Green v. JPMorgan Chase Bank, N.A., ND Texas

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David A. Szwak
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Green v. JPMorgan Chase Bank, N.A., ND Texas

Post by David A. Szwak »

4. Declaratory and Injunctive Relief.—The Declaratory Judgment Act (“DJA”) FN12 is a procedural device: it creates no substantive rights and requires the existence of a justiciable controversy. See Lowe v. Ingalls Shipbldg., 723 F.2d 1173, 1179 (5th Cir.1984); see Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). Thus, the DJA can provide no relief to a plaintiff unless a justiciable controversy exists between the parties. See Kazmi v. BAC Home Loans Servicing, L.P., No. 4:11–CV–375, 2012 WL 629440, at *15 (E.D.Tex. Feb. 3, 2012); Turner v. AmericaHomeKey Inc., No. 3:11–CV–0860–D, 2011 WL 3606688, at *5 (N.D.Tex. Aug. 16, 2011) (explaining that DJA is “merely a vehicle that allows a party to obtain an early adjudication of an actual controversy arising under other substantive law”). Because the Court grants summary judgment to the MSJ Defendants on all of Green's underlying cause of action against them, no actual controversy between Green and the MSJ Defendants remains. The MSJ Defendants are thus entitled to summary judgment on Green's claim for declaratory relief.FN13


FN12. Removal from state to federal court, in effect, converts a state court declaratory judgment action into one under the DJA. See, e.g., Turner v. AmericaHomeKey, Inc., No. No. 3:11–CV–0860–D, 2011 WL 3606688, at *5 n. 11 (N.D.Tex. Aug. 16, 2011); Morrice Logistics, Ltd. v. Intransit Inc., No. EP–10–CV–417–KC, 2011 WL 1327397, at *4 n. 1 (W.D.Tex. Apr. 5, 2011).



FN13. Green asserts for the first time in her response to the MSJ Defendants' motion that she is entitled to a declaratory judgment that JPMC did not comply with the terms of the Deed when it sent Green a notice that it was accelerating the Note's maturity date. “A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir.2005) (citing Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir.1990)). Because Green did not assert this claim in her amended complaint, the Court declines to consider it.



[34] Headnote Citing References To prevail on a claim for injunctive relief in federal court, a plaintiff must show, among other things, “a substantial likelihood of success on the merits.” DSC Comm. Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996). Because no justiciable controversy remains between Green and the MSJ Defendants, Green cannot succeed on the merits of any of her claims. *865 She is thus not entitled to injunctive relief, and the MSJ Defendants deserve summary judgment as to this claim, too.

Green v. JPMorgan Chase Bank, N.A.
937 F.Supp.2d 849
N.D.Tex.,2013.
April 08, 2013
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
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