Opposition Brief — Acuna Castillo v. Shell Oil Co.

\

IN THE

Supreme Court of the Hnited States

OCTOBER TERM 1991

GERARDO ACUNA CASTILLO, ET AL,

Petitioners

Vv

SHELL OIL COMPANY, ET AL,

Respondents

RESPONDENTS’ BRIEF IN OPPOSITON TO

PETITION FOR WRIT OF CERTIORARI

To The United States Court Of Appeals

For The Fifth Circuit

JAMES PATRICK COONEY

Counsel of Record

TOBI A. TABOR Attorneys for Respondents,

DANIEL DAVID HU Castle & Cooke, Inc.,

2200 Texas Commerce Tower Dole Fresh Fruit Company,

Houston, Texas 77002 Standard Fruit Company and

(713) 224-8380 Standard Fruit & Steamship

Telecopier No.: (713) 225-9945 Company

Of Counsel:

ROYSTON, RAYZOR, VICKERY & WILLIAMS, L.L.P.

R. BURTON BALLANFANT STEPHEN C. LEWIS

Shell Oil Company SANFORD SVETCOV

4656 One Shell Plaza LANDELS, RIPLEY &

Houston, Texas 77252 DIAMOND

(713) 241-7023 Hills Plaza, 350 Steuart Street

Attorney for Respondent, San Francisco, California 94105

Shell Oil Company (415) 788-5000

Attorneys for Respondent,

Occidental Chemical

Corporation

a PT YS

Alpha Law Brief Co.—6113 Aletha Lane — Houston, Texas 77081 —- 981-9000

i

STATEMENT OF ISSUES PRESENTED

1.

Is an order remanding a case to state court reviewable

within the terms of 28 U.S.C. § 1447(a) where the

district court has subject matter jurisdiction?

2.

Does the presence of a fraudulently joined forum de-

fend-ant, in a matter where the district court has subject

matter jurisdiction, in alleged contravention of 28 U.S.C.

§ 1441(b), constitute a “defect in removal procedure”

within the terms of 28 U.S.C. § 1447(c)?

il

RULE 28.1 CERTIFICATE OF INTERESTED

PERSONS AND PARTIES

The undersigned counsel of record certifies that the

following listed persons have an interest in the outcome

of this case. These representations are made in order

that Justices of this Court may evaluate possible dis-

qualification or recusal.

I.

ie

Shell Oil Company

Travelers Insurance Company and

Aetna Casualty & Surety Company

(Insurers for Shell Oil Company)

Dow Chemical Company

Fireman’s Fund Insurance Companies

(Insurers for Dow Chemical Company)

Baker & Botts,

Counsel for Dow Chemical Company

Occidental Chemical Corporation, individually

and as successor to Occidental Chemical Com-

pany and Occidental Chemical Agricultural Pro-

ducts, Inc., National Union Fire Insurance Com-

pany of Pittsburgh, Pennsylvania, various Lloyds

of London Underwriters (Insurers for Occidental

Chemical Corporation), Occidental Chemical

Corporation

All of the Plaintiffs, who are Costa Rican citizens

and residents (refer to Plaintiffs’ Petition)

7. Baron & Budd, P.C., Counsel for Plaintiffs

10.

Castle & Cooke, Inc.

Dole Fresh Fruit Company, Parent and non-

wholly owned subsidiary companies are: Dole

Food Company, Inc.

Standard Fruit Company

11.

12.

13.

14.

ill

Standard Fruit & Steamship Company

American International Underwriters, CIGNA

Companies, R. K. Harrison, J. T. Jacobs (Insur-

ance), Ltd., Highland Insurance Group, Central

National Insurance Company, and Employers

Reinsurance Company (Insurers for Castle &

Cooke, Inc., Dole Fresh Fruit Company, Stand-

ard Fruit Company, and Standard Fruit & Steam-

ship Company)

Royston, Rayzor, Vickery & Williams, L.L.P.

Ladels, Ripley & Diamond, counsel for Occi-

dental Chemical Corporation

iv

TABLE OF CONTENTS

Statement of Issues Presented

Certificate of Interested Persons and Parties .

Opinions Below

Jurisdiction

Counter Statement of the Case

A.

B.

Statement of Facts

Course of Proceedings and Disposition in

the Two Courts Below

Argument ; Nt nn sn gees

A.

B.

0

There Is No Conflict With the Decisions

ae ee a a es Ser es es ee

The Decisions, of the United States Court

of Appeals for the Fifth Circuit Are Not

Contrary to Decisions Rendered by Other

Circuit Courts Past ate eee.

No Constitutional Question is Presented

The United States Court of Appeals for

the Fifth Circuit committed no reversible

error and the decisions below are in con-

formity with this Court’s decisions and the

intent of Congress . Revove BAW lgte a

1. The Court below had jurisdiction to

review the order of remand

2. The Court below properly found that

Plaintiffs waived their right to file a

remand motion

Conclusion

> W

11

11

13

14

Vv

TABLE OF AUTHORITIES

Cases Page

Air Shields v. Fullam, 891 F.2d 63 (3d Cir.

SE Be ick eat aa en, ree es

Briscoe v. Bell, 432 U. S. 404 (1977) ._.. 6

Carnegie Mellon University v. Cohill, 484 U.S.

343 (1988) PAN ie INOS I ies Rn ee 9

Corcoran v. Andra Insurance Company, 842 F.

2d 31 (2d Cir. 1988) Ay ibare eh 9

Foster v. Chesapeake Insurance Company, Ltd.,

933 F.2d 1207 (3d Cir. 1991), cert. denied,

60 U.S.L.W. 3293 (1991) | . 8,9, 12

Gravitt v. Southwestern Bell Telephone Com-

pany, 430 U.S. 723 (1977) 6

Grubbs v. General Electric Credit Corp., 405 U.S.

699 (1922) fF 8, 13

In Re: Shell Oil Company, 932 F.2d 1518 and

1523 (Sth Cir. 1991) 2... passim

Mesa v. California, 489 U.S. 121 (1989) 10

State of North Carolina v. Ivory, 906 F.2d 999

(4th Cir. 1990) 8,9

Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267

CR os rt es Lo ee eee 5

Survival Systems v. United States District Court

for the Southern District of California, 825

F.2d 1416 (9th Cir. 1987), cert. denied, 484

U.S. 1042 (1988) ) 12

United States v. Nixon, 418 U.S. 683 (1974) _ 10

United States v. Rice, 327 U.S. 742 (1946) 8

United States v. United Mine Workers of Amer-

ica, 330 U.S. 258 (1947) | 10

Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336 (1976) 7

Volvo Corp. v. Schwarzer, 429 U.S. 1331 (1976) 5

vi

Page

STATUTES

28 U.S.C. § 1441(b) , i, 12

28 U.S.C. § 1447(c) i, 3, 4,5, 7,9, 11, 14

28 U.S.C. § 1447(d) 12

28 U.S.C. § 1254(1) 2

Judicial Improvements and Access to Justice

Act, Public Law No. 100-702, Title VII,

§ 1016(b), 102 Stat. 4670 (November 19,

1988) 4

NO. 91-713

IN THE

Supreme Court of the United States

OCTOBER TERM 1991

GERARDO ACUNA CASTILLO, ET AL,

Petitioners

V.

SHELL OIL COMPANY, ET AL,

Respondents

RESPONDENTS’ BRIEF IN OPPOSITON TO

PETITION FOR WRIT OF CERTIORARI

To The United States Court Of Appeals

For The Fifth Circuit

To The Honorable Justices Of

The Supreme Court Of The United States:

Shell Oil Company, Occidental Chemical Corporation,

Standard Fruit Company, Standard Fruit & Steamship

Company, Dole Fresh Fruit Company and Castie &

Cooke, Inc., Respondents, file this Brief in Opposition

to the Petition for Writ of Certiorari filed by the Plain-

tiffs, Gerardo Acuna Castillo, et al, and would show

as follows:

2

OPINIONS BELOW

The United States Court of Appeals for the Fifth

Circuit (“Fifth Circuit”) properly granted Shell Oil Com-

pany, et al.’s Petitions for Writs of Mandamus and va-

cated the District Court’s remand orders and order deny-

ing defendants’ motion for reconsideration. The Petitioners

seek review of the Fifth Circuit’s judgments which are

reported at 932 F.2d 1518 and 932 F.2d 1523 and are

reprodouced as pages 1-26 of the Petition for Writ of Cer-

tiorari. Furthermore, the District Court’s opinions are

reported and reprinted at Appendix, pages 27-36, to

the Petition. The Fifth Circuit properly denied Motions

for Rehearing and Motions for Rehearing En Banc on

July 29, 1991, and the Petiton for Writ of Certiorari

ensued.

JURISDICTION

Jurisdiction of this Court has been properly invoked

by Petitioners pursuant to 28 U.S.C. § 1254(1).

COUNTER STATEMENT OF THE CASE

A. Statement of Facts

This Matter is one for personal injuries brought by

a number of Costa Rican citizens, all residents of Costa

Rica, against a number of Defendants in the District

Court of Harris County, Texas. Respondents, Standard

Fruit Company, Standard Fruit & Steemship Company,

Dole Fresh Fruit Company and Castle & Cooke, Inc.,

are citizens of states other than Texas. Standard Fruit

Company is a Delaware corporation with a foreign prin-

cipal place of business. Standard Fruit & Steamship Com-

pany is incorporated in Delaware and has its principal

3

place of business in California. Castle & Cooke, Inc.,

is a Hawaii corporation with a California principal place

of business. Dole Fresh Fruit Company is a Nevada

corporation with its principal place of business in Cali-

fornia. Shell Oil Company and Occidental Chemical Cor-

poration are Delaware corporations with principal places

of business in Texas. Complete diversity exists and

the federal courts would have original jurisdiction if

these cases had been filed there. Shell Oil Company and

Occidental Chemical Corporation were fraudulently joined

by the Plaintiffs in the State Court action in an un-

founded attempt to defeat removal jurisdiction of the

Federal Courts.

B. Course of Proceedings and Disposition in the

Two Courts Below

It is uncontroverted that Petitioners’ motion to re-

mand were filed over thirty (30) days after filing of

the Notice of Removal of these cases to the United States

District Court for the Southern District of Texas, Houston

Division.

After removal to the United States District Court for

the Southern District of Texas, Judge Kenneth M. Hoyt

and Judge James DeAnda improperly remanded these

cases to the District Court of Harris County, Texas.

Defendants Shell Oil Company, et al., then filed Petitions

for Writs of Mandamus seeking to overturn the orders

of remand and the Writs of Mandamus were properly

granted and orders of remand vacated by the United

States Court of Appeals for the Fifth Circuit. The Fifth

Circuit specifically based its orders on 28 U.S.C. § 1447

(c), stating that because the motions for remand were

filed more than thirty (30) days after removal, the

4

Motions were untimely. This constituted a defect in

removal procedure and the Plaintiffs below waived their

objection to the removal. The United States Court of

Appeals for the Fifth Circuit and the district courts

below never stated that they lacked subject matter juris-

diction. The Fifth Circuit found that the district court in

each case had subject matter jurisdiction.

ARGUMENT

Petitioners ask this Court to grant a Writ of Certiorari

on the basis that the decisions of the Fifth Circuit below

are in conflict with prior decisions of this Court or that

conflict exists between the Courts of Appeals. No such

conflicts exist. Petitioners have failed to satisfy the re-

quirements for review on certiorari and no extraordinary

reason exists under the circumstances of these cases for

the granting of the Writ by this Court.

A. There Is No Conflict With the Decisions

Of This Court

Congress, in the Judicial Improvements and Access ta

Justice Act, Public Law No. 100-702, Title VII, § 1016

(b), 102 Stat. 4670 (November 19, 1988), modified

the applicable statute, 28 U.S.C. § 1447(c). Pricer to

the !988 amendment, § 1447(c) provided that:

If at any time before final judgment it appears that

the case was removed improvidently and without

jurisdiction, the district court shall remand the case,

and may order the payment of just costs.

After the 1988 amendment (signed by the President

on November 19, 1988) § 1447(c) provides as follows:

A motion to remand the case on the basis of any

defect in removal proocedure must be made within

5

thirty 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 re-

manded. .. .

The Court of Appeals below found that “although

Shell is a citizen of the forum state, Texas, the district

court had subject matter jurisdiction, because complete

diversity existed between the parties. See Strawbridge v.

Curtiss, 7 U.S. (3 Cranch) 267 (1806).” 932 F.2d at

1519 and 932 F.2d at 1525. Petitioners cannot and do

not dispute that the District Court had subject matter

jurisdiction because complete diversity existed. They

merely contend that the Court of Appeals improperly

granted the Writs of Mandamus in light of the District

Court’s lack of removal jurisdiction under § 1441(b).’

This Court has found erroneous remands such as

the one before the Court today subject to review.

Petitioners cite this Court to Volvo Corp. v. Schwarzer,

429 U.S. 1331 (1976) (Rehnquist, Circuit Justice) for

the proposition that the erroneous remands by Judges

Hoyt and DeAnda are not reviewable. In that case,

Justice Rehnquist denied an application for a _ stay

of a remand order. In Schwarzer, it appeared to a

1. Based on the plain reading of 1447(c) this Court’s inquiry

should cease and the Writ be denied. The plain wording of the

statute is clear; a case shall be remanded at any time before final

judgment if it appears that the District Court lacks subject matter

jurisdiction. However, a Motion to Remand on the basis of any

defect in removal procedure must be made within 30 days arter the

filing of the Notice of Removal. 28 U.S.C. § 1447(c). No one dis-

putes that the Courts below had subject matter jurisdiction; the

only question is whether under the circumstances of the cases below,

the failure to file the Motions to Remand within 30 days constitutes

a defect in removal procedure.

6

legal certainty that the District Court did not have sub-

ject matter jurisdiction. 429 U.S. at 1332. The District

Court specifically found and Justice Rehnquist noted

that remand was explicitly based on an alleged erroneous

finding by the Court that it did not have subject matter

jurisdiction. 429 U.S. at 1333. Schwarzer does not con-

flict with the decisions below. The United States Court

of Appeals for the Fifth Circuit and the District Courts

below found that subject matter jurisdiction exists since

there is complete diversity under the rule of Straw-

bridge v. Curtiss. Consequently, unlike the situation in

Schwarzer, remand was not based on lack of subject

matter jurisdiction.

No conflict exists with Gravitt v. Southwestern Bell

Telephone Company, 430 U.S. 723 (1977). In Gravitt,

this Court, in a per curiam opinion, found that the Dis-

trict Court’s remand order was unreviewable since the

District Court specifically found that it lacked complete

diversity of citizenship. 430 U.S. at 723. In Gravitt, a

plaintiff was a citizen of Texas and likewise a defendant

was also a citizen of Texas so the Court lacked subject

matter jurisdiction, See In Re Southwestern Bell Tele-

phone Company, 535 F.2d 859, 860 (Sth Cir. 1976),

modified, 542 F.2d 297 (1976) (en banc). The Gravitt

decision does not conflict with the case before this Court

today; the Courts below have diversity jurisdiction since

complete diversity under the rule of Strawbridge v. Curtiss

exists.

The opinions below do not conflict with Briscoe v.

Bell, 432 U.S. 404, 413 n.13 (1977). In footnote 13

of Briscoe, this Court cites Gravitt v. Southwestern Bell

Telephone Company, 430 U.S. 723, 724 (1977), for

7

the proposition that “where the order is based on one

of the enumerated grounds, review is unavailable no mat-

ter how plain the legal error in ordering the remand.”

However, under the enumerated grounds as were in effect

at the material times before the Court today. review

is unavailable only where the Court below lacks subject

matter jurisdiction. 28 U.S.C. § 1447(c). Under the

rule of Strawbridge v. Curtiss, complete diversity between

the parties in these lawsuits exists and the courts below

had subject matter jurisdiction. Consequently, Briscoe

v. Bell provides no support for Petitioners’ contention

and supports Respondents’ point that appellate review is

permitted in situations where remand is based on reasons

other than lack of subject matter jurisdiction.*

The issue below was whether the right to seek a re-

mand can be waived. This Court has long held that

other than lack of original (subject matter) jurisdiction,

defects in removal may be waived.” This point is discussed

further at part D, infra.

2. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336. 346

(1976) is clear. “. . . only remand orders issued under & 1447(c)

and invoking the grounds specify therein—that removal was im-

provident and without jurisdiction—are immune from review under

§ 1447(d)” 1447(c) was amended in 1988 so that now the only

ground specified in 1447(c) is lack of subject matter jurisdiction

The Courts below had subject matter jurisdiction and, consequently,

since the remand orders in question were not based on lack of cubject

matter jurisdiction but on an alleged defect under 1441(b). the

District Court Orders were not immune from review under § 1447(c)

and the United States Court of Appeals for the Fifth Circuit prop-

erly held that it had jurisdiction to issue, and properly issued the

writs of mandamus.

3. “Long standing decisions of this Court make it clear however,

that where after removal a case is tried on the merits without objec-

tion and the Federal Court enters judgment, the issue in subsequent

proceedings on appeal is noot whether the case was properly removed,

8

In summary, the decisions below do not constitute

a new rule, as Petitioners allege, nor does it conflict in

any way with the prior decisions of this Court.

B. The Decisions of the United States Court of

Appeals for the Fifth Circuit Are Not Contrary

to Decisions Rendered by Other Circuit Courts.

Contrary to Petitioners’ contentions, the Fifth Circuit’s

decisions below do not conflict with those of the United

States Court of Appeals for the Third Circuit or the United

States Courts of Appeals for the Fourth Circuit.*

The decisions below do not conflict with Foster.”

The issue in the courts below was whether Shell Oil

Company and Occidental Chemical Corporation were

fraudulently joined as defendants in an attempt to defeat

the right of removal. The United States Court of Appeals

but whether the Federal District Court would have had original

jurisdiction of the case had it been filed in that Court.” Grubbs v.

General Electric Credit Corp., 405 U.S. 699, 702 (1922). The Courts

below had subject matter jurisdiction since complete diversity be-

tween the parties existed. As in Grubbs, there was and continues to

be diversity jurisdiction. The case below could have been originally

brought in the United States District Court for the Southern District

of Texas. /d. at 704.

Petitioner’s citation of United States v. Rice, 327 U.S. 742 (1946),

for the proposition that Congress gives District Court the final word

on removability is wrong. In Thermtron, this Court, while discussing

Rice stated “we are not convinced that Congress even intended to

extend carte blanche authority to the district courts to . . . remand[]

cases on grounds . . . not recognized by the controlling statute.”

423 U.S. at 351.

4. Foster v. Chesapeake Insurance Company, Ltd., 933 F.2d 1207

(3d Cir. 1991), cert. denied, 60 U.S.L.W. 3293 (1991); State of

North Carolina v. Ivory, 906 F.2d 999 (4th Cir. 1990).

5. This Court has apparently already examined the purported

conflict between the Third and Fifth Circuits and properly denied

the petition for writ of certiorari filed in Foster. See 60 U.S.L.W.

3154 (1991): ,cert. denied, 60 U.S.L.W. 3292 (1991).

9

for the Fifth Circuit granted writs of mandamus, va-

cated the orders of remand, and found that the presence

of forum defendants in violation of § 1441(b) is a “de-

fect in removal procedure” within the meaning of the

first sentence of § 1447(c), thus making the 30-day

time limit for remand motions applicable. Jn Re: Shell

Oil Company, 932 F.2d 1523, 1525 (Sth Cir. 1991).

In Foster v. Chesapeake Insurance Company, 933 F.2d

1207 (3d Cir. 1991), the issue before the United States

Court of Appeals for the Third Circuit was whether a

forum selection clause in an insurance contract (assum-

ing that such a clause waived the defendant’s right to

remove) was an enforceable, proper ground for remand.

933 F.2d at 1214. The Court held that remand based

on a forum selection clause is lawful. Jd. at 1215. Foster

does not conflict with the decision in In Re: Shell Oil

Company. These cases simply address different aspects

of what is a “defect in removal procedure’ within the

meaning of 28 U.S.C. § 1447(c). Foster held that re-

mand consistent with a forum selection clause waiving

the right to remove is not a defect in removal procedure.

On the other hand, in Jn Re: Shell Oil Company, the

Fifth Circuit held that the presence of forum defendants

for the purpose of removal jurisdiction does constitute

such a defect.°

6. Likewise, this Court and other courts have suggested other

grounds which might not fall within the 30-day requirement. See,

e.g., Carnegie Mellon University v. Cohill, 484 U.S. 343 (1988)

(when disposition of all federal questions leaves only state law ques-

tions that might be decided as a matter of ancillary or pendent

jurisdiction, case may, instead, be remanded): Corcoran v. Andra

Insurance Company, 842 F.2d 31, 33-34 (2d Cir. 1988) (abstention

- found to be a legitimate non-section 1447(c) ground for remand).

Significantly, the court in Corcoran found the remand in question

was reviewable.

10

The United States Court of Appeals for the Fourth

Circuit’s decision in State v. Ivory, 906 F.2d 999 (4th

Cir. 1990), does not conflict with the United States Court

of Appeals for the Fifth Circuit’s holdings in Jn Re: S’ ell

Oil Company. In State v. Ivory, the Court of Appeals

stated as follows:

The thirty-day limitation applies only to objections to

defects in removal procedure. North Carolina’s ob-

jection here is that the Court lacked subject matter

jurisdiction, an objection that may be raised by the

parties at any time or by the Court sua sponte.

906 F.2d at 1000 n.1. The issue before the Court in

State v. Ivory was the lack of subject matter jurisdction.

That is the one specific statutory ground remaining after

1988 in § 1447(c) where the 30-day rule is not applic-

able.‘ Lack of subject matter jurisdiction did not play

a part in the orders of remand below.

This Court should leave the decisions of the Fifth

Circuit undisturbed and allow the Circuit Courts to de-

termine what constitutes a “defect in removal procedure’.

No conflicts exists between the Circuit Courts at present.

Petitioners’ contention that immediate involvment of this

Court is necessary is unfounded. No grave political or

social question is involved in this case which might

prompt this Court to grant a Writ of Certiorari.* In

7. The issue in State v. Ivory was whether certain allegations

gave rise to a federal defense required to support removal under the

doctrine of Mesa v. California, 489 U.S. 121 (1989).

8. See, e.g., United States v. Nixon, 418 U.S. 683, 686-7 (1974)

(review before judgment granted “because of the public importance

of issues presented and need for their prompt resolution.” ); United

States v. United Mine Workers of America, 330 U.S. 258 (1947)

(validity of contempt adjudications groowing out of government

seizure of coal mines).

11

short, there is no conflict between the Courts of Appeals

and consequently, the Writ should be denied.°

C. No Constitutional Question is Presented.

The opinion below does not find that any statute of

the United States is unconstitutional and Petitioners do

not make such an allegation. Therefore, the third potential

reason for granting a Writ of Certiorari is mot present

in the case before the Court.

D. The United States Court of Appeals for the Fifth

Circuit committed no reversible error and the

decisions below are in conformity with this

Court’s decisions and the intent of Congress.

1. The Court below had jurisdiction to review

the order of remand,

The standard of review of a remand order by way of

writ of mandamus was defined by this Court in Therm-

tron Products, Inc. v. Hermansdorfer.°° In Thermtron

Products, this Court determined that the then-existing

28 U.S.C. § 1447(c) did not bar review of a remand

order where the case was properly removed and the

remand order was issued on grounds not specifically

authorized by § 1447(c)."' After the Thermtron Products

decision, § 1447(c) was amended, effective November

19, 1988, and the amended provision increases those

9. Petitioners also ask this Court to grant certiorari merely

because there is a purported conflict between some district courts.

Conflict between district courts, if any, especially within the same

circuit, should be left to the Circuit Courts to resolve in the first

instance. '

10. 423 U.S. 336 (1976).

11. Jd. at 345.

12

vurders which may be reviewed. As discussed in Sec-

tion A, supra, the standard set forth in § 1447 was

modified by Congress to the effect that only orders

specifically based on lack of subject matter jurisdic-

tion may not be reviewed by an appellate court by

means of writ of mandamus. The courts below have

subject matter jurisdiction since complete diversity within

the meaning of Strawbridge v. Curtiss exists. Since the

district courts had subject matter jurisdiction, remand

could not possibly have been based on § 1447(c) and

the removal was not “without jurisdiction.” '”

The Court below found that it had jurisdiction to re-

view by way of writ of mandamus the order of remand.

This is not in conflict with the United States Court of

Appeals for the Third Circuit’s opinion in Foster v. Chesa-

peake Ins. Co., Ltd., 933 F.2d 1207 (3d Cir. 1991).

In Foster, the Court of Appeals for the Third Circuit

specifically held that “28 U.S.C. § 1477 (d) does not bar

review of the order of the district court [pursuant to a

forum selection clause].”’* The same circuit court had

previously held that it had jurisdiction to review by

way of writ of mandamus a district court finding that

a defendant had untimely removed the case under 28

U.S.C. § 1446(b). Air Shields v. Fullam, 891 F.2d 63,

64-5 (3d Cir. 1989).

Based on Thermtron Products, in conjunction with

the 1988 amendment to § 1447, the Court below could

12. See, e.g., Survival Systems v. United States District Court for

the Southern District of California, 825 F.2d 1416, 1418 (9th Cir.

1987), cert. denied, 484 U.S. 1042 (1988).

13. 933 F.2d at 1211.

13

review by way of writ of mandamus the decisions of

the district court.’

2. The Courts below properly found that Plain-

tiffs waived their right to file a remand

motion.

The Petitioners (Plaintiffs) waived any right to seek

remand since their Motions for Remand were untimely

This Court in Grubbs v. General Electric Credit Corp..,

405 U.S. 699 (1972), held that the right to file a

Motion to Remand may be waived due to tardiness.

405 U.S. at 702. Although Grubbs did not discuss a

statutory time period, this Court held that by proceeding

to a determination on the merits, the right to file a Motion

to Remand was waived. The decision below comports

with the United States Court of Appeals for the Third

Circuit’s decision in Air Shields, Inc. v. Fullam, 891

F.2d 63, where the United States Court of Appeals for

the Third Circuit held that after the 30-day time limit

of § 1447(c) had expired, the district court was power:

less to remand a case improperly removed under § 1446

(b). Id. at 66.

Likewise, in line with Congress’ intent, the Fifth Cir-

cuit Court of Appeals found that Plaintiffs waived

improper removal. under § 1441(b) as a grounds for re-

mand. 932 F.2d at 1522-23."

14. The remand Motion in the consolidated cases was filed after

the effective date of the statute, November 19, 1988. The Court

below properly determined that no prejudice results from application

of the amended version of § 1447(c). 932 F.2d at 1526.

15. Foster v. Chesapeake Ins. Co., supra, the case which Peti-

tioners contend conflicts with the decisions below did not overrule the

Third Circuit’s decision in Air Products. In fact, the Third Circuit in

Foster affirmatively cites the Air Prodoucts decision and endorses its

14

In summary, the Court below had jurisdiction to re-

view the district court’s remand orders by way of writ

of mandamus and properly found that untimely filing

of a motion to remand claiming the protection of § 1441

(b) is a defect in removal procedure which may be

waived.

CONCLUSION

The case before the Court does not present special

and important matters for certiorari. The review of a

remand order which does not fall within the specific

enumerated ground of 28 U.S.C. § 1447(c), lack of sub-

ject matter jurisdiction, was performed in conformity

with the prior decisions of this Court. The decisions

below were correct and, consistent with this Court’s

jurisprudence. There is no conflict of whether the

presence of forum defendants in purported violation

of §$1441(b) is a “defect in removal proocedure.”

Finally, no constitutional questions or matters of grave

social concern are presented. Accordingly, Respondents

holding. 933 F.2d at 1213. The Third Circuit in Foster states in

pertinent part:

Accordingly as the statute is clear on its face . . . the district

court was correct in holding that § 1447(c)’s requirement that

“{a] motion to remand the case on the basis of any defect in

removal proocedure must be made within 30 days after filing the

notice of removal” applies only too motions for remand on the

basis of any defect in removal procedure. . . . Cf. Air-Shields,

Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989) (the 1988

version of § 1447(c) omits the previously “improvidently re-

moved” grounds for removal and restricts the time for remand

motions based oon proocedural defects”) . . . 933 F.2d at 1213.

15

respectfully submit that the discretionary Petition for Writ

of Certiorari must be denied.

Of Counsel:

Respectfully submitted,

AMES PATRICK Cooxty

Attorney-in-Charge

Tosi A. TABOR

DANIEL Davip Hu

2200 Texas Commerce Tower

Houston, Texas 77002

Telephone: (713) 224-8380

Telecopier: (713) 225-9945

Attorneys for Respondents,

Standard Fruit Company,

Standard Fruit and Steamship

Company, Castle & Cooke and

Dole Fresh Fruit Company

ROYSTON, RAYZOR, VICKERY & WILLIAMS

R. BURTON BALLANFANT

Shell Oil Company

4656 One Shell Plaza

Houston, Texas 77252

(713) 241-7023

Attorney for Respondent,

Shell Oil Company

STEPHEN C, LEWIS

Attorney-in-Charge

SANFORD SVETCOV

LANDELS, RIPLEY & DIAMOND

Hills Plaza, 350 Steuart Street

San Francisco, California 94105

(415) 788-5000

Attorneys for Respondent,

Occidental Chemical Corporation

16

CERTIFICATE OF SERVICE

I hereby certify that on this 7 day of November,

1991, I have served three true and correct copies of the

foregoing Opposition to Petition for Writ of Certiorari

on the following counsel in this case by placing same in

the United States Mail, Certified Mail, Return Receipt

Requested, in a properly addressed package. with ade-

quate postage as follow:

Mr. Charles S. Siegel and

Mr. Scott M. Hendler

Baron & Budd, P.C.

The Centrum

3102 Oak Lawn Avenue

Suite 1100

Dallas, Texas 75219

Mr.’ F. Walter Conrad

Baker & Botts

3300 One Shell Plaza

Houston, Texas 77002

Mr. R. Burton Ballanfant

Shell Oil Company

P. O. Box 2473

Houston, Texas 77001

Mr. Jose Berlanga

Hirsch, Glover, Robinson & Sheiness

917 Franklin

Houston, Texas 77002-1779

Mr. Stephen Lewis

Landels, Ripley & Diamond

350 Steuart Street

San Francisco, California 94105-1250

Mr. W. A. Lindsay

3555 Timmons Lane

Suite 700

Houston, Texas 77027

17

Mr. Ervin A. Gonzalez

Robles & Gonzalez

100 South Biscayne Boulevard

Suite 900

Miami, Florida 331

OYSTON, RAYZOR,

ILLIAMS, L.L.P.