DWOP: Case was not properly removed to federal court

Rhett Webster Pease v. First National Bank, Giddings, Texas; and Lee County Tax Assessor Collector, No. (Tex.App. - Austin, Feb. 21, 2008)(Opinion by Justice Pemberton ) (appeal dwopped) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Rhett Webster Pease v. First National Bank, Giddings, Texas; and Lee County Tax Assessor Collector
Appeal from 335th District Court of Lee County
DISMISSED FOR WANT OF PROSECUTION

M E M O R A N D U M O P I N I O N

On March 7, 2007, appellant Rhett Webster Pease filed a notice of appeal from the district court's order granting partial summary judgment in favor of appellee First National Bank, Giddings, Texas. On May 15, 2007, this Court notified Pease that the clerk's record had not been timely filed. We requested that Pease submit a status report regarding this appeal. On May 29, 2007, Pease filed a status report stating that he had "removed this action to federal court" and asking us to abate this appeal "until such time as it is remanded." Pease did not file a Notice of Removal. See 28 U.S.C.S. § 1446(d). On June 4, 2007, we informed Pease that notice of removal was required before we would abate his appeal.

In response to our letter, Pease sent this Court a "Plaintiff's Notice of Removal and Joinder" in an action filed in the United States District Court for the District of Columbia styled "Rhett Webster Pease v. Office of Child Support Division." On December 12, 2007, this Court informed Pease that this document did not comply with the removal requirements of section 1446. We further informed Pease that if we did not receive proper documentation related to the removal of this cause, or proof of designation of the Clerk's Record and payment of same, by December 28, 2007, we would dismiss his appeal for want of prosecution. See Tex. R. App. P. 37.3(b).

On December 27, 2007, Pease filed a copy of the "Report and Recommendation of the United States Magistrate Judge" in the federal action styled "Crae Robert Pease, Plaintiff v. First National Bank, Giddings; Billy Morgan; T. Mark Rogstadt; Reva Towslee-Corbett; and Rodney Meyer, Defendants." The report indicates that Pease has filed related but separate actions in state and federal court. Thus, there has been no "removal" of this cause to federal court. See 28 U.S.C.S. § 1446(a).

On January 4, 2008, we instructed Pease that he must provide this Court with proof of designation of the Clerk's Record and payment of same on or before Monday, January 14, 2008, and that failure to do so would result in the dismissal of this appeal for want of prosecution. The deadline has passed, and we have not received a response from Pease. We have received confirmation from the district clerk that Pease has neither designated nor paid for the Clerk's Record. Therefore, we dismiss this appeal for want of prosecution.
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Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 21, 2008