Morris v. Goodyear Tire and Rubber Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SERGIO MORRIS CIVIL ACTION

VERSUS NO. 25-1749

THE GOODYEAR TIRE & RUBBER SECTION M (2)

COMPANY, et al.

ORDER & REASONS

Before the Court is an emergency motion to remand filed by plaintiff Sergio Morris.1

Defendant, The Goodyear Tire & Rubber Company (“Goodyear”), responds in opposition,2 and

Morris replies in further support of his motion.3 Having considered the parties’ memoranda, the

record, and the applicable law, the Court grants the motion and remands this matter to the Civil

District Court, Parish of Orleans, State of Louisiana, because the Court lacks subject-matter

jurisdiction and because Goodyear has waived its right to remove the case. However, the motion

is denied as to Morris’s request for attorney’s fees and costs.

I. BACKGROUND

This action arises out of a claim for damages by Morris for asbestos exposure said to have

caused his mesothelioma.4 Morris instituted the present action in state court on March 12, 2025,

alleging that he was exposed to injurious levels of asbestos in three ways: through his employment

at Kelly-Springfield,5 where he worked from 1965-1979; through emissions from Avondale

1 R. Doc. 7.

2 R. Doc. 11.

3 R. Doc. 14.

4 R. Doc. 1-2 at 2.

5 In his state-court petition for damages, Morris named his former employer as “Kelly Springfield.” Id. at 1.

However, Goodyear, in its notice for removal, states that the corporation is called “The Kelly-Springfield Tire

Corporation.” R. Doc. 1 at 2 n.1. This Court uses the name provided by Goodyear, given that it is the successor in

interest to Kelly-Springfield. See id.

Shipyard, which is located across the Mississippi River from where he resided from 1969-1974;

and through the use of talcum powder while caring for his daughter.6 According to Goodyear,

Morris named the following entities as the defendants still relevant in this action:7 Goodyear,

successor in interest to Kelly-Springfield; Taylor-Seidenbach, Inc. (“Taylor-Seidenbach”); and

Pecos River Talc LLC (“Pecos River Talc”).8 Eagle, Inc. (“Eagle”), a Louisiana corporation, was

also named in the complaint, but never served.9 For purposes of diversity jurisdiction under 28

U.S.C. § 1332, Morris, the only plaintiff, is a citizen of Louisiana,10 and, according to Goodyear,

Taylor-Seidenbach is the only nondiverse defendant left in the case.11

Soon after institution of the action, the state court granted Morris an expedited trial date

due to his age and diagnosis.12 Morris’s trial in state court is set to begin on September 29, 2025.13

By July 22, 2025, Morris reached a settlement agreement with Pecos River Talc,14 leaving only

Taylor-Seidenbach and Goodyear as defendants in the action, according to Goodyear. On July 24,

2025, Goodyear deposed Morris’s expert witness, Dr. Brent Staggs.15 Pursuant to the state-court

scheduling order, discovery in the matter closed the next day, July 25, 2025.16 On July 28, 2025,

at 3:41 p.m., Goodyear received the transcript of Dr. Staggs’s deposition.17 Fifty-five minutes

6 R. Doc. 1-2 at 1-2.

7 Morris originally named several other defendants; however, all but one are not relevant to the pending

motion because they were dismissed from the action before removal and had diverse citizenship in any event. See id.

at 1-2.

8 Id. at 1-3. Morris’s petition originally named Red River Talc LLC as a defendant in the action. Id. at 1.

However, pursuant to a consent motion to substitute, Red River Talc LLC was replaced by Pecos River Talc on April

23, 2025. R. Doc. 1-3. Although the parties reference both entities in their briefing, this Court will refer only to Pecos

River Talc. See R. Doc. 1 at 3 n.2.

9 See R. Docs. 1 at 7; 1-2 at 1-2.

10 R. Doc. 1-2 at 1.

11 Id. at 2; R. Docs. 1 at 7; 7-1 at 8.

12 R. Doc. 7-1 at 1.

13 Id. at 1-2.

14 R. Doc. 1-4.

15 R. Doc. 1-19.

16 R. Doc. 7-7 at 1.

17 R. Doc. 1-26.

later, at 4:36 p.m. on July 28, 2025 (which was the deadline for filing dispositive motions, pursuant

to the scheduling order), Goodyear filed a motion for partial summary judgment in the state court

regarding strict liability.18 Then, on August 1 and August 5, 2025, respectively, Goodyear filed

two applications for pro hac vice admissions of its attorneys.19 On August 6, 2025, it filed

oppositions to two of Morris’s motions for summary judgment.20 On August 13, it filed an

opposition to Morris’s Daubert motion.21 On August 14, 2025, it filed a reply memorandum in

support of its motion for summary judgment22 and a supplementary opposition to Morris’s Daubert

motion.23 On August 15, 2025, Goodyear certified its circulation of the notice of hearing for its

motion for partial summary judgment.24 And on August 21, 2025, it appeared at the hearing during

which it argued in favor of its motion for summary judgment and against two motions filed by

Morris – a Daubert motion and a motion for summary judgment.25

On August 26, 2025, just over a month before trial was set to begin on September 29,

Goodyear filed a notice of removal on the basis that Morris has no reasonable possibility of

recovering from the nondiverse Taylor-Seidenbach, who thus, claimed Goodyear, was improperly

joined for the purposes of defeating diversity jurisdiction under 28 U.S.C. § 1332.26 Goodyear

urged that its receipt of the deposition transcript of Dr. Staggs on July 28 (almost 30 days before

removal) constituted an “other paper” under 28 U.S.C. § 1446(b)(3) from which it first ascertained

that Morris had improperly joined Taylor-Seidenbach, and that removal was timely since it was

18 R. Docs. 7-7 at 1; 12-6 at 77-99.

19 R. Doc. 12-10 at 53-54, 5 9-60.

20 R. Doc. 12-12 at 79, 124.

21 Id. at 169.

22 R. Doc. 12-14 at 51-57.

23 Id. at 58-86.

24 Id. at 87-88.

25 R. Doc. 1-5 (reporting the argument and ruling on Goodyear’s motion for summary judgment at pages 17-

32).

26 R. Doc. 1 at 6-21.

noticed within 30 days of receipt of the transcript.27 On August 29, 2025, just three days later,

Morris filed his emergency motion to remand the case back to state court.28

II. PENDING MOTION

In his motion to remand, Morris argues that removal is improper for four reasons. First, he

argues that Goodyear’s notice of removal failed to satisfy the legal standard for improper joinder

because his claims against Taylor-Seidenbach are plausibly pleaded.29 Alternatively, Morris

maintains that, should this Court consider summary evidence in deciding improper joinder, he has

established a possibility of recovery against Taylor-Seidenbach because he plans to use historical

evidence against the company at trial.30 In opposing Morris’s first ground for remand, Goodyear

argues that the allegations on the face of Morris’s complaint are insufficient to defeat removal

because they do not plausibly state a claim against Taylor-Seidenbach.31 Alternatively, it argues

that, despite completing discovery, Morris cannot produce any evidence that he was exposed to

products manufactured by Taylor-Seidenbach or that those products were the cause of his

mesothelioma.32 Thus, says Goodyear, Morris has no reasonable possibility of recovery against

Taylor-Seidenbach, so it is improperly joined.33 In his reply, Morris again urges that he has

established a possibility of recovery against Taylor-Seidenbach by pointing to evidence it plans to

offer against the company at trial.34

27 Id. at 21-22. Goodyear’s theory is that Dr. Staggs was the last (i.e., before discovery was complete) expert

witness who might have been able to link Taylor-Seidenbach to the alleged asbestos exposure at issue and, according

to Goodyear, he did not – as confirmed, it says, by the transcript of his deposition.

28 R. Doc. 7.

29 R. Doc. 7-1 at 9-12.

30 Id. at 6-7.

31 R. Doc. 11 at 7-10.

32 Id. at 11-19.

33 Id. at 19.

34 R. Doc. 14 at 1-6.

Morris’s second argument is that Goodyear’s motion to remand is untimely under 28

U.S.C. § 1446(b) because Goodyear has known of Morris’s allegations in his petition since the

date it was served, which was well over 30 days before removal.35 Alternatively, he argues that,

although it received the transcript from Dr. Staggs’s deposition on July 28, Goodyear took the

deposition on July 24 and thus had actual knowledge of the information it alleges in the notice of

removal to have made removal ascertainable on that date.36 As a result, says Morris, the 30-day

delay during which Goodyear could remove the case expired before Goodyear noticed removal.37

Goodyear responds that it could not have noticed removal based on the petition because

removability was not objectively ascertainable until discovery was complete.38 To Morris’s

alternative argument, Goodyear responds that removal was timely because, pursuant to §

1446(b)(3), the 30-day period during which it could notice removal did not begin to run until it

received the deposition transcript.39 In reply, Morris claims that “Goodyear’s reliance on the July

28 transcript is a post hoc justification” because it had much of the information upon which it

based its improper joinder argument prior to that date.40

Morris’s third argument for remand is that Goodyear waived its right to removal when it

took several actions in state court which “‘invok[ed] the processes of that court’” following its

knowledge that the action was removable.41 Goodyear responds that its actions in state court were

“limited to preserving its defenses and complying with ordinary case management obligations

while removability was still uncertain.”42 It argues that it never took “substantive steps that could

35 R. Doc. 7-1 at 15-17.

36 Id. at 15.

37 Id. at 15-17.

38 R. Doc. 11 at 19-20.

39 Id. at 19.

40 R. Doc. 14 at 7.

41 R. Doc. 7-1 at 17-20 (quote at 17) (quoting Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986)).

42 R. Doc. 11 at 21-22 (quote at 21).

be construed as a voluntary submission to state jurisdiction or a waiver of its federal rights.”43 In

reply, Morris reiterates that “Goodyear intended to adjudicate the merits of this case and submit to

the state court’s jurisdiction.”44

And, fourth, Morris argues briefly that Goodyear failed to obtain consent to removal from

Pecos River Talc, which has reached a settlement agreement with Morris but has not paid out its

claims or been dismissed from the action, so the removal is procedurally defective under 28 U.S.C.

§ 1446.45 Goodyear opposes this argument by asserting that the settlement agreement renders

Pecos River Talc a non-party to the suit who need not consent to removal.46

Finally, Morris requests attorney’s fees and costs for his motion to remand, arguing that

Goodyear had no objective basis for seeking removal and that he offered to enter into a stipulation

to remand with Goodyear, to which it had not responded as of the time Morris filed its motion to

remand.47 Goodyear responds that removal “was grounded in objectively reasonable arguments

under controlling precedent,” noting that courts in this district have denied motions to remand in

similar situations.48

III. LAW & ANALYSIS

A defendant may remove from state court to the proper United States district court “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). “A federal district court has subject matter jurisdiction over a

state claim when the amount in controversy is met and there is complete diversity of citizenship

between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing

43 Id. at 21.

44 R. Doc. 14 at 9.

45 R. Doc. 7-1 at 2.

46 R. Doc. 11 at 2.

47 R. Doc. 7-1 at 21.

48 R. Doc. 11 at 23.

28 U.S.C. § 1332(a)). Because federal courts have only limited jurisdiction, the removal statute is

strictly construed, and any doubts or ambiguities are resolved against removal and in favor of

remand. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014); Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The party seeking removal

has the burden of establishing “that federal jurisdiction exists and that removal was proper.”

Manguno, 276 F.3d at 723.

A. Subject-Matter Jurisdiction

A federal court has a duty to inquire into the basis of its subject-matter jurisdiction over an

action. N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998). If jurisdiction is lacking,

the court must dismiss or remand the case. Fed. R. Civ. P. 12(h)(3); Reule v. Jackson, 114 F.4th

360, 365 (5th Cir. 2024), cert. denied, 145 S. Ct. 1431 (2025). A review of the pertinent facts in

this case reveals that this Court cannot exercise subject-matter jurisdiction over this action. Even

assuming Taylor-Seidenbach is improperly joined, there is no complete diversity between the

parties because Eagle, a Louisiana citizen for purposes of 28 U.S.C. § 1332, remains a defendant

in the action.

A nondiverse party’s citizenship cannot be disregarded “simply because he was an

unserved defendant.” Deshotel, 142 F.3d at 883-84 (quote at 883) (collecting cases including

Pullman Co. v. Jenkins, 305 U.S. 534, 540-41 (1939)). The Supreme Court has explained that,

where an action has both resident and nonresident defendants, and only the nonresident defendant

has been served, “the fact that [a] resident defendant has not been served with process does not

justify removal by [a] non-resident defendant.” Pullman, 305 U.S. at 540-41 (quote at 541). The

Court, in considering a scenario like the one presented here, continued:

It may be said that the non-resident defendant may be prejudiced because his co-

defendant may not be served. On the other hand there is no diversity of citizenship,

and the controversy being a nonseparable one, the non-resident defendant should

not be permitted to seize an opportunity to remove the cause before service upon

the resident co-defendant is effected. It is always open to the non-resident

defendant to show that the resident defendant has not been joined in good faith and

for that reason should not be considered in determining the right to remove.

Id. at 541. The Fifth Circuit has observed that “[w]henever federal jurisdiction in a removal case

depends upon complete diversity, the existence of diversity is determined from the fact of

citizenship of the parties named and not from the fact of service.” Deshotel, 142 F.3d at 883.

Where a plaintiff names a nondiverse defendant in a lawsuit, “[d]iversity is not complete unless

the [nondiverse] defendant is ‘dropped formally, as a matter of record.’” Guijarro v. Enter.

Holdings, Inc., 39 F.4th 309, 313 n.2 (5th Cir. 2022) (quoting 14C CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3723 (4th ed. 2022)); see also

Beechum v. Anointed Touch, Inc., 2022 WL 538968, at *2 (E.D. Tex. Jan. 18, 2022).

When Morris filed the instant petition in state court, he named Eagle as a defendant in the

action.49 In his petition, Morris explained that Eagle is a “domestic corporation” with its principal

place of business in Louisiana,50 thus making it a citizen of Louisiana for purposes of federal

diversity jurisdiction. See 28 U.S.C. § 1332(c)(1) (providing that a corporation is a citizen of every

state of incorporation and where it has its principal place of business). Indeed, it is widely

acknowledged in asbestos cases in this district that Eagle is a Louisiana citizen. See, e.g., Rowland

v. Union Carbide Corp., 2019 WL 4729473, at *1 (E.D. La. Sep. 27, 2019); Bourke v. Exxon Mobil

Corp., 2016 WL 836872, at *2 & n.19 (E.D. La. Mar. 4, 2016); Poche v. Eagle, Inc., 2015 WL

7015575, at *1 (E.D. La. Nov. 10, 2015); Smith v. Union Carbide Corp., 2013 WL 6244199, at *1

(E.D. La. Dec. 3, 2013). Plaintiff admits that Eagle was never served,51 but he does not indicate

49 R. Doc. 1-2 at 1.

50 Id. at 2.

51 R. Doc. 7-1 at 8.

that Eagle was dismissed from the case. In its notice of removal, Goodyear, too, explains that

Eagle was never served,52 and it does not claim that Eagle was dismissed from the case.53 Nor

does Goodyear allege that Eagle was improperly joined. See Pullman, 305 U.S. at 541 (“It is

always open to the non-resident defendant to show that the resident defendant has not been joined

in good faith and for that reason should not be considered in determining the right to remove.”).

Thus, Eagle remains a party to the suit, despite the fact it was never served. And a party’s “non-

diverse citizenship cannot be ignored simply because [it] was an unserved defendant.” Deshotel,

142 F.3d at 883.

Accordingly, because Morris and Eagle are both citizens of Louisiana, there is no complete

diversity among the parties, regardless of whether Taylor-Seidenbach was improperly joined. As

such, this Court cannot exercise subject-matter jurisdiction over the present action.

B. Waiver of the Right of Removal

Even if this Court could exercise subject-matter jurisdiction over the present action,

Goodyear has waived its right of removal. A defendant waives its right to remove a case to federal

court when it takes some action which “‘invoke[s] the jurisdiction of the state court in resolving

the issues presented by the original complaint.’” Abraham Watkins Nichols Agosto Aziz & Stogner

v. Festeryga, 2025 WL 2621301, at *3 (5th Cir. Sep. 11, 2025) (quoting Johnson v. Heublein, Inc.,

227 F.3d 236, 244 (5th Cir. 2000)). In the Fifth Circuit, waiver “is no casual affair.” Id. For a

defendant’s acts to constitute waiver, its intent to remain in state court must “‘be clear and

unequivocal,’” id. (quoting Tedford v. Warner-Lambert Co., 327 F.3d 423, 428 (5th Cir. 2003)),

and “‘the right of removal is not lost by action in the state court short of proceeding to an

52 R. Doc. 1 at 7.

53 See id. at 3-4 (explaining that Morris’s claims were dismissed against five other defendants, but omitting

Eagle from the list).

adjudication on the merits.’” Id. (quoting Beighley v. FDIC, 868 F.2d 776, 782 (5th Cir. 1989)).

Acts which merely amount to “procedural skirmishing” will not suffice as waiver. Id. Whether

an act amounts to waiver is considered on a case-by-case basis, and “there is no bright line” rule.

Id.

A days-old Fifth Circuit decision is particularly instructive as to the legal standard for

waiver. In Festeryga, Edward Festeryga was sued by his former law firm, Abraham Watkins

Nichols Agosto Aziz & Stogner (“Abraham Watkins”), in state court for various state-law claims.

Id. at *1. On the same day it filed its complaint, Abraham Watkins obtained a temporary

restraining order and moved for expedited discovery. Id. at *1, *4 n.28. Eight days later, Festeryga

moved to dismiss the action under the Texas anti-SLAPP statute, which triggered an automatic

stay of discovery pending resolution of the motion. Id. at *1. Festeryga never set the motion for

hearing, and it was never decided on the merits. Id. at *3. The parties ultimately stipulated to a

protective order and reached an agreement about production of materials. Id. at *1. But, on the

eve of Festeryga’s production deadline – which was only 17 days after receiving the complaint –

he removed the case to federal court. Id. at *3-4. Abraham Watkins moved to remand the case on

the grounds that Festeryga’s earlier motion to dismiss constituted a waiver of his right to removal.

Id. at *1. The district court granted the motion to remand, finding that the filing of any motion to

dismiss categorically constitutes waiver and that the stay of discovery was further evidence of

waiver. Id. at *3-4.

On appeal, the Fifth Circuit reversed the district court’s holding. Id. at *5. It found that,

because the motion to dismiss could not be decided without a hearing, and Festeryga never set a

hearing, his motion to dismiss had not amounted to a waiver of his right to remove. Id. at *3. In

explaining its reasoning, the court said:

[A] dispositive motion, unaccompanied by a hearing or ruling, does not trigger

waiver – particularly when … the motion carries collateral procedural effects (like

staying discovery, expediting proceedings, or shifting burdens) apart from any

merits decision. Defendants may have sound tactical reasons to file such a motion

without any intent to seek a merits ruling.

Id. (footnote omitted) (citing Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791-92 (9th Cir. 2018);

Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004)). Because Festeryga’s motion “s[at] idle”

for strategic reasons, it did not amount to “‘submitting the cause to adjudication on the merits.’”

Id. (alteration omitted) (quoting Tedford, 327 F.3d at 428). Festeryga’s attempt to stay discovery

also did not serve as evidence of waiver because he was simply “preserving the status quo until a

new forum [took] over.” Id. at *4. Finally, the brief 17-day timeline for the removal also weighed

against a finding of waiver, with the Fifth Circuit reasoning that, given such a short time in state

court, it was unlikely that Festeryga “was ‘experimenting’ with his case in state court before

decamping to federal court.” Id. (alteration omitted) (quoting Rosenthal v. Coates, 148 U.S. 142,

147 (1893)). Thus, the court held that Festeryga had not waived his right to remove the action.

Id.

A reexamination of the operative facts here demonstrates that this case is distinguishable

from Festeryga and clears the high hurdle of waiver: Goodyear received the deposition transcript

it claims made removability first ascertainable at 3:41 p.m. on July 28, 2025.54 Fifty-five minutes

later, at 4:36 p.m., it filed its motion for partial summary judgment in state court on the issue of

strict liability, thereby seeking an adjudication on the merits of that issue.55 On August 14 – more

than three weeks after it received the deposition transcript – Goodyear filed a reply memorandum

in support of its summary-judgment motion.56 On August 15, Goodyear noticed its summary-

54 R. Doc. 1-26

55 R. Docs. 7-7 at 1; 12-6 at 77-99.

56 R. Doc. 12-14 at 51-57.

judgment for hearing in the state court.57 On August 21, Goodyear appeared in court to argue in

favor of its motion for summary judgment, as well as to oppose two of Morris’s motions.58 That

day, the state court denied Goodyear’s motion for partial summary judgment.59 Only then, four

days after this adverse ruling, did Goodyear remove the action to federal court.60

Goodyear’s actions on and after July 28, 2025 (the date it says removability became

ascertainable) evidence a clear and unequivocal intent to litigate the merits of the strict-liability

issue in state court – actively pursuing an adjudication on the merits of this claim in state court

before removal. While several of Goodyear’s pre-removal actions – including filing oppositions

to plaintiffs’ motions, seeking to admit two attorneys pro hac vice, and circulating proposed

judgments – could probably be categorized as “mere procedural skirmishing” which served only

to maintain the “status quo,” id. at *3-4, Goodyear’s actions in pressing to ruling its motion for

partial summary judgment on the issue of strict liability indicate its intent to litigate the merits of

the claim in state court. See, e.g., Jacko v. Thorn Americas, Inc. 121 F. Supp. 2d 574, 575-76 (E.D.

Tex. 2000) (holding that the defendant waived its right of removal when it pursued, noticed for

hearing, and argued its motion for summary judgment in state court after the basis for its later

removal to federal court became evident but before it actually filed its notice of removal, and

observing: “Unlike a motion to dismiss, a motion for summary judgment seeks a resolution of the

case on the merits of a claim and is not filed concomitantly with or in lieu of an answer.”);

Rosenthal, 148 U.S. at 147 (explaining that the purpose of waiver in the removal context is to

prevent a party from “experiment[ing] on his case in the state court, and, upon an adverse decision,

then transfer[ring] it to the federal court”).

57 Id. at 87-88.

58 R. Doc. 1-5.

59 Id. at 30-32.

60 R. Doc. 1.

Goodyear’s motion for summary judgment is distinguishable from Festeryga’s motion to

dismiss in several respects that warrant a different outcome here. First, unlike Goodyear’s

summary-judgment motion, Festeryga’s motion to dismiss “s[at] idle,” “unaccompanied by a

hearing or ruling.” Festeryga, 2025 WL 2621301, at *3. But Goodyear did not let its summary-

judgment motion sit idle. Instead, Goodyear took several actions to advance its motion for

summary judgment, even after it claimed removability was ascertainable, including filing the

motion, noticing it for hearing, replying in support of the motion, attending the hearing to argue in

favor of the motion, and then receiving the state court’s ruling on the motion.61 There is perhaps

no better example of “‘submitting the cause to adjudication on the merits’” than litigating a motion

for summary judgment through to the court’s ruling. Id. (alteration omitted) (quoting Tedford, 327

F.3d at 428).

Second, Festeryga’s motion to dismiss was, in essence, meant to halt discovery. Id. at *3.

In contrast, Goodyear participated in discovery in state court and did not remove the case until

after the close of discovery and five days after the state court denied its motion for partial summary

judgment.62 The timing of Goodyear’s removal indicates that – far from “preserving the status

quo until a new forum takes over” – Goodyear was “‘experimenting’ with [its] case in a state court

before decamping to federal court.” Id. at *4 (alteration omitted) (quoting Rosenthal, 148 U.S. at

147). Thus, while Goodyear’s pursuit of its summary-judgment motion after receipt of the

transcript (including filing the motion and a reply in support of the motion, noticing a hearing on

the motion, and arguing the motion) demonstrate its intent to adjudicate the claim on the merits in

state court, its removal of the case only after receiving an adverse ruling cements the inference that

61 R. Docs. 12-6 at 77-99; 12-14 at 51-57, 87-88; 1-5 at 17-32.

62 R. Docs. 1; 1-5 at 30-32; 7-7 at 1.

Goodyear intended to litigate the merits in state court and changed its mind only after receiving

the unfavorable ruling.

The timing of Goodyear’s removal – and its impact on Morris, given his own unenviable

timeline – further renders this case one of the “extreme situations” for which federal courts around

the country reserve waiver. Id. at *3 n.15 (collecting cases). Thus, while Goodyear’s receipt of

Dr. Staggs’s deposition transcript on July 28, 2025 constitutes the “other paper” triggering the 30-

day clock for removal under § 1446(b)(2), this Court cannot ignore the fact that Goodyear actually

deposed Dr. Staggs four days earlier.63 Hence, Goodyear had actual knowledge of the facts

revealed in the deposition on July 24. But it still chose to file its motion for partial summary

judgment on the issue of strict liability four days after it gained this knowledge and even after

receiving the deposition transcript,64 and it waited until August 26, 2025 – over a month after July

24 – to file its notice of removal.65 Had Goodyear filed its summary-judgment motion solely

because July 28 was the deadline for dispositive motions, one would have expected it to have

removed the case as early as possible – as the Fifth Circuit emphasized Festeryga did by removing

his case in just 17 days – rather than on the eve of the expiration of the 30-day period for removal.

Id. at *4. And Goodyear waited to do so until just a month before trial was slated to begin in state

court. In this third way, the longer interval for Goodyear’s removal distinguishes this case from

Festeryga.

This Court is aware that “[Fifth Circuit] precedent demands a high bar for finding waiver.”

Id. at *2. This case clears that bar. Goodyear’s actions plainly evidence an intent to adjudicate

the merits of the case in state court. And the timing of its removal, coming as it did in the wake

63 R. Doc. 1-19.

64 R. Doc. 12-6 at 77-99.

65 R. Doc. 1.

of an adverse ruling and a month before trial, carries especially harsh consequences for the plaintiff

here.

Having decided Morris’s motion to remand on the grounds of subject-matter jurisdiction

and waiver, the Court need not consider the remaining questions raised by the parties in their

briefing.

C. Attorney’s Fees and Costs

The lack of subject-matter jurisdiction and waiver notwithstanding, it cannot be said that

Goodyear did not have an objectively reasonable basis to seek removal. After all, no party raised

the question of Eagle’s citizenship destroying diversity, and the controlling authority on waiver is

just days old. Thus, the Court, in an exercise of its discretion, declines to award attorney’s fees to

Morris under 28 U.S.C. § 1447(c). See Thomas v. S. Farm Bureau Life Ins. Co., 751 F. App’x

538, 540 (5th Cir. 2018) (“In general, courts may award attorney’s fees under § 1447(c) only where

the removing party lacked an objectively reasonable basis for seeking removal. If the removing

party could conclude from the case law that its position was not an unreasonable one at the time

of removal, then it had an objectively reasonable basis for removal.” (internal citations, quotation

marks, and alteration omitted)).

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Morris’s motion to remand (R. Doc. 7) is GRANTED, and this case

is REMANDED to the Civil District Court, Parish of Orleans, State of Louisiana.

IT IS FURTHER ORDERED that Morris’s request for attorney’s fees and costs associated

with the removal is DENIED.

New Orleans, Louisiana, this 17th day of September, 2025.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE