Petition for Writ of Certiorari — CSX Transportation, Inc. v. Tillman

. Bupreme Court, U.S,

, FILED

91-67

No. $1—— ~ Ff. JUL 8 1991

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

CSX TRANSPORTATION, INC.

and

MARLER L. BENNETT,

Petitioners

Vv.

DAVID E. TILLMAN,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

L. HAVARD Scott, III

Counsel of Record

KENNETH J. SERVAY

BRENT A. TALBOT

CHAFFE, MCCALL, PHILLIPS,

TOLER & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

July 8, 1991 Counsel for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-O09C - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

In this case, the district court, on the Friday afternoon

before the Monday that trial was to commence and after

this matter had been heatedly litigated in federal court

for over sixteen months, swa sponte revived and granted

a previously denied joinder and remand motion about

an hour after the parties had informed the court that

their court-ordered settlement negotiations had failed.

This case presents the following questions:

1. Did the Fifth Circuit incorrectly conclude that 28

U.S.C. § 1447(d) and this Court’s interpretive juris-

prudence preclude review, whether by mandamus or

appeal, of a district court’s remand order entered

under 28 U.S.C. § 1447(e)? See Argument I.A, infra.

2. Can a district court insulate its joinder/remand order

entered under 28 U.S.C. § 1447(e) from review by

stating a jurisdictional ground as a pretext for its true

basis for entering the order? See Argument I.B, infra.

3. Is a district court’s Section 1447(e) joinder and re-

mand order reviewable where the district court invoked

clearly reviewable nonjurisdictional grounds, as well

as jurisdictional grounds, as the basis for its order?

See Argument I.C, infra.

4. Does a joinder order entered in conjunction with a

remand order under 28 U.S.C. § 1447(e), and entered

sua sponte by the district court on the last business

day before trial intending to destroy its subject mat-

ter jurisdiction, constitute a reviewable order under

this Court’s “collateral order” doctrine of appealabil-

ity? See Argument II, infra.

5. Does a district court abuse its discretion in sua sponte

reviving and granting a previously denied joinder and

remand motion on the Friday afternoon before a

(i)

ii

scheduled Monday trial, after the parties had an-

nounced to the court that the settlement negotiations

it had ordered had been unsuccessful? See Argument

III, infra.

iii

LIST OF PARTIES AND RULE 29.1 LIST

The parties to the proceeding below were petitioners,

CSX Transportation, Inc., and Marler L. Bennett (de-

fendants) and David E. Tillman (plaintiff). At the time

of its dismissal of this case, the district court, sua sponte,

resurrected a previously denied motion to join as an addi-

tional defendant, the Louisiana Department of Transpor-

tation and Development.

Petitioner, CSX Transportation, Inc., certifies pur-

suant to this Court’s Rule 29.1 that its parent company

is CSX Corporation and that its subsidiaries and affiliate

companies that are not owned are Allegheny and Western

Railway Company, The Baltimore and Cumberland Val-

ley Railroad Extension Company, The Central Railroad

of South Carolina, The Cincinnati Inter-Terminal Rail-

road Company, Clearfield and Mahoning Railway Com-

pany, The Cleveland Terminal Valley Railroad Company,

Dayton and Michigan Railroad Company, The Home

Avenue Railroad Company, and RF&P Corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................2...00.cccccccceeeeceececeees i

LIST OF PARTIES AND RULE 29.1 LIST ................ iii

yf) PF Fe iin y 3: 1 yy) a eeennensenn vii

oo canpnaneiumbananenviniadidaes 1

FS SE TS SS ES Re ON 2

a ccssunbeeiunneuenesiaiealns 3

STATEMENT OF THE CASE, .0.......-ccccccceccccccccccceeseeeceeee 3

PASTELS DR a OE Ee PS SE aE RE eae 3

B. The District Court Proceedings 4

C. Proceedings Before the Fifth Circuit ........0000.... 6

REASONS FOR GRANTING THE WRIT .................. 8

I. THE FIFTH CIRCUIT’S RULING THAT THE

DISTRICT COURT’S JOINDER/REMAND

ORDER IS UNREVIEWABLE CONFLICTS

WITH THIS COURT’S JURISPRUDENCE.... 8

A. The district court’s joinder/remand order,

expressly grounded in 28 U.S.C. § 1447(e)

is outside the scope of orders unreviewable

under 28 U.S.C. § 1447 (c) ..................2..20..22.--. 8

B. The district court’s pretextual jurisdictional

basis for remand should not insulate its order

from review under Thermtron _..........000000000.... 13

C. The district court’s remand order states non-

jurisdictional grounds that are reviewable

Gr See wo ee 16

vi

Page

TABLE OF CONTENTS—Continued

II. THE FIFTH CIRCUIT’S RULING THAT THE

DISTRICT COURT’S JOINDER ORDER IS

AN UNREVIEWABLE INTERLOCUTORY

ORDER CONFLICTS WITH THIS COURT'S

“COLLATERAL ORDER DOCTRINE”

JURISPRUDENCE ...........22222-2--2-ecceceeeeceececeneeneeees 17

III. THE FIFTH CIRCUIT’S SUGGESTION THAT

NO ABUSE OF DISCRETION RESULTED

FROM THE DISTRICT COURT’S EVE OF

TRIAL JOINDER AND REMAND ORDER

CONFLICTS WITH THE JURISPRUDENCE

OF THIS COURT AND OTHER FEDERAL

SE I secsctcevcecescasesencoverpesencsostecnormianinnremenanreees 20

oF) ann 22

vii

TABLE OF AUTHORITIES

CASES Page

Beeck v. Aquaslide ‘N’ Dive Corp., 562 F.2d 537

RECESS irs SS Ar a CEA 21

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

I I i ea 18, 19

Coopers & Lybrand v. Livesay, 487 U.S. 463

ER AGS SRR eee ee ee eer Ce Oe a 18

Director, Office of Workers’ Compensation Pro-

grams, United States Department of Labor v.

Perini North River Associates, 459 U.S. 297

SANTEE chiscincie cticesineai cbaicnduiiatmtineianiise SA RE) A et 11

Foman v. Davis, 371 U.S. 178 (1962) ......000.. 21

Garber v. Randell, 477 F.2d 711 (2d Cir. 1973).... 19

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

On sili 11

Gravitt v. Southwestern Bell Telephone Co., 430

I 10

Gravitt v. Southwestern Bell Telephone Co., 396

F. Supp. 948 (W.D. Tex. 1975) ..........00220202. 10, 14, 15

Gravitt v. Southwestern Bell Telephone Co., 416

F. Supp. 830 (W.D. Tex. 1976), vacated sub

nom., In re Southwestern Beil Telephone Co., 535

F.2d 859 (panel decision), 542 F.2d 297 (5th

Cir. 1976) (en banc), reversed, Gravitt v.

Southwestern Bell Telephone Co., 430 U.S. 723

6, ERTS IRENE een Son Rete 10, 14, 15

Gulfstream Aerospace v. Mayacamas Corp., 485

2 § —oa eS oe eee ee 18

In re Ben Carter, 618 F.2d 1093 (5th Cir. 1980),

cert. denied sub nom., Sheet Metal Workers In-

ternational Association v. Carter, 450 U.S. 949

I ic ccinbettinieen 10

In re Federal Savings and Loan Insurance Corp.,

837 F.2d 482 (11th Cir. 1988) 220000. 11

In re Southwestern Bell Telephone Co., 535 F.2d

859 (panel decision), 542 F.2d 297 (5th Cir.

1976) (en banc), reversed, Gravitt v. South-

western Bell Telephone Co., 480 U.S. 723

CUE cabentcieacelneean- cantina aa ae 10

viii

TABLE OF AUTHORITIES—Continued

Page

J.0. v. Alton Community Unit School 11, 909 F.2d

oe. 8 Eh) 10

Katz v. Realty Equities Corp. of New York, 521

F.2d 1854 (2d Cir. 1975) -............2.........--eceeneeceeees 19

Keeler v. Hewitt, 697 F.2d 8 (1st Cir. 1982) ........ 21

Lopez v. General Motors Corp., 697 F.2d 1328

I a cttecinectirtntntcrrcsciniienctiiienipernnneercenes 21

Levy v. Weissman, 671 F.2d 766 (3d Cir. 1982)... 15

Murphy v. White Hen Pantry Co., 691 F.2d 350

CE FAIR FI nerentncncrtescansnccscoscniperecesennmesnssigeommes 21

Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990) .... 15

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424

ED dedennctinttnbivecncsrtlincittnimeninesennciishisoniedtininlssticnonestbaaniuibens 18

Sheet Metal Workers International Association,

AFL-CIO v. Seay, 696 F.2d 780 (10th Cir.

BE -cicsincicttinhtennianiciaisssieaditigabitcniveapiniadialiatadatinadapabecsihint passim

TUITE <isisiilisshae risen hbeiiedilibadcutmsccbetbdegatcinlesditalgnlideadmdtaibicitaeti 15

Thermtron Products, Inc. v. Hermansdorfer, 423

is naelietlennilncianiareetions passim

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) .. 18

STATUTES AND RULES

a. id cncetctielanloninesintasat 2

CON TE a ae 2,3

al ipa ionlidlenalsbeinacenenoeni passim

i scamstian ndichatenionasnenanncnelniiial passim

a ieeinstinadaetbeibasldnie 2

IES TG BID ccescecscemcdccncnivcesccnerorentccadnsenrnes 3, 20, 21

RONNIE ciscs tell irccesniccntoninncclen ti neinhensaemomicomsnioaies 2

IN THE

Suprene Court of the Wuited States

OCTOBER TERM, 1991

No. 91- ——

CSX TRANSPORTATION, INC.

and

MARLER L. BENNETT,

Petitioners

Ve

DAVID E. TILLMAN,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, CSX Transportation, Inc. and Marler L.

Bennett, respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit entered in the

above entitled proceeding on April 11, 1991.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 929 F.2d 1023 and is

reprinted in the appendix hereto, p. la, infra.

The order and reasons of the United States District

Court for the Eastern District of Louisiana is unre-

ported and is reprinted in the appendix hereto, p. 18a,

infra.

2

JURISDICTION

Respondent, David E, Tillman, a citizen and resident

of the State of Mississippi, filed this personal injury

action in the Civil District Court for the Parish of Or-

leans, State of Louisiana, on August 25, 1988. On Sep-

tember 22, 1988, petitioners, CSX Transportation, Inc., a

Virginia corporation with its principal place of business

in Jacksonville, Florida, and Marler L. Bennett, a citizen

and resident of the State of Alabama, removed this action

to the United States District Court for the Eastern Dis-

trict of Louisiana. In filing their removal petition pur-

suant to 28 U.S.C. § 1441 et seq., petitioners invoked the

district court’s federa] diversity jurisdiction, 28 U.S.C.

§ 1332.

On January 19, 1999, the Friday before the Monday

that this case was to be tried and about one hour after

the parties had informed the district court that the court-

ordered settlement negotiations had failed, the district

court sua sponte reconsidered and granted respondent’s

previously denied motion to join the Louisiana Depart-

ment of Transportation and Development as an additional

defendant and to remand the case to the state court. The

district court invoked 28 U.S.C. § 1447(e) as the author-

ity for its joint joinder-remand order.

Petitioners timely appealed the district court’s order

to the United States Court of Appeals for the Fifth Cir-

cuit. Additionally, petitioners filed a petition for a writ

of mandamus with the Court of Appeals. The Court of

Appeals recognized that the joinder did not destroy fed-

eral jurisdiction but dismissed petitioners’ appeal and

denied the petition for writ of mandamus in an opinion

and order entered on April 11, 1991. Appendix, la, infra.

Petitioners now invoke the jurisdiction of this Court

pursuant to 28 U.S.C. § 1254(1) by filing this petition

within the 90-day time period provided by 28 U.S.C.

§ 2101(c) and Sup. Ct. R. 13.1.

3

STATUTES INVOLVED

The following statutes and rules of civil procedure are

implicated in this case: (1) 28 U.S.C. § 1332; (2) 28

U.S.C. §1441(a), (3) 28 U.S.C. § 1447(c), (d), and

(e); and (4) Fed. R. Civ. P. 15(a). The full text of these

provisions is set forth in the Appendix, infra, p. 23.

STATEMENT OF THE CASE

A. Preface

On Friday, January 19, 1990, i.e., on the last business

day before this case was to go to trial, the district court,

on its own motion, revived and granted a motion to add

an additional party and to remand this removed case

to state court. At the time this motion was granted, this

case had been bitterly contested in federal court for six-

teen months. Only a few weeks earlier, the district court

had denied the very same motion, concluding that it was

grossly and inexcusably dilatory and would result in sub-

stantial prejudice to petitioners. However, on Friday,

January 19, when the parties informed the district court

that they could not settle the case in court-ordered settle-

ment negotiations, the court revived and granted the

motion and remanded the case. Subsequently, the Fifth

Circuit concluded that the district court’s joinder/remand

order was unreviewable.

This case involves several important questions of federal

procedure which should be addressed by this Court. The

questions presented herein are substantial and important

not only to this case but to the law generally. Among

other issues, this case questions whether a joint joinder/

remand order entered under 28 U.S.C. § 1447(e) is re-

viewable, whether a district court can state a jurisdic-

tional basis as a pretext to insulate its remand order from

review, and whether a district court abuses its discretion

when it enters a joinder/remand order as a sanction, on

the eve of trial, with the intent of destroying its subject

matter jurisdiction. Petitioners submit that the questions

presented herein merit granting a writ in this case.

4

B. The District Court Proceedings

On August 29, 1988, respondent David E. Tillman, a

citizen and resident of the State of Mississippi, filed suit

against petitioners in the Civil District Court for the

Parish of Orleans, State of Louisiana. Respondent al-

leged that petitioner CSX, as the owner of a train, and

petitioner Bennett, as the engineer of the train, were

responsible to respondent for damages that resulted when

petitioners’ train collided with a tractor/trailer rig driven

by respondent at a railroad grade crossing in New Or-

leans, Louisiana. On September 22, 1988, petitioners

CSX (a Virginia corporation with its principal place of

business in Florida) and Marler L. Bennett (a citizen

and resident of the State of Alabama) removed the case

to the United States District Court for the Eastern Dis-

trict of Louisiana, invoking the court’s diversity juris-

diction.

The case proceeded in the federal district court for the

next sixteen months. During this time period, the parties

heatedly litigated this case. The district court record,

consisting of over 180 entries at the time of the district

court’s remand, chronicles the intensity of this litigation.

During this time, respondent amended his complaint to

add a punitive damage claim; the district court subse-

quently granted petitioners’ summary judgment motion

dismissing this claim. Various other claims and motions

were litigated and decided. Additionally, the parties

engaged in substantial discovery (which, pursuant to the

district court’s local rules, is not included in the record),

including the propounding and answering of several sets

of interrogatories and the taking of at least nineteen dis-

covery depositions. Several protective orders were sought

and issued.

The district court originally docketed this case for

trial on June 5, 1989. However, on respondent’s motion,

and over petitioners’ objection, the district court con-

tinued the trial until January 22, 1990.

—=B

On October 4, 1989, less than four months before the

January 1990 trial date and after pleading amendment

cut-off dates had passed, respondent filed a motion seeking

to add the Louisiana Department of Transportation and

Development (“DOTD”) as a party defendant. Respond-

ent joined this motion with a motion to remand the case

to state court. On November 2, 1989, the district court

denied the motion. Appendix, 13a, infra. The district

court reasoned that the DOTD was not an indispensable

party, that respondent was grossly and inexcusably dila-

tory in seeking the amendment, and that petitioners would

be prejudiced by the amendment. Jd. at 15a. Subse-

quently, on December 5, 1989, the district court denied

respondent’s motion to reconsider his joinder/remand mo-

tion. Appendix, 17a, infra.

The case proceeded toward trial. On January 10, 1990,

the district court held a pretrial conference, during which

the trial judge reiterated that the DOTD was not an in-

dispensable party and that the court would try the case

with the DOTD as an “empty chair” in accordance with

the court’s procedure in such cases.

Less than one week before the January 22, 1990, trial

date, during court-ordered settlement discussions, the

court informed the parties for the first time that it was

considering adding the DOTD as a party and remanding

the case back to state court. With the assistance of a

federal magistrate, settlement discussions continued

throughout the week before trial. With trial before a

jury scheduled to commence on Monday, January 22, 1990,

counsel for petitioners telephoned the federal magistrate

on Friday, January 19, 1990, at approximately 2:30 p.m.

and informed the court that the parties were unable to

settle the case. About one hour later, the district judge

held a telephone conference with counsel. During this con-

ference, the district court, on its own motion, resurrected

respondent’s previously denied joinder/remand motion.

The court then granted the motion and remanded the case,

6

On January 22, 1990, the date that trial was to have

commenced, the district court memorialized its telephone

conference ruling with a written minute entry order. See

Appendix 18a, supra. In this order, the district court in-

voked 28 U.S.C. § 1447(e) as its basis for granting the

joinder and remanding the case. The court believed (er-

roneously) that by adding the DOTD, a state sovereign

defendant, it had destroyed its subject matter jurisdiction

and had provided a basis for remanding the case. Jd. The

court stated in its order that joinder of the DOTD was

appropriate, because the purpose of the proposed amend-

ment was not to defeat federal jurisdiction and because

respondent had a valid cause of action against the DOTD.

Id. at 19a. It revoked its previous order denying this

motion and ruled that justice militated in favor of trying

the entire action before a single fact finder. Jd. Petition-

ers moved the district court to reconsider its order, but

the district court refused.

C. Proceedings Before the Fifth Circuit

Petitioners timely filed notices of appeal. Additionally,

petitioners invoked the mandamus jurisdiction of the

Court of Appeals. On April 11, 1991, the Court of Ap-

peals issued a written decision and order dismissing peti-

‘ioners’ appeal and denying their petition for writ of

mandamus.

The Fifth Circuit found that the case clearly was

within the district court’s diversity jurisdiction, as plain-

tiff Tillman was a Mississippi resident and defendants

CSX and Bennett were, respectively, Florida and Alabama

residents. Appendix 2a, infra. It recognized that the

district court “resuscitated” respondent’s joinder/remand

motion when the parties announced that they were unable

to settle the case, believing that the Eleventh Amendment

immunity of the DOTD destroyed its subject matter juris-

diction. Jd. at 3a-4a.

7

The appellate court acknowledged the district court’s

stated reasons for remanding: (1) that the entire case

should be tried by a single forum, and (2) that the dis-

trict court believed the DOTD had Eleventh Amendment

immunity and its joinder had destroyed its subject matter

jurisdiction. Jd. at 4a. It then analyzed whether it

had authority to review the remand order. The appellate

court reiterated this Court’s holding in Thermtron Prod-

ucts, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), that

only remand orders not based on 28 U.S.C. § 1447(c)

were reviewable. Jd. at 7a. While the appellate court

acknowledged that the district court had not expressly

invoked Section 1447(c), it nevertheless concluded that

the district court’s second reason for remand, although

incorrect,’ was within the scope of Section 1447(c), thus

precluding review of the remand order. Jd. at 8a-9a. It

found that the district court’s inclusion of an additional,

non-1447(c) ground for remand (reason No. 1, above)

did not make the remand order reviewable. /d. at 9a-

10a. The appellate court refused to address petitioners’

argument that this remand order, expressly based on

Section 1447(e) and not Section 1447(c), was reviewable

under Thermtron.

The Court of Appeal next held the district court’s

joinder order to be a nonreviewable interlocutory order.

Id. at 10a. Considering the joinder portion of the order

separate from the remand portion of the order, the court

reasoned that it did not have the requisite finality to be

reviewed under the “collateral order” doctrine of appeal-

ability. The court concluded that the case was still on-

going in federal court at the moment of the joinder order

(which the appellate court technically found to precede

the remand order), and the addition of DOTD did not

1 While the Fifth Circuit held the remand order unreviewable,

it concluded that the district court had erroneously found that the

joinder of the DOTD had destroyed its subject matter jurisdiction,

as a sovereign entity’s Eleventh Amendment immunity does not

destroy subject matter jurisdiction. Jd. at 8a-9a.

8

destroy diversity. Consequently, the court reasoned that

the joinder order was an unreviewable interlocutory order,

and not a reviewable collateral order. Jd. at 10a.

Finally, while finding that it had no authority to

review the correctness of the joinder order, the Fifth Cir-

cuit opined that the district court did not abuse its dis-

cretion. Jd. at 1la-12a. Ignoring the fact that the district

court, and not the respondent, resurrected the motion for

the purpose of destroying its subject matter jurisdiction,

the appellate court reasoned that the principal purpose of

respondent’s amendment was not to defeat federal juris-

diction because respondent had a valid cause of action

against DOTD. Jd. It further reiterated the district court

suggestion that the case should be tried before one fact

finder. Jd.

REASONS FOR GRANTING THE WRIT

I. THE FIFTH CIRCUIT'S RULING THAT THE

DISTRICT COURT’S JOINDER/REMAND ORDER

IS UNREVIEWABLE CONFLICTS WITH THIS

COURT’S JURISPRUDENCE

A. The district court’s joinder/remand order, expressly

grounded in 28 U.S.C. § 1447(e), is outside the scope

of orders unreviewable under 28 U.S.C. § 1447(c)

Title 28 U.S.C., Section 1447, quoted at 23a, infra,

provides the grounds and procedure for remanding a re-

moved case to state court. Section 1447(c) authorizes the

district court to remand a case any time before final

judgment where the district court lacks subject matter

jurisdiction. Section 1447(d) states that an order re-

manding a case to the state court from which it came

is not reviewable by appeal or otherwise. Section 1447(e),

added in 1988, provides that when a plaintiff seeks to join

additional defendants that would destroy subject matter

jurisdiction, the court may deny the joinder or allow

joinder and remand the case to the state court,

9

In this case, the district court expressly relied on Sec-

tion 1447(e) in sua sponte reviving and granting re-

spondent’s previously denied joinder/remand motion:

Since Plaintiff’s proposed amendment would destroy

subject matter jurisdiction in this court, the joinder

is governed by 28 U.S.C.A. §1447(e) ....

Appendix, 18a, infra. Petitioners expressly argued to the

Court of Appeals that it had jurisdiction to consider the

appropriateness of the remand order, since the district

court expressly based its joinder/remand order on Sec-

tion 1447(e). However, the Court of Appeals refused

to address whether a Section 1447(e) order is reviewable.

While this Court has not expressly addressed this issue,

its jurisprudence suggests that Section 1447(e) orders are

reviewable. In Thermtron Products, Inc. v. Hermansdor-

fer, 423 U.S. 336 (1976), the district court remanded a

case over which it had jurisdiction because it had no time

to try the case. Jd. at 339. This Court concluded that only

remand orders issued under Section 1447(c) and invoking

the grounds in that provision were shielded from review

under Section 1447(d). Id., 423 U.S. at 346. Under Sub-

section (c), as it existed at that time, remand was appro-

priate only where the removal was “improvident or with-

out jurisdiction.”* The Court found that the district

court’s crowded docket did not constitute a permissible

ground for remand under Section 1447(c). Therefore, the

Court of Appeals had mandamus jurisdiction to review

the order.

2 Subsection (c) was amended in 1988 as part of the Judicial

Improvements and Access to Justice Act, Pub. L. No. 702, 100th

Cong., 2nd Sess., § 1016; 102 Stat. 4642, 4670. The present text of

the subsection is as quoted in the Appendix, p. 23a, infra. Before

the 1988 amendment, the section provided for remand where removal

was “improvident and without jurisdiction.” For purposes of this

case, the amendment to Subsection (c) makes no difference, as both

before and after the amendment, remand is required where the dis-

trict court lacks subject matter jurisdiction.

10

Subsequently, the Court addressed the reviewability of

remand orders in Gravitt v. Southwestern Bell Telephone

Co., 480 U.S. 723 (1977). There, the district court made

a good faith, but erroneous, decision that it had no diver-

sity jurisdiction and remanded the case to the state court.

Gravitt v. Southwestern Bell Telephone Co., 416 F. Supp.

830, 831-32 (W.D. Tex. 1976). The Gravitt district court

had earlier expressly rejected a suggestion that it should

remand the case for lack of jurisdiction, even if it had

jurisdiction, because such a remand would not be review-

able. Gravitt v. Southwestern Bell Telephone Co., 396

F. Supp. 948, 951 n.1 (W.D. Tex. 1975). The Fifth Cir-

cuit found the district court’s remand order reviewable

under Thermtron and issued a writ of mandamus and

vacated the remand order. In re Southwestern Bell Tele-

phone Co., 535 F.2d 859 (panel decision), 542 F.2d 297

(5th Cir. 1976) (en banc). This Court reversed, conclud-

ing that the district court’s order, though possibly erro-

neous, was within the scope of Section 1447(c) and un-

reviewable. /d.

The clear mandate of Thermtron and Gravitt is that

mandamus review of remand orders is allowed except

when the district court’s order is based on Section

1447(c). Furthermore, with very limited exceptions, re-

mand orders that are outside the scope of Section 1447(c)

should be vacated. Consistent with these principles, Courts

of Appeals regularly have reviewed remand orders that

are outside the scope of Section 1447(c). E.g., In re Ben

Carter, 618 F.2d 1093 (5th Cir. 1980), cert. denied sub

nom., Sheet Metal Workers International Association v.

Carter, 450 U.S. 949 (1981) (review of remand after

entry of final judgment is reviewable); J.O. v. Alton

Community Unit School District 11, 909 F.2d 267 (7th

Cir. 1990) (Section 1447(d) does not preclude review

of orders remanding pendent state claims); Sheet Metal

Workers International Association, AFL-CIO v. Seay, 696

F.2d 780 (10th Cir. 1983) (review of remand order not

barred where case was remanded because state court could

11

provide a more adequate remedy) ; Jn re Federal Savings

and Loan Insurance Corp., 837 F.2d 432 (11th Cir. 1988)

(Section 1447(d) has no application to, and thus does

not bar review of, remand orders in cases removed under

a statute other than 28 U.S.C. § 1441(a)).

The Fifth Circuit’s opinion to the contrary, the district

court’s subsection (e) joinder/remand order is outside

the scope of Section 1447(c). When Congress added Sub-

section (e) in 1988, it expressly removed from Subsec-

tion (c) jurisdictional remand orders based on the dis-

trict court’s own action in joining a party that destroyed

subject matter jurisdiction. Furthermore, Congress did

not amend Subsection (d), which only prohibits review

of Subsection (c) remand orders. Thermtron, supra.

This Court has held that Congress is presumed to be

aware of the law, including the judicial interpretations

of its statutes. See Goodyear Atomic Corp. v. Miller, 486

U.S. 174, 184-85 (1988); Director, Office of Workers’

Compensation Programs, United States Department of

Labor v. Perini North River Associates, 459 U.S. 297,

319-20 (1983). Thus, Congress is presumed to be aware

of the Thermtron rule of reviewability of all but Section

1447(c) remand orders at the time it enacted Subsection

(e) without amending Subsection (d). Hence, Congress,

in adding Subsection (e) and in taking remand orders

within that new section outside the scope of Subsection

(ce), cannot be said to have made Subsection (e) remand

orders nonreviewable. Goodyear, supra; Perini, supra.

Furthermore, notwithstanding the Fifth Circuit’s de-

cision, a Section 1447(e) joinder/remand order is dis-

tinguishable from and outside the scope of Section 1447

(ce). Subsection (ce) contemplates remand where there is

no subject matter jurisdiction given the posture of the

case before the district court. Subsection (e), however,

grants the district court express authority to destroy its

existing jurisdiction by adding an additional party. Con-

gress made a conscious decision to segregate such joint

12

joinder/remand orders from pure remand orders covered

by Section 1447(c). Subsection (e) orders are review-

able, because Congress intentionally segregated such or-

ders from the scope of Subsection (c) without expressly

amending Subsection (d) to preclude their review under

Thermtron.

This case provides an example of how Subsection (e)

can be misused. The district court initially denied re-

spondent’s joinder/remand motion, finding that respond-

ent was grossly and inexcusably dilatory in making the

motion and that petitioners would be substantially prej-

udiced by the amendment. Appendix, 18a-15a, infra. On

the last business day before trial, after the parties told

the district judge that they could not settle the case in

court-ordered settlement negotiations, the district court

sua sponte revived respondent’s motion, granted the

joinder, and remanded the case. Appendix, 20a-21a,

infra. In effect, the district court used the Subsection

(e) joinder/remand procedure to penalize the parties for

not settling the case.

Whether Section 1447(e) orders are reviewable, and

how they are reviewable, present important questions of

federal civil procedure that this Court should address.*

Congress has evidenced no intent to preclude review of

joint joinder/remand orders entered under Subsection

(e). Absent express action of Congress, the courts

should not judicially preclude such review. Petitioners

submit that this issue presents an important question of

8 Because remand orders are reviewable by writ of mandamus,

see Arguments I.A, I.B, and I.C herein, and because the joinder

order in this case should be considered a collateral order reviewable

by appeal, see Argument II, supra, and because a Section 1447(e)

decree contains both a joinder order and a remand order, petitioners

sought both a writ of mandamus and appellate review from the

Fifth Circuit. Petitioners submit that Section 1447(e) orders

should be reviewable, whether by mandamus, by appeal, or by a

combination of mandamus and appeal.

13

federal civil procedure meriting the grant of a writ of

certiorari.

B. The district court’s pretextual jurisdictional basis

for remand should not insulate its order from re-

view under Thermtron

This case squarely presents the question whether the

district court can immunize its remand order from re-

view by interposing a jurisdictional basis for its true

motive in remanding the case. Petitioners submit that

the Section 1447(e) joinder/remand order saould be re-

viewed as a single, integrated order. However, regard-

less whether Subsection (e) joinder/remand orders are

reviewable as such, the district court’s remand order in

this case should be reviewable under this Court’s Therm-

tron decision.

Admittedly, the district court’s minute entry order of

January 19, 1990, states a jurisdictional reason as one

of two bases for its actions in remanding this case. How-

ever, the chronology of the case clearly demonstrates the

real reason for the remand: the parties had not settled

the case in court-ordered settlement negotiations. Re-

spondent filed his joinder/remand motion in October

1989. The district court first considered and rejected this

motion on November 1, 1989, chastising respondent for

being grossly and inexcusably dilatory in filing the mo-

tion. Appendix, 18a-l5a, infra. The district court fur-

ther found that, with the trial less than three months

away and with the discovery cut-off date only about a

month away, petitioners would have been severely preju-

diced by allowing the joinder. Z7d. Furthermore, the

court stated that it believed that granting the motion

would prejudice petitioners by requiring it to remand

the case. Jd. Twenty-nine days later, on November 30,

1989, the district court again reiterated this position by

denying respondent’s motion to reconsider his joinder/

remand motion. Appendix, 17a, infra. On January 10,

1990, less than two weeks before trial, the trial judge

14

stated at a pretrial conference that trying the case with

the DOTD as an “empty chair” defendant presented no

problem. On Friday, January 19, 1990—only nine days

later and on the afternoon of the last business day before

the Monday, January 22, 1990, trial date—the district

court, without any suggestion by any party, revived and

granted the previously denied motion. Appendix, 20a-

21a, infra. The district court’s actions came about an

hour after the parties had informed the court that they

had been unable to settle the case in court-ordered settle-

ment negotiations. Thus, petitioners and respondent,

after heatedly litigating this case in federal court for

over sixteen months, were remanded to state court on the

eve of the federal trial for failing to settle the case.

In Thermtron, this Court held that “only remand or-

ders issued under § 1447(c) and invoking the grounds

specified therein . . . are immune from review under

§ 1447(d).” Id., 423 U.S. at 346. The Court also held

that district courts exceed their authority in remanding

on grounds not permitted by statute. Jd. at 345, 348,

351. In Gravitt, this Court held that a remand order

entered under Section 1447(c) was not reviewable, even

though the district court’s conclusion that it had no ju-

risdiction was erroneous. /d., 430 U.S. at 723-24. How-

ever, Gravitt, unlike the present case, did not involve

jurisdictional grounds interposed as a pretext for re-

manding the case. The Gravitt district court expressly

rejected a suggestion made by plaintiff that it should re-

mand the case for lack of jurisdiction, even if there

existed jurisdiction, because a jurisdictional remand

would be unreviewable. 396 F.Supp. at 951 n.1 and ac-

companying text. It remanded the case only after in-

formation was brought to its attention leading it to be-

lieve that its original finding of diversity jurisdiction

was incorrect. 416 F.2d at 831. Unlike the present case,

the Gravitt district court took no actions designed to

destroy its jurisdiction. Furthermore, unlike the pres-

ent case, the remand order was not entered on the eve

15

of trial. See 416 F.Supp. at 831. Rather, the district

court’s opinions in that case plainly indicate that the

court entered its remand order because it truly believed

it lacked subject matter jurisdiction. See 416 F.Supp.

830, 831-32; 396 F.Supp. 948, 950-51 and n.l. Thus,

Gravitt precludes review of a jurisdictional remand or-

der based on the district court’s good faith determination

that it lacks jurisdiction; it does not preclude remand

where the stated jurisdictional ground is a clear pretext

for an otherwise improper remand.

Following Thermtron and Gravitt, the Courts of Ap-

peals have held reviewable various non-1447(c) grounds

similar to the underlying basis for remand in this case.

In Levy v. Weissman, 671 F.2d 766, 769 (3d Cir. 1982),

the Third Circuit held reviewable a district court’s order

that remanded a case as a sanction for failing to comply

with the court’s local rules. In Sheet Metal Workers In-

ternational, AFL-CIO v. Seay, 696 F.2d 780, 782-83

(10th Cir. 1983), the Tenth Circuit held reviewable a

remand order entered because the district court believed

the state court to be a more equitable forum. In Nasuti

v. Scannell, 906 F.2d 802, 808-11 (1st Cir. 1990), the

First Circuit held reviewable a district court’s order

based on jurisdictional grounds where the district court’s

remand order undermined a federal immunity statute.

The Fifth Cirevit has recognized the abuses that can

result where review is dependent on the words used by

the district court rather than on the true basis of its

actions. Sykes v. Texas Air Corp., 834 F.2d 488, 492

and n.15 (5th Cir. 1987). In commenting on Thermtron,

that court stated:

As Justice Rehnquist suggested in dissent, after

Thermtron reviewability of § 1447 remands turns on

what the district court says it is doing. If the court

says it is remanding for lack of jurisdiction, the

decision—even if flagrantly wrong—is completely un-

reviewable. If the court says something else, review

16

is available. In other words, reviewability turns on

incantation, and the district court has absolute dis-

cretion to permit or deny review of its order....

Rules of appellate jurisdiction that turn solely on the

district court’s recitations of formulae make little

sense, and we would not add a new one even were we

free to do so.

Sykes, 834 F.2d at 492 (footnotes omitted; emphasis in

original). The court further explained in a footnote that

while it was not suggesting “that federal district courts

are prone to manipulate legal doctrine,” the question was

“whether rules of appellate jurisdiction that give incen-

tives for manipulation are wise, particularly when there

seems to be no corresponding benefit other than the fact

of review itself.” Jd. at 492 n.15 (emphasis in original).

Clearly, this remand order would be reviewable had

the district court not interposed a jurisdictional ground

for the true basis for its order. Whether or not the re-

mand portion of the district court’s order is reviewable

independently or as part of a Section 1447(e) joinder/

remand order, the Court’s assertion of a jurisdictional

ground should not preclude review in cases like this case,

where the record clearly discloses the district court’s true

intent. This Court should grant a writ to consider

whether a district court can immunize an otherwise re-

viewable remand order from review by interposing a

jurisdictional ground as a pretense.

C. The district court’s remand order states non-

jurisdictional grounds that are reviewable under

Thermtron

Additionally, this case presents the question whether

review of a remand order is precluded by Section 1441

(d) when the district court states a nonstatutory ground

for remand in addition to its jurisdictional ground. In

this case, the district court, before it stated that it was

remanding the case for lack of subject matter jurisdic-

tion, reasoned that remand was appropriate because it

17

believed that the case should be tried by one fact finder.

Appendix, 20a, infra. The court apparently reasoned

that the Louisiana Department of Transportation and

Development, an instrumentality of the State of Louisi-

ana, could not be sued in federal court, thus the case

should be remanded to state courts, where all defendants

could be sued. Jd. The Fifth Circuit acknowledged the

district court’s statement of a reviewable, nonstatutory

ground, but opined that the addition of the jurisdictional

ground “cloaks the remand order in the § 1447(c) ab-

solute immunity from review.” 929 F.2d at 1028; Ap-

pendix 9a-10a, infra.

Under Thermtron, the district court’s belief that the

case should be tried before one fact finder does not state

a Section 1447(c) ground for remand upon which review

is precluded. See Sheet Metal Workers International,

supra, 696 F.2d at 782-83 (holding reviewable under

Thermtron a remand order based on the district court

belief that the state court was a more equitable forum).

This Court has not addressed the question whether a re-

mand order stating both reviewable and nonreviewable

grounds for remand is reviewable. The Fifth Circuit

cited no authority supporting its holding in this regard.

Petitioners submit that the Court should grant a writ

to consider this issue.

Il. THE FIFTH CIRCUIT’S RULING THAT THE DIS-

TRICT COURT’S JOINDER ORDER IS AN UN-

REVIEWABLE INTERLOCUTORY ORDER CON-

FLICTS WITH THIS COURT’S “COLLATERAL

ORDER DOCTRINE” JURISPRUDENCE

For the reasons advanced above, petitioners submit

that the district court’s entire Section 1447(e) joinder/

remand order should be reviewable together as a single

judicial order. However, should this Court believe, as the

Fifth Circuit found, that reviewability of the joinder and

remand elements of the district court’s order are separ-

able, the Court also should grant a writ to consider

18

whether the joinder elements of the district court’s order

are reviewable under the “collateral order” doctrine of

appealability announced in Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541 (1949), and subsequent juris-

prudence.

Ordinarily, only final judgments and statutorily de-

fined interlocutory judgments are appealable of right.

However, this Court announced in Cohen that some

orders made during the course of the case that “finally

determine claims of right separable from, and collateral

to, rights asserted in the action, [are] too important to

be denied review and too independent of the cause itself

to require that appellate consideration be deferred until

the whole case is adjudicated.” Jd. at 546. In subsequent

cases, this Court defined the elements of a district court

order appealable under the Cohen doctrine:

To come within the “small class” of decisions ex-

cepted from the final-judgment rule by Cohen, the

order must conclusively determine the disputed ques-

tion, resolve an important issue completely separate

from the merits of the action, and be effectively un-

reviewable on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) ;

see also Gulfstream Aerospace v. Mayacamas Corp., 485

U.S. 271, 276 (1988); Van Cauwenberghe v. Biard, 486

U.S. 517, 522 (1988) ; Richardson-Merrell, Inc. v. Koller,

472 U.S. 424, 430 (1985).

In this case, as discussed above, the district court

joined the DOTD as part of a Section 1447(e) joinder/

remand order intended by the court to destroy its subject

matter jurisdiction over the case. Appendix 18a, infra.

Nevertheless, the Fifth Circuit considered the review-

ability of the joinder part of the order separately. In so

doing, the Fifth Circuit refused to consider the posture

of the case and the district court’s plain purpose and in-

tent in entering the order. Reviewing the order in this

isolated context, the Fifth Circuit concluded that the

19

joinder order was unreviewable under the Cohen doc-

trine. Jd. at 5a, 10a.

Petitioners agree that a joinder order ordinarily is a

non-appealable interlocutory order. However, as_ this

Court’s jurisprudence clearly implies, and as other appel-

late cases have concluded, the appealability of such orders

under the Cohen doctrine depends on the effect of the

order and the context of the case in which it is issued.

See Katz v. Realty Equities Corp. of New York, 521

F.2d 1854, 1857-58 (2d Cir. 1975) and Garber v. Randell,

477 F.2d 711, 715-16 (2d Cir. 1973) (both cases holding

consolidation orders appealable under Cohen where the

effect of the orders may have resulted in denying parties

their due process rights and causing irreparable injury).

Considered in the context of the case at the time it

was entered, the joinder portion of the district court’s

order meets all three Cohen requirements. First, in order-

ing joinder and remand in the same order, the district

court conclusively determined the question of joinder in

a fashion such that it could not be considered again. Sec-

ond, the order resolved an important procedural question

completely separate from the merits of the action. It de-

termined the scope of the litigation and, in the district

court’s mind, the right of petitioners to trial in federal

court. Third, the order is unreviewable on appeal from

a final judgment. While joinder orders often can be re-

viewed on appeal, when joined with a jurisdictional re-

mand order, appeal is effectively precluded.

In the event that the district court’s joinder/remand

order is not reviewable as a single Section 1447(e) order,

this Court should grant a writ to consider the appealabil-

ity of the joinder portion of the order under the Cohen

collateral order doctrine.

20

Ill. THE FIFTH CIRCUIT’S SUGGESTION THAT NO

ABUSE OF DISCRETION RESULTED FROM THE

DISTRICT COURT’S EVE OF TRIAL JOINDER

AND REMAND ORDER CONFLICTS WITH THE

JURISPRUDENCE OF THIS COURT AND OTHER

FEDERAL CIRCUITS

While holding that it had no “collateral order” jurisdic-

tion to review the district court’s joinder order, the Fifth

Circuit nevertheless opined that the district court acted

within its discretion in entering the order. Appendix, 1la,

infra. The Court of Appeals analyzed the district court’s

order under Fed.R.Civ.P. 15(a) and found that since

respondent had a valid cause of action against the Louisi-

ana Department of Transportation, the principal pur-

pose of the amendment was not to defeat federal jurisdic-

tion.” Jd. It concluded that the district court’s finding

that justice favored trying the case before one fact finder

was not an abuse of discretion. Jd. However, the Court

of Appeals ignored the district court’s previous denial of

this same motion only a few weeks before. See Appendix,

13a, infra. It also ignored the fact that the district court,

and not the parties, resurrected and granted this motion

on the afternoon of the last business day before trial, only

an hour after the parties had informed the court that the

court-ordered settlement negotiations had failed.

Whether reviewable via mandamus or as a “collateral

order,” the Fifth Circuit’s joinder ruling conflicts with

rulings of this Court, other circuit court rulings, and the

prior ruling of the district court, thus presenting an im-

portant question meriting the grant of a writ. Initially,

the Fifth Circuit erred in reviewing the appropriateness

of the joinder under Fed.R.Civ.P. 15(a), rather than as

part of a Section 1447(e) joinder/remand order as it was

entered by the district court. However, assuming that the

Fifth Circuit correctly analyzed the joinder portion order

piecemeal] under Rule 15(a), its ruling still presents an

important question for review.

21

This Court last addressed Rule 15(a) in Foman v. Da-

vis, 371 U.S. 178 (1962). This Court declared that the

liberal purpose of the rule favored allowing amendments

to complaints in most cases. Jd. at 182. The district

court’s decision is reviewable for abuse of discretion. Jd.

However, this Court also listed several circumstances

whereunder the motion should be denied, including, ‘“wn-

due delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amend-

ments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, [and]

futility of the amendment.” Jd. (emphasis supplied).

Consistent with Foman, the circuit courts have held

that review of an amendment must be considered in the

posture and context of the case at the time the trial court

allows the amendment. Beeck v. Aquaslide ‘N’ Dive

Corp., 562 F.2d 537, 540 (&th Cir. 1977). Furthermore,

last minute amendments that result in prejudice should

not be allowed. See Keeler v. Hewitt, 697 F.2d 8, 14 (1st

Cir. 1982) (proposed “eleventh hour” amendment of a

malicious prosecution claim denied); Murphy v. White

Hen Pantry Co., 691 F.2d 350, 353-54 (7th Cir. 1982)

(proposed amendment to add a new claim made six weeks

before trial denied, as the motion came after discovery

had been completed and after the matter had been in liti-

gation for two years); Lopez v. General Motors Corp.,

697 F.2d 1328, 1332 (9th Cir. 1983) (motion to add addi-

tional parties four days before consideration of a motion

for summary judgment was properly denied).

Contrary to Section 1447(e), Rule 15(a), and the ju-

risprudence, the judgment and opinion of the Fifth Cir-

cuit greatly expands the already broad abuse of discretion

standard. The ruling below authorizes the appellate courts

to review joinder orders without considering the context

of the case and the circumstances under which the order

was issued. It promotes the use of joinder and remand

procedures as a sanction, contrary to the intent of Section

22

1447(e) and Rule 15(a). It advances the waste of judi-

cial resources. The decision below authorizes district

courts to grant eve-of-trial motions that destroy their

jurisdiction, thereby subjecting the petitioners to wasteful

and duplicative relitigation efforts (i.e., further discov-

ery, relitigating motions that had previously been con-

sidered and denied, and reassertion of claims that had

been denied) on remand to the state court. The ruling

below further promotes the waste of judicial resources by

encouraging district courts to reconsider, without any

party asking for reconsideration, nonessential motions that

had been previously considered and denied.

The questions presented are clearly substantial and im-

portant. Petitioners submit that this Court should grant

a writ of certiorari to consider the correctness of the

Fifth Circuit’s opinion and judgment.

CONCLUSION

Petitioners submit that this case presents several sub-

stantial questions meriting review. For the reasons dis-

cussed above, petitioners submit that this Court should

grant a writ of certiorari.

Respectfully submitted,

L. HAVARD Scott, III

Counsel of Record

KENNETH J. SERVAY

BRENT A. TALBOT

_ CHAFFE, MCCALL, PHILLIPs,

ToLer & SARPY

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163-2300

(504) 585-7000

July 8, 1991 Counsel for Petitioners

APPENDIX

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-3146

DAVID E. TILLMAN,

Plaintiff-Appellee,

Vv.

CSX TRANSPORTATION, INC.

& MARLER L. BENNETT,

Defendant-A ppellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

(April 11, 1991)

BEFORE BROWN, POLITZ and JOHNSON, Circuit

Judges.

JOHN R. BROWN, Circuit Judge:

This case requires us to determine whether the trial

court abused its discretion in allowing the addition of a

party that it determined would destroy its jurisdiction

and then remanding the case back to state court. Reach-

ing the most crucial conclusion first, we hold that by re-

mand to state court, this case lies irretrievably in state

court, despite, as the basis for remand, the trial court’s

2a

mistaken belief that it no longer had jurisdiction. The

trial court brought its remand order within the absolute

immunity from review of 28 U.S.C. §1447(c) by ex-

pressly referring to a lack of jurisdiction as one of the

bases of its decision to remand.

Through appeal under 28 U.S.C. § 1291, and a peti-

tion for a writ of mandamus, CSX Transportation, Inc.

(CSX) and Marler Bennett seek review of both parts of

the district court’s order which (i) allowed the amend-

ment adding the Louisiana Department of Transporta-

tion and Development (DOTD), and (ii) remanded the

case to state court. As for the propriety of allowing the

amendment, we hold that this part of the order did not

terminate federal jurisdiction and was therefore an in-

terlocutory, nonappealable order. With regard to the

trial court’s decision to remand, although the trial court

did not mention § 1447(c) by name, the court did cite

the destruction of its jurisdiction as one of its grounds

for remand. With the order resting on the trial court’s

belief that it lacked jurisdiction, the case is irretrievably

in state court.

An Unwanted Addition

Near New Orleans, on November 17, 1987, a train

owned and operated by CSX with Bennett, the engineer,

at the controls struck a tractor/trailer rig driven by

David Tillman. There was immediate, complete,

thorough diversity jurisdiction from the outset. Tillman,

a Mississippi resident, brought suit in Louisiana state

court against CSX, a Florida resident, and Bennett, an

Alabama resident. CSX and Bennett then properly re-

moved the case to the Eastern District of Louisiana on

the basis of diversity.

Soon after removal, Tillman filed for a continuance of

the original trial date. The trial court relented, push-

ing the trial date back to January 22, 1990, with a cut-

off date for amendments to pleadings of June 9, 1989.

Ee

3a

Four months after this deadline for amendments had

passed, Tillman moved to file an amended complaint to

add the DOTD as a defendant. In addition, Tillman in-

cluded a motion to remand to state court. The trial court

denied this first attempt to amend, stating that the

DOTD was not an indispensable party, Tillman was

grossly and inexcusably dilatory, and the defendants

would be substantially prejudiced by the amendment.

This denial, however, did not sound the death knell

for Tillman’s motions. Less than one week before trial,

in the course of court-ordered settlement discussions, the

trial court informed the defendants that it was con-

sidering adding the DOTD as a party defendant and re-

manding the action back to state court. When court-

ordered settlement discussions failed, the trial court fully

resuscitated Tillman’s motions for leave to amend and

for remand. On the eve of trial, the trial court allowed

the joinder of the DOTD as a party defendant. Turning

to what it considered to be the concomitant effect of such

an addition, the trial court held that the joinder of a

state party not amenable to suit in federal court under

the Eleventh Amendment’ destroyed its jurisdiction over

1 The trial court’s conclusion that the DOTD could claim Eleventh

Amendment immunity from suit brought against it in federal court

by a private party is supported by the Supreme Court’s position that

“in the absence of consent a suit in which the State or one of its

agencies or departments is named as the defendant is proscribed by

the Eleventh Amendment.” Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 908, 79 L.Ed.2d 67

(1984). In addition, the Fifth Circuit has repeatedly held that the

DOTD may exercise such immunity from suit by private citizens in

federal court. See Fireman’s Fund Ins. Co. v. Department of

Transp., 792 F.2d 1373 (5th Cir. 1986); Freimanis v. Sea-Land

Serv., Inc., 654 F.2d 1155 (5th Cir. 1981). This federal immunity

still exists, despite Louisiana state law rendering the DOTD amena-

ble to suit in state court. “[A] state may waive its common law

sovereign immunity under state law, without waiving its Eleventh

Amendment immunity” to suit in a federal court.” In re Allied

Signal, Inc., 919 F.2d 277, 280 n.4 (5th Cir. 1990). See also Port

Authority Trans-Hudson Corp. v. Feeney, —— U.S. ,——, 110

S. Ct. 1868, 1872, 109 L.Ed.2d 264, 273 (1990).

4a

the case. Within the same order, the trial court re-

manded the case back to state court.’

In its remand order, the trial court did not expressly

cite the remand statute of 28 U.S.C. § 1447(c).* In-

stead, the trial court based its decision to send the case

back to state court on two separate grounds. First, the

joinder would destroy its subject matter jurisdiction,

necessitating remand, and, second, the court believed that

the suit “should be tried before one fact-finder due to the

closely interrelated nature of the facts which form the

basis of potential liability in this matter.”

2 The trial court’s order reads as follows:

In preparing for trial in this matter, the court has reconsid-

ered its decision denying Plaintiff’s Motion for Leave of Court

to Amend Petition and Remand. The court finds that Plaintiff's

case against CSX Transportation, Marler Bennett, and the State

of Louisiana through the Department of Transportation and

Development (DOTD) should be tried before one fact-finder due

to the closely interrelated nature of the facts which form the

basis of potential liability in this matter.

Fed. R. Civ. P. 15(a) governs amendments to pleadings, and

this Rule specifies that “leave of court shall be freely given [to

amend] when justice so requires.” Since Plaintiff's proposed

amendment would destroy subject matter jurisdiction in this

court, the joinder is governed by 28 U.S.C. §1447(e) ....

Here, Plaintiff has a valid cause of action against the DOTD,

and thus the purpose of the amendment is not to defeat federal

jurisdiction ....

3 See note 2, supra. 28 U.S.C. §1447(c) (as amended) (Supp.

1990) provides:

A motion to remand the case on the basis of any defect in

removal procedure must be made within 30 days after the

filing of the notice of removal under section 1446(a). If at any

time before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be remanded.

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. A certified copy of the order of remand

shall be mailed by its clerk to the clerk of the State court. The

State court may thereupon proceed with such case.

_ —_—_<—#eea,

5a

Separating the Separable

As a preliminary matter, the appellee [sic] contends

that the part of the trial court’s order granting leave to

amend and the part of the order remanding the case

must be construed together. The Supreme Court, how-

ever, rejected this position in Waco v. United States

Fidelity & Guar. Co., 293 U.S. 140, 55 S. Ct. 6, 79

L.Ed. 244 (1934). See also Mitchell v. Carlson, 896 F.2d

128 (5th Cir. 1990). Like the present situation, Waco

involved an appeal of a district court decree embodying

several orders, including a remand order. The Waco

Court determined that no appeal would lie from the order

of remand, “but in logic and in fact the decree of dis-

missal preceded that of remand and was made by the

District Court while it had control of the cause,” Waco,

293 U.S. at 143, 55 S. Ct. at ——, 79 L.Ed. at ——. The

court could review the decree of dismissal though it was

unable to review the remand order. Here, the trial court

issued the joinder and remand orders in a single decree.

The order granting leave to amend to join the DOTD

appeared first in the document, followed by the order

remanding the case, both “in logic and in fact.” Since

the joinder of the DOTD provided the judge’s mistaken

impetus for remanding the case, we think it best to eval-

uate the appealability of each order separately.

Return to Sender?

As this issue will essentially determine the entire dis-

position of this case, we first consider the appellants’

contention that the trial court erred in remanding the

case to state court. However, to reach this issue, we

must initially determine whether we may review it,

either on appeal or by mandamus.

Reviewability of a remand order depends entirely upon

the trial court’s stated grounds for its decision to re-

6a

mand. Remand after removal is controlled by § 1447(c),*

which provides that “[i]f... it appears that the district

court lacks subject matter jurisdiction, the case shal! be

remanded. . . .” Through the prohibitory effect of 28

U.S.C. § 1447(d),®° remand orders under § 1447(c) are

not reviewable on appeal, by mandamus, or otherwise,

except in civil rights cases. See Gravitt v. Southwestern

Bell Tel. Co., 480 U.S. 728, 97 S. Ct. 1489, 52 L.Ed.2d

1 (1977); Volvo Corp. v. Schwarzer, 429 U.S. 1831, 97

S. Ct. 284, 50 L.Ed.2d 273 (1976); Mitchell, 896 F.2d

at 128. We feel it necessary to point out that the age-old

touchstone language of § 1447(c), “removed improvi-

dently and without jurisdiction,” has been amended to

read as provided above. The previous language, “im-

providently and without jurisdiction,” served as “magic

words” in case law under the prior statute, the mere in-

cantation of which rendered any remand order based

thereon totally unreviewable, “no matter how clearly er-

roneous the order appeared] on its face.” In re Merri-

mack Mutual Fire Ins. Co., 587 F.2d 642, 648 (5th Cir.

1978); see also Volvo Corp., 429 U.S. 1831, 97 S. Ct.

at ——, 50 L.Ed.2d at 275; Royal v. State Farm Fire &

Casualty Co., 685 F.2d 124, 126 (5th Cir. 1982). We

see no reason why the incantation of the new phrase,

“lacks subject matter jurisdiction,” should not have the

same magical effect. See 28 U.S.C.A. §1447(c) (as

amended) and Commentary on 1988 Revision (Supp.

1990) (no substantive change).

In its remand order, the trial court never mentioned

§ 1447(c). However, it is clear from the trial court’s

* See note 3, supra.

5 Once a case is remanded pursuant to § 1447(c), 1447(d) man-

dates that

{a]n order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise, except

that an order remanding a case to the State court from which

it was removed pursuant to section 1443 [civil rights cases] of

this title shall be reviewable by appeal or otherwise.

Ta

prior orders that it was aware of § 1447(c), as its order

of November 1, 1989, declining to add the DOTD, spe-

cifically cites both the statute and its amended language

verbatim. Oblivious to the amended language in

§ 1447(c), the appellants contend that we may review

the remand order by mandamus because the trial court

did not recite the magic words, “improvidently and with-

out jurisdiction,” when remanding the case. As we men-

tion above, that language no longer exists, and while the

appellants may still have some attachment to it, it is no

longer the basis for remand. Still, the appellants argue

that the failure to cite to § 1447(c) places this remand

within the small class of cases that fall under the Therm-

tron exception to §1447(c). See Thermtron Products,

Ine. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46

L.Ed.2d 542 (1976).

In Thermtron, the Supreme Court slightly enlarged

reviewability of remand orders from the narrow con-

straints imposed by § 1447(d), holding that review is

available by mandamus when remand is explicitly based

upon grounds other than those specified in § 1447(c).

Thermtron’s progeny, however, has construed this ex-

ception very narrowly. See, e.g., Merrimack, 587 F.2d

at 647. Rather than extend this exception to any situa-

tion where a trial court, in the remand order, neither

specifically recited the actual language of § 1447(c) ver-

batim nor mentioned the statute itself, “Thermtron an-

nounced only a narrow rule that was intended to be lim-

ited to the extreme facts of that case, in which a district

judge stated openly that he was relying on a non-

§ 1447(c) ground for remand.” Jd. See also Soley v.

First Nat’l Bank of Commerce, 923 F.2d 406, (5th

Cir. 1991) (holding that while the remand order was

“confusing, we conclude that our decision in Merrimack

precludes review of the remand order because the dis-

trict court did not clearly and affirmatively state that it

relied on a non-1447(c) ground”). Thus, even if the

trial court neither states as grounds for remand the spe-

8a

cific words of § 1447(c) nor cites the statute itself, the

order is unreviewable if, by substantially similar lan-

guage, it is evident that the court intends to remand for

the grounds recited in § 1447(c).°

Such is the case here. Although the trial court neither

quoted the actual language of § 1447(c) nor cited to the

statute, the remand order provided that appellee’s

“amendment would destroy subject matter jurisdiction

in this court.” This ground comes literally within

§ 1447(c). Thus, we are precluded from reviewing the

remand order on appeal, by mandamus, or otherwise.

See Merrimack, 587 F.2d at 647-48.

This preclusion constrains us notwithstanding the fact

that the trial court in remanding the case relied on a

mistaken assumption—that after adding the DOTD it

no longer had jurisdiction. The trial court determined

that Tillman’s amended petition “destroyed subject mat-

ter jurisdiction because the Eleventh Amendment pro-

hibits suits by private citizens against the DOTD in fed-

eral court.” While it is true that the Eleventh Amend-

ment does create such a prohibition,’ this prohibition did

® Compare In re Allied-Signal, Inc., 919 F.2d 277 (5th Cir. 1990)

(granting writ of mandamus after noting that the trial court did

not state that jurisdiction was lacking but affirmatively reflected

that remand was based solely on a state statute) with In re Weaver,

610 F.2d 335, 337 (5th Cir. 1980) (denying writ of mandamus

despite the absence of specific § 1447(c) words, when the district

court based remand upon its belief that jurisdiction was lacking).

See also Merrimack, 587 F.2d at 647-48 (holding that the district

court’s order, while not referring to § 1447(c) by number, stated one

of its grounds, no jurisdiction, thereby precluding review by

mandamus).

™The Eleventh Amendment states that: “The Judicial power of

the United States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” For application of Eleventh Amendment im-

munity to state agencies in federal court, see note 1, supra.

i re sn ce el

9a

not deprive the trial court of jurisdiction in this case, as

it is well established that the state may waive its

Eleventh Amendment immunity by consenting to suit in

federal court. The DOTD’s immunity has no effect upon

the diversity jurisdiction already established between

Tillman, CSX, and Bennett. There is absolutely no basis

upon which the trial court could hold that the addition of

a state agency that could exercise or waive its Eleventh

Amendment immunity would destroy its established di-

versity jurisdiction over all parties.

Unfortunately for the appellants, like many before

them, they may have won the battle, but lost the war.

The Supreme Court has expressly held that a remand

order based upon lacx of jurisdiction, even if clearly

erroneous, cannot be reviewed. See Thermtron, 423 U.S.

at 343, 96 S. Ct. at 589, 46 L.Ed.2d at 549. In fact, in

In re Southwestern Bell Telephone Company, 535 F.2d

859 (5th Cir.), modified en banc, 542 F.2d 297 (1976),

rev'd sub nom. Gravitt v. Southwestern Bell Tel. Co., 430

U.S. 723, 97 S .Ct. 1439, 52 L.Ed.2d 1 (1977), this court

reviewed by mandamus a remand order on the ground

that the district court had employed erroneous principles

in determining that it no longer had jurisdiction. The

Supreme Court pointed out the error of our ways in

Gravitt, 431 U.S. at 724, 97 S. Ct. at 1440, 52 L.Ed.2d

at 3, tersely holding that the district court’s remand or-

der “was plainly within the bounds of §1447(c) and

hence was unreviewable by the Court of Appeals, by

mandamus or otherwise.” That is the answer for this

case without travelling down the mandamus road again.

Finally, the appellants’ emphasis on the trial court’s

comment on the need to try the case before one fact-

8 See, e.g., Port Authority, U.S. at , 110 S. Ct. at .

109 L.Ed.2d at 272; Atascadero State Hosp. v. Scanlon, 473 U.S.

234, 241, 105 S. Ct. 3142, , 87 L.Ed.2d 171, (1985). In

certain cases, Congress has abrogated the States’ sovereign im-

munity. See, e.g., Dellmuth v. Muth, 491 U.S. —~—, 109 S. Ct. 2397,

105 L.Ed.2d 181 (1989).

10a

finder, a non-§ 1447(c) basis for remand, is unavailing

to bring the case within Thermtron. The trial court ex-

plicitly stated that the destruction of its jurisdiction

served as one of its grounds for remand. This sufficiently

cloaks the remand order in the § 1447(c) absolute im-

munity from review. See Gravitt, 430 U.S. at 723-24,

97 S. Ct. at 1439-40, 52 L.Ed.2d at 3; Volvo Corp., 429

U.S. at 1333, 97 S. Ct. at 285, 50 L.Ed.2d at 275; In re

Weaver, 610 F.2d at 337. Cases subsequent to Thermtron

have been unwilling to extend Thermtron beyond the fac-

tual situation of that case, and we refuse to do so now.

Whether right or wrong—indeed on the assumption that

its premise for remand was wholly unfounded—the trial

court remanded the case because the addition of the

DOTD deprived the court of jurisdiction. This case

therefore lies irretrievably in state court. Whatever the

outcome of the chicken or the egg riddle of which came

first, the allowance of the amendment or the remand or-

der, our conclusion essentially renders review of whether

the trial court abused its discretion by allowing the

amendment a postmortem exercise.

Extra Postage

Regardless of this curious predicament, we turn now

to the trial court’s decision to allow joinder of the DOTD.

If allowance of the amendment came first, the case at that

moment was still ongoing. The DOTD, once added, could

have waived its Eleventh Amendment immunity and re-

mained as a party, or if it chose to exercise its immunity,

the trial court could have dismissed it so it would no

longer even be a party. The DOTD’s temporary presence

as a party would not have tainted or obliterated a classic

case of diversity. Consequently, the grant of leave to

amend was an unreviewable interlocutory order.°

® Before an appellate court could review such an interlocutory

order, it must have practical finality; meaning that the appellant

was effectively out of federal court. Moses H. Cone Memorial Hosp.

lla

Still, we feel it necessary to point out that the trial

court’s decision to allow joinder, while unreviewable, did

not rise to the level of an abuse of discretion. Though the

factual scenario seems complicated, the trial court cer-

tainly had § 1447(e) discretion to decide whether to allow

joinder of the DOTD.” In allowing the joinder, the trial

court correctly tempered its discretion with the standard

established by Hensgens v. Deere & Co., 833 F.2d 1179

(5th Cir. 1987), appeal after remand, 869 F.2d 879 (5th

Cir. 1989)," finding that the plaintiff had a valid cause

of action against the DOTD, so the principal purpose of

the amendment was not to defeat federal jurisdiction.

The court further considered the “other factors bearing

on the equities,” as required by Hensgens, and held that

justice militated in favor, as the court described it, of

trying the case before one fact-finder due to the closely

interrelated nature of the operational facts in this rail-

road crossing case. Although at that moment the trial

v. Mercury Constr. Corp., 460 U.S. 1, 10 n.8, 103 S. Ct. 927, 933 n.8,

74 L.Ed.2d 765, 766 n.8. As we have concluded, despite the trial

court’s mistaken assumption to the contrary, the case still resided

in federal court after the addition of the DOTD.

1028 U.S.C. § 1447(e) provides: “If after removal the plaintiff

seeks to join additional defendants whose joinder would destroy...

jurisdiction, the court may deny joinder, or permit joinder and

remand the action to the State court.”

11 Though F. R. Civ. P. 15(a) provides that the court should give

leave to amend freely when justice so requires, when such joinder

would destroy subject matter jurisdiction

justice requires that the district court consider a number of

factors to balance the defendant’s interests in maintaining the

federal forum with the competing interests of not having paral-

lel lawsuits. For example, the court should consider the extent

to which the purpose of the amendment is to defeat federal

jurisdiction, whether plaintiff has been dilatory in asking for

amendment, whether plaintiff will be significantly injured if

amendment is not allowed, and other factors bearing on the

equities...

Hensgens, 833 F.2d at 1182.

|

12a

court could have, in its discretion, denied permission to

amend, its opposite ruling, even though based upon a mis-

taken conclusion, was not an abuse of its discretion.’

The Dust Settles

Consequently, having been erroneously remanded on

§ 1447(c) jurisdictional grounds, this case is irretrieva-

bly beyond anything we can do about it. We cannot re-

view it by any means. We emphasize our complete in-

ability to do anything about the trial court’s joinder or-

der, whether interlocutory or final, because what we can-

not review we cannot by some juridical self-help get back

to federal court.

While we point out that the trial court did not abuse

its discretion in allowing joinder, this determination only

provides extra postage. The mere presence of a § 1447 (c)

ground as one of the bases for the trial court’s remand

has returned this case to sender, without a forwarding

address for federal jurisdiction.

For the reasons stated herein, the order granting ap-

pellee leave to amend, though not reviewable, was correct,

and the correctness of remand is not reviewable even by

mandamus.

Appeal Dismissed and Petition for Writ of Mandamus

Denied.

2 To act within its discretion did not require the court to ex-

pressly contradict its previous holding that the DOTD was not an

indispensable party. In Hensgens this court rejected such an argu-

ment, holding that “the balancing of these competing interests is

not served by a rigid distinction of whether the proposed added

party is an indispensable or permissive party.” 833 F.2d at 1182 n.2.

13a

MINUTE ENTRY

McNAMARA, J.

NOVEMBER Il, 1989

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-4195

SECTION “D” (5)

DAviID E. TILLMAN

versus

CSX TRANSPORTATION Co., et al.

(Filed Nov. 2, 1989)

Before the court are the following Motions:

1. Motion of Plaintiff, David E. Tillman, for Leave of

Court to Remand and Amend Petition, and

2. Motion of Defendants, CSX Transportation, Inc. and

Marler L. Bennett, to Limit Jury Demand.

Both of these Motions are opposed by the adverse party.

These Motions, set to be heard on Wednesday, November

1, 1989, are before the court on briefs, without oral ar-

gument. Each Motion shall be considered separately.

1. Plaintiff's Motion for Leave of Court to Remand and

Amend Petition.

The Plaintiff seeks to join a non-diverse party to this

litigation. Namely, Plaintiff seeks to add the Department

of Transportation and Development for the State of Lou-

isiana (the “DOTD”), Fed.R.Civ.P. 15(a) governs

l4a

amendments to pleadings, and this Rule specifies that

“leave of court shall be freely given [to amend] when

justice so requires.” While this Rule is to be liberally

construed, it is clear that “leave to amend should not

be given automatically.” Chitimacha Tribe of Louisiana

v. Harry T. Laws Co., 690 F.2d 1157, 1163 (5th Cir.

1982), cert. denied, 464 U.S. 814 (1983). Moreover, an

amended pleading naming a new non-diverse defendant in

a removed case should be scrutinized more closely than an

ordinary amendment. Hensgens v. Deere & Co., 833 F.2d

1179, 1182 (5th Cir. 1987), appeal after remand, 869

F.2d 879 (5th Cir. 1989).

The joinder of the DOTD in this matter would defeat

diversity jurisdiction, and cause this court to remand

these proceedings back to state court for lack of subject

matter jurisdiction. Remand after removal is controlled

by 28 U.S.C. §§ 1447(c) & (e) (West Supp. 1989). These

sections state that the district court should remand a mat-

ter to state court if, at anytime before final judgment,

the district court lacks subject matter jurisdiction. If a

plaintiff seeks to join a non-diverse party after the case

had been removed, however, a district court has the dis-

cretion to deny the joinder.

The Hensgens case controls joinder of a non-diverse

party in the Fifth Circuit. The Hensgens court noted

that when a plaintiff is seeking to add a non-diverse

party which would defeat diversity jurisdiction,

justice requires that the district court consider a

number of factors to balance the defendant’s inter-

ests in maintaining the federal forum with the com-

peting interests of not having parallel lawsuits. For

example, the court should consider the extent to which

the purpose of the amendment is to defeat federal

jurisdiction, whether plaintiff has been dilatory in

asking for amendment, whether plaintiff will be sig-

nificantly injured if amendment is not allowed, and

any other factors bearing on the equities.... If it

ERE eee tk ne,

“> idle.

15a

permits the amendments of the non-diverse defend-

ant, it then must remand to the state court. If the

amendment is not allowed, the federal court main-

tains jurisdiction. Hensgens, 833 F.2d at 1182.

Furthermore, a district court should consider whether the

party sought to be joined is indispensable. Depriest v.

BASF Wyandotte Corp., 119 F.R.D. 639, 640 (M.D. La.

1988).

In this matter, the DOTD is clearly not an indispensa-

ble party. Plaintiff contends that the DOTD should be

held jointly and severally liable with CSX Transporta-

tion, Inc. It is well settled, however, that joint tort

feasors are not indispensable parties. Nottingham v. Gen-

eral Communications Corp., 811 F.2d 873, 880 (5th Cir.

1987), cert. denied, 484 U.S. 854 (1987). Moreover,

Plaintiff has been grossly dilatory in asking for this

amendment. Plaintiff’s Complaint was filed on August

29, 1988, and Defendants removed the case to federal

court on September 22, 1988. The original trial date for

this matter was June 5, 1989; the original cut-off date

for amendments to pleadings was December 2, 1988.

Plaintiff moved for and received a continuation of the

trial date, and the court reset the trial for January 22,

1990; with a cut-off for amendments to pleadings of

June 9, 1989. Plaintiff has had plenty of time to amend

his pleading, and his failure to do so before June 9, 1989,

is inexcusably dilatory.

Further, allowing Plaintiff to amend his pleading at

such a late date will be prejudicial to Defendants. The

trial is less than three months away, and the discovery

cut-off date is December 11, 1989. The addition of the

State of Louisiana as a Defendant will upset the trial

date of January 22, 1990. Discovery will have to be re

opened, and this will add tremendously to the cost of this

litigation.

Tt IS ORDERED that the Motion of Plaintiff, David

E. Tillman, for Leave of Court to Remand and Amend

Petition should be and is DENIED.

16a

2. DEFENDANTS, CSX TRANSPORTATION, INC.

AND MARLER L. BENNETT, MOTION TO LIMIT

JURY DEMAND.

This Motion has been taken under advisement and will

be decided by this court at a later date.

* * * *

17a

MINUTE ENTRY

McNAMARA, J.

NOVEMBER 380, 1989

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-4195

SECTION “D” (5)

DAVID E. TILLMAN

versus

MARLER L. BENNETT, et al.

(Filed Dec. 5, 1989)

Before the court is the Motion of Plaintiff, David E.

Tillman, for Jury Trial and for Reconsideration of Mo-

tion to Amend and Remand. Defendants’, CSX Trans-

portation, Inc. and Bennett Marlow, oppose this Motion.

The Motion, set to be heard on Wednesday, November 29,

1989, is before the court on briefs, without oral argu-

ment.

Having considered the memoranda of counsel and the

applicable law;

IT IS ORDERED that Plaintiff’s, David E. Tillman,

Motion for Reconsideration of the Motion to Amend and

Remand should be and is DENIED. As for Plaintiff’s

Motion for Jury Trial, the court’s Minute Entry of No-

vember 29, 1989, renders Plaintiff’s Motion MOOT in this

regard.

* * * *

18a

MINUTE ENTRY

McNAMARA, J.

JANUARY 19, 1990

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-4195

SECTION “D” (5)

DAVID E. TILLMAN

versus

CSX TRANSPORTATION, INC. AND BENNETT MARLOW

(Fi'ed Jan. 22, 1990; Date of Entry Jan. 23, 1990)

In preparing for trial in this matter, the court has

reconsidered its decision denying Plaintiff’s Motion for

Leave of Court to Amend Petition and Remand. The

court finds that Plaintiff’s case against CSX Transporta-

tion, Bennett Marlow, and the State of Louisiana through

the Department of Transportation and Development

(DOTD) should be tried before one fact-finder due to the

closely interrelated nature of the facts which form the

basis of potential liability in this matter.

Fed. R. Civ. P. 15(a) governs amendments to plead-

ings, and this Rule specifies that “leave of court shall by

freely given [to amend] when justice so requires.” Since

Plaintiff’s proposed amendment would destroy subject

matter jurisdiction in this court, the joinder is governed

by 28 U.S.C.A. § 1447(e) (West Supp. 1989), which pro-

vides: “If after removal the plaintiff seeks to join addi-

tional defendants whose joinder would destroy subject

matter jurisdiction, the court may deny joinder, or permit

joinder and remand the action to the State court.” (em-

phasis added).

2 fame.

19a

The Fifth Circuit decision of Hensgens v. Deere Co.,

833 F.2d 1179, 1182 (5th Cir. 1987), appeal after re-

mand, 869 F.2d 879 (5th Cir. 1989), sets forth the fac-

tors a district court should consider when deciding

whether a plaintiff should be allowed to add a party

whose joinder would destroy subject matter jurisdiction.

The court noted that

justice requires that the district court consider a

number of factors to balance the defendant’s inter-

ests in maintaining the federal forum with the com-

peting interests of not having parallel lawsuits. For

example, the court should consider the extent to

which the purpose of the amendment is to defeat fed-

eral jurisdiction, whether plaintiff has been dilatory

in asking for amendment, whether plaintiff will be

significantly injured if amendment is not allowed,

and other facters bearing on the equities... . If it

permits the amendment of the non-diverse defendant,

it then must remand to the state court. 7d. at 1182.

Here, Plaintiff has a valid cause of action against the

DOTD, and thus the purpose of the amendment is not to

defeat federal jurisdiction. Moreover, due to the closely

interrelated nature of the facts which give rise to poten-

tial liability in this matter, the court finds that justice

militates in favor of allowing the joinder so that Plaintiff

can proceed before one fact-finder in this litigation.

Accordingly, the court’s Minute Entry of November 3,

1989, denying Plaintiff’s Motion for Leave of Court to

Remand and Amend Petition, and the court’s Minute

Entry of December 5, 1989, denying Plaintiff’s Motion

for Reconsideration of the Motion to Amend and Remand

are hereby set-aside. As such;

IT IS ORDERED that the Motion of Plaintiff, David

E. Tillman, for Leave of Court to Remand and Amend

Petition should be and is GRANTED, and this matter is

hereby REMANDED to the Civil District Court for the

Parish of Orleans, State of Louisiana.

* * . *

20a

MINUTE ENTRY

McNAMARA, J.

FEBRUARY 21, 1990

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 88-4195

SECTION “D” (5)

DAVID E. TILLMAN

versus

MARLER L. BENNETT, et al.

(Filed Feb. 22, 1990; Date of Entry Feb. 26, 1990)

Before the court is the Motion of Defendants, CSX

Transportation, Inc. and Marler L. Bennett, for Recon-

sideration of Motion for Leave of Court to Amend Peti-

tion and Remand. Plaintiff, David E. Tillman, opposes

this Motion. The Motion, set to be heard on Wednesday,

February 21, 1990, is before the court on briefs, without

oral argument.

This court, in a Minute Entry dated January 19, 1990,

permitted Plaintiff to amend his petition to add the State

of Louisiana through the Department of Transportation

and Development (DOTD) as a Defendant in this matter.

The court determined that this matter should be_ tried

before one fact-finder due to the closely interrelated na-

ture of the facts which form the basis of potential lia-

bility.

Joinder after removal is governed by 28 U.S.C.A.

§ 1447(e) (West Supp. 1989), which provides: “If after

removal the plaintiff seeks to join additional defendants

whose joinder would destroy subject matter jurisdiction,

the court may deny joinder, or permit joinder and re-

2la

mand the action to the State court.” (emphasis added).

Plaintiff’s amended petition destroyed subject matter

jurisdiction because the Eleventh Amendment prohibits

suits by private citizens against the DOTD in federal

court. As such, the court remanded this suit to the State

court.

Defendants argue that since the Eleventh Amendment

prohibits suits by private parties against the State in

federal court, this court should have denied the Plaintiff’s

Motion to Amend and Remand. This argument is falla-

cious since § 1447(e) explicitly states that a district

court, after removal, can permit joinder of a party who

destroys subject matter jurisdiction and then remand the

action to the State court. It does not matter whether the

joined pary is a non-diverse party or is barred from fed-

eral court by the Eleventh Amendment. As long as the

additional party would destroy subject matter jurisdic-

tion, a district court has the authority to permit the

joinder and then remand the action to the State court.

Accordingly ;

IT IS ORDERED that Defendants’, CSX Transporta-

tion, Inc. and Marler L. Bennett, Motion for Reconsidera-

tion of Motion for Leave of Court to Amend Petition and

Remand should be and is DENIED.

* . * ~

22a

STATUTORY PROVISIONS AND RULE INVOLVED

Title 28 U.S.C., Secticn 1332, provided in pertinent part:

§ 1332. Diversity of Citizenship; amount in

controversy ; costs

(a) The district courts shall have original juris-

diction of all civil actions where the matter in con-

troversy exceeds the sum or value of $10,000, exclu-

sive of interest and costs, and is between—

(1) citizens of different States

aa oe * *

(c) For the purposes of this section and section

1441 of this title—

(1) a corporation shall be deemed to be a

citizen of any State by which it has been in-

corporated and of the State where it has its

principal place of business... .

Title 28 U.S.C., Section 1441(a) provides:

§ 1441. Actions removable generally

(a) Except as otherwise expressly provided by Act

of Congress, any civil action brought in a State court

of which the district courts of the United States have

original jurisdiction, may be removed by the defend-

ant or the defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending. For pur-

poses of removal under this chapter, the citizenship

of defendants sued under fictitious names shall be

disregarded.

23a

Title 28 U.S.C., Section 1447 provides in pertinent part:

§ 1447. Procedure after removal generally

(c) A motion to remand the case on the basis of

i any defect in removal procedure must be made within

30 days after the filing of the notice of removal

under section 1446(a). If at any time before final

judgment it appears that the district court lacks sub-

ject matter jurisdiction, the case shall be remanded.

An order remanding the case may require payment

of just costs and any actual expenses, including at-

torney fees, incurred as a result of the removal. A

certified copy of the order of remand shall be mailed

by the clerk to the clerk of the State court. The

State court may thereupon proceed with such case.

(d) An order remanding a case to the State court

from which it was removed is not reviewable on

appeal or otherwise, except that an order remanding

a case to the State court from which it was removed

pursuant to section 1443 of this title shall be review-

able by appeal or otherwise.

(e) If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy

subject matter jurisdiction, the court may deny

joinder, or permit joinder and remand the action to

the State court.

Fed. R.Civ.P. 15(a) provides:

Rule 15. Amended and Supplemental Pleadings.

(a) Amendments. A party may amend the party’s

pleading once as a matter of course at any time be-

fore a responsive pleading is served or, if the plead-

ing is one to which no responsive pleading is per-

mitted and the action has not been placed upon the

trial calendar, the party may so amend it at any

24a

time within 20 days after it is served. Otherwise a

party may arnend the party’s pleading only by leave

of court or by written consent of the adverse party;

and leave shall be freely given when justice so re-

quires. A party shall plead in response to an

amended pleading within the time remaining for

response to the original pleading or within 10 days

after service of the amended pleading, whichever

period may be the longer, unless the court otherwise

orders.

Se ie a oD