Petition — Gravitt v. Southwestern Bell Telephone Co.

Supreme Cour, C. 1

FILED zz

JAN 28 1977 |

IN THE |

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1976

— aed

% 76-1036

THE HONORABLE ADRIAN A. SPEARS, CHIEF JUDGE,

UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF TEXAS

and

OLETA GRAVITT, INDIVIDUALLY AND AS

INDEPENDENT EXECUTRIX OF THE ESTATE OF

I. O. GRAVITT, DECEASED; MICHAEL GRAVITT:

PATRICK GRAVITT; AND JAMES H. ASHLEY.

Petitioners,

VERSUS

SOUTHWESTERN BELL TELEPHONE COMPANY,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY,

AND CHESTER L. TODD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAW OFFICES OF PAT MALONEY, INC.

2001 Frost Bank Tower

San Antonio, Texas 7820°

ATTORNEYS FOR PETITIONERS

— — —

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

Angel v. Bullington, 303 U.S. 183 (1947) ............... 12

DeBeers Consol. Mines, Ltd. v. United States,

ois A xd „„.. 11

Ex Parte Fahey, 332 U.S. 258, 260 (1947) .............. 12

London v. United States Fire Ins. Co., 531 F.

r KKK... - 8

Long v. Knox, 155 Tex. 581, 291 S. W. 2d 29222 k T— 12

Miller v. Davis, 507 F. 2d 308 (Sth Cir. 197 )⸗ů 12

Robertson v. Ball, 534 F. 2d 63 (Sth Cir.

D ͤ˙ñ:!ñ!ñ!] . des 6048 bi 8,9

Sabanay v. Beech Aircraft Corporation, 349

F „tern 12

Sheldon v. Sill, 8 Howe, 411, 12 L. Ed. 1147,

%y%0h%' — —˙Ü ¹ . 111 6

Swilley v. McCane, 374 S. W. 2d 81 (Tex.

/// ⅛ͤ XEüÿo “ee. 12

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d

D ]! 5,6, 7, 8, 9, 10, 11

United States v. Rice, 327 U.S. 742, 751

T 10

TABLE OF AUTHORITIES (Continued)

Woods v. Interstate Realty Company, 337

U.S. 525

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

NO.

THE HONORABLE ADRIAN A. SPEARS, CHIEF JUDGE,

UNITED STATES DISTRICT COURT,

WESTERN DISTRICT OF TEXAS

and

OLETA GRAVITT, INDIVIDUALLY AND AS

INDEPENDENT EXECUTRIX OF THE ESTATE OF

T. O. GRAVITT, DECEASED; MICHAEL GRAVITT;

PATRICK GRAVITT; AND JAMES H. ASHLEY ;

Petitioners,

VERSUS

SOUTHWESTERN BELL TELEPHONE COMPANY,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY,

AND CHESTER L. TODD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAW OFFICES OF PAT MALONEY, INC.

2001 Frost Bank Tower

San Antionio, Texas 78205

COUNSEL FOR PETITIONERS

TO THE HONORABLE, THE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

The Petitioners pray that a Writ of Certiorari issue to review

the Judgment of the United States Court of Appeals for the

Fifth Circuit, entered November 12, 1976, affirming, en banc,

the decision of a Panel for the Fifth Circuit granting a Writ of

Mandamus.

OPINIONS BELOW

1. The Judgment of the United States Court of Appeals for

the Fifth Circuit is reported in 542 F. 2d 297, and appears in

the Appendix hereto.

2. The Judgment of the Panel of the United States Court of

Appeals for the Fifth Circuit appears at 535 F. 2d 859, and is

included in the Appendix hereto.

3. The Order of the United States District Court for the

Western District of Texas at San Antonio, remanding the civil

action styled: Mrs. Oleta Gravitt, et al. Vs. Southwestern Bell

Telephone Company, et al., appears in 416 Fed. Supp. 830,

and is set forth in the Appendix hereto.

JURISDICTION

1. The Judgment of the United States Court of Appeals for

the Fifth Circuit was entered on November 12, 1976. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

A. Did the Congress, in providing that a Remand Order

“ . . . is not reviewable on appeal or otherwise . . .”

intend to authorize the Federal Appellate Courts to

review an Order of a District Judge remanding a case

because it was improperly removed?

B. Did this Supreme Court in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed.

2d 542 (1976), limit Appellate review of Remand

Orders to the question of whether or not the District

Court ordered the Remand pursuant to 28 U.S.C. 8

1447(c)?

C. Has the Court of Appeals erred in reviewing and examin-

ing by mandamus the District Judge’s Order of Remand

in a diversity case, the Order of the District Judge

remanding the case, having delineated the requirements

of 28 U.S.C. 8 1447(c), and making the appropriate

findings thereunder?

D. Is this case not completely contrary to two prior deci-

sions of the Fifth Circuit (Robertson v. Ball, 534 Fed.

2d 63, 1976; London v. U.S.F.&G., 531 Fed. 2d 257,

1976)?

STATUTES INVOLVED

28 U.S.C. 8 1447:

(c) If at any time before final judgment it appears that the

case was removed improvidently and without jurisdic-

tion, the district court shall remand the case, and may

order the payment of just costs... .”

(d) An order remanding a case to the State Court from

which it was removed is not reviewable on appeal or

otherwise

STATEMENT OF THE CASE

On April 28, 1976, the Honorable Adrian A. Spears, Chief

Judge of the United States Court for the Western District of

Texas, remanded to Texas State Courts an action styled: Mrs.

Oleta Gravitt, et al, vs. Southwestern Bell Telephone Company,

et al; No. SA 75 CA 117.

On May 5, 1976, Respondents herein filed a Petition for a

Writ of Mandamus with the United States Court of Appeals for

the Fifth Circuit, directing the District Court to accept and

retain jurisdiction of this action.

On May 17, 1976, the Fifth Circuit ordered the Petitioners

herein to file an Answer to the Petition for Writ of Mandamus.

On July 9, 1976, a Fifth Circuit panel directed Judge Spears

to vacate his Remand Order and conduct further proceedings

not inconsistent with its Opinion, that is, to make a determina-

tion of whether Southwestern Bell Telephone Company was a

Missouri corporation.

Judge Spears timely filed a Petition for Rehearing, as did the

individual litigants.

The Motions for Rehearing En Banc were granted, and the

Fifth Circuit determined that this case should be heard before

the full Court, en banc.

On November 12, 1976, the Fifth Circuit modified the deci-

sion of the Panel and ordered a Writ of Mandamus to the

District Court to vacate its Remand Order, without request for

additional findings.

This case comes before this Honorable Supreme Court

accompanied by a vigorous, precise and comprehensive dissent-

ing opinion filed by Justices Hill and Clark of the Fifth Circuit,

which correctly states the applicable law.

As noted by Justice Hill, it is apparent this is a hard case

The District Judge first refused and subsequently, upon recon-

sideration, granted a Remand; the Panel decision of the Court

of Appeals was reviewed by the entire Court en banc. Affir-

mance in part and dissent followed.

The predictive fears of the Chief Justice and Justices Rehn-

quist and Stewart, have come to pass, or, as Justice Rehnquist

stated in his dissent “Rather than leaving future repetition

of cases such as this to Congress, the Court sets out to right a

perceived wrong in this individual case. In the process of doing

so, it reopens an avenue for dilatory litigation which Congress

had explicitly closed”. The monumental concern of all future

litigants as to the uncertainty of review of remand orders caused

by this case is powerfully apparent. The flood gate of litigation

to this Court and all others is wide open.

ARGUMENT

Judge Spears’ Order comes squarely within the requirements

of Thermtron Products, Inc. v. Hermansdorfer, 96 S. Ct. 584,

46 L. Ed. 2d 542 (1976) in that an express finding of improper

removal was made by Judge Spears. It is clear, also, that the

doctrine of judicial estoppel is the kind of substantive policy

expression which the Erie doctrine makes binding on Federal

Courts, and the reasons given by Judge Spears are not review-

able. .

The Court of Appeals is totally lacking jurisdiction, and is

completely without authority to control or review the Order of

Remand entered by Judge Spears. Lacking jurisdiction, the

Circuit Court clearly cannot and must not, examine the merits

of Petitioners’ contentions that Judge Spears acted upon

grounds not permitted by the Statutes. Sheldon v. Sill, 8

Howe, 441, 12 L. Ed. 1147, 1850 has expressly prohibited the

review sought by the Petitioners.

Title 28 U.S.C. § 1447(d) means what it says, viz:

“An order remanding a case to the state court from which

it was removed is not reviewable on appeal or other-

he

The decision is a clear invasion into the province of the

District Court and such improper action can only create judicial

havoc and destroy the right of a litigant to a speedy trial which

Thermtron, Congress, and precedent have heretofore jealously

protected by recognizing J 1447({c), means precisely what it

says! For a hundred years, this statute has been so interpreted

until now.

This case has been set for trial four times in State Court — a

constitutional right to a speedy trial which has been recklessly

abused by the improper removal.

The Congressional purpose in barring review of remand

orders was to prevent significant interference with litigation

commenced in State Courts. Thermtron was never written to

subvert such aim. The majority of the Court below have serious-

ly misread such decision with obvious disregard for the warning

contained in the vigorous dissent in such opinion.

By statute and case interpretation, the Honorable Adrian A.

Spears, Chief Judge, United States District Court for the West-

ern District of Texas, is, and should be, the final crbiter of

whether this specific action should be tried in Federal Court.

Thermtron, 96 S. Ct. 584, 595, states:

“It is clear that the ability to invoke appellate review, even

if ultimately unavailing on the merits, provides a signifi-

cant opportunity for additional delay. Congress decided

that this possibility was an unacceptable source of addi-

tional delay and therefore made the district courts the

final arbiters of whether Congress intended that specific

actions were to be tried in a federal court.” (Emphasis

added).

Thermtron is limited entirely to the unique circumstances of

that case, wherein the Trial Judge acknowledged the removal

was proper but he refused to exercise the jurisdiction which

he conceded vested in the Federal Courts! Judge Spears, on the

other hard, clearly decided that the instant case was removed

improvidently and without jurisdiction. Factually, Thermtron

and this case are unrelated.

If the decision of the Fifth Circuit is permitted to stand, the

Federal Appellate Courts will be deluged with dilatory, time-

c nsuming and unauthorized appeals from remand orders by

simply captioning such appeals “Mandamus”. If it works in this

case, why not in hundreds hereafter where giant corporations

simply do not want to go to trial? Chief Justice Burger has

repeatedly warned the federal Judiciary and others that the less

fortunate litigant is being drowned in a sea of paper, discovery

and appeals. Such actions should be stopped, or hope of justice

will undoubtedly languish and die.

The Circuit Court in this case pretermits reference to the

only issue in the case, viz: Whether the Fifth Circuit has juris-

diction to review the Order of Remand entered by the District

Court, because:

. . . If no jurisdiction existed, it, of course, follows that

there was no power in the Court of Appeals to examine

the merits of Petitioners’ contentions that the Order of

Remand exceeded Respondent’s authority, and that its

Order denying relief must be affirmed.” (Dissenting

opinion, Thermtron, p. 594).

For nine decades it has been the law that it does not matter

whether this Court disagrees with a District Judge’s reasons for

remand; the District Judge alone has the right to determine

whether removal is proper.

The majority opinion not only misapplied the holding of

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), but also prior decisions of the Fifth Circuit, to-wit:

Robertson v. Ball, 534 F. 2d 63 (Sth Cir. 1976); and London v.

United States Fire Ins. Co., 531 F. 2d 257 (Sth Cir. 1976).

In Robertson, the Fifth Circuit recognized the non-review-

ability of a finding of no jurisdiction, viz:

“The Court below expressly stated that ‘this action was

improperly removed under * 1441(d) . . because the

action was not ‘one of which this Court would have had

original jurisdiction’. We have no occasion to determine

whether or not the conclusion of the District Court was

well founded. (Emphasis supplied).

Judge Spears determined that there was both improper

removal and no jurisdiction — however, he could have remanded

upon a finding of either. That was the specific holding in

Robertson:

“Although the standard set out in B 1447(c) and tracked

in the quoted language from Thermtron is in the conjunc-

tive — i.e., is stated as if the District Court must find both

inprovident removal and lack of jurisdiction — it is clear

that the district court may remand a case improvidently

removed even if the defect, e.g., untimeliness under 91446

(b), is not jurisdictional”. See London v. United States

Fire Ins. Co., 5th Cir. 1976, 531 F. 2d 257, 260.

The Panel in Robertson correctly interpreted Thermtron as

holding:

“As we read Thermtron, the express invocation by the

District Court of the § 1447(c) grounds for remand of a

removal under § 1441(b) robs this Court of any power

‘through appeal or otherwise’ to review the merits of the

Remand Order.” (Emphasis supplied).

This Supreme Court in Thermtron said § 1447(c) should be

read in pari materia with N 1447(d), which says:

“An Order remanding a case to the State Court from

which it was removed is not reviewable upon appeal or

otherwise

“Only Remand Orders issued under § 144) (e) and invoking

the grounds specified therein — that removal was improvi-

dent and without jurisdiction — are immune from review

under ¶ 1447(d)”. (Emphasis supplied).

A District Judge is not required to explain findings of im-

provident removal and without jurisdiction” grounds of § 1447

(d); merely set them forth in his Removal Order. If the District

Court does elect to recite its reasons for the basis of such

grounds, the Court of Appeals has no authority to question

them. Certainly, no penalty should be assessed because a

District Court states the basis for its ruling. The parties are

entitled to the benefit of the Court’s position, whether the

reasons given are, in the opinion of the Appellate Court, correct

or not, and the District Judges should be encouraged, rather

than discourage’, to state their reasons for their conclusions

reached. This procedure will be a value to the parties in the

Appellate Court if the matter is later presented on appeal after

the trial of the case on its merits.

The vital question in this case, therefore, is whether when

the District Judge finds improper removal and no jurisdiction

(as he clearly did in this cause), is such finding reviewable by

mandamus or otherwise? The answer is that it is not, and the

Fifth Circuit’s decision, therefore, should be reversed.

Thermtron unequivocally supports the foregoing observation,

stating:

“There is no doubt that in order to prevent the delay in

the trial of remanding cases by protracted litigation on

jurisdictional issues, United States v. Rice, 327 U.S. 742,

751 (1946), Congress immunized from all forms of appel-

late review any remand order issued on the grounds

specified in § 1447(c) whether or not that Order might be

deemed erroneous by an appellate court”. (Emphasis

supplied).

Even if Judge Spears erred in applying the doctrine of judicial

estoppel as a basis for his conclusion that this case was removed

improvidently and without jurisdiction, the Appellate Court is

precluded from inquiring as to whether such reason was appro-

priate.

This Court, in Thermtron, repeatedly noted that diversity

jurisdiction was stipulated, that there was no question but that

the District Court had jurisdiction, that there was no suggestion

-10-

that the cause was improvidently removed, that the only reason

for the Remand was the fact that the District Judge was too

busy”. In Thermtron, the District Judge acknowledged that the

case was properly removed and there was no disagreement with

such observation by any of the interested parties. Faced with

such an obvious denial of the statutory rights in the Federal

Court, this Court understandably held that review by man-

damus should lie.

Thermtron does not stand for the concept that the District

Court is limited in its inquiry as to whether, in fact, diversity

exists. Such a result comes from a totally incorrect reading of

that case, which merely requires the District Court to determine

that it is without jurisdiction. Judge Spears’ findings in this

case come squarely within such requirement.

It becomes apparent that the Supreme Court considered the

Trial Judge’s action in Thermtron as blatent indifference to

the federal jurisdiction statutes, and in fact, the District Judge’s

actions in such case were “reported to the Circuit Counsel for

the Sixth Circuit, which had supervisory powers over the

District Court”. (Footnote, page 598).

It is most inaccurate and unfair to analogize the action of

Judge Spears with those of the Respondent in Thermtron.

Judge Spears carefully, emphatically, summarily and properly

rejected any extraneous and nonjurisdictional reasons why he

might desire remand.

Writs of Mandamus issued by the Federal Appellate Courts

to lower Federal Courts traditionally have been available only

in unusual circumstances, sometimes said to be those involving

a lower Court’s “usurpation of power”. DeBeers Consol. Mines

Ltd. v. United States, 325 U.S. 212, 217.

-11-

“As extraordinary remedies, they are reserved for really

extraordinary causes. Ex Parte Fahey, 332 U.S. 258, 260

(1947).”

The doctrine of judicial estoppel is firmly ensconced in the

jurisprudence of the State of Texas. It forbids parties from

taking contrary positions under oath in different judicial pro-

ceedings. A plethora of cases is found upholding and recog-

nizing this doctrine. Judicial estoppel may be invoked by

strangers to the Record in formal proceedings. Swilley v.

McCane, 374 S.W. 2d 81 (Tex. 1964; Long v. Knox, 155 Tex.

581, 291 S.W. 2d 292).

There is absolutely nothingin Judge Spears’ Remand Order

that warrants the statement by Petitioners that extraneous

factors such as “congestion of the docket”, were relied upon

by him in remanding this cause.

The language of the Remand Order is unambiguous and

clearly reflects the only basis of the decision by the District

Judge was that the requisite of diversity of citizenship was not

present and the conclusion unavoidably was that the action

therefore was improperly removed.

This Supreme Court, in Angel v. Bullington, 303 U.S. 183

(1947); and Woods v. Interstate Realty Company, 337 U.S.

535, makes it clear that a State law can have a limiting effect

on the Federal Court’s diversity of jurisdiction. The significance

and the public policy underlying the limiting state rule must

be considered. The cases of Sabanay v. Beech Aircraft Corpora-

tion, 349 F. 2d 60 (4th Cir. 1965); and Miller u. Davis, 507 F.

2d 308 (Sth Cir. 1974) considered similar questions.

CONCLUSION

Thus, we have come full circle. The current case is in total

defiance with the prevailing decision of this Court decided only

a year ago, and two cases previously decided by the same

Circuit. This decision destroys 100 years of precedent and

spells ruin for future litigants and those who take comfort in

the Congressional intent that remand is not reviewable if the

findings of the Court are that removal was improper. The

Circuit Court clearly does not have jurisdiction over Judge

Spears’ decision to remand, and unless reversed, every time an

affluent litigant is dissatisfied, he can and will use mandamus as

a means of review and method to delay and thwart clear ends of

justice. Plainly much, much more is at stake other than the loss

of these individual Plaintiffs’ rights.

PRAYER

WHEREFORE, Petitioners pray that a Writ of Certiorari be

issued out of and under the seal of this honorable Court, direct-

ed to the United States Court of Appeals for the Fifth Circuit,

and to all parties hereto, granting all relief to which these

Petitioners may be entitled, at law or in equity.

Respectfully submitted,

LAW OFFICES OF PAT MALONEY, INC.

Pat Maloney

Jack Pasqual

2001 Frost Bank Tower

San Antonio, Texas 78205

(512/226-5125)

D

By Ax.

pat Maloney

COUNSEL FOR PETITIONERS

-13-

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit, has been furnished to all counsel

of record in this case, to-wit: Mr. Jack Hebdon, 2000 Frost

Bank Tower, San Antonio, Texas 78205 by hand delivery;

Mr. Hubert Green, 900 Alamo National Bidg., San Antonio,

Texas 78205; Mr. James Barden, 1010 North St. Mary’s Street,

San Antonio, Texas; and Dewey, Ballantine, Bushby, Palmer

& Wood, 140 Broadway, New York, New York 10005; all by

U.S. regular mail; on this the _3rd__. day of January, 1977.

be

WEST KEY NUMBER SYSTEM

In re SOUTHWESTERN BELL TELEPHONE COMPANY,

American Telephone and Telegraph Company, and

C. L. Todd, Petitioners.

No. 76-2237.

United States Court of Appeals,

Fifth Circuit.

Nov. 12, 1976.

Petition was filed for writ of mandamus to the United States

District Court for the Western District of Texas, Adrian A.

Spears, Chief Judge. The Court of Apppeals, 535 F. 2d 859,

held that district court could not utilize doctrine of judicial

estoppel as basis for holding that case was removed “improvi-

dently and without jurisdiction” and issued writ of mandamus

directing district court to vacate remand order and conduct

further proceedings. In a subsequent opinion, the Court of

Appeals held that where plaintiffs made no claims that cor-

porate defendant was not Missouri corporation or that its

principal place of business was not in Missouri but their claim

was one of law that defendant corporation was barred by

doctrine of judicial estoppel from asserting undisputed facts as

basis for federal jurisdiction, there was no occasion to direct

district court to inquire further into diversity issue.

Decision of panel affirmed as modified; writ of mandamus

issued directing district court to vacate remand order.

—

Hill, Circuit Judge, filed dissenting opinion in which Clark,

Circuit Judge, joined.

Courts Key 404(4)

Where plaintiffs, who sought remand of tort action to Texas

state court, made no claim that defendant was not Missouri

corporation or that its principal place of business was not in

Missouri but rather they claimed that defendant was barred by

doctrine of judicial estoppel from asserting undisputed facts as

basis for federal jurisdiction, there was no occasion to direct

district court, which may not utilize doctrine of judicial es-

toppel as basis for holding that cause has been removed improvi-

dently, to inquire further into diversity issue and thus writ of

mandamus would be issued directing district court to vacate

remand order. 28 U. S. C. A. § 1447(c).

Jack Hebdon, Green & Kaufman, Inc., Hubert W. Green,

James E. Barden, San Antonio, Tex, Dewey, Ballantine, Bush-

by, Palmer & Wood, Leonard Joseph, New York City, for

petitioners.

Adrian A. Spears, U.S. Dist. Court Chief Judge, Pat Maloney,

San Antonio, Tex., for Gravitt.

On Petition for Writ of Mandamus to the United States

District Court for the Western District of Texas.

Before BROWN, Chief Judge, GEWIN, AINSWORTH,

GODBOLD, DYER, CLARK, RONEY, GEE, TJOFLAT and

HILL, Circuit Judges. *

* Circuit Judges Wisdom, Thornberry, Coleman, Goldberg and Morgan

did not participate in this decision.

A-2

PER CURIAM:

The court en banc affirms the decision of the panel on the

basis of the panel opinion except as follows.

It is starkly revealed to the court en banc that plaintiffs do

not make any real contentions of fact. They make no claim

that Southwestern is not a Missouri corporation or that its

principal place of business is not in Missouri. Their claim is

one of law rather than fact. Standing squarely on the estoppel

theory advanced by them in the District Court and adopted by

that court, they say that Southwestern is barred from asserting

the undisputed facts as a basis for federal jurisdiction. For

reasons set out in the panel opinion, that proposition of law is

erroneous. /

With the case thus clarified, it now appears that there is no

occasion to direct the District Court to inquire further into

the diversity issue.

As modified, the decision of the panel if AFFIRMED. A writ

of mandamus will issue directing the District Court to vacate its

remand order.

HILL, Circuit Judge, with whom CLARK, Circuit Judge,

joins (dissenting):

im their first effort to remand the cases, plaintiffs asserted that

the District Court had plenary discretionary power to remand even though

statutory requirements for federal jurisdiction were alleged and uncon-

tested. The district judge properly rejected this frivolous proposition.

This litigation should not be impeded with an further efforts by the

plaintiffs to avoid federal jurisdiction on insubstantial grounds.

A-3

It has well and truly been said that “Hard cases make bad

law.” / My respected brother on the district court and my

respected brothers comprising the majority of the court today

seem to take that statement as a mandate. I view it as a warning.

Therefore, I must respectfully dissent.

There is no universal definition of a “hard” case as contem-

plated by the maxim quoted above. I submit that the court

faces a “hard” case whenever the judge of the court has the

power to order that which he believes to be right and, yet, he

does not have the authority to issue the order. The restraint

then required leaves the wrong result undisturbed.

As presented in the district court, this case qualified as a

“hard” case under my suggested definition. The action was

commenced in state court against two corporate defendants

and an individual. The individual defendant was a citizen of the

forum state. On the eve of trial plaintiff's counsel reflected

upon his situation. Like Aesop’s fabled pup who dropped his

bone to grab one seen in reflection, plaintiff discarded his

built-in immunity from the “danger” of removal in order to

seize the exquisite pleasure of proceeding against only corpo-

rate defendants. Before the ripples in the pool made by the

dropping of the individual defendant had subsided, plaintiff

found his case in the federal district court.

The district judge felt that the case never should have been

in his court. It had arrived only through accident. Although

ready for trial under state procedures, additional discovery

available in the federal court demanded extensive new pretrial

activity. Nevertheless, the district judge refused to disregard the

1/ See Metropolitan National Bank of Kansas City b. Campbell Com-

mission Co., 77 F. 705, 710 (W. D. Mo. 1896).

A4

law and serve his own yearnings, and he forthrightly declined to

order remand of the case absent a valid motion upon valid

grounds. 2

Ultimately, plaintiff filed a motion for remand, asserting

that complete diversity of citizenship did not exist between

plaintiff on the one hand and defendants on the other. In

support, plaintiff presented what appears to have been rather

significant evidence. The defendant Southwestern Bell Tele-

phone Company, whose non-Texas citizenship was necessary

for complete diversity, had theretofore filed a sworn pleading in

a Texas state proceeding asserting that it was a Texas corpora-

tion and resident of Dallas. The district court decided the issue

on a motion to remand based upon the evidence before him.

The sworn statement by the corporate defendant was before

the court. The court declined to hear contrary evidence from

the defendant, citing the common law doctrine of judicial

estoppel. Based, therefore, upon the evidence before the court,

and limited to the evidence which the court was willing to

accept, the district judge held that complete diversity of citizen-

ship was lacking and the case had been “improperly removed”

and ordered it remanded to the state court.

2/ He made it clear that if the plaintiff were to be successful in a

motion to remand the case to the state court, the plaintiff would have to

demonstrate that federal jurisdiction as contemplated by 28 U.S.C. 5 8

1332, 1441 did not exist. See Gravitt v. Southwestern Bell Telephone Co.,

396 F. Supp. 948 (W.D. Tex. 1975).

3/ The only issue presented to the district court on the motion to

remand was whether complete diversity of citizenship existed between

the parties. Since he answered this question in the negative, the district

court was compelled to the conclusion that he was “without jurisdiction.”

The original panel opinion in this court correctly assumed that the remand

was ordered on the basis that the case was removed “improvidently and

without jurisdiction.” In re Southwestern Bell Telephone Co., 535 F. 2d

859 (5th Cir. 1976).

This mandamus action by the defendant followed.

In this court the case again meets my suggested test for a

“hard” case. The district court had, it was felt, dealt rather

harshly with the contentions of the defendant and his invoca-

tion of judicial estoppel seemed overdone for even such a

time-honored principle. It appeared that the issue had been

decided incorrectly. This court has sufficient power under our

system to order that the result be changed. Yet, I submit, this

court does not have the authority to issue such an order.

The Congress is empowered to define the jurisdiction of our

court. 4/ In its exercise of that constitutional power, it has

declared that this court may not review an order of remand.

Title 28 U.S. C. A. § 1447(d) provides, in pertinent part:

“An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise.

The unique case of Thermtron Products, Inc. v. Hermans-

dorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976) is

no authority for the review of the remand order in this case.

As I view it, the Supreme Court in Thermtron defined only one

boundary to the prohibition of review by the circuit courts. It

held that B 1447(d) must be read in conjunction with 28 U.S.C.

§ 1447(c) which provides:

“If at any time before final judgment it appears that the

case was removed improvidently and without jurisdiction,

the district court shall remand the case, and may order the

payment of just costs.

4/ U.S. Const. Art. III. § 1.

A

— T—½¼⅜.. ˖˙˖»«ęK

The facts present in Thermtron were unprecedented. The

trial judge had held that the case was properly removed and that

it was within the jurisdiction of the district court. He specifi-

cally did not find that the case “was removed improvidently

and without jurisdiction”. He nevertheless ordered the case

remanded to the state court because, among other reasons, he

felt that the docket in the district court was overcrowded. The

Supreme Court did not hold that a finding o. a district court

that a case had been removed improvidently and without juris-

diction was subject to review. It merely held that a district

court has no authority in the law to order a remand other than

pursuant to a finding that the case had been removed improvi-

dently and without jurisdiction. The district court is limited in

its authority to order remand just as the circuit judge is limited

in its authority to review. It may only order remand pursuant

to § 1447(c). In Thermtron the court said:

“It is unquestioned in this case and conceded by peti-

tioners that this section [1447(d)] prohibits review of all

remand orders issued pursuant to J 1447(c) whether errone-

ous or not and whether review is sought by appeal or by

extraordinary writ. ... If a trial judge purports to remand a

case on the ground that it was removed ‘improvidently and

without jurisdiction,’ his order is not subject to challenge in

the Court of Appeals by appeal, by mandamus or otherwise.”

423 U.S. at 343, 96 S. Ct. at 589.

It is perfectly clear that, regardless of the merits of the trial

court’s determination, the trial judge in this case ordered the

remand pursuant to 8 1447(c).

If anything is clear from Thermtron it seems to be that the

only question properly before a circuit court in such a case is

whether or not the district court ordered the remand pursuant

to § 1447(c). Yet, the majority today approves a further

question posed by the panel opinion in this case.

May a district court utilize the doctrine of judicial

estoppel as the basis for holding that a case was removed

po ae and without jurisdiction’ within the meaning

of 5 1447(c)?”

Thus, having crossed over the Jordan on the narrow bridge seen

to have been constructed by the Supreme Court in Thermtron,

the narrow pathway has been abandoned and we spread out all

over the Promised Land! The court has, though not authorized

by Congress, reviewed an order remanding a case to the state

court from which it was removed.

The fact that this is a full and complete review of an order of

remand is best illustrated by the extent to which the majority

alters the decision of our court’s panel. The panel had recog-

nized the finality of a district court’s order in a case such as

this by directing that the district court abandon its basis for

the disapproved finding but yet hold further hearings to deter-

mine if the case had been removed improvidently and without

jurisdiction. Today, the majority conclude that no such further

hearings are necessary. They have reviewed the matter upon

evidence presumably taken before us at the en banc oral argu-

ments, and announced their findings of fact, conclusions of

law, and order on the motion to remand.

It is a hard case but that is bad law.

Whether it be warning or mandate, it is clear that the state-

ment “Hard cases make bad law” is, indeed, prophecy. Thus,

respectfully, I dissent.

A-8

In e SOUTHWESTERN BELL TELEPHONE COMPANY,

American Telephone and Telegraph Company, and

C. L. Todd, Petitioners.

No. 76-2237.

United States Court of Appeals.

Fifth Circuit.

July 9, 1976.

Rehearing En Banc Granted

Aug. 3, 1976.

A petition was filed for writ of mandamus to the United

States District Court for the Western District of Texas, Adrian

A. Spears, Chief Judge. The Court of Appeals held that district

court could not utilize doctrine of judicial estoppel as basis for

holding that a case was removed “improvidently and without

jurisdiction” within meaning of statute stating grounds for

remand of removed case, and thus statutory barrier to review of

order remanding a removed case to state court was inapplicable

and mandamus was proper remedy to redress the illegal remand

order.

Writ of mandamus issued directing District Court to vacate

its remand order and conduct further proceedings.

1. Removal of Cases Key 107(9)

As general rule, a federal district court order remanding a

removed case to state court is not reviewable on appeal or

otherwise. 28 U. S. C. A. 8 8 1332, 1441, 1447(d).

2. Removal of Cases Key 2

The scope of federal removal statutes is a matter of federal

law. 28 U.S.C.A. 8 8 1441(b), 1447(c, d).

A-9

3. Courts Key 359.1(1), 361(1)

In diversity litigation in federal courts where nonfederal

issues are at stake, decisional law compels the application of the

relevant state formulation of the judicial estoppel principle, if

any; as to federal issues, however, United States courts are free

to follow such doctrine as they think proper.

4. Courts Key 280(1)

Persons who meet statutory requirements of federal jurisdic-

tion have a statutory, as well as a constitutional, right to resort

to federal courts, and a district court has no authority to negate

that right simply because such a person has not observed the

consistency in pleading that the forum state may demand.

5. Courts Key 37(3)

Judicial estoppel principles cannot conclusively establish

jurisdictional facts.

6. Courts Key 280(5)

If facts come to light casting significant doubt on the power

of a federal court to hear a pending case, it must reexamine its

jurisdiction.

7. Mandamus Key 44

Removal of Cases Key 102, 107(9)

District court could not utilize doctrine of judicial estoppel

as basis for holding that a case was removed “improvidently and

without jurisdiction” within meaning of statute stating grounds

for remand of removed case, and thus statutory barrier to

review of order remanding a removed case to state court was

inapplicable and mandamus was p remedy to redress the

illegal remand order. 28 USCA BS 1441(b), 1447(c, d).

Jack Hebdon, Green & Kaufman, Inc., Hubert W. Green,

James E. Barden, San Antonio, Tex., Dewey, Ballantine, Bush-

A-10

by, Palmer & Wood, New York City, for petitioners.

Adrian A. Spears, U.S. Dist. Court Chief Judge. Pat Maloney.

San Antonio, Tex., for Gravitt.

On Petition for Writ of Mandamus to the United States

District Court for the Western District of Texas.

Before GODBOLD, RONEY and GEE, Circuit Judges.

PER CURIAM:

This mandamus proceeding arises out of a tort action com-

menced in 1974 in Texas state court against Southwestern

Bell Telephone Co. (Southwestern), American Telephone and

Telegraph Co. (AT&T), and C. L. Todd, an executive of South-

western. Plaintiffs alleged a variety of causes of action including

defamation, contractual interference, and wrongful death, and

they sought $29 million in damages. In May 1975 the plaintiffs

filed an amended petition dropping their claims against Todd.

At that time defendants removed the action to the United

States District Court for the Western District of Texas. The

District Judge, in denying plaintiffs’ motion to remand, ac-

cepted jurisdiction on the basis of diversity of citizenship. 1/

He evidently based this ruling on the following factual allega-

tions: Plaintiffs were citizens of Texas, Oklahoma, and Florida.

Southwestern was a Missouri corporation with its principal

place of business in Missouri; AT&T was a New York corpora-

tion with its principal place of business in New York; and Todd

was a citizen of Texas. Thus dismissal of Todd created complete

diversity in the case, justifying removal under 28 U.S.C. § §

1332, 1441. At the time plaintiffs did not challenge the citizen-

mitt v. Southwestern Bell Tel. Co., 396 F. Supp. 948 (W. D. Tex.

1975).

A-11

ship of any party.

About a year later, following extensive discovery and pretrial

activity in federal court, plaintiffs unearthed a pleading South-

western had submitted in an unrelated 1968 suit filed in state

court in Harris County, Texas. In that earlier proceeding South-

western had stated under oath that it was “a corporation,

duly organized under and by virtue of the laws of the State of

Texas, and domiciled in Dallas, Texas, where it has its principal

place of business.” -2/ Plaintiffs in the instant case again moved

for a remand, and it was granted. The District Judge invoked

the doctrine of judicial estoppel, which he defined by quoting

Long v. Knox, 155 Tex. 581, 291 S.W. 2d 292, 295 (1956):

AA] party is estopped merely by the fact of having alleged or

admitted in his pleadings in a former proceeding under oath the

contrary to the assertion sought to be made. . [I]t is not

necessary that the party invoking this doctrine have been a

party to the former proceeding.” Thus the court, while not

actually finding that Southwestern was not a Missouri citizen,

held that under the doctrine of judicial estoppel, Southwestern

Bell is estopped to allege its Missouri domicile as a basis for

diversity jurisdiction in the instant case.” Southwestern now

brings this mandamus proceeding to compel the District Judge

to retain the case in his court.

[1] As a general rule, a federal district court order remanding

a removed case to state court “is not reviewable on appeal or

otherwise.” 28 U.S.C. B 1447(d). However, the Supreme Court

has recently articulated an exception to this principle. In

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96

S. Ct. 584, 46 L. Ed. 2d 542 (1976), a district judge remanded

2/ The pleading was styled a “plea of a

privilege” and alluded to South-

western’s — ad to “exclusive venue in the county of one’s

. * A it

— — — pparently ia an attempt to have the

A-12

a removed case because his docket was crowded with high-

priority cases that would, in his opinion, unjustly delay plain-

tiffs’ relief if they had to await a trial on the merits in federal

court. The Supreme Court held that § 1447(d) did not preclude

review in this situation. The Court noted that § 1447(d) had to

be construed in conjunction with § 1447(c), which sets forth

the only permissible basis for remand: that “the case was

removed inprovidently and without jurisdiction.” Thus, the

Court concluded, if a district judge’s reason for remanding a

case is outside the grounds specified in § 1447(c), as Judge

Hermansdorfer’s was, the barrier to review in f 1447(d) is also

inapplicable, and mandamus is a proper remedy to redress the

illegal remand order.

Under Thermtron Products, the question before us is purely

a legal one: 3/ may a district court utilize the doctrine of

judicial estoppel as the basis for holding that a case was re-

moved “improvidently and without jurisdiction” within the

meaning of J 1447(c)? We answer this question in the negative.

3/ That is, the question is not whether Southwestern’s behavior was so

wrongful as to justify invocation of the judicial estoppel doctrine in what-

ever circumstances that doctrine might be deemed a legally proper ground

of decision. That question need not be considered, just as the Court in

Thermtron Products did not r eh the issue of whether Judge Hermans

dorfer’s docket really was too crowded.”

In Robertson v. Ball, 534 F. 2d 63, 65 (CA5, 1976) we found an ex-

press invocation by the district court of the 8 1447 (e) grounds for re-

mand” in the lower court’s recitation that the action was not one of

which this [district] court would have had original jurisdiction.’ ” The

text of 28 U.S.C. § 1441(b) makes it clear that the District Court’s reason-

ing in Robertson was legally sufficient under § 1447(c). The question in

the instant case is whether the respondent’s basis for disclaiming jurisdic-

tion was so far removed from what § 1447(c) contemplates that it justifies

the extraordinary remedy of mandamus.

A-13

[2-7] The scope of the federal removal statutes is a matter of

federal law. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

104, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); cf. Mas v. Perry, 489

F. 2d 1396, 1399 (CAS), cert. denied, 419 U.S. 842, 95 S. Ct.

74, 42 L. Ed. 2d 70 (1974) (diversity of citizenship is a federal

question). J Federal courts deciding federal issues have applied

the judicial estoppel doctrine cautiously, usually confining it

to circumstances in which the opposing party took action in

reliance upon the estopped party’s prior stance. / Whatever

the scope of the doctrine may be, so far as we have been able to

discover it has never been employed to prevent a party from

taking advantage of a federal forum when he otherwise meets

the statutory requirements of federal jurisdiction. Persons who

meet those criteria have a statutory, and indeed a consitu-

tional. right to resort to the federal courts. A district court

fror this reason Long v. Knox, supra, and Johnson Service Co. b.

Transamerican Ins. Co., 485 F. 2d 165 (CA5, 1973), cases relied on by

the respondent, are not controlling authorities here. They were unambigu-

ously founded on the judicial estoppel rules of the state of Texas. “In

diversity litigation in the federal courts where nonfederal issues are at

stake, probably the Erie and Angel v. Bullington decisions compel the

application of the relevant state formulation of the [judicial estoppel]

principle, if any. As to federal issues, however, United States courts are

free to follow such doctrine as they think proper.” 1B J. Moore, Federal

Practice Paragraph 0.405[8] at 771 (1974). See also Sola Elec. Co. v. Jef.

ferson Elec. Co., 317 U.S. 173, 176, 63 S. Ct. 172, 87 L. Ed. 165 (1942).

I. Moore, loc. cit. at 769-70; cf. Colonial Refrigerated Transp., Inc.

v. Mitchell, 403 F. 2d 541, 550 (CA5, 1968).

&/ Thermtron Products, 423 U.S. at 345, 96 S. Ct. at 590, 46 L. Ed. 2d

at 550 & n. 9.

4! Terral v. Burke Constr. Co., 257 U.S. 529, 42 8. Ct. 188, 66 L. Ed.

352 (1922).

A-14

has no authority to negate that right simply because such a

person has not observed the consistency in pleading that the

forum state may demand. / Judicial estoppel principles cannot

conclusively establish jurisdictional facts. If facts come to light

casting significant doubt on the power of a federal court to hear

a pending case, it must, of course, re-examine its jurisdiction.

Southwestern’s 1968 pleading has some probative value as evi-

dence that the company is a citizen of Texas. In light of this

newly discovered evidence, the District Court should make a

suitable inquiry into the question of whether the parties are

truly diverse. We do not express a view one way or the other.

We only hold that the problem of jurisdiction must be resolved

in accordance with the facts as they are, not as Texas jurispru-

dence concerning estoppel might deem them to be.

A writ of mandamus will issue directing the District Court to

vacate its remand order and conduct further proceedings not

inconsistent with this opinion.

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, GEWIN, COLEMAN,

AINSWORTH, GODBOLD, DYER, CLARK, RONEY, GEE,

8/ The only case on point that we can find reached a similar conclusion.

In Egerton v. Starin, 91 F. 932 (C.C.D. Conn. 1899), the plaintiff filed suit

in state court, describing himself as “illiam C. Egerton, of said New

Haven.” The defendant, a citizen of New York, removed the case to feder-

al court, and Egerton moved to remand on the ground that he himself was

also a New York citizen. The District Judge refused to accept Egerton’s

original pleading as conclusive. He granted the motion, holding, inter alia,

that [the question of residence is to be determined, not merely upon

the pleadings in the state court, but upon the allegations of the petition to

remand, and the testimony taken thereon.”

A-15

TJOFLAT and HILL, Circuit Judges. *

BY THE COURT:

A member of the Court in active service having requested

a poll on the application for rehearing en banc and a majority

of the judges in active service having voted in favor of granting

a rehearing en banc,

IT IS ORDERED that the cause shall be reheard by the Court

en banc with oral argument on a date hereafter to be fixed. The

Clerk will specify a briefing schedule for the filing of supple-

mental briefs.

* Due to illness WISDOM and THORNBERRY, Circuit Judges, did

not participate in this decision. GOLDBERG and MORGAN, Circuit

Judges, are recused.

A-16

—— —

WEST KEY NUMBER SYSTEM

Mrs. Oleta GRAVITT, Individually and as Executrix of

the Estate of T. O. Gravitt, Deceased, et al.

V.

SOUTHWESTERN BELL TELEPHONE COMPANY

and American Telephone and Telegraph Company.

James H. ASHLEY

v.

SOUTHWESTERN BELL TELEPHONE COMPANY et al.

Civ. A. No. SA75CA117.

United States District Court,

W. D. Texas,

San Antonio Division.

April 27, 1976.

Civil action initiated in state court against telephone com-

pany was removed to federal district court sitting in Texas.

Plaintiffs’ first motion to remand the case to state court was

denied by the District Court, 396 F. Supp. 948. On plaintiffs’

second motion to remand, the District Court, Spears, Chief

Judge, held that under the doctrine of judicial estoppel, defen-

dant telephone company was estopped to allege its Missouri

domicile as a basis for diversity jurisdiction in the federal court;

A-17

and that plaintiffs would be allowed to recover all the costs and

disbursements by reason of the improper removal of the action.

Motion to remand case to state court granted.

1. Estoppel Key 68(2)

Defendant telephone company would be estopped to allege

its Missouri domicile as basis for diversity jurisdiction in civil

action originally brought in Texas state court and subsequently

removed to district court where, in 1968 suit filed in Texas,

telephone company swore that it was “corporation, duly

organized under and by virtue of the laws of the State of Texas,

and domiciled in Dallas, Texas, where it has its principal office

of business.

2. Removal of Cases Key 107(11)

In civil action originally filed in Texas state court and subse-

quently removed to federal district court sitting in Texas,

plaintiffs, upon remand of case to state court, would be allowed

to recover all costs and disbursements by reason of improper

removal where suit was initially removed at instance of defen-

dant following improvident filing by plaintiffs of amended

complaint and where defendant was subsequently found to be

judicially estopped from alleging its Missouri domicile as basis

for diversity jurisdiction in federal court. 28 U.S. C. A. § 1446(d).

Pat Maloney, San Antonio, Tex., for plaintiffs.

Jack Hebdon, Hubert W. Green, James E. Barden, San

Antonio, Tex., for defendants; Dewey, Ballantine, Bushby ,

Palmer & Wood, New York City, of counsel.

A-18

ORDER REMANDING CASE TO STATE COURT

SPEARS, Chief Judge.

This lawsuit was initially instituted in state court on Novem-

ber 15, 1974. Before its removal to this Court on May 8. 1975

almost six months of pretrial and discovery had been conducted,

and a definite trial date had been set for July 11, 1975. Despite

this, the parties have constantly bombarded this Court with

numerous pretrial and discovery matters ever since the case

was removed, and there are no indications that the case is yet

ready for trial. In this connection, the records in the office of

the Clerk reflect that for the period of time the case has been in

this Court, 327 separate docket entries have been made, the last

as recent as April 21, 1976.

As was pointed out by this Court in a prior opinion denying

the first motion to remand, -L/ the improvident filing by plain-

tiffs of an amended complaint brought about the removal to

this Court, and the defendants, having been handed the oppor-

tunity on a silver platter, immediately seized upon the totally

unexpected turn of events to transfer the case to the forum of

their choice.

[1] Now, however, the situation has dramatically changed.

It appears that in a 1968 suit filed in Harris County, South-

western Bell swore that it was a “corporation, duly organized

under and by virtue of the laws of the State of Texas, and

domiciled in Dallas, Texas, where it has its principal office of

business. The plaintiffs argue, therefore, that under the doc-

trine of judicial estoppel, Southwestern Bell is estopped to

1/ Gravitt v. Southwestern Bell Telephone Co., 396 F. Supp. 948

(W.D. Tex. 1975).

A-19

|

allege its Missouri domicile as a basis for diversity jurisdiction

in the instant case, and this Court agrees, the protestations of

Southwestern Bell to the contrary notwithstanding. / Having

previously elected to make its judicial bed in Texas, it must now

lie in it. It cannot enjoy the best of two worlds.

The Supreme Court of Texas in Long v. Knox, 1956, 155

Tex. 581, 291 S.W. 2d 292, 295, in explaining the doctrine of

judicial estoppel, said that “a party is estopped merely by the

fact of having alleged or admitted in his pleadings in a former

proceeding under oath the contrary to the assertion sought to

be made, and that “it is not necessary that the party invoking

this doctrine should have been a party to the former pro-

ceeding.”

In Johnson Service Co. v. Transamerica Insurance Co., 485

F. 2d 164 (Sth Cir. 1973), the Fifth Circuit Court of Appeals

discussed the doctrine of judicial estoppel at some length, and

concluded that it “is a technical rule designed to meet [the]

needs of broad public policy”, and is “directed against those

who would attempt to manipulate the court system through the

calculated assertion of divergent sworn positions in judicial

proceedings. ...”

2/ in an affidavit filed by the attorney who represented Southwestern

Bell in the 1968 case, it is stated that the plea of privilege filed therein,

which contained the quoted language, was “intended to refer only to the

fact that Southwestern Bell is duly licensed to do business as a foreign

corporation in the State of Texas”. However, “a corporation, duly or-

ganized under and by virtue of the laws of Texas”, constitutes a clear and

unambiguous allegation concerning Southwestern Bell’s state of incorpora-

tion, and could hardly be characterized as the description of a foreign

corporation duly licensed to do business in Texas. Significantly, the Texas

venue provisions are more favorable to domestic corporations than they

are to foreign corporations. Commercial Ins. Co. of Newark v. Adams,

369 S.W. 2d 927 (Tex. Sup. Ct. 1963).

So, after virtually monopolizing the time and energies of a

state court for six months, and a federal court for almost a

year, this case has come full circle. It was removed to federal

court as the result of a fluke, pure and simple, and it must be

remanded to the state court because of a doctrine “designed to

meet the needs of [a] broad public policy”. In the end, how-

ever, justice is done, since the case will now be tried in the

forum in which it was originally filed, and where, except for

the bungling of plaintiffs, it would have remained.

Accordingly, it is ORDERED, ADJUDGED and DECREED

that this action was improperly removed, and that the plaintiffs’

second motion to remand be, and the same is hereby,

GRANTED. The Clerk of this Court is directed to return to

the state court from whence they came, all records and pro-

ceedings received therefrom by this Court, as well as all records

and proceedings filed in this Court since the removal date.

[2] It is FURTHER ORDERED that the plaintiffs recover

all their costs and disbursements by reason of the improper

removal of this action, as provided by Title 28, United States

Code, Section 1446(d).

A-21-