

App.--Dallas 2001, pet. denied) (citing Sanes v. Clark, 25 S.W.3d 800, 805 (Tex. App.--Waco

2000, pet. denied)).

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Texas State judges have been found to have committed bribery; in fact the FBI has recently

indicted more than one Texas State judge for bribery and undue influence:

http://www.fbi.gov/sanantonio/press-releases/2011/sa041411.htm

“Former State District Court Judge Convicted of Accepting Bribes for Favorable Rulings

BROWNSVILLE, TX—The formal charges as well as the plea agreement and factual summary

executed by a former state district court judge resulting in his conviction for using his state court

as an illegal racketeering enterprise by soliciting and accepting bribes in his official capacity in

return for favorable judicial action have been unsealed, United States Attorney José Angel

Moreno announced today.‖

http://www.fbi.gov/sanantonio/press-releases/2013/former-judge-abel-limas-gets-72-months-in-

prison-for-taking-bribes

“Former Judge Abel Limas Gets 72 Months in Prison for Taking Bribes

U.S. Attorney‘s Office August 21, 2013

BROWNSVILLE, TX—Former 404th State District Judge Abel Corral Limas has been ordered

to prison following his conviction for racketeering, United States Attorney Kenneth Magidson

announced today. Limas pleaded guilty March 31, 2011.

http://www.fbi.gov/sanantonio/press-releases/2014/federal-grand-jury-indicts-former-texas-state-

judge-on-bribery-extortion-and-wire-fraud-charges

“Federal Grand Jury Indicts Former Texas State Judge on Bribery, Extortion, and Wire

Fraud Charges

Angus Kelly McGinty Allegedly Solicited and Accepted Bribes in Exchange for Issuing

Favorable Judicial Rulings

ALBUQUERQUE—A federal grand jury sitting in San Antonio, Texas, has indicted Angus

Kelly McGinty, 50, a former Texas state district court judge in Bexar County, Texas, on bribery,

extortion and wire fraud charges, announced Damon P. Martinez, U.S. Attorney for the District

of New Mexico, and Christopher Combs, Special Agent in Charge of the FBI‘s San Antonio

Division.‖

http://www.fbi.gov/sanantonio/press-releases/2013/federal-jury-convicts-austin-attorney-marc-

g.-rosenthal-in-connection-with-south-texas-bribery-scheme

“Federal Jury Convicts Austin Attorney Marc G. Rosenthal in Connection with South

Texas Bribery Scheme

U.S. Attorney‘s Office February 28, 2013

In Corpus Christi, a federal jury convicted 51–year-old Austin attorney Marc Garrett Rosenthal

of federal charges related to a bribery scheme in South Texas, announced United States Attorney

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Robert Pitman;, Federal Bureau of Investigation Special Agent in Charge Armando Fernandez,

San Antonio Division; Drug Enforcement Administration Special Agent in Charge Javier Pena,

Houston Field Division; and Brownsville Police Chief Carlos Garcia.‖

See Exhibit C for more FBI indictments of Texas Judges and other Texas State officials.

The FBI has been made aware of our experience in Tillery‘s 134th

District Court, and we are

encouraging others with information about Tillery to come forward and talk with the FBI about

they know. We are not making frivolous or fraudulent claims.

Federal courts are courts of limited jurisdiction. The two most significant categories are

commonly known as federal question and diversity jurisdiction. When a civil action is removed

solely under section 1441(a), all defendants who have been properly joined and served must join

in or consent to the removal of the action. 28 U.S.C. § 1446(b)(2)(A)

Federal jurisdiction may not exist over a federally created right of action when the controlling

substantive law is nonfederal. Wade v. Blue, 369 F.3d 407, 411 (4th Cir. 2004).

Most state courts of general jurisdiction are presumed to have jurisdiction over all civil actions

unless such jurisdiction is specifically prohibited. The burden of pleading and demonstrating

subject matter jurisdiction rests on the party invoking federal jurisdiction. Most lawsuits that can

be filed in federal district court can also be filed in state court. Federal courts have exclusive

jurisdiction only in a very few kinds of federal question cases, such as lawsuits involving

copyright violations, patent infringement, or federal tax claims. This means that plaintiffs in all

diversity jurisdiction cases and nearly all federal question cases have a choice of suing in federal

or state court. We chose the State District court because we know it and understand the

procedures there.

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As pro-se litigants we do not have access to the legal research materials available to counsel

representing LNV and MGC. We were unable to locate all the cases cited in their amended

notice of removal; however we can address those we were able to find.

LNV and MGC cite Getty Oil Corp v. Ins. Co of North Am., 841 F.2d 1254, 1261 (5th Cir. 1988)

in their memorandum of law to support their removal action, but this case is not similar to the

case at hand. In Getty was the key issue was diversity; that does not appear to be the key claim

for Federal jurisdiction made by LNV and MGC. However the case at hand is similar to Getty in

that the defendants LNV Corporation and MGC Mortgage Inc., apparently with the consent of

defendants DMI and C&S, seek to remove.

Quoting Getty: ―The burden of proving that complete diversity exists rests upon the party who

seeks to invoke the court's diversity jurisdiction. See Aetna Casualty and Sur. Co. v. Hillman,

796 F.2d at 775. In the present case, the burden was upon the defendants-appellees, who sought

to remove the case from state to federal court. But in removal cases involving allegations of

fraudulent joinder, the removing party also has the burden of proving the alleged fraud. Miller

Brewing, 663 F.2d at 549 (citing Yawn v. Southern Railway Co., 591 F.2d 312 (5th Cir.), cert.

denied, 442 U.S. 934,99 S.Ct. 2869, 61 L.Ed.2d 304 (1979)). In this case, we determine that these

burdens have not been met,…‖ The Getty case was remanded.

LNV and MGC cite Smith v. Estate of Wagner, No. H-06-02629, 2006 WL 2729282 at *5 (S.D.

Tex. Sept. 25, 2006) in their memorandum of law to support their removal action; we believe it

more appropriately supports our motion to remand that portion of our claims arising from

property rights and retaining our constitutionally based claims.

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Quoting Smith ―Certain Reinsurers removed to the Eastern District of Texas, Beaumont Division

on January 14, 2008.3 (Docket Entry No. 1). In the removal notice, the Reinsurers asserted that

because ‗arbitration agreements between citizens of foreign countries and citizens of the United

States are implicated,‘ federal-question jurisdiction exists under the New York Convention (9

U.S.C. § 201 et seq.) and the Panama Convention (9 U.S.C. § 301 et seq.). (Docket Entry No. 1

at ¶ 24). The Reinsurers also asserted that ‗[d]iversity jurisdiction is appropriate after the parties

are realigned to reflect their true interests in the lawsuit.‘ (Id. at ¶ 30).‖

Further quoting the Court in Smith: ―When a district court exercises jurisdiction over a removed

case, it has discretion to remand claims in which state law predominates. See Smith v. Estate of

Wagner, No. H-06-02629, 2006 WL 2729282, at *10 (S.D. Tex. Sept. 25, 2006) (“When a

separate and independent federal claim is joined with an otherwise non-removable claim, the

defendant may remove the entire case, but this court may remand „all matters in which [s]tate

law predominates.‟”) (quoting 28 U.S.C. § 1441(c)); see also U.S. Bank, N.A. v. City of Irving,

No. 3:06-CV-1805-G, 2007 WL 1073769, at *5 (N.D. Tex. Apr. 5, 2007) (“Though the court has

jurisdiction over U.S. Bank‟s equal protection and Fourth Amendment claims, this court, in [its]

discretion, finds that the state law claims predominate over these two federal claims. Thus, the

court will not exercise supplemental jurisdiction over the state law claims. In the interests of

comity, judicial economy, and convenience, the court remands the state law claims . . . [and] the

court retains only the plaintiff‟s equal protection claim and Fourth Amendment claim.”)

LNV and MGC cite Jernigan v. Ashland Oil Co., 989 F.2d 813, 815 (5th Cir. 1993) in their

memorandum of law to support their removal action; but this is again a case where the Court

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states: ―The sole issue before us is whether, by virtue of diversity, the district court possessed

subject matter jurisdiction over Jernigan's claim against Ashland Oil.‖

Quoting Jernigan: ―Once a case has been removed, the removing party bears the burden of

proving that the court has jurisdiction to hear the claim. Dodson v. Spiliada Maritime Corp., 951

F.2d 40, 42 (5th Cir. 1992). If the removing party alleges jurisdiction on the basis that non-

diverse parties have been fraudulently joined, then the removing party must prove the existence

of fraud. Carriere v. Sears, Roebuck and Co., 893 F.2d 98 (5th Cir.), cert. denied, 498 U.S. 817,

111 S.Ct. 60, 112 L.Ed.2d 35 (1990). To prove its allegation of fraud, Ashland Oil ‗must show

either that there is no possibility that the plaintiff would be able to establish a cause of action

against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's

pleadings of jurisdictional facts. ‗B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). …

In determining whether the joinder of parties was fraudulent, the district court ‗must evaluate all

of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues

of substantive fact in favor of the plaintiff.‘‖

Many similar cases were cited in LNV and MGC‘s amended notice to remove, and most were

actually remanded to State court.

When a district court exercises jurisdiction over a removed case, it has discretion to remand

claims in which state law predominates. See Smith v. Estate of Wagner, No. H-06-02629, 2006

WL 2729282, at *10 (S.D. Tex. Sept. 25, 2006) (―When a separate and independent federal

claim is joined with an otherwise non-removable claim, the defendant may remove the entire

case, but this court may remand ‗all matters in which [s]tate law predominates.‘‖) (quoting 28

U.S.C. § 1441(c)); see also U.S. Bank, N.A. v. City of Irving, No. 3:06-CV-1805-G, 2007 WL

Case 3:14-cv-03322-M-BN Document 24 Filed 10/15/14 Page 9 of 14 PageID 341

1073769, at *5 (N.D. Tex. Apr. 5, 2007) (―Though the court has jurisdiction over U.S. Bank‘s

equal protection and Fourth Amendment claims, this court, in [its] discretion, finds that the state

law claims predominate over these two federal claims. Thus, the court will not exercise

supplemental jurisdiction over the state law claims. In the interests of comity, judicial economy,

and convenience, the court remands the state law claims . . . [and] the court retains only the

plaintiff‘s equal protection claim and Fourth Amendment claim.‖).

Many of the cases cited in LNV and MGC‘s amended notice to remove pertain to judicial

immunity. It is unclear why they focused so much on this. Judges do not have immunity when

they act outside their judicial capacity or when they violate the Constitution.

In the following cases, courts have found that the judges acted outside of their judicial capacity

and were not entitled to immunity: Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d

555 (1988)(state court judge did not have absolute immunity from damages suit under S 1983 for

his decision to demote and dismiss a probation officer); Morrison v. Lipscomb, 877 F.2d 463

(6th Cir.1989)(state court judge was not entitled to judicial immunity in connection with order

declaring moratorium on issuance of writs of restitution from December 15 through January 2, as

judge was acting in administrative and not judicial capacity); King v. Love, 766 F.2d 962, 968

(6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985)(although setting

bond on an arrest warrant is a judicial act, the act of deliberately misleading the police officer

who was to execute the warrant about the identity of the person sought was nonjudicial); Sevier

v. Turner, 742 F.2d 262 (6th Cir.1984)(juvenile court judge's initiation of criminal prosecution

and civil contempt proceeding against father for child support in arrears constituted nonjudicial

acts); New Alaska Development Corporation v. Guetschow, 869 F.2d 1298 (9th

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Cir.1988)(receiver appointed by state court to manage business assets of an estate was entitled to

absolute derivative judicial immunity, but receiver was not absolutely immune from allegations

that he stole assets or slandered parties, as such alleged acts were not judicial); Harper v.

Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85

(1981)(holding a contempt proceeding and ordering plaintiff incarcerated were not judicial acts

where controversy that led to incarceration did not center around any matter pending before the

judge, but around domestic problems of plaintiff former wife who worked at the courthouse);

Harris v. Harvey, 605 F.2d 330 (7th Cir.1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63

L.Ed.2d 772 (1980)(allegedly repeated communications to the press and city officials which

were critical of police lieutenant, and the improper instigation of criminal proceedings against

the lieutenant by judge as part of a racial campaign to discredit lieutenant were not judicial acts).

Some Defendants urge that any act "of a judicial nature" entitles the Judge to absolute judicial

immunity. But in a jurisdictional vacuum, (that is, absence of all jurisdiction) the second prong

necessary to absolute judicial immunity is missing. Stump v. Sparkman, id., 435 U.S. 349.

The previously recognized "subjective" aspect of qualified or "good faith" immunity -- whereby

such immunity is not available if the official asserting the defense "took the action with the

malicious intention to cause a deprivation of constitutional rights or other injury," Wood v.

Strickland,420 U. S. 308, 420 U. S. 322

Government officials whose special functions or constitutional status requires complete

protection from suits for damages -- including certain officials of the Executive Branch, such as

prosecutors and similar officials, see Butz v. Economou,438 U. S. 478, and the President, Nixon

v. Fitzgerald, ante p. 457 U. S. 731 -- are entitled to the defense of absolute immunity. However,

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executive officials in general are usually entitled to only qualified or good faith immunity. The

recognition of a qualified immunity defense for high executives reflects an attempt to balance

competing values: not only the importance of a damages remedy to protect the rights of citizens,

but also the need to protect officials who are required to exercise discretion and the related public

interest in encouraging the vigorous exercise of official authority. Scheuer v. Rhodes,416 U. S.

232. Federal officials seeking absolute immunity from personal liability for unconstitutional

conduct must bear the burden of showing that public policy requires an exemption of that scope.

Pp. 457 U. S. 806-808.

"No state legislator or executive or judicial officer can war against the Constitution without

violating his undertaking to support it". Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S. 200,

216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,

404, 5 L. Ed 257 (1821)

By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual

(in his person). When a judge acts as a trespasser of the law, when a judge does not follow the

law, the Judge loses subject-matter jurisdiction and the judges' orders are not voidable, but

VOID, and of no legal force or effect. ... "when a state officer acts under a state law in a manner

violative of the Federal Constitution, he comes into conflict with the superior authority of that

Constitution, and he is in that case stripped of his official or representative character and is

subjected in his person to the consequences of his individual conduct. The State has no power to

impart to him any immunity from responsibility to the supreme authority of the United States."

Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 1687 (1974).

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Defendants urge that any act "of a judicial nature" entitles the Judge to absolute judicial

immunity. But in a jurisdictional vacuum (that is, absence of all jurisdiction) the second prong

necessary to absolute judicial immunity is missing. A judge is not immune for tortious acts

committed in a purely Administrative, non-judicial capacity. Stump v. Sparkman, id., 435 U.S.

349

"No man in this country is so high that he is above the law. No officer of the law may set that

law at defiance with impunity. All the officers of the government, from the highest to the lowest,

are creatures of the law and are bound to obey it." ... "It is the only supreme power in our system

of government, and every man who, by accepting office participates in its functions, is only the

more strongly bound to submit to that supremacy, and to observe the limitations which it

imposes on the exercise of the authority which it gives." U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct.

240, 261, 27 L. Ed 171 (1882)

Constitutionally and in fact of law and judicial rulings, state-federal "magistrates-judges" or any

government actors, state or federal, may now be held liable, if they violate any Citizen's

Constitutional rights, privileges, or immunities, or guarantees; including statutory civil rights. A

judge is not immune for tortious acts committed in a purely Administrative, non-judicial

capacity. Forrester v. White, 484 U.S. at 227-229, 108 S. Ct. at 544-545 (1987); Westfall

v.Erwin, 108 S. Ct. 580 (1987); United States v. Lanier (March 1997)

Our claims implicate Tillery as having violated a clearly established constitutional right of which

a reasonable person would have known, citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Tillery did so violate our constitutional rights to the benefit of Defendants LNV, MGC, DMI and

C&S; in that Tillery‘s unconstitutional acts against us deprived us of our property. The other

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defendants named in our petition all benefited financially from Tillery‘s violations of our

constitutional rights and as such any reasonable person would deduce they most likely conspired

with Tillery (i.e. paid Tillery a bribe to rule in their favor.)

THEREFORE we pray this court retain the Constitutional questions and remand the state law

claims.

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