Rincon v. Prieto Case remanded to 247th District Court, Harris County Texas.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Jennifer Ricon,
Plaintiff,
v.
Genaro James Prieto,
Defendant.
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Civil Action H-26-1157
MEMORANDUM AND RECOMMENDATION
This is an action to enforce a child support order. This case
has been referred to the undersigned magistrate judge for full
pretrial case management. ECF No. 6. Pending before the court is
Plaintiff’s Motion to Remand. ECF No. 11. The court recommends
that the motion be GRANTED and that this case be REMANDED
to state court. Plaintiff also requests attorney’s fees under 28
U.S.C. § 1447(c), which the court recommends be GRANTED.
1. Background and Procedural Posture
This case has a long history in state court dating back to
2016. 	ECF 	No. 	11-5. 	Jennifer 	Rincon 	filed 	a 	Motion 	for
Enforcement of Child Support and Medical and Dental Support
and Order to Appear (the Motion to Enforce) in the 247th Judicial
District Court of Harris County, Texas, on July 21, 2025. ECF No.
11-2. The Motion to Enforce was served on Genaro James Prieto
on October 6, 2025. ECF No. 11-3 at 2.
Prieto 	filed 	his 	Verified 	Response 	to 	the 	Motion 	on
November 3, 2025. ECF No. 11-4. In his Verified Response, Prieto
stated that any request that he disclose his tax returns would
violate the federal tax code and that federal law preempts any
conflicting state orders. Id. at 3. Prieto also argued that any
intervention into his parenting decisions would violate his due
United States District Court
Southern District of Texas
ENTERED
March 25, 2026
Nathan Ochsner, Clerk
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process 	rights 	under 	Troxel 	v. 	Granville, 	530 	U.S. 	57 	(2000)
(considering a parent’s substantive due process rights under the
Fifth 	and 	Fourteenth 	Amendments 	to 	the 	United 	States
Constitution).
On November 20, 2025, the state case was set for trial to
begin on February 16, 2026. ECF No. 11-5 at 4. On February 11,
2026, just days before the trial was set to begin, Prieto filed a
document titled Motion to Vacate or Declare Void the October 25,
2021 Settlement Agreement, to Continue the February 16, 2026
Enforcement 	Hearing, 	and 	to 	Abate 	Enforcement 	Pending
Adjudication of Coercion and Duress (Motion to Vacate). ECF
No. 1-1 at 2–4. In the Motion to Vacate, Prieto argues, among other
things, going forward with an enforcement proceeding would risk
“irreversible deprivation of liberty without lawful foundation.” Id.
at 3.
On February 12, 2026, the day after he filed the Motion to
Vacate and four days before the trial was to begin, Prieto filed his
Notice of Removal. ECF No. 1. Prieto states without explanation
that “this action arises under the laws of the United States.” Id.
at 1.
On February 25, 2026, Rincon filed the instant Motion to
Remand, arguing that this matter arises solely under the Texas
Family Code. ECF No. 11 at 3. She explains that her Motion to
Enforce alleges only that Prieto failed to provide health and dental
insurance coverage for his children, failed to reimburse Rincon for
dental expenses, and failed to notify Rincon of changes in his
employment. Id.
Prieto responded to the Motion to Remand on March 10,
2026. ECF No. 13. He argues that, once he filed his Motion to
Vacate, which was responsive to Rincon’s proposed order seeking
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to hold Prieto in contempt,1 “constitutional issues . . . became the
focal point of the case.” ECF No. 13 at 1. The Motion to Vacate and
the motion seeking contempt sanctions were, in Prieto’s view, the
papers which put him on notice that a federal question was being
raised in the state court proceeding. Id. He also argues that, even
if the court disagrees with him, his error in removing the case was
not done in bad faith. Id.
2. Removal Jurisdiction
A defendant may remove “any civil action brought in a State
court of which the district courts of the United States have original
jurisdiction[.]” 28 U.S.C. § 1441(a). Removal can be based on
diversity jurisdiction if the amount in controversy exceeds $75,000
and 	the 	dispute 	is 	between 	citizens 	of 	different 	states. 	See
28 U.S.C. §§ 1332, 1441; Priester v. Deutsche Bank Nat’l Tr. Co.,
832 F. App’x 240, 244 (5th Cir. 2020). A case may also be removed
if the case is one that “aris[es] under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. §§ 1331, 1441. Upon
removal, 	the 	defendant 	“has 	the 	burden 	of 	proving 	by 	a
preponderance of the evidence that subject matter jurisdiction
exists.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321,
327 (5th Cir. 2008). “[O]perative facts and pleadings are evaluated
at the time of removal.” In re Deepwater Horizon, 745 F.3d 157,
162–63 (5th Cir. 2014).
3. Federal Question Jurisdiction
Only federal question jurisdiction is at issue here. There is
no allegation that the parties are of diverse citizenship or that the
amount in controversy exceeds $75,000. Federal district courts
have subject matter jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United States.”
1 This motion seeking to hold Prieto in contempt is not in the record before the court.
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28 U.S.C. § 1331. The court will apply the “well-pleaded complaint”
rule. See Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc.
535 U.S. 826, 830 (2002). 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 plaintiff’s
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 modified).
The Motion to Enforce seeks only to enforce a settlement
agreement that resolved a state case. It does not raise any federal
question. To the extent that Prieto argues that the Motion to
Vacate, which he himself filed, could transform Rincon’s action to
enforce a settlement agreement into a case involving a federal
question, he is mistaken. The federal question must be raised by
the plaintiff; defenses and counterclaims cannot confer federal
question jurisdiction upon the court. See Holmes Grp., Inc., 535
U.S. at 830–31 (2002). Moreover, to the extent that Prieto argues
that the prospect of a state court holding him in contempt would
implicate his federal constitutional rights, he has not explained
how that is the case. This is not a civil rights lawsuit against a
state actor under 42 U.S.C. § 1983. The documents filed in state
court relate to sanctions that a state court might at some point
impose for violating a state court settlement agreement. Prieto has
not explained how this raises a federal question.
The Notice of Removal was also untimely filed. A notice of
removal must be filed within thirty days of service of the initial
pleading or receipt by the defendant of any paper from which it
may first be ascertained that the case is removable. 28 U.S.C.
§ 1446(b). “The time limitations in 28 U.S.C. Section 1446 are
mandatory and must be strictly construed[.]” Hodge v. Stallion
Oilfield Servs., No. H-07-CV-2255, 2007 WL 2777771, at *1 (S.D.
Tex. Sept. 20, 2007) (citation modified). Prieto was served on
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October 6, 2025, and filed his Verified Response on November 3,
2025. Even using the latter date, the February 12, 2026 Notice of
Removal was more than two months late. To the extent that Prieto
argues that his Motion to Vacate first raised a federal question,
that argument is not well taken. Prieto made arguments under
federal law in his November 2025 Verified Response. See ECF
No. 11-4 at 2–4.
The court does not have subject matter jurisdiction and
removal was untimely. This case should be remanded to state
court.
4. Fees and Costs
Rincon’s Motion to Remand seeks attorney’s fees and costs
under 28 U.S.C. § 1447(c). ECF No. 11 at 4. “An order remanding
the 	case 	may 	require 	payment 	of 	just 	costs 	and 	any 	actual
expenses, including attorney fees, incurred as a result of the
removal.” 28 U.S.C. § 1447(c). “Section 1447(c) authorizes courts to
award costs and fees, but only when such an award is just.” Martin
v. Franklin Capital Corp., 546 U.S. 132, 138 (2005). “The removing
party 	must 	have 	‘lacked 	an 	objectively 	reasonable 	basis’ 	[for
removal] 	at 	the 	time 	it 	sought 	removal 	to 	be 	subject 	to 	the
imposition of costs and expenses.” The Lamar Co., L.L.C. v. Miss.
Transp. Comm’n, 976 F.3d 524 (5th Cir. 2020), as revised (Sept. 24,
2020) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005)). If there was no objectively reasonable basis to remove,
costs and fees are proper. Id.
The court is convinced that Prieto’s removal of this case was
objectively 	unreasonable. 	The 	court 	recognizes 	that 	Prieto 	is
proceeding pro se, but the removal was an obvious effort to avoid
the trial in state court. Prieto’s argument that his Motion to Vacate
put him on notice that a federal question was involved in the case
is disingenuous, given that Prieto had previously made arguments
under federal law months prior to his Motion to Vacate. The
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Motion to Vacate itself asked to delay the trial, which Prieto
accomplished by removing the case. This is a misuse of the Federal
Rules of Civil Procedure. See Brook Forest Cmty. Ass’n Inc v.
Norris, No. 4:20-CV-2814, 2021 WL 3832930, at *1 (S.D. Tex. Jan.
29, 2021) (stating that a pro se defendant’s mailing his second
notice of removal two days before the state-court case was set for
trial may be a “misuse of the Federal Rules of Civil Procedure by
interfering with the state court’s orderly handling of its docket”).
Reimbursement of fees and costs is thus warranted.
Because Rincon failed to attach any evidence of fees, hours
worked on the instant motion, or justification of counsel’s hourly
rate, the court is left to estimate the fees based on the court’s
judgment and experience.
The issues presented are basic and uncomplicated. 	The
court 	concludes 	that 	the 	requested 	hourly 	rate 	of 	$300 	is
warranted and is well within the hourly rates that attorneys in
similar cases routinely charge in this district and division. The law
contained in the Motion to Remand is well-understood and the
court estimates that it would take no more than four hours to
prepare the Motion to Remand. Rincon’s counsel also 	had to
prepare the joint discovery and case management plan, which the
court estimates to have taken no more than two hours. The court
also estimates that Rincon’s counsel was required to spend an hour
discussing the case with Rincon. That is a total of seven hours,
which just happens to be the amount of time Rincon’s counsel
states he spent on the case. An award of $2,100 in attorney’s fees
is just. See Combs v. City of Huntington, Tex., 829 F.3d 388, 391–
92 (5th Cir. 2016); see also Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974) (reciting several factors relevant
to determining an award of attorney’s fees). The court also awards
$100 for the pro hac vice fee for a total of $2,200 in fees and costs
to be assessed against Prieto.
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5. Conclusion
The court recommends that Plaintiff’s Motion to Remand,
ECF No. 11, be GRANTED and that Rincon be awarded $2,200 in
fees and costs.
The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum 	and 	Recommendation 	to file 	written 	objections.
28 U.S.C. § 636(b)(1); 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 v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77
(5th Cir. 1988).
Signed at Houston, Texas, on March 25, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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