This case has been referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(l). ECF No. 14. Pending before the court are numerous motions.

The court recommends that Plaintiffs motions to remand, ECF No. 8, and for preliminary injunction, ECF No. 9, be DENIED. All of Plaintiffs other pending motions, ECF Nos. 20, 21, 23, 26, are DENIED.

Defendants’ motion to consolidate, ECF No. 19, is GRANTED, and Defendant’s motion to declare Plaintiff a vexatious litigant, ECF No. 29, is DENIED without prejudice.

1.     Background

Julius Lainunn North filed suit in state court against Bonial & Associates, P.C., and Idaho Housing and Finance Association.

ECF No. 1-5.

He did not actually file a formal petition in state court, but in a motion seeking a preliminary injunction filed on June 13, 2024, North sought to forestall foreclosure on real property at 22127 Nobles Crossing Drive, Spring, Texas.

Id. at 2.

One of the causes of action he raises is under the Federal Fair Debt Collection Practices Act (FDCPA).

Id. at 3 (citing 15 U.S.C. § 1692e).

He alleges that the “foreclosure attempt constitutes harassment and false representation under the Fair Debt Collection Practices Act.”

Id.

Defendants removed the case to this court on June 24, 2024, on the basis of federal question jurisdiction, citing North’s reliance on the FDCPA.

ECF No. 1 at 1.

Previously, on June 14, 2024, North filed another state lawsuit against Idaho Housing and Finance Association, but not Bonial & Associates. No. 24-CV-3010 (S.D. Tex. Aug. 12, 2024), ECF No. 1.

In that case, North raises virtually identical claims with respect to the same real property as he raises in this case.

Id., ECF No. 1-5 at 3.

Idaho Housing removed that case to federal court as well.

Id., ECF No. 1.

The case has now been assigned to Judge Eskridge who has referred the case to the undersigned for full pretrial management.

Id., ECF No. 7.

After North filed numerous motions in this case, Judge Eskridge held a hearing.

ECF No. 10.

The court construed North’s “Opposition to Defendant’s Motion to Transfer Venue,” ECF No. 8 to be a motion to remand and deferred ruling pending a response from Defendants.

The court disposes of that motion below.

Judge Eskridge also deferred ruling on North’s motion for preliminary injunction pending response from Defendants.

Relevant to the motion for preliminary injunction, Judge Eskridge made findings and denied North’s motion for temporary restraining order.

Judge Eskridge found that North is not likely to succeed on the merits in this case because, among other things, the FDCPA does not permit the injunctive relief North seeks.

Judge Eskridge also concluded that North is not likely to suffer irreparable harm absent a temporary restraining order, because money damages are an available remedy, he is no longer the owner of the real property at issue, and he is not without a place to live were the foreclosure to go forward.

ECF No. 10.

North has now filed several motions.

He seeks remand of this case to state court,

sanctions against and disqualification of opposing counsel,

and a preliminary injunction.

Defendants seek to have North declared a vexatious litigant and seek that North be required to post security before the case can proceed, absent which, Defendants seek dismissal.

The court considers each of North’s and Defendants’ pending motions in turn.

2.      Motion to Remand

This court has jurisdiction in cases that “aris[e] under the Constitution, laws or treaties of the  United States.” 28 U.S.C. § 1331.

The court will apply the “well-pleaded complaint” rule in evaluating jurisdiction.

That is, “(a] federal question exists only [in] those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.”

Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008) (citation and internal quotation marks omitted).

“In federal question cases … ‘where the complaint … is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions …  must entertain the suit.”‘

Southpark Square Ltd v. City of Jackson, 565 F.2d 338, 341 (5th Cir. 1977) (quoting Bell v. Hood, 327 U.S. 678, 681-82 (1946)).

The two exceptions are where the federal question “clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.”

Id. (quoting Bell,327 U.S. at 681-82).

But the “jurisdictional issue here is entirely separate fr01n the question□whether the complaint states a claim on which relief can be granted.”

Id. at 343 n.7.

“Although a federal question substantial enough to confer jurisdiction but not substantial enough to state a cause of action is difficult to conceive, the doctrine is well established.”

Id. (citing Wheeldin v. Wheeler, 373 U.S. 647 (1963)).

Defendant’s removed the case because North is seeking relief under the Federal Fair Debt Collection Practices Act.

ECF No. 1.

Judge Eskridge also concluded that North’s state court pleadings “appear to assert a claim under the Federal Debt Collection Practices Act, 15 U.S.C. § 1992e (pertaining to false and misleading representations).”

ECF No. 10 at 2.

The court agrees.

In his state court filings, North cites the FDCPA and states that the “foreclosure attempt constitutes harassment and false representation under the [Act].”

ECF No. 1-5 at 3; see also ECF No. 1-6 at 3 (same).

Thus, North seeks relief under federal law and his request for relief is not made solely for the purpose of obtaining jurisdiction.

The court has jurisdiction.

The motion to remand, ECF No. 8, should be DENIED.

3.      Motion to Consolidate

Defendants have moved to consolidate Civil Action No. 24- CV-3010 (S.D. Tex. Aug. 12, 2024), and this action into a single civil action.

Civil Action No. 24-CV-3010 was brought by North against Idaho Housing and Finance Association, but not Bonial & Associates, and involves virtually identical claims with respect to the same real property as he raises in this case.

North has not responded to the motion, so it is deemed unopposed.

See S.D. Tex. L.R. 7.4.

Because this action and Civil Action No. 24-CV-3010 involve common questions of law and fact, consolidation is appropriate.

Fed. R. Civ. P. 42(a)(2).

Both cases will be consolidated into a single action under the instant cause number.

4.      Motion for Preliminary Injunction

“A preliminary injunction’s purpose is to preserve the status quo, prevent irreparable injury to the parties, and ‘preserve the court’s ability to render a meaningful decision’ after a trial on the merits.”

Hardy Way, LLC v. TM Perfwnes Wholesale, Inc., No. CV H-10-2735, 2010 WL 11579798, at *2 (S.D. Tex. Aug. 31, 2010)

(quoting Meis v. Sanitas Serv. Corp., 511 F.2d 655, 656 (5th Cir. 1975)).

A request for preliminary relief that “goes well beyond simply maintaining the status quo …  is particularly disfavored, and should not be issued unless the facts and law clearly favor the 1noving party.”

Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).

To secure a preliminary injunction, a plaintiff must establish:

(1) a substantial likelihood of success on the merits,

(2) a substantial threat of irreparable injury if the injunction is not issued,

(3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted,

and

(4) that the grant of an injunction will not dissei·ve the public interest.

Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011)

(quoting Byrum, v. Landreth, 556 F.3d 442, 445 (5th Cir. 2009)).

“The failure to meet even one of the four elements requires the Court to deny the requested injunctive relief.”

Williams v. Catoe, No. 6:17CV627, 2020 WL 6948996, at *1 (E.D. Tex. Sept. 29, 2020)

(citing Enter. Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985)), adopted by No.6:17-CV-627-JDK-KNM, 2020 WL 6940925 (E.D. Tex. Nov. 24, 2020).

The elements for obtaining a temporary restraining order are identical to those required for obtaining a preliminary injunction.

Whole Woman’s Health v. Paxton, 264 F. Supp. 3d 818, 818 (W.D. Tex. 2017).

Judge Eskridge already denied North’s application fo1· a temporary restraining order.

ECF No. 10.

Judge Eskridge found that North failed to show a likelihood of success on the merits because the FDCPA does not allow the injunctive relief North seeks.

Id. at 2.

North also conceded he is in arrears on his mortgage and is unable to make up the amount he is in arrears.

Id.

Judge Eskridge also found that North failed to show that he would suffer irreparable injury absent injunctive relief.

Id.

North failed to show that money damages are not an adequate remedy or that he would be without a dwelling in the event of a foreclosure.

Id.

North’s Motion for Preliminary Injunction, ECF No. 9, adds no facts or arguments to those already presented in his “Motion for Emergency Hearing to Stop Foreclosure,” ECF No. 2, which Judge Eskridge construed as a n1otion for temporary restraining order.

North has presented nothing beyond that which was already before Judge Eskridge when the temporary restraining order was denied.

The court the1·efore recommends that the Motion for Preliminary Injunction be DENIED.

5.      Motion for Sanctions and to Disqualify

North has filed two motions for sanctions against Elizabeth Hayes, counsel for Defendants.

ECF Nos. 20, 23.

He also filed two motions to disqualify Ms. Hayes.

ECF Nos. 21, 26.

The motions state in general and conclusory terms that Ms. Hays has engaged in “unethical conduct, 1nisrepresentations to the court, and facilitating fraudulent activities by her clients.”

ECF No. 23 at 1.

He also complains that Hayes has used derogatory terms toward him.

That is, she refers to him as a “sovereign citizen.”

Id.

North also complains that Hayes has denied her client’s alleged wrongdoing.

Id.

He goes on to allege that Hayes “allowed her clients to file a foreclosure notice while litigation was ongoing, in direct violation of legal and ethical standards.”

Id. at 4.

North further complains that Hayes has ignored North’s emails and “kept him in the dark regarding important developments in the case.”

Id.

In his motions to disqualify Hayes, North points to a number of factual disagreements between the parties and characterizes them as misrepresentations.

ECF No. 26 at 2.

North has not provided any evidence to support his allegations.

Most of what he cites appears to be complaints about a lawyer representing her client’s litigation position.

The court does not see on the docket sheet in this case any evidence that Ms. Hayes has committed misconduct of any kind that would warrant sanctions or require her to be disqualified from representing her clients.

The motions to disqualify and for sanctions, ECF Nos. 20, 21, 23, 26, are DENIED.

6.      Motion to Declare North a Vexatious Litigant

Defendants seek to have the court declare North a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code (TCPRC).

ECF No. 29.

In Texas state courts, the procedural mechanism for dismissal on the pleadings does not exist as it does under Federal Rule of Civil Procedure 12.

Chapter 11 of the TCPRC provides a mechanism for controlling filings by those considered to be vexatious litigants.

Under TCPRC § 11.051, a defendant may file a motion for the court to determine that the plaintiff is a vexatious litigant and to require that the plaintiff furnish security.

TCPRC § 11.054 sets out the criteria for finding a plaintiff to be vexatious.

There are three separate sets of criteria for finding a plaintiff to be vexatious, but all three have a preliminary requirement that the defendant show “that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant.”

TCPRC § 11.054.

The code also allows the court to dismiss the plaintiffs case if “a plaintiff ordered to furnish security does not furnish the security within the time set by the order.”

TCPRC § 11.056.

The court notes at the outset that jurisdiction in this case is predicated on a federal question.

Defendants do not explain how or why a state procedural rule should be applied in federal court in a case presenting a federal question.

Moreover, the foregoing rules appear to be in direct conflict with the Federal Rules of Civil Procedure-Rule 12, in particular.

Under Rule 12, a plaintiff is required to plead a “plausible” cause of action, not one that has a “probability” of success.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The federal rules also do not contain any requirements for a plaintiff to post security.

Even in a diversity case, Federal courts generally may not apply state procedural rules that

1) answer the same question as a state law or rule,

and

2) the federal rule does not violate the Rules Enabling Act.

Kloche v. Watson, 936 F.3d 240, 244-45 (5th Cir. 2019)

(refusing to apply the Texas Anti-SLAPP statute in federal court because it required plaintiffs to show “a likelihood of success on the merits,” which created an additional procedural requirement not found in the federal rules).

The court need not delve into the analysis that might be required to decide whether Chapter 11 of the TCPRC could or should be applied in Federal Court.

The issue has not been, and need not be, briefed.

As is discussed in the Conclusion and Orders section below, Defendants will be given an opportunity to file either an answer or a Rule 12 motion.

When the case is fully and finally disposed of on the merits, and if the merits are determined against Mr. North, the court will entertain a motion seeking a pre­ suit injunction under 28 U.S.C. § 1651.

Defendants’ Motion to Declare Plaintiff a Vexatious Litigant, ECF No. 29, is therefore DENIED without prejudice to re-filing under 28 U.S.C. § 1651 after the merits of the case have been determined.

7.      Conclusion and Orders

The court recommends that Plaintiffs motion to remand, ECF No. 8 be DENIED, and that Plaintiffs Motion for Preliminary Injunction, ECF No. 9, be DENIED.

Defendants’ Motion to Consolidate, ECF No. 19, is GRANTED.

This action and Civil Action No. 24-CV-3010 (S.D. Tex.) are consolidated into a single action under the instant cause number.

Plaintiffs Motions for Sanctions and to Disqualify, ECF Nos. 20, 21, 23, 26, are DENIED.

Defendant’s Motion to Declare Plaintiff a Vexatious Litigant is DENIED without prejudice.

Defendants shall consider ECF No. 1-5 at pp. 2-3 and ECF No. 1-6 at pp. 2-3, together, to be North’s live pleading.

Defendants shall file an answer or motion under Rule 12 by October 25, 2024.

North’s response to Defendants’ Rule 12 motion, if any, is due on or before November 8, 2024.

Defendants 1nay reply by November 15, 2024.

The court will take any motions under advisement and will set hearings as necessary.

The parties have fourteen days from service of this Memorandum and Recommendation to file written objections.

28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72.

Failure to timely file objections will preclude appellate review of factual findings or legal conclusions, except for plain error.

See Thomas u. Arn, 474 U.S. 140, 147-49 (1985); Rodriguez u. Bowen, 857 F.2d 275, 276-77 (5thCir. 1988).

Signed at Houston, Texas on October 11, 2024.

Peter “Are You a Criminal” Bray
United States Magistrate Judge & Former Public Defender