Plaintiffs in defamation lawsuit against private border wall group want case sent back to state court

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Hearing on 2 lawsuits against We Build The Wall set for Friday in federal court.

Two lawsuits are currently in federal court against the privately built border wall south of Mission, Texas, that was funded, in part, by the organization We Build The Wall. (Sandra Sanchez/Border Report File Photo)

McALLEN, Texas (Border Report) — A federal court ruling late Thursday granted “in part” that one of the cases against a private border wall that was built in South Texas be remanded back to state court.

Lawyer Javier Peña, who represents the North American Butterfly Association in its lawsuit against the 3.5-mile private border wall, told Border Report on Thursday that their case belongs in state court where it was originally filed. He filed a motion on Jan. 10, 2020, requesting the case be sent back to the 398th Judicial District Court in Hidalgo County. And he filed another brief reiterating the request on Tuesday.

Late Thursday, U.S. Judge Randy Crane of the U.S. District Court Southern District of Texas, in McAllen, issued a ruling “granting in part and denying in part” the motion to remand the case to the state district court in Edinburg, Texas, according to documents obtained by Border Report.

Crane had ordered the case to be heard in his federal court where the federal government had also filed a lawsuit against the founders of the controversial nonprofit organization We Build The Wall, as well as the builder, Tommy Fisher, of Fisher Industries.

The private border wall was completed in South Texas in early 2020 using donated funds that were crowdsourced by We Build The Wall.

The North American Butterfly Association originally filed a lawsuit on Dec. 3, 2019, in the 398th Judicial Court on behalf of the National Butterfly Center, which is located half a mile from the private border wall that was built south of the town of Mission, Texas. The civil lawsuit alleges defamation by We Build The Wall founders, and charges the privately built border wall could damage neighboring properties like the Butterfly Center because it is too close to the Rio Grande.

On Thursday, Crane wrote: “A party may remove a case from a state court to a federal court if the federal court has original jurisdiction. … the Court may look at record evidence to determine jurisdictional facts.”

He wrote “the Court finds that it has jurisdiction over some elements of the case “but it does not have jurisdiction over the defamation and business disparagement claims.”

Crane concluded: “It is ordered that Plaintiffs’ defamation and business disparagement claims against all defendants are severed from this civil action and remanded to the state court from where this action was removed.”

What exactly that means was unclear late Thursday. Crane is holding status hearings on both cases Friday morning from his McAllen courtroom.

“State court which is where it should be,” Peña said earlier Thursday.

The federal government’s lawsuit alleges that the private border wall violates an international water treaty between the United States and Mexico because the structure sits right on the riverbank.

Border Report plans to cover Friday’s hearings and will update with a story.

We Build The Wall organizers also have also been charged in New York in a money laundering case brought against group founder Brian Kolfage, former Trump advisor Steve Bannon and Florida financier Andrew Badolato alleging that millions of dollars donated to We Build The Wall had been improperly diverted. Timothy Shea, a co-defendant, had requested to have a separate trial. However, New York Southern District Court Judge Analisa Torres on Monday denied Shea’s motion to have his trial severed from the upcoming trial of Kolfage and Badolato.

President Donald Trump pardoned Bannon in the final hours of his presidency.

Sandra Sanchez can be reached at ssanchez@borderreport.com.

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