BENJAMIN CHILDRESS v. JUSTIN HUDNALL (2026)

ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

In this case arising from an alleged arrest without probable cause, plaintiff Benjamin Childress sued multiple defendants in state court under 42 U.S.C. § 1983 and state law. Dkt. 3; see Dkt. 21 (operative complaint). Original defendant Grayson County Sheriff's Department removed the case to this court, Dkt. 1, and filed two motions to dismiss, Dkts. 4, 25. Childress moved to remand the case to state court, Dkt. 22, and for leave to amend his complaint, Dkt. 27. Defendant Justin Hudnall moved to quash process and to dismiss the claims against him for insufficient process. Dkt. 28.

The court will dismiss the motions to dismiss, deny the motion for leave to amend without prejudice, and grant the motion to quash to the extent it requests that relief. The court will recommend that the motion to remand be denied and that the motion to quash be denied to the extent it requests dismissal.

DISCUSSION

I. Motion to Remand

Childress asserts that the court lacks subject-matter jurisdiction and that the notice of removal was defective. Dkt. 22. Neither assertion is correct.

A. Jurisdictional basis

Two statutes authorize the lion's share of federal-court litigation: 28 U.S.C. § 1331, which gives federal courts jurisdiction over cases that arise under federal law, and 28 U.S.C. § 1332, which establishes federal courts' “diversity” jurisdiction. See Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 26 (2025). Jurisdiction exists under § 1331 “when federal law creates the cause of action asserted.” Gunn v. Minton, 568 U.S. 251, 257 (2013). Jurisdiction exists under § 1332 when there is “complete diversity” of the opposing parties' citizenships, MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019), and more than $75,000 is at stake, 28 U.S.C. § 1332(a). When the court has original jurisdiction under one of those provisions, it also generally has supplemental jurisdiction over “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” Id. § 1367(a); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (explaining that supplemental jurisdiction exists over claims that arise from the same “nucleus of operative fact” as the claims over which a court has original jurisdiction).

Here, the relevant font of federal jurisdiction is § 1331, not § 1332. As Childress's operative complaint explains,

[t]his Court has subject-matter jurisdiction including but not limited to the federal-rights claims pursuant to 28 U.S.C. § 1331 (federal question) because Plaintiff alleges violations of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution ․ This Court also has supplemental jurisdiction over the state-law claims.

Dkt. 21 at 2. Because the operative complaint asserts a claim under 42 U.S.C. § 1983 and Childress's state-law claims are based on the same facts as his federal claim, id. at 9–12, federal-question jurisdiction exists under § 1331, and supplemental jurisdiction exists under § 1367.

Childress argues that, even if that is true, remand is appropriate because his federal claim is only “incidental” to his “core claims,” which arise under state law. Dkt. 22 at 5. But as long as a § 1983 claim remains pending, the court will presumably exercise jurisdiction. See Cooper v. City of Dallas, No. 3:13-cv-1330-N-BK, 2013 WL 4675665, at *2 (N.D. Tex. Aug. 30, 2013); Bernard v. Albertsons Food & Drug, No. 2:02-cv-03771-SSV, 2003 WL 549049, at *1 (E.D. La. Feb. 24, 2003).

True, a court

may decline to exercise supplemental jurisdiction over a claim under [§ 1367(a)] if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c), and when considering whether to relinquish jurisdiction under that provision, a court may also consider “the common law factors of judicial economy, convenience, fairness, and comity,” Enochs v. Lampasas County, 641 F.3d 155, 159 (5th Cir. 2011); see Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008) (noting that “no single factor is dispositive”). But none of Childress's claims, which are premised on federal rights, raises a novel or complex issue of state law; his claims are interrelated, and the state-law claims do not predominate over the federal-law claims; the court has not dismissed Childress's federal-law claims; no exceptional circumstances are apparent; and the common-law factors do not favor a relinquishment of jurisdiction. The court will therefore exercise supplemental jurisdiction over Childress's state-law claims. See Cooper, 2013 WL 4675665, at *3.

B. Notice of removal

Childress challenges the notice of removal, asserting that it “contains no statement of grounds for removal” or “proof of service on the state court” and “does not specifically indicate the nature of the federal question at issue.” Dkt. 22 at 3. He also argues that the notice of removal “indicates that citation and service on Defendant Justin Hudnall are pending, which means the removal was premature under 28 U.S.C. Section 1446 since all defendants have to join in the removal,” adding that removal violates the forum-defendant rule, codified in § 1441(b)(2). Id. at 4; see 28 U.S.C. § 1441(b)(2) (providing that “[a] civil action otherwise removable solely on the basis of the jurisdiction under [§ 1332(a)] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought”). Each of those arguments fails.

The notice of removal explains the ground for removal: Childress's § 1983 claim. Dkt. 1 at 2. It also certifies that it was served on Childress, id. at 4, and Childress's own motion to remand reflects that the state court was notified, Dkt. 22 at 10–12, as § 1446(d) requires. Further, § 1446(b)(2)(A) requires only the consent of the “defendants who have been properly joined and served.” At the time of removal, Justin Hudnall had not been served, see Dkt. 20, so his consent was unnecessary. And the forum-defendant rule applies only to removal on the basis of diversity jurisdiction, not federal-question jurisdiction. 28 U.S.C. § 1441(b)(2); Curtis v. BP Am., Inc., 808 F. Supp. 2d 976, 982 (S.D. Tex. 2011).

II. Motions to dismiss

Childress's state-court petition named three defendants: Justin Hudnall; the City of Sherman, Texas; and the Grayson County, Texas, Sheriff's Department. Dkt. 3. After removal, the sheriff's department moved to dismiss, arguing that it is not a separate legal entity subject to suit. Dkt. 4; see Darby v. Pasadena Police Dep't, 939 F.2d 311, 313–14 (5th Cir. 1991) (holding that, unlike a city, a police department is not a jural entity that can be sued). But Childress subsequently amended his complaint to remove the sheriff's department as a defendant. Dkt. 21. That amendment, filed with leave of court, Dkt. 14, mooted the motion to dismiss.

The sheriff's department nevertheless filed another motion to dismiss seeking to confirm that Childress's claims against it have been dismissed. Dkt. 25. That motion was unnecessary. “An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading,” King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994), which the amended complaint here does not. So the moment the operative complaint was filed, the sheriff's department “[wa]s no longer part of this lawsuit.” Canal Ins. Co. v. Coleman, 625 F.3d 244, 246 n.2 (5th Cir. 2010).

III. Motion for Leave to Amend

Childress moved for leave to file a second amended complaint. Dkt. 27. But he did not file a proposed second amended complaint alongside that motion. The court's local rules require that “[m]otions for leave to file a document should be filed separately and immediately before the document for which leave is sought.” Loc. R. CV-7(k). Because Childress did not comply with that rule, his motion for leave to amend will be denied. He may, however, refile it alongside a proposed second amended complaint.

IV. Motion to Quash

Hudnall moved to quash the summons served on him and to dismiss the claims against him for improper process. Dkt. 28; see Dkt. 32 (affidavits of service). Part of that argument has merit.

“A summons must be served with a copy of the complaint,” Fed. R. Civ. P. 4(c)(1), and must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

Id. R. 4(a)(1).

Hudnall correctly notes that the summons served on him was not signed by the clerk and does not bear the court's seal. Dkt. 28 at 2; see Dkt. 28-1 at 1. He also notes that the summons was served with a copy of Childress's superseded state-court petition, not the operative complaint. Dkt. 28 at 2; see Dkt. 28-1 at 3–14. He is correct that process was improper, so the summons will be quashed. Childress must amend the summons and re-serve Hudnall.

But “[d]efects in ․ summonses ‘are not fatal if they do not prejudice the defendant.’ ” Pharmerica, Inc. v. DSJ Healthcare, Inc., No. 4:99-cv-242, 2010 WL 4962974, at *3 (E.D. Tex. Oct. 22, 2010) (Mazzant, J.) (quoting Warfield v. Byron, 137 F. App'x 651, 655 (5th Cir. 2005)), report and recommendation adopted, 2010 WL 4955724 (E.D. Tex. Dec. 1, 2010). Beyond conclusory statements that he was prejudiced, Hudnall offers no argument on that point. So to the extent Hudnall's motion requests dismissal for improper process, it should be denied.

CONCLUSION

It is ORDERED that:

1) the first motion to dismiss, Dkt. 4, is DISMISSED as moot;

2) the second motion to dismiss, Dkt. 25, is DISMISSED as unnecessary;

3) the motion for leave to amend, Dkt. 27, is DENIED WITHOUT PREJUDICE;

4) the motion to quash, Dkt. 28, is GRANTED to the extent it requests that process be quashed, and the defective summons served on Hudnall is QUASHED; and

5) within 30 days, Childress serve an amended summons on Hudnall with a copy of the operative complaint.

It is RECOMMENDED that:

1) the motion to remand, Dkt. 22, be DENIED; and

2) the motion to quash, Dkt. 28, be DENIED to the extent it requests dismissal.

* * *

Within 14 days after service of this report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1).

A party is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report will bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds; 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).

So ORDERED and SIGNED this 16th day of April, 2026.

Bill Davis United States Magistrate Judge