# Petition for Writ of Certiorari — CSX Transportation, Inc. v. Tillman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2358%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 859 ## Text . 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2358%3A1. Public record. Not legal advice.