Petition for Writ of Certiorari — Sellick Equipment, Inc. v. Boutte

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Supreme Court, U.S.

y FEB 1 4 19964,

In The

Supreme Court of “he United States

October Term, 1993

SELLICK EQUIPMENT, INC.,

Petitioner,

versus

JOSEPH BOUTTE,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI ON BEHALF

OF SELLICK EQUIPMENT LIMITED-APPLICATION

James B. Doyte

LA Bar Roll No.: 5061

TX Bar Roll No.: 06092500

Woop tey, WILLIAMS, FENET,

BouDREAU, NoRMAN & BROWN

500 Kirby Street

P.O. Drawer EE

Lake Charles, LA 70602

(318) 433-6328

Attorneys for Sellick

Equipment Limited -

Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR KEVIEW

Does a Unite: States District Court have the authority to

remand a properly-removed suit, over which it retains

subject matter jurisdiction, when the only cause given for

the remand is the joint consent of the parties?

I].

May a United States District Judge remand a suit over

which he has subject matter jurisdiction without any

reference to 28 U.S.C. 1447(c), but solely based upon the

“consent” of the parties?

If.

May the parties to a properly-removed suit over which a

United States District Court has subject matter jurisdic-

tion deprive that Court of its jurisdiction by consenting to

a remand without citing any grounds therefor under 28

U.S.C. 1447(c)?

LIST OF 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

the Judges of this Court may evaluate possible disqual-

ifications or recusal.

(1) James B. Doyle — Woodley, Williams, Fenet,

Boudreau, Norman & Brown, 500 Kirby Street,

P.O. Drawer EE, Lake Charles, Louisiana 70602,

(318) 433-6328, Attorneys for Sellick Equipment

Limited, Defendant/Petitioner.

(2) Richard Ducote, 335 Decatur Street, New

Orleans, Louisiana 70130, (504) 581-5152, Attor-

ney for Joseph M. Boutte, Respondent /Appel-

lant.

(3) Darrell Cherry - Deutsch, Kerrigan &

Stiles, 755 Magazine Street, New Orleans, Loui-

siana 70130, (504) 581-5141, Attorneys for Mor-

ton International, Inc. and James Derise,

Defendant.

(4) Honorable Richard T. Haik, United States

Western District Judge, Lafayette - Opelousas

Division, 213 Federal Building, 705 Jefferson

Street, Lafayette, Louisiana, 70501, (318)

262-6875.

TABLE OF CONTENTS

Page

Questions Presented for Review i

List of Parties... ii

Table of Contents. . . iil

Table of Authorities . iv

Reports of Opinions by Prior Courts.

Grounds for Which the Jurisdiction of this Court is

Invoked........

Statutes at Issue in this Case

Statement of the Case %

Argument...... 11

A. Mandamus is the proper remedy and should

have been allowed by the Court of Appeals . 13

B. Although the fraudulent joinder allegation was

not litigated, it existed by clear and convincing

evidence......... 13

C. Neither consent nor waiver are valid issues 15

D. Conclusion and Relief Sought 16

TABLE OF AUTHORITIES

Page

Cases

A. Federal

Cabe v. Pennwalt Corp., 372 F.Supp. 780 (USDC

WING... 197) nc cucevcvevvdicversseceestsateress 11

City of New York v. Exxon Corp., 697 F.Supp. 677

CEE. WEY. TGGB) nace ccvevcecreksscedstaercveionss 11

In Re Allstate, 8 F.3d 219 (5th Cir. 1993).......... 12, 13

In Re Shell Oil Co., 631 F.2d 1156 (5th Cir. 1980) .... 13

Mayer Paving & Asphalt Co. v. General Dynamics

Corp., 486 F.2d 763 (1973).....---. eee cece eee eee ee. 11

Monaco v. Carey Canadian Mines, Ltd., 514 F.Supp.

357 (B.D. Pemti. 1961). ..2 cc ccccccsccsecedesesesss 16

A.L. Rowan & Son v. Department of Housing &

Urban Development, 611 F.2d 997 (5th Cir. 1988) .... 11

Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281

|g Ee Pp PeP errr rerrer irs rsa T ree ee eee ee 15

Tedder v. FMC Corp., 590 F.2d 115 (1979) ..........-. 15

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

96 S.Ct. 584, 46 L.Ed. 2d 542 (1976) ...... Ea, he, 32, 37

Three J. Farms v. Alton Box Car Company, 609 F.2d

ee! ee, ery rere rr rrr ree re reer 17

Wilson v. Republic Iron & Steel Co., et al., 257 U.S.

92, 42 S.Ct. 35, 66 L.Ed. 144 (1921) ............... 15

B. State

Bazley v. Tortorich, 397 So.2d 475 (La. 1981)........-. 14

Caudle v. Betts, 512 So.2d 389 (La. 1987)............. 14

TABLE OF AUTHORITIES - Continued

Page

Dycus v. Martin Marietta Corp., 568 So.2d 592 (La.

App. 4th Cir. 1990), Writ Den’d, 571 So.2d 649

Fl SOP ahs irs ede sisal ee 14

Hartigan v. Hartigan, 128 So.2d 725 (Ala. | eee 16

Williams v. Gervais F. Favrot Co., Inc., 573 $0.2d 533

Che. App. GO Ce WO) iss his cnccecs eee 14

STATUTES

A. Federal

SP Ws SOs ono 04s ishireinsdes nee ]

SP Wiis BOMB 66 6.660 vecndsabineteccesoe 1, ao

We Rs NB oo ciesnkcnvesngeipatertenion eee 4

BP We OD ove v6 benedeni oe passim

PO ete TOI os hs open ceasandvesnin elo 5, 16

Fae MOND oxic kc eeeessnvecioliine ee 6, 12

PU SUMED 6 6 id das ben veda eusn lean 6, 11

B. State

ek A AAA A? Pe bei 6, 14

REPORTS OF OPINIONS BY PRIOR COURTS

The Honorable Richard T. Haik, Jr., United States

District Judge for the Western District of Louisiana,

Lafayette - Opelousas Division, issued written reasons on

October 18, 1993, which denied the Motion to Vacate

Remand Order filed by Sellick Equipment, Limited. The

United States Court of Appeals for the Fifth Circuit

denied, without written reasons, Petitioner’s Petition for

Writ of Mandamus and/or Prohibition on November 16,

1993.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. 1254. Subject matter jurisdiction in the proceed-

ing below was alleged pursuant to 28 U.S.C. 1332.

This petition seeks review of the Judgment of the

United States Court of Appeals for the Fifth Circuit

entered on November 16, 1993, denying Petitioner’s Writ

of Mandamus.

STATUTES AT ISSUE IN THIS CASE

§ 1254. Courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the

petition of any party to any civil or criminal

case, before or after renition of judgment or

decree;

(2) By certification at any time by a court

of appeals of any question of law in any civil or

criminal case as to which instructions are

desired, and upon such certification the

Supreme Court may give binding instructions or

require the entire record to be sent up for deci-

sion of the entire matter in controversy.

§ 1332. Diversity of citizenship; amount in controversy,

costs

(a) The district courts shall have original jurisdic-

tion of all civil actions where the matter in controversy

exceeds the sum or value of $50,000, exclusive of interest

and costs, and is between -

(1) citizens of different States;

(2) citizens of a State and citizens of sub-

jects of a foreign state;

(3) citizens of different States and in which

citizens or subjects of a foreign state are addi-

tional parties; and

(4) a foreign state, defined in section

1603(a) of this title, as plaintiff and citizens of a

State or of different States.

For the purposes of this section, section 1335, and section

1441, an alien admitted to the United States for perma-

nent residence shall be deemed a citizen of the State in

which such alien is domiciled.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff who files the case originally in the Federal courts

gikives <

is finally adjudged to be entitled to recover less than the

sum or value of $50,000, computed without regard to any

setoff or counterclaim to which the defendant may be

adjudged to be entitled, and exclusive of interest and

costs, the district court may deny costs to the plaintiff

and, in addition, may impose costs on the plaintiff.

of this title -

(1) a corporation shall be deemed to be a

citizen of any State by which it has been incor-

porated and of the State where it has its princi-

pal place of business, except that in any direct

action against the insurer of a policy or contract

of liability insurance, whether incorporated or

unincorporated, to which action the insured is

not joined as a party-defendant, such insurer

shall be deemed a citizen of the State of which

the insured is a citizen, as well as of any State by

which the insurer has been incorporated and of

the State where it has its principal place of busi-

ness, and

(2) the legal representative of the estate of

a decedent shall be deemed to be a citizen only

of the same State as the decedent, and the legal

representative of an infant or incompetent shall

be deemed to be a citizen only of the same State

as the infant or incompetent.

(d) The word “States”, as used in this section,

includes the Territories, the District of Columbia, and the

Commonwealth of Puerto Rico.

§ 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 origi-

nal jurisdiction, may be removed by the defendant 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 purposes of removal under this

chapter, the citizenship of defendants sued under ficti-

tious names shall be disregarded.

(b) Any civil action of which the districts courts

have original jurisdiction founded on a claim or right

arising under the Constitution, treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. In interest such

action shall be removable only if none of the parties. Any

other properly joined and served as defendants is a citi- -

zen of the State in which such action is brought.

cause of action within the jurisdiction conferred by sec-

tion 1331 of this title is joined with one or more otherwise

non-removable claims or causes of action, the entire case

may be removed and the district court may determine all

issues therein, or, in its discretion, may remand all mat-

ters in which State law predominates.

(d) Any civil action brought in a State court against

a foreign state as defined in section 1608(a) of this title

may be removed by the foreign state to the district court

of the United States for the district and division embrac-

ing the place where such action is pending. Upon

removal the action shall be tried by the court without

jury. Where removal is based upon this subsection, the

time limitations of section 1446(b) of this chapter may be

enlarged at any time for cause shown.

(e) The court to which such civil action is removed

is not precluded from hearing and determining any claim

in such civil action because the State court from which

such civil action is removed did not have jurisdiction

over that claim.

§ 1447. Procedure after removal generally

* + +

defect in removal procedure must be made within 30

days after the filing of the notice of removal under sec-

tion 1446(a). If at any time before final judgment it

appears that the district court lacks subject matter juris-

diction, 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 the clerk to the clerk of the State court. The

State court may thereupon proceed with such case.

§ 1651. Writs

(a) The Supreme Court and all courts established by

Act of Congress may issue all writs necessary or appro-

priate in aid of their respective jurisdictions and agree-

able to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by

a justice or judge of a court which has jurisdiction.

—eee

Rule 41. Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation.

(i) by filing a notice of dismissal at any time before

service by the adverse party of an answer or of a motion

for summary judgment, whichever first occurs.

Rule 12. Defenses and Objections - When and How

Presented — By Pleading or Motion — Motion

for Judgment on Pleadings

* + *

(h) Waiver or Preservation of Certain Defenses.

(3) Whenever it appears by suggestion of the parties

or otherwise that the court lacks jurisdiction of the sub-

ject matter, the court shall dismiss the action.

§ 1032. Exclusiveness of rights and remedies;

employer's liability to prosecution under other

laws

A. (1)(a) The rights and remedies herein granted

to an employee or his dependent on account of an injury,

or compensable sickness or disease for which he is enti-

tled to compensation under this Chapter, shall be exclu-

sive of all other rights and remedies of such employee,

his personal representatives, dependents, or relations,

against his employer, or any principal or any officer,

director, stockholder, partner, or employee of such

employer or principal, for said injury, or compensable

sickness or disease.

(b) This exclusive remedy is exclusive of all claims,

including any claims that might arise against his

employer, or any principal or any officer, director, stock-

holder, partner, or employee of such employer or princi-

pal under any dual capacity theory or doctrine.

(2) For purposes of this Section, the word “princi-

pal” shall be defined as any person who undertakes to

execute any work which is a part of his trade, business, or

occupation in which he was engaged at the time of the

injury, or which he had contracted to perform and con-

tracts with any person for the execution thereof.

B. Nothing in this Chapter shall affect the liability

of the employer, or any officer, director, stockholder, part-

ner, or employee of such employer or principal to a fine

or penalty under any other statute or the liability, civil or

criminal, resulting from an intentional act.

C. The immunity from civil liability provided by

this Section shall not extend to:

(1) Any officer, director, stockholder, partner, or

employee of such employer or principal who is not

engaged at the time of the injury in the normal course

and scope of his employment; and

(2) To the liability of any partner in a partnership

which has been formed for the purpose of evading any of

the provisions of this Section.

STATEMENT OF THE CASE

Joseph Milton Boutte filed suit against Morton Inter-

national, Inc., James Derise and Sellick Equipment, Lim-

ited in Iberia Parish, Louisiana, on July 8, 1991. Petitioner

Sellick Equipment Limited is a Canadian Corporation.

Morton International, Inc. is a corporate citizen of Indi-

ana, whose principal place of business is Illinois. James

Derise is a resident of Louisiana, as is Boutte.

Morton and Derise removed on July 26, 1991, assert-

ing federal subject matter jurisdiction existed pursuant to

28 U.S.C. 1332. Morton also asserted the fraudulent join-

der of Derise, and further pled that the inclusion of

Morton as a defendant did not destroy diversity under

the cited statute. In its removal petition, Morton repre-

sented, contrary to the allegations of the removed suit,

that it was organized under the laws of the State of

Indiana, not Louisiana. It also asserted Derise was

“fraudulently joined without a legal basis solely in an

attempt to destroy diversity.” Notice of Removal, para-

graph 3, App. p. 7. Neither of those points was ever

litigated in the District Court.

On August 5, 1991, Morton answered the complaint

in Federal Court. On August 6, 1991, Sellick was served

under Louisiana procedure by delivery of a certified copy

of the petition to the Secretary of State.

No further action was taken in Federal Court. The

thirty day remand period for procedural defects specified

in 28 U.S.C. 1447(c) passed without event.

On March 12, 1992, respondent Boutte’s complaint

against Sellick was dismissed by the Clerk of Court, since

Sellick, a named defendant, had filed no appearance (cf.

ULLR 11.02(W), Louisiana local rules for the United

States District Courts).

On April 13, 1992, respondent filed a Motion to Rein-

state his lawsuit against Sellick, annexing to the Motion a

copy of the Answer Sellick had filed in the state court

pleadings on or about September 25, 1991, well after

removal. On the same day, the Court reinstated Boutte’s

action against Sellick, and specifically required issue as to

Sellick be joined “within thirty days, by answer filed or

request for default judgment... ” (App., p. 26). Sellick

never entered an appearance in the District Court suit.

On April 27, 1992, nine months after removal,

respondent Boutte moved ex parte to dismiss Morton and

Derise, the original removing defendants. In that docu-

ment, he specifically reserved any claim against Sellick,

described additionally in that pleading as “the remaining

defendant... ” (App., p. 27). Although the Motion to

Dismiss represents Sellick had been contacted and voiced

no opposition to the granting of the Motion for Non-Suit,

no counsel had entered appearance on behalf of Sellick,

and Sellick did not join the Motion.

On May 5, 1992, eleven months after removal,

respondent Boutte filed a Motion to Remand without

citing statutory or other grounds; and in that document

represented that counsel for Sellick was “concurrently

filing his consent to the remand.” But that document is

conspicuously absent from the record, no pleading to that

effect has ever been filed, and as far as the Federal Court

was concerned, no counsel existed for Sellick. In response

to the Motion, again without citing any statutory grounds

for his action, the District Judge signed the order and

remanded the case to the state court from whence it came.

On August 27, 1993, petitioner Sellick filed a Motion

to Vacate the previous remand order. After a telephone

conference, the District Judge issued written reasons

which found, inter alia, “that at the time of the May 19,

1992, remand of this case, the defendant desired to

remand the case to the 16th Judicial District of Iberia

Parish. In addition to the consent of the parties at the

time of the remand, the lengthy delay in applying to

vacate the order gives further support for this denial.”

(App., p. 42).

After the entry of Judge Haik’s Order denying the

Motion to Vacate, petitioner filed for relief from the |

United States Court of Appeals for the Fifth Circuit. In its

Petition for-Writ of Mandamus, Sellick urged that a

remand issued without resort to the statutory authority

granted United States District Judges under 28 U.S.C.

1447(c) is ultra vires and without effect; that the consent of

the parties to a voluntary remand, even if such was

proved, does not operate to give the Judge any additional

authority Congress did not give him; and, as the Order

previously entered remanding the case was ultra vires, it

must be considered absolutely null, and subject to a

Motion to Vacate at any time.

The Court of Appeals denied the relief sought by

Petitioner, who now seeks the same relief from this Court.

ARGUMENT

In Thermtron Products, Inc. v. Hermansdorfer, 96 S. Ct.

584, 423 U.S. 336, 46 L.Ed. 2d 542 (1976), this Court held

that a District Judge remanding a properly-removed

action on any ground other than that the case was

removed “improvidently and without jurisdiction”

exceeds his authority under 28 U.S.C. 1447(c). The action

of the District Judge in the case at bar, and the Court of

Appeals in denying Mandamus, amounts to such a clear

violation of the mandate of this Court that it cannot be

overlooked.

Limited as it is by Congress, federal jurisdiction over

the subject matter of litigation is fact-based and zealously

guarded. Cabe v. Pennwalt Corp., 372 F.Supp. 780 (USDC

W.D.N.C., 1974). So it has long been clear that parties

cannot combine to confer jurisdiction upon the Courts of

the United States by collusion or by consent. See, e.g., A.L.

Rowan & Son v. Department of Housing & Urban Develop-

ment, 611 F.2d 997 (5th Cir. 1988); City of New York v.

Exxon Corp., 697 F.Supp. 677 (S.D. N.Y. 1988); Mayer Pav-

ing & Asphalt Co. v. General Dynamics Corp., 486 F.2d 763

(1973); Rule 12(h)(3) FRCP.

The question here posed is the converse: Assuming,

for purposes of this argument only, petitioner Sellick

acquiesced in the Motion to Remand: Can such consent

destroy jurisdiction when collusion could not have created

it?

Although not a party to the removal, Sellick was

clearly before the Court at the time the remand order

issued. On the face of the removed petition, Sellick’s

position in the suit did nothing to destroy diversity juris-

diction. If it was a “defect in removal procedure” under

Section 1447 for Sellick not to have joined in the removal,

that defect was waived by the expiration of thirty days

from the Notice of Removal.

No deficiency in the Notice of Removal is noted in

the record, nor alleged in any document. But even if

Sellick had wanted to be in state court, and had objected

to the removal, no statutory basis exists for such objection

to be lodged after the expiration of thirty days. And in

any case, it was Boutte, not Sellick, who sought remand.

As far as federal law is concerned, at the time the

Motion to Remand was filed, this case was properly

before the federal district court on subject matter jurisdic-

tion granted by Congress. Boutte could have accom-

plished the same result by a Motion to Dismiss as of non-

suit, which could have been filed at the stage, since

Sellick had not filed an appearance. FRCP 41(a)(1)(i).

Save that remedy, which might have produced special

problems for Boutte concerning the running of time

under Louisiana’s one-year statute of limitations, no cer-

tain method existed to destroy the federal jurisdiction

created, not by the parties, but by Boutte’s action and the

facts which necessarily attached to his pleadings.

A District Judge may no more remand a properly-

removed suit because the parties consent than he may

because his docket is too crowded. Thermtron, supra. A

District Judge may no more remand a case by consent to

the parties than she may do so sua sponte upon noticing

what she determines to be a defect in the removal. In Re

Allstate, 8 F.3d 219 (5th Cir. 1993). While federal jurisdic-

tion is narrowly defined, so too is the authority of the

district judge to remand. No authority for remand was

cited in the Motion, nor in the Order signed by Judge

Haik, because none existed.

For these reasons, Judge Haik’s remand order must

be deemed without effect. Thus, the Motion to Vacate

should have been granted.

A. Mandamus is the proper remedy and should have

been allowed by the Court of Appeal

Although removal orders are not subject to review,

see generally 28 U.S.C. 1447(c), this Court in Thermtron,

supra, designated Mandamus as the proper procedural

remedy when a remand is entered on grounds not enu-

merated in that statute. This result was followed recently

by the Fifth Circuit in In Re Allstate, supra. Thus, Peti-

tioner’s filing of a Motion to Vacate, followed by a Peti-

tion for Mandamus regarding denial of that Motion, is the

proper remedy. In Re Shell Oil Co., 631 F.2d 1156 (5th Cir.

1980).

B. Although the fraudulent joinder allegation was not

litigated, it existed by clear and convincing evi-

dence

No legal test of the fraudulent joinder allegations

made by Morton and Derise in their Notice of Removal

was ever brought. It could be argued that Boutte’s action

in dismissing those parties recognized their validity. Nev-

ertheless, the fraudulent joinder allegation was mer-

itorious on its face.

Boutte was alleged in the original Petition for Dam-

ages to be working within the course and scope of his

employment with Morton International, Inc. at the time

of his injury. Petition, paragraph 5. (App., p. 2). As such,

Derise would be absolutely immune under Louisiana law

to any suit by Boutte, a co-employee, unless Boutte could

prove his actions amounted to a deliberate attempt to

harm him. Louisiana R.S. 23:1032 et seq.; cf., Bazley v.

Tortorich, 397 So.2d 475, 482 (La. 1981); Caudle v. Betts, 512

So.2d 389 (La. 1987).

Although Boutte couched Morton and Derise’s

actions as “intentional” in paragraph 7 of his original

petition, those allegations sound in negligence. Speci-

fically, Boutte alleges Morton and Derise to have

“intended” acts such as “failing to provide a safe place to

work... failing to provide safe equipment . . . ; failing to

replace or repair defective equipment .. . ; breaching the

duty owed to plaintiff...” Petition, paragraph 7. (App.,

p. 3)

Those allegations fall far short of the “intentional

act” requirement to bypass Louisiana’s statutory immu-

nity. Bazley v. Tortorich, supra; Caudle v. Betts, supra; Dycus

v. Martin Marietta Corp., 568 So.2d 592, 595 (La. App. 4th

Cir. 1990), Writ Den’d, 571 So.2d 649 (La. 1990); Williams v.

Gervais F. Favrot Co., Inc., 573 So0.2d 533, 540 (La. App. 4th

Cir. 1991).

On the face of the petition which was removed, then,

fraudulent joinder is clearly and convincingly apparent

since no legal basis existed in Louisiana law for the relief

sought by Boutte against Derise. Thus, at the time the

lawsuit was removed, absent the fraudulently-joined

defendants, complete diversity jurisdiction existed. See

also, Wilson v. Republic Iron & Steel Co., et al., 257 US. 92,

42 S.Ct. 35, 66 L.Ed. 144 (1921); Tedder v. FMC Corp., 590

F.2d 115 (1979).

C. Neither consent nor waiver are valid issues

The District Judge’s reasons denying the Motion to

Vacate hinge on his interpretation of the action of prior

counsel for Sellick, particularly representations made by

current counsel that the remand order was apparently

entered into without objection, and perhaps with the

consent of, Sellick. However, even assuming this consent

occurred, it is irrelevant.

Parties consenting to an illegal or unlawful action

cannot be bound by that action. Parties may not, by

stipulation, invest a court with jurisdiction over the sub-

ject matter of a cause which it would not otherwise have

had. Swift & Co. v. Hocking Valley R. Co., 243 U.S. 281

(1917). Likewise, the parties to an action may not stipu-

late for the determination thereof by the Court, in a

manner contrary to the statutes or rules of Court. Thus, a

Stipulation by parties to remand, or consent to remand

which is in direct contravention of the statute, is unenfor-

ceable.

Although the present circumstance is not as dra-

matic, there is no doctrinal difference between the “joint

consent” of the parties here and that of husband and wife

colluding in a divorce action neither would be entitled by

law to bring. Hartigan v. Hartigan, 128 So.2d 725 (Ala.

1961).

Equally, waiver is not an issue, but for different rea-

sons. First, Boutte has never answered any pleading

asserting Sellick has waived its right to have the remand

order vacated due to the passage of time. Second, it is far

from certain waiver can be used as a defense when the

ultra vires nature of the order is beyond question.

Waiver is sparingly applied in removal cases. Thus,

where a plaintiff delayed eight months in asking for a

remand, and during that time used the facilities of the

Federal Court, that combination of delay and deliberate

invocation of federal jurisdiction was enough to consti-

tute a waiver of any procedural defect in the removal.

Monaco v. Carey Canadian Mines, Ltd., 514 F.Supp. 357

(E.D. Penn. 1981).

If there is any additional question, it would be con-

cerning the Court’s inherent authority to “reopen a closed

case.” Technically, if the Order remanding was illegal, the

case was not “closed” since it was so only as a result of an

ultra vires order. But if it was, on recognizing its mistake,

the District Court certainly could have granted the

Motion in aid of its own jurisdiction under 28 U.S.C.

1651.

D. Conclusion and Relief Sought

This Court guards Congress’ mandate of limited fed-

eral jurisdiction by consistently requiring adherence to

the Legislative enactments which create it. This case was

properly before a United States District Court on subject

matter jurisdiction. At the time the order complained of

was entered, it was no more subject to remand than it

would have been had it first been brought in Federal

Court.

No Circuit has spoken to this issue. But the result in

this case, if not the specific procedure, is directly opposite

this Court’s mandate in Thermtron, supra.

Petitioners previously argued that the remand order

was entered “by mistake and inadvertence.” While the

written reasons of Judge Haik would seem to be mandate

this is not so, “mistake” is certainly broad enough to

encompass the result which obtained here. Neither this

Court, nor any Circuit, has ruled on the question of

“whether a district court has the authority to vacate a

remand order which was entered by ‘mistake and inad-

vertence’ in the true sense of that phrase... ,” although

this specific question was reserved by the Fourth Circuit

in Three J] Farms v. Alton Box Car Company, 609 F.2d 112

(4th Cir. 1979).

The error of the District Court, and by extension, the

Court of Appeals, may be remedied by the granting of

this Writ. The issues are clear-cut and narrow enough to

proceed without oral argument or further briefing.

Therefore, Petitioner urges the Court to grant this

Writ of Certiorari; vacate the decision of the Court of

Appeals for the Fifth Circuit; and remand to that Court

with instructions to issue the Writ of Mandamus previ-

ously sought by Sellick, ordering the Honorable District

Judge to vacate his prior remand order and to place this

case on his regular docket.

Respectfully submitted,

James B. Doytt

LA Bar Roll No.: 5061

rX Bar Roll No.: 06092500

Woop.ey, WILLIAMS, FENET,

BouDREAU, NORMAN & BROWN

500 Kirby Street

P.O. Drawer EE

Lake Charles, LA 70602

(318) 433-6328

Attorneys for Sellick

Equipment Limited

Petitioner

JUDICIAL DISTRICT COURT

FOR THE PARISH OF IBERIA

STATE OF LOUISIANA

No. 73389 DIVISION “F” DOCKET NO.

CV91-1556 LO

JOSEPH MILTON BOUTTE

VERSUS

MORTON INTERNATIONAL INCORPORATED, JAMES

DERISE,

AND SELLICK EQUIPMENT LIMITED

FILED:

‘DEPUTY CLERK

Judge Haik

MAGISTRATE METHVIN

PETITION FOR DAMAGES

NOW INTO COURT, through undersigned counsel,

comes Joseph Milton Boutte, who for his Complaint

respectfully represents that:

The plaintiff in this case is Joseph Milton Boutte, a

person of the full age of majority and resident of and

domiciled in the Parish of Iberia, State of Louisiana.

: ;

Made defendant herein is Morton International,

Incorporated, a Louisiana Corporation authorized to do

and doing business in the State of Louisiana. Defendant

Morton International, Incorporated was the employer of

plaintiff Joseph Milton Boutte at the time of the accident.

Made defendant herein is James Derise, a person of

the full age of majority and resident of and domiciled in

the Parish of Iberia, State of Louisiana. Defendant James

Derise was the foreman that supervised plaintiff Joseph

Milton Boutte at the time of the accident.

Made defendant herein is Sellick Equipment Limited,

an Ontario corporation authorized under the dominion of

Canada. The principal place of business of defendant is

358 Erie Street, North Harrow, Ontario, Canada

NOR1GO3.

That on or about July 6, 1990, Plaintiff Joseph Milton

Boutte while performing his duties within the scope of

his employment for Morton International, Incorporated

was aboard a Sellick platform which was elevated about

twenty-two feet in the air, when the power rig manufac-

tured by Sellick Corporation, ceased to function properly

causing the operator of the platform to loose [sic] contro!

thereby causing plaintiff fall approximately twenty-two

feet to the ground. As a result, plaintiff was caused to

suffer painful and permanent injuries which include but

are not limited to a fractured pelvis and hip and severely

wrenched and torn ligaments.

Defendant Sellick Equipment Limited (hereafter

called Sellick) is liable to plaintiffs under the provisions

of the Louisiana Products Liability Act Number 64 of

1988, as codified at L.R.S. 9:2800.51 through 9:2800.59.

a. Defendant Sellick is liable to plaintiffs for dam-

age proximately caused by the malfunction of the powder

rig that rendered it unreasonably dangerous.

| :

b. At he [sic] time of the accident plaintiff Joseph

Milton Boutte was using the powder rig in the manner in

which it was intended to be used.

c. The powder rig was unreasonably dangerous

because of (i) defect in construction or composition, (ii)

defective design, (iii) adequate warning has not been

provided, and/or (iv) the powder rig did not conform to

the express warranty of the manufacturer.

Defendants Morton International, Incorporated and

James Derise are liable for their intentional acts, which

include but are not limited to the following:

| a. Failing to provide a reasonably safe place to

work;

b. Failing to provide safe equipment for plain-

tiff Joseph Milton Boutte to perform his

work;

c. Failing to replace or repair defective equip-

ment after both defendants Morton Interna-

tional, Incorporated and James Derise were

aware of the defective equipment, which

had caused a similar accident several weeks

prior to the above referenced accident; and,

d. Breaching the duty owed to plaintiff Joseph

Milton Boutte.

WHEREFORE, Plaintiff Joseph Milton Boutte prays:

a. That Defendants be cited and served with a copy

of this petition, and be required to answer same, all in

accordance with the law;

b. That after due delays and proceedings had there

be [sic] judgment in favor of Plaintiffs and against the

defendants, in solido, for such damages as are reasonable;

c. For all applicable statutory penalties;

d. For all costs of these proceedings;

e. For interest at the legal rate on sums due from the

date of judicial demand until paid;

f. For general and equitable relief;

gy. For trial by jury.

Respectfully submitted,

/s/ Victor R. Farrugia

Victor R. Farrugia, D.A. (19324)

David R. Fine (5561)

J. Murray Pinkston, III (17747)

FINE & ASSOCIATES

\ 335 Decatur Street

New Orleans, Louisiana 70130

Telephone: 504/581-5152

PLEASE SERVE:

MORTON INTERNATIONAL, INCORPORATED

Through Its Agent For Service Of Process:

C.T. Corporation Systems

601 Poydras Street

New Orleans, Louisiana 70130

JAMES DERISE

Darnell Road

Lydia, Louisiana 70569

SELLICK EQUIPMENT LIMITED

C/O W. R. Sellick, President

358 Erie Street North

Harrow, Ontario NOR1IGO

Filed July 8, 199]

signed: LOUIS J. ILLEGIBLE, Dty. Clk.

A TRUE COPY.

ATTEST: /s/ [legible

Illegible

[llegible

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE — OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE CIVIL ACTION

VERSUS NO. CV91-1556L-O

MORTON INTERNATIONAL SECTION “ ”

¥ > TEL 7¢

INCORPORATED, JAMES MAGISTRATE ( )

DERISE and /s/ Judge Haik

SELLICK EQUIPMENT slibive

LIMITED MAGISTRATE METHVIN

NOTICE OF REMOVAL FROM 16TH JUDICIAL DIS-

TRICT COURT PARISH OF IBERIA, STATE OF LOUISI-

ANA

(Filed Jul. 26, 1991)

Petitioners, Morton International, Inc. and James

Derise, the defendants above named, through its respec-

tive undersigned attorneys, respectfully show:

A civil action was commenced on July 8, 1991 and is

now pending in the 16th Judicial District Court for the

Parish of Iberia, State of Louisiana, wherein Joseph Mil-

ton Boutte is a plaintiff and petitioners are defendants,

which action is designated by docket number 73389, Divi-

sion “F” and is hereinafter sometimes referred to as “the

state court action.”

Defendants desire to exercise their rights under the

provisions of Title 28 U.S.C. §1441 et seq., to remove this

action from said state court to this Court.

This is an action of a civil nature in which there exists

diversity of citizenship between a non-fraudulently

joined plaintiff and all non-fraudulently joined defen-

dants, to wit (1) plaintiff is a Louisiana resident and

citizen, and (2) defendant Morton International, Inc. is a

corporation organized under the laws of the state of

Indiana, is not incorporated in Louisiana, and has its

principal place of business in Illinois. Defendant Sellick

Equipment, Inc. is a Canadian corporation with its princi-

pal place of business in Canada. It has not been served as

of the filing of this Notice. James Derise, a co-employee of

plaintiff is a Louisiana resident, but who was fraudu-

lently joined without a legal basis solely in an attempt to

destroy diversity. No cause of action exists against a co-

employee by virtue of the exclusive remedy provisions of

the Louisiana Worker’s Compensation Act, L.R.S. 23:1032.

The amount in controversy, considering the serious

bodily injury claims described in the complaint, exceeds

$50,000 exclusive of interest and costs.

Process in the aforesaid action was served on defen-

dants/petitioners on July 15, 1991, and the petition in

said state court action was first received by the defen-

dant/petitioner on that same day. The date by which

Morton International, Inc. and James Derise are required

by the Code of Civil Procedure of the State of Louisiana

to plead to the petition in state court has not elapsed.

A copy of all pleadings, process and orders served

upon defendants/petitioners in said state court action is

filed herewith.

WHEREFORE, defendants/petitioners pray that said

state court action no. 73389 be removed from said state

court to this Court and this Court accept jurisdiction on

this action, and that henceforth this action be placed on

the docket of this Court for further proceedings, the same

as though the action had originally been instituted in this

Court.

/s/ Darrell K. Cherry

ROBERT E. KERRIGAN, JR., T.A.

(Bar #7350)

DARRELL K. CHERRY

(Bar #4036)

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, LA 70130-3672

Telephone: (504) 581-5141

Attorneys for Defendants, Morton

International, Inc. and James

Derise

CERTIFICATE OF SERVICE

I hereby certify that I have on this 25th day of July,

1991, served a copy of the foregoing pleading on counsel

—————eEO

for plaintiff, by mailing the same by United States mail,

properly addressed and first class postage prepaid.

/s/ Darrell K. Cherry

Al0

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE — OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE CIVIL ACTION

VERSUS NO. CV91-1556L-O

MORTON INTERNATIONAL SECTION ” ”

INCORPORATED, JAMES MAGISTRATE ( )

DERISE and a L

SELLICK EQUIPMENT (tf ae ee

LIMITED MAGISTRATE

METHVIN

NOTICE

(Filed Jul. 26, 1991)

To: Victor R. Farrugia

Fine & Associates

335 Decatur Street

New Orleans, LA 70130

Attorney for Plaintiff

PLEASE TAKE NOTICE that Morton International,

Inc. and James Derise, the defendants in the above-enti-

tled action previously filed in the 16th Judicial District

Court, Parish of Iberia, State of Louisiana, have on July

25, 1991 filed their notice of removal, a copy of which is

attached hereto, in the United States District Court for the

Western District of Louisiana, at Shreveport, Louisiana, in

accordance with the provisions of Section 1446 of Title 28

of the United States Code.

You are also advised that said defendants, promptly

after said filing of the notice of removal provided a copy

thereof, together with a copy hereof, to the Clerk of the

All

l6th Judicial District Court for filing pursuant to Subsec-

tion (d) of said Section 1446 of Title 28.

New Orleans, Louisiana, July 25, 1991.

/s/ Darrell K. Cherry

ROBERT E. KERRIGAN, JR., T.A.

(Bar #7350)

DARRELL K. CHERRY

(Bar #4036)

DEUTSCH, KERRIGAN & STILES

755 Magazine Street

New Orleans, LA 70130-3672

Telephone: (504) 581-5141

Attorneys for Defendants, Morton

International, Inc. and James

Derise

CERTIFICATE OF SERVICE

[ HEREBY CERTIFY that a copy of defendants’

Notice of Removal of the above-entitled action for the

16th Judicial District Court, Parish of Iberia, which has

been filed with this Court on the 25th day of July,

together with defendants’ written notice of such filing

addressed to the attorney of record for plaintiff herein,

have been served on plaintiff this date by mailing same to

his attorney of record at Victor R. Farrugia, Fine & Asso-

clates, 335 Decatur Street, New Orleans, LA 70130.

/s/ Darrell K. Cherry

Al2

UNTIED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

6:91CV01556 JUDGE HAIK

BOUTTE V. MORTON INTL

INC, ET AL MAGISTRATE METHVIN

ORDER OF DISMISSAL

(Filed Mar. 12, 1992)

Considering the failure of plaintiffs to prosecute this

action against defendant SELLICK EQUIPMENT LTD.

under ULLR 11.02W of the Western District of Louisiana.

IT IS ORDERED that this action be and is hereby

dismissed without prejudice against defendant SELLICK

EQUIPMENT LTD. This action may be reinstated within

thirty (30) days for good cause shown.

Shreveport, Louisiana, on this 11th day of March,

1992.

/s/ Robert H. Shemwell

ROBERT H. SHEMWELL

Clerk of Court

COPY SENT

Date: 3/12/92

By: [legible

To: Kerrigan

Farrugia

Al3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE * CIVIL ACTION

VS. . NO.:CV-91-1556

MORTON INTERNATIONAL, * JUDGE HAIK

INC., ET AL * MAG.METHVIN

1 ok

PLAINTIFF’S MOTION TO REINSTATE COMPLAINT

(Filed Apr. 9, 1992)

Plaintiff, through the undersigned counsel, moves to

reinstate the complaint against Sellick Equipment Lim-

ited, for the following reasons:

1) The Court dismissed the compiaint against Sell-

ick Equipment under Rule 11.02 on March 11, 1992, based

on failure to prosecute.

2) This assumption of a failure to prosecute was

based on the apparent lack of an answer in the record for

Sellick.

3) However, Sellick has indeed answered the suit in

the state court proceeding and is in the process of con-

ducting discovery. See Exhibits A & B, attached.

Al4

4) The complaint should therefore be reinstated

against Sellick Equipment International

S Illegible

RICHARD L. DUCOTE, TA

(5111)

DAVID R. FINE (5561)

FINE & ASSOCIATES

335 Decatur Street

New Orleans, Louisiana 70130

(504) 581-5152

CERTIFICATE OF SERVICE

| certify that a copy of the foregoing plead

ing has been served on counsel for all parties by

depositing same in the United States Mail this 8

day of April 1992

s/ Illegible

Al5

16TH JUDICIAL DISTRICT COURT

PARISH OF IBERIA

STATE OF LOUISIANA

JOSEPH MILTON BOUTTE * DOCKET

: : NUMBER

VERSUS 73.389

MORTON INTERNATIONAL

INCORPORATED, JAMES DERISE, *

and SELLICK EQUIPMENT LIMITED DIVISION “F”

1 EO

ANSWER

NOW INTO COURT, through undersigned counsel,

comes SELLICK EQUIPMENT LIMITED, purportedly

made defendant herein, who respectfully represents the

following

For lack of sufficient information to justify a belief

therein, the allegations of paragraphs 1, 2, 3 and 7 are

denied.

Respondent admits its status as alleged in paragraph

Kespondent denies the allegations of paragraph 5

and 6

Al6

Respondent alleges the fall of Joseph Milton Boutte

as the cause of the accident sued upon herein.

“* F

Respondent avers and is entitled to a trial by jury as

to all issues herein.

WHEREFORE, RESPONDENT, SELLICK EQUIP-

MENT LIMITED, PRAYS that this answer be deemed

good and sufficient, and after all legal proceedings have

been had, there be judgment rendered in favor of respon-

dent, rejecting plaintiff’s demand at plaintiff’s cost.

RESPONDENT FURTHER PRAYS for trial by jury as

to all issues herein.

BY ATTORNEYS,

LAW OFFICES OF GRACELLA SIMMONS

BY: /s/ Michael D. Zelden

MICHAEL D. ZELDEN

4324 S. Sherwood Forest Blvd.

Suite 150-A

Baton Rouge, LA 70816

(504) 291-0960

ORDER

The foregoing considered:

IT IS ORDERED that the above entitled and num-

bered suit be tried by a civil jury upon the defendant

giving bond, with good and solvent surety, conditioned

Al7

as the law directs, in the amount of $ , to cover the

additional costs of the jury trial

______, Louisiana, this _ day of , 199]

JUDGE - 16TH JUDICIAI

DISTRICT COURT

CERTIFICATE

[ HEREBY CERTIFY that a copy of the foregoing

Answer has been served upon counsel for all parties

involved in this proceeding by mailing same to each this

date by First Class United States mail. properly

addressed, and postage prepaid

Baton Rouge, Louisiana, this 25th day of September,

1991.

/s/ Michael D. Zelden

MICHAEL D. ZELDEN

Al18

16TH JUDICIAL DISTRICT COURT

PARISH OF IBERIA

STATE OF LOUISIANA

JOSEPH MILTON BOUTTE * DOCKET

qOES NUMBER

VERSUS 73.300

MORTON INTERNATIONAL

INCORPORATED, JAMES DERISE, *

and SELLICK EQUIPMENT LIMITED DIVISION “F”

hhh bbbbbbbbbbbh bb bbhnn ha Lane nEEeELLELLLLLELLLOC COCO CTT

REQUEST FOR NOTICE OF DATE OF TRIAL, ETC.

TO THE CLERK OF COURT for the 16th Judicial

District Court in and for the Parish of Iberia, Louisiana.

Please take notice that Michael D. Zelden, attorney

for defendant, do hereby request written notice of the

date of trial of the above matter as well as notice of

hearings (whether on merits or otherwise), orders, judg-

ments and interlocutory decrees, and any and all formal

steps taken by the parties herein, the judge or any mem-

ber of court, as provided in Louisiana Code of Civil

Procedure of 1960, particularly articles 1572, 1913 and

1914.

BY ATTORNEYS,

LAW OFFICES OF

GRACELLA SIMMONS

BY: /s/ Michael D. Zelden

MICHAEL D. ZELDEN,

BAR ROLL # 13786

4324 S. Sherwood Forest Blvd.

Suite 150-A

Baton Rouge, LA 70816

(504) 291-0960

Al9

16TH JUDICIAL DISTRICT COURT

PARISH OF IBERIA

STATE OF LOUISIANA

JOSEPH MILTON BOUTTE * DOCKET

lithe NUMBER

:RSUS

VERSU 73.200

MORTON INTERNATIONAL

INCORPORATED, JAMES DERISE, *

and SELLICK EQUIPMENT LIMITED DIVISION “RF”

pbb ibe bbbbebaabbabhbbbanbnbbeeeeLELLLLOLOCe TTT TTT

INTERROGATORIES

lO: JOSEPH MILTON BOUTTE

through his attorney of record,

VICTOR R. FARRUGIA

335 Decatur Street

New Orleans, LA 70130

NOW INTO COURT, through undersigned counsel,

comes defendant, SELLICK EQUIPMENT LIMITED who

propounds the following interrogatories to plaintiff to be

answered within the legal delays allowed.

INTERROGATORY NO. 1.

Give a brief description of how the accident occurred

which is the basis of this lawsuit.

INTERROGATORY NO. 2.

Give the names and addresses of all witnesses to the

accident.

A20

INTERROGATORY NO. 3.

With regard to any medical treatment, please specify

the following:

a) The name and address of any doctor consul-

ted;

b) All dates of consultation;

c) The charge for each consultation;

d) The names of all doctors who have rendered

a report to you or to any representative of

yours and list the date of each report ren-

dered by each physician; and

e) Attach to the copy of the answers to these

interrogatories copies of all medical reports

rendered by the physicians who have exam-

ined or treated you since the date of the

accident sued upon.

INTERROGATORY NO. 4.

With regard to any hospitalization, please specify:

a) The name and address of any hospital in

which you were treated or confined;

b) The date of any treatment or confinement in

any hospital listed in (a) above; and

c) The charge for any treatment or confine-

ment in any hospital listed in (a) above.

—

A21

INTERROGATORY NO. 5.

With regard to any drug, please specify:

a) The name of the drug;

b) By whom prescribed;

c) By whom and when filled.

d) The charge.

INTERROGATORY NO. 6.

Please specify all injuries claimed to have been sus-

tained as a result of this accident.

INTERROGATORY NO. 7.

Please state whether or not you have been involved

in any accidents prior to the accident forming the basis of

this lawsuit, and if the answer is in the affirmative, state

the following:

a) The date of said accident.

b) The injuries received in said accident.

c) The doctor or doctors who rendered medical

treatment in connection with these injuries,

including their names, addresses, and dates

of treatment.

d) Whether or not you are still receiving any

medical care in connection with these inju-

ries.

e) Whether or not any lawsuit was filed in

connection with said accident and if yes, the

name of the attorney representing you, and

the location where the lawsuit was filed.

A22

INTERROGATORY NO. 8.

At the time of the accident sued upon herein were

you under any doctors care for any medical reason what-

soever. If the answer is in the affirmative, state the fol-

lowing:

a) The name and address of the doctor.

b) The medical reason for which you were

receiving treatment.

c) The name of any drugs which you were

taking at the time of the accident.

INTERROGATORY NO. 9.

Since the date of the accident sued upon herein, state

whether or not you have been involved in any other

accidents in which you received injuries, and if the

answer is in the affirmative, state the following:

a) The name and address of the doctor;

b) The medical reason for which you were

receiving treatment;

c) The name of any drugs which you were

taking at the time of the accident.

INTERROGATORY NO. 10.

State whether or not you were employed at the time

of the accident, and if the answer is in the affirmative,

. state the following:

a) The name of your employer;

b) The date you were first employed;

A23

c) Your position; and

d) Your rate of pay.

INTERROGATORY NO. 11.

If you are employed at the present time, state the

following:

a) The name of your employer;

b) The date you were first employed;

c) Your position; and

d) Your rate of pay.

INTERROGATORY NO. 12.

Give the dates you missed work following the acci-

dent sued upon which you allege were the result of

injuries you received in the accident. List the names and

addresses of your employer's for the last five years and

State the position you held with each employer.

INTERROGATORY NO. 13.

With regard to any other special damage, please

specify the damage, date, and amount.

INTERROGATORY NO. 14.

State the names and addresses of all lay witnesses

you intend to call to testify in this matter and provide the

basis substance of their testimony.

A24

INTERROGATORY NO. 15.

State the names and addresses of all non-medical

experts that you have consulted with in connection with

this litigation.

INTERROGATORY NO. 16.

State the name and address of all experts, both medi-

cal and non-medical, whom you intend to call as wit-

nesses in the trial of this matter.

INTERROGATORY NO. 17.

State, with specificity, the exhibits which you intend

to introduce at the trial of this matter.

rhese interrogatories are to be deemed continuing so

as to require supplemental answers, under oath, in writ-

ing, at any time that additional information may be

obtained after responses are filed to these interrogatories

which would be furnished if the interrogatories were

continuously repeated.

BY ATTORNEYS,

LAW OFFICES OF

GRACELLA SIMMONS

BY: /s/ Michael D. Zelden

MICHAEL D. ZELDEN,

BAR ROLL #13786

4324 S. Sherwood Forest Blvd.

Suite 150-A

Baton Rouge, LA 70816

(504) 291-0960

A25

CERTIFICATE

| HEREBY CERTIFY that a copy of the foregoing

interrogatories has been served upon counsel for all par-

ties involved in this lawsuit by mailing same to each this

date by First Class United States mail, properly

addressed, and postage prepaid, Baton Rouge, Louisiana,

Baton Rouge, Louisiana, this 25th day of September, 1991.

5 reel -ptembde:

/s/ Michael D. Zelden

MICHAEL D. ZELDEN

A26

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE — * CIVIL ACTION

VS. “ NO.:CV-91-1556

MORTON INTERNATIONAL, * JUDGE HAIK

INC., ET AL . MAG.METHVIN

bh hee ee ee eee ee ee eS

ORDER

(Filed APR 13 1992)

The foregoing considered, IT IS ORDERED that the

complaint against Sellick International be reinstated.

Date: April 13, 1992 /s/ R.A. Haik

DISTRICT JUDGE

Issue must be joined within 30 days by answer filed or

request for default judgment or case will again be dis-

missed.

/s/ R.A. Haik

COPY SENT

DATE 4-13-92

BY /s/ MS-

TO: Kerrigan

Farrugia

RVW

A27

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE CIVIL ACTION

NO. 91-1556 L-O

JUDGE HAIK

MORTON INTERNATIONAL = ga cicTRATE

INCORPORATED, JAMES DERISE — gpriyviny

and SELLICK EQUIPMENT

LIMITED

VERSUS

(Filed APR 27 1992)

NOW INTO COURT, through undersigned counsel,

comes Joseph Milton Boutte, who moves the Court to

dismiss, by way of non suit and without prejudice, all

claims that he has made against Morton International,

Inc. and James Derise. Plaintiff’s claims against the

remaining defendant, Sellick Equipment Company are

expressly reserved.

As set forth in the accompanying Certificate, counsel

for Morton International, Inc. has been contacted con-

cerning this motion and has no opposition. Similarly,

counsel representing the remaining defendant, Sellick

A28

Equipment Limited, has likewise been contacted and has

no opposition to the granting of the motion.

Respectfully submitted,

/s/ Richard L. Ducote

RICHARD L. DUCOTE (5111)

DAVID R. FINE (5561)

J. MURRAY PINKSTON, III

(17747)

FINE & ASSOCIATES

335 Decatur Street

New Orleans, Louisiana 70130

Telephone: 504/581-5152

Attorneys for Plaintiff,

Joseph Milton Boutte

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing pleading has been served upon all counsel of record,

by United States mail, properly addressed and first class

postage prepaid, this 21st day of April, 1992.

/s/ Illegible

A29

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE-OPELOUSAS DIVISION

JOSEPH MILTON BOUTTE CIVIL ACTION

VERSUS NO. 91-1556 L-O

JUDGE HAIK

MORTON INTERNATIONAL

INCORPORATED, JAMES

DERISE and SELLICK

EQUIPMENT LIMITED

MAGISTRATE

METHVIN

ORDER

(Filed APR 29 1992)

Considering the motion of plaintiff, Joseph Milton

Boutte to dismiss, without prejudice, his claims against

Morton International, Inc. and James Derise;

IT IS HEREBY ORDERED that the claims of plaintiff,

Joseph Milton Boutte against Morton International, Inc.

and James Derise in this matter is hereby DISMISSED,

without prejudice, each party to bear its own court costs.

All claims against the remaining defendant, Sellick

Equipment, Ltd. are specifically reserved to plaintiff.

Lafayette, Louisiana this 28th day of April, 1992.

COPY SENT

DATE 4-29-92

BY /s/ MS /s/ R.A. Haik

TO: Kerrigan UNITED STATES DISTRICT

Farrugia JUDGE

RVW

A30

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

JOSEPH MILTON BOUTTE _ * CIVIL ACTION

VS. * NO.: CV-91-1556

MORTON INTERNATIONAL, * JUDGE HAIK

INC. ET AL * MAG.METHVIN

HARADA ALALAAAAAAAA AAA AAA AAA AA AA AAAAAAAAAAAD

PLAINTIFF’S MOTION TO REMAND

(Filed MAY 5 1992)

Plaintiff Joseph Boutte, through the undersigned

counsel, moves to remand this case to the Louisiana state

court of origin, the 16th Judicial District Court, Parish of

Iberia, as the Petitioners in removal, Morton International

and James Derise, have been dismissed as defendants and

the remaining defendant, Sellick Equipment Ltd., and the

plaintiff desire to litigate this case in the state court.

Counsel for Sellick is concurrently filing his consent to

the remand.

CERTIFICATE OF SERVICE /s/ Richard L. Ducote

RICHARD L.

DUCOTE (5111)

DAVID R. FINE (5561)

FINE & ASSOCIATES

335 Decatur Street

New Orleans,

Louisiana 70130

/s/ Richard L. Ducote _ (504) 581-5152

I certify that a copy of the

foregoing pleadings has

been served on counsel for

all parties by depositing

same in the United States

Mail this 4 day of May 1992

A31

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

JOSEPH MILTON BOUTTE * CIVIL ACTION

VS. * NO.: CV-91-1556

MORTON INTERNATIONAL, * JUDGE HAIK

INC. ET AL * MAG.METHVIN

SAARAARARAARAAA RAE EE OOO ob

ORDER

(Filed MAY 5 1992)

The foregoing considered, IT IS HEREBY ORDERED

that this case be remanded to the 16th Judicial District

Court, Parish of Iberia, State of Louisiana.

Date: May 5, 1992 /s/ R.A. Haik

Lafayette Louisiana DISTRICT JUDGE

COPY SENT

DATE 5-5-92

BY /s/ MS

TO: Farrugia

Cherry

Ducote

Mem

RVW

16th JDC

w/notice, ds

A32

U. S. DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE - OPELOUSAS LOUISIANA

JOSEPH M. BOUTTE : DOCKET NO::

_ CV-91-1556 L-O

MORTON INTERNATIONAL, . JUDGE HAIK

INC., JAMES DERISE and

MAGISTRATE

SELLICK EQUIPMENT LIMITED METHVIN

hhh hb bebebebeebbbbnbbbnnnnhELELLLLLLLLOLOL CTT TTT CCT CTT

MOTION TO VACATE REMAND ORDER

(Filed AUG 27 1993)

NOW INTO COURT, through their undersigned

counsel, comes SELLICK EQUIPMENT LIMITED, who

moves this Honorable Court to vacate its Order entered

on the 5th day of May, 1992, the said Order having been

entered beyond this Honorable Court’s authority; thus,

the said Order is null and void and must be declared so

by this Court, and this cause reinstated in this Court.

WHEREFORE, MOVERS PRAY that this Honorable

Court set a date and time for hearing at which to deter-

mine whether the Motion to Vacate filed herein should be

granted as a matter of law.

RESPECTFULLY SUBMITTED,

WOODLEY, WILLIAMS,

FENET, BOUDREAU,

NORMAN & BROWN

ss ONE

A33

BY: /s/ Todd M. Ammons

JAMES B. DOYLE

LA BAR ROLL NO.:: 5061

TX BAR ROLL NO.: 0609 2500

1003 HUGH WALLIS ROAD

BUILDING I

LAFAYETTE, LA 70508

(318) 265-3915

(318) 433-6328

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has

been served upon counsel for plaintiff, Richard Ducote

and Darrell Cherry, by mailing the same to each properly

addressed and postage prepaid on this 24 day of August,

1993.

/s/ Todd M. Ammons

JAMES B. DOYLE

A34

U. S. DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE —- OPELOUSAS LOUISIANA

JOSEPH M. BOUTTE ~ : DOCKET NO::

MORTON INTERNATIONAL, ° ©Y~?!-1956 L-O

INC., JAMES DERISE ' JUDGE HAIK

and SELLICK ‘

: , MAGISTRATE

EQUIPMENT LIMITED lpr

MEMORANDUM IN SUPPORT OF MOTION TO

VACATE REMAND ORDER

(Filed Aug. 27, 1993)

MAY IT PLEASE THE COURT:

SELLICK EQUIPMENT LIMITED is a Canadian Cor-

poration which was named as a defendant in a suit first

pending in the 16th Judicial District Court for the Parish

of Iberia, which was removed to this Honorable Court

upon Motion of defendants, Morton International, Inc.

and James Derise. ;

The suit was filed on the 8th of July, 1991. On the

26th of July, 1991, Morton and Derise removed it, assert-

ing jurisdiction existed in this Court pursuant to 28

U.S.C. 1332. On the 5th of August, 1991, Morton filed an

answer to that Complaint. On the 6th of August 1991,

mover SELLICK was served through the Secretary of

State of the State of Louisiana.

On the 12th of March, 1992, service having been had

against SELLICK but no action having been taken against

that defendant by the plaintiff, plaintiff’s case against

)

A35 '

SELLICK was dismissed pursuant to ULLR 11.02(W) by

Robert H. Shemwell, Clerk of Court.

On the 13th day of April, 1992, plaintiff filed a

Motion to Reinstate the claim against SELLICK and

annexed to that Motion a copy of an Answer SELLICK

had filed in the State Court pleadings after removal had

been accomplished. However, SELLICK had entered no

appearance in the removed suit and in fact, the Order

that this Court entered on April 13, 1992, reinstating the

action against SELLICK, specifically required that issue

as to SELLICK “must be joined within thirty (30) days by

answer filed or request for default judgment or the case

will again be dismissed.”

On the 27th of April, 1992, plaintiff moved ex parte to

dismiss Morton and Derise, the original removing defen-

dants. Plaintiff specifically and expressly reserved any

claims against SELLICK, which was described as “the

remaining defendant ... ” Although the motion repre-

sents that SELLICK had been contacted and voiced no

opposition to the granting of the Motion for Non-Suit, no

appearance had as of that date been entered by SELLICK

in the District Court action.

On the 5th of May, 1992, nearly eleven months after

the removal petition, plaintiff filed a Motion to Remand

without citing statutory or other grounds for remand;

representing that counsel for SELLICK, who still had

entered no appearance in the District Court suit, was

“concurrently filing his consent to the remand,” a docu-

ment which is conspicuously absent from the record: and

this court signed the Order.

| ;

A36 °

SELLICK maintains that this Honorable Court's

Order of the 5th of May, 1992, exceeded the District

Court’s authority; is, therefore, a nullity; and as the Order

can have no effect, this matter must be reinstated on the

civil docket and set for hearing in the ordinary course of

events.

I. NO BASIS EXISTED FOR REMAND OF THIS CAUSE

TO STATE COURT

The question now before the Court is whether a

United States District Court has the authority to remand a

properly removed suit, over which it has subject matter

jurisdiction of the one remaining defendant, when the

only cause given in the Motion is that the remand should

be accomplished for the convenience of the parties. Stated

another way, the query is: May parties to a lawsuit com-

bine to deprive the Federal Court of jurisdiction by con-

sent?

Clearly, the contrary question, whether parties can

combine to confer jurisdiction upon the District Court, is

answered in the negative, e.g., A.L. Rowan & Son v. Depart-

ment of Housing & Urban Development, 611 F. 2d 997 (5th

Cir. 1988). In this case, no clause of 28 U.S.C. 1447(c) is

cited, or even referenced by implication, in the plaintiff's

Motion to Remand. The United States Supreme Court has

held that such an Order is not immune from review.

Thermtron Products, Inc. v. Hermans-dorfer, 96 S.Ct. 584, 423

U.S. 336, (46 L.Ed. 2d 542 (1976)).

In that case, apparently on its own Motion, a Federal

District Judge remanded a properly removed diversity

case when his docket was too crowded. Where there is an

sae

A37

abuse of the authority granted to the District Court in 28

U.S.C. 1447 for remand, it was held that the extraordinary

remedy of Writ of Mandamus could be applied to force

the District Judge to continue his jurisdiction over that

case.

Here, the situation is strikingly similar. It is undis-

puted that at the time this Court signed the remand

Order, SELLICK had been served, and its presence in the

case did not destroy the subject matter jurisdiction con-

ferred upon the Court by 28 U.S.C. 1332 and designated

as such in the removal petition. The parties implicitly, if

not explicitly, recognized SELLICK’S position in the

removed case, by reinstating the original action against

SELLICK after it had been dismissed under the local rules

for non-prosecution, and then by specifically reserving

rights against SELLICK in the Federal Court pleading

which dismissed Morton and Derise.

If the failure of Morton to join SELLICK in its original

removal of the case was a defective use of 28 U.S.C. 1441,

that defect was waived when plaintiff waited more than

thirty days to move to remand the suit. 28 U.S.C. 1447(c).

The Motion to Remand could not fit under any statutory

“cubbyhole” of 1447(c) and this court is vested with no

more authority to remand a case when the parties consent

to its remand than it is to remand a case when its docket

is so crowded that it feels it must do so in the interest of

justice. Thermtron, supra.

A38

Il. WAIVER —- PROCEDURAL POSTURE OF THIS

MOTION

Plaintiff may oppose this Motion on the basis that SEL-

LICK has waived its right to complain, since it took no

further action to remove the suit after the “remand” at

issue, or to appeal the remand order. But as pointed out

by Professor Wright: “Courts are slow to find such a

waiver, even when the complaining defendant had taken

action in state court and then sought removal of the

action.” Wright, Law of the Federal Courts, Student Ed.

1984, Section 38, pg. 218.

In any case, SELLICK could not participate in an act

which attempted to cloak this court with an authority not

conferred upon it by statute.

As to the additional question, that is, whether a

closed case can be reopened, we contend this Court's

general equitable powers, particularly those in aid of its

own jurisdiction, may be invoked to overturn an erro-

neously-entered invalid Order.

In the event, this case is different from Three }) Farms,

Inc. v. Alton Box Car Company, 609 F. 2d. 112 (4th Cir.

1979). There, the District Court remanded a case without

giving the removing defendants an opportunity to argue

their position. The Court stated this was done “by mis-

take and inadvertence.” While giving lip service to the

principle of review as enunciated by Thermtron, the

remand accomplished by the Judge in Three ] was done

pursuant to Section 1447(c), or at least purported to be.

But the circuit court distinctly reserved for a later

case the question of “whether a district court has the

A39

authority to vacate a remand order which was-entered by

‘mistake and inadvertence’ in the true sense of that

phrase ... ” No other case has raised this question, and

none has resolved it.

CONCLUSION

We urge this Court to recognize what occurred in this

case for what it is: a mistake. As no statutory authority

was cited, this Court was without authority to remand

this case to the 16th Judicial District Court of the Parish

of Iberia. The correct procedural remedy is for this Court

to vacate that Order and reinstate this action in Federal

Court.

RESPECTFULLY SUBMITTED,

WOODLEY, WILLIAMS, FENET,

BOUDREAU, NORMAN & BROWN

BY: /s/ Todd M. Ammons

JAMES B. DOYLE

LA BAR ROLL NO.: 5061

TX BAR ROLL NO-::

0609 2500

1003 HUGH WALLIS ROAD

BUILDING I

LAFAYETTE, LA 70508

(318) 265-3915

(318) 433-6328

DOYLE\CLAS\ 14236.PLD

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has

been served upon counsel for plaintiff, Richard Ducote

_——

A40

and Darrell Cherry, by mailing the same to each properly

addressed and postage prepaid on this 24th day of

August, 1993.

/s/ Todd M. Ammons

JAMES B. DOYLE

doyle \clas 14236.pld

A4l

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE —- OPELOUSAS DIVISION

JOSEPH M. BOUTTE - CIVIL ACTION

wii : NUMBER 91-1556 L-O

MORTON INTERNATIONAL . JUDGE HAIK

INC., JAMES DERISE - MAGISTRATE

and SELLICK | JUDGE METHVIN

EQUIPMENT LIMITED

ORDER

(Filed Oct. 18, 1993)

IT IS ORDERED that defendant, Sellick Interna-

tional’s, Motion to Vacate Remand Order is denied.

THUS DONE AND SIGNED in Lafayette, Louisiana

on this 15thth day of October, 1993.

/s/ RT Haik

HONORABLE RICHARD T. HAIK

U.S. DISTRICT JUDGE

COPY SENT

DATE 10-20-93

BY cag

TO: Doyle

Farrugia

A42

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE —- OPELOUSAS DIVISION

JOSEPH M. BOUTTE : CIVIL ACTION

VERSUS : NUMBER 91-1556 L-O

MORTON INTERNATIONAL §: FUCKER TEARS

INC., JAMES DERISE : MAGISTRATE

and SELLICK : JUDGE METHVIN

EQUIPMENT LIMITED

REASONS FOR JUDGMENT ON MOTION

TO VACATE REMAND ORDER

(Filed Oct. 18, 1993)

Defendant, Sellick Equipment Limited, moves that

this court vacate its May 5, 1992 order which remanded

the above-captioned case to the 16th Judicial District for

the Parish of Iberia, New Iberia, Louisiana.

On May 4, 1992 this court signed an order pursuant

to plaintiff, Joseph Boutte’s, motion for a remand. The

motion stated, “Sellick Equipment Ltd. and the plaintiff

desire to litigate this case in state court.” On October 13,

1993 Judge Richard T. Haik held a telephone conference

with plaintiff’s counsel, Richard L. Ducote, and defen-

dant’s counsel, James B. Doyle. During this conference,

Mr. Doyle stated that it was his impression that Michael

Zelden, his predecessor as Sellick Equipment Inc.'s attor-

ney, concurred with plaintiff’s attorney in the May 4, 1992

motion for remand.

The court finds that at the time of the May 1992

remand of this case, the defendant desired to remand the

OEE

A43

case to the 16th Judicial District of Iberia Parish. In addi-

tion to the consent of the parties at the time of the

remand, the lengthy delay in applying to vacate the order

gives further support for this denial. Accordingly, this

court will not vacate its May 5, 1992 order.

THUS DONE AND SIGNED in Lafayette, Louisiana

on this 15thth day of October, 1993.

/s/ Richard T. Haik

HONORABLE RICHARD T. HAIK

U.S. DISTRICT JUDGE

COPY SENT

DATE 10-20-93

BY cag

TO: Doyle

Farrugia

Kerrigan

A44

In the

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NO.

IN RE SELLICK EQUIPMENT, INC.

PETITIONERS

VERSUS

THE HONORABLE RICHARD T. HAIK AND

JOSEPH BOUTTE,

RESPONDENTS

ON APPLICATION OF SELLICK EQUIPMENT, INC.

APPLYING FOR WRITS OF MANDAMUS,

CERTIORARI AND PROHIBITION

APPLICATION FOR WRIT OF MANDAMUS

SELLICK EQUIPMENT LIMITED -

DEFENDANT/APPLICANT

JAMES B. DOYLE

LA BAR ROLL NO.: 5061

TX BAR ROLL NO.: 06092500

MICHAEL G. HODGKINS

LA BAR ROLL NO.: 20862

WOODLEY, WILLIAMS, FENET,

BOUDREAU, NORMAN &

BROWN

500 KIRBY STREET

P. O. DRAWER EE

LAKE CHARLES, LA 70602

(318) 433-6328

ATTORNEYS FOR SELLICK

EQUIPMENT LIMITED

PETITIONER

A45

UNITED STATES COURT OF APPEAL

FIFTH CIRCUIT

IN RE SELLICK EQUIPMENT, INC.

PETITIONER

a THE HONORABLE RICHARD T. HAIK AND

JOSEPH BOUTTE

RESPONDENTS

ON APPLICATION OF SELLICK EQUIPMENT, INC.

APPLYING FOR WRITS OF MANDAMUS,

CERTIORARI AND PROHIBITION

SELLICK EQUIPMENT, INC., defendant in Cause

No. CV 91-156-L-O, captioned as JOSEPH BOUTTE,

plaintiff, vs. Morton International, James Derise and

SELLICK EQUIPMENT, INC., defendant, in the United

States District Court for Western District hereby petitions

this Honorable Court to issue a Writ of Mandamus direct-

ing the Honorable Richard T. Haik, United States Court

Judge to vacate the remand order signed by him on the

Sth day of May, 1992, and reinstate the said action on the

civil docket of that Court.

/s/ James B. Doyle

JAMES B. DOYLE

LA BAR ROLL NO.: 5061

TX BAR ROLL NO.: 06092500

MICHAEL G. HODGKINS

LA BAR ROLL NO.: 20862

WOODLEY, WILLIAMS, FENET,

BOUDREAU, NORMAN &

BROWN

500 KIRBY STREET

P. O. DRAWER EE

LAKE CHARLES, LA 70602

(318) 433-6328

ATTORNEYS FOR SELLICK

EQUIPMENT LIMITED

PETITIONER

A46

CERTIFICATE OF INTERESTED PERSONS

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

the Judges of this Court may evaluate possible disqual-

ifications or recusal.

(1) James B. Doyle, Donald C. Brown, & Mic-

hael G. Hodgkins; Woodley, Williams, Fenet,

Boudreau, Norman & Brown, 500 Kirby Street,

P. O. Drawer EE, Lake Charles, Louisiana 70602

(318) 433-6328, Attorneys for Sellick Equipment

Limited, Defendant/ Petitioner.

(2) Richard Ducote, 335 Decatur Street, New

Orleans, Louisiana 70130, (504) 581-5152, Attor-

ney for Joseph M. Boutte, Respondent/Appel-

lant.

(3) Darrell Cherry; Deutsch, Kerrigan & Stiles,

755 Magazine Street, New Orleans, Louisiana

70130, (504) 581-5141, Attorneys for Morton

International, Inc. and James Derise, Defendant.

(4) Honorable Richard T. Haik, United States

Western District Judge, Lafayette - Opelousas

Division, 213 Federal Building, 705 Jefferson

Street, Lafayette, Louisiana, 70501, (318)

262-6875.

/s/ James B. Doyle

JAMES B. DOYLE

MICHAEL G. HODGKINS

STATEMENT REGARDING ORAL ARGUMENT

Sellick Equipment Limited does not request oral

arguments.

’ *

A47

TABLE OF CONTENTS

Page

Certificate of Interested Persons ................... i

Statement Regarding Oral Argument............... ii

Me ee I yy a 0.6 bE Wooo ods bob eee oeons iii

I ee ee coc ne a re ee iv

semtemuent Of Jurlediction. ... 2... 6 cccccccccccccccces l

er ee caw nce oece nd boccoeteccey 2

NY rE ra ied ot uh anc eesoueneeidnus 3

Statement of the Facts Necessary to an Understand-

ing of the Issues Presented by This Application... 4

Argument and Law Supporting the Issuance of this

i OEE EE ere TEEN ig Bhs ETP Ea mnie pe etre oN 7

No Statutory Basis Existed for Remand of this

Ce Se er ee ieee 7

Waiver — Procedural Posture of this Motion...... 10

Conclusion and Relief Sought...................... 11

I ea ie 13

CASES PAGE

ee Ee EE ee Piaiuk odds Cols desta teetaucb oan ]

EE a hod cheek iid ee oe ee care 1, 8

a dnd tie su sce tet wicweoslaucdese elt 9

ee WE ID Cs cccaccsuscvscetscceudnscsm ot an

INE DS Sb seSnhvciicaesnceascdaciawdddouten ]

28 U.S.C. T2O8. so .0cck see 10

4i(a1) FRCP: «ooo cscs eee 1

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

584, 423 U.S. 336, 46 L.Ed. 2d 542 (1976) ..... passim

A.L. Rowan & Son v. Dept. of Housing & Urban

Development, 611 F. 2d 997 (5th Cir. 1988)......... 7

In re Merrimack Mutual Fire Insurance Co., 587 F.2d

642 (Sth Civ. 20F is ic aca esas cetera ee te

Royal v. State Farm Fire and Casualty Co., 685 F.2d

526 (Sth Civ, BG). ss ccusseeeneseueeneeeeeeeeae 3, 8

In re Wilson Industries, Inc., 886 F.2d 93 (5th Cir.

1989) 3, 8

Three ] Farms, Inc. v. Alton Box Car Company, 609 F.

2a 152 (G4 UM. TOTS) on cic e eden 10, 11

In re Surinam Atrways Holding Co., 974 F.2d 1255

31 Cle, FR ssce cei eeeteras ee eee 3, 8, 9

Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990)......3, 8

Romero v. ITEN Imperial Corp., 332 F. Supp. 523

1 Og | Serr rr ee Ue Rae Bahr 9

Isbrand T Sen Co. v. District 2, Marine Engineers

Ben. Assoc., 256 F.Supp. 68, 77 (E.D.N.Y. 1966)...... 4

Wright, Law of the Federal Courts, Student Ed. Sec-

ees | ee) ee ee en ee ee 10

A49

STATEMENT OF JURISDICTION

The jurisdiction of this Honorable Court is found in

the All Writs Act, 28 U.S.C. 1651, and upon the authority

of this Court to hear ordinary appeals under 28 U.S.C.

1291. The jurisdiction of the District Court was alleged

pursuant to 28 U.S.C. 1332, there being complete diver-

sity of citizenship among the parties, and the amount in

controversy having been satisfied.

STATEMENT OF THE ISSUES

|. Does a United States District Court have the authority

to remand a properly removed suit, over which it retains

subject matter jurisdiction, when the only cause given for

the remand is that it should be accomplished for the

convenience of the parties?

2. May a United States District Judge remand a case

without any referenced ground for the remand under 28

USC 1447(c), but solely based upon the “consent” of the

parties?

3. May parties deprive a United States District Court of

subject matter jurisdiction by consent?

SYLLABUS OF THE LAW

I. A district court which remands a removed diversity

lawsuit on any grounds other than the case having been

removed “improvidently and without jurisdiction”

exceeds its statutory authority Thermtron Products, Inc. v.

Hermansdorfer, 96 S. Ct. 584, 423 U.S. 336, 46 L.Ed. 2d. 542

(1976); 28 USC 1447(c).

A50

II. Mandamus is the proper remedy to compel the Dis-

trict court to vacate its previous, erroneously-issued

order of remand, and to reinstate this action in the Dis-

trict Court, In re Wilson Industries, Inc., 886 F.2d 93 (5th

Cir. 1989); Royal v. State Farm Fire and Casualty Co., 685

F.2d 124 (5th Cir. 1982) (per curim [sic]); In re Merrimack

Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir. 1978); In re

Surinam Airways Holding Co., 974 F.2d 1255 (11 Cir. 1992);

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

Supra.

STATEMENT OF THE FACTS NECESSARY TO AN

UNDERSTANDING OF THE ISSUES PRESENTED

BY THIS APPLICATION

SELLICK EQUIPMENT LIMITED is a canadian cor-

poration named as a defendant in a suit first pending in

the 16th Judicial District Court for the Parish of Iberia,

which was removed to the United States District Court

for the Western District of Louisiana upon Motion of

defendants, Morton International, Inc. and James Derise.

Sellick had not been served at the time of removal, and

never joined in it.

The suit was filed on the 8th of July, 1991. On the

26th of July, 1991, Morton and Derise removed it, assert-

ing federal subject matter jurisdiction existed pursuant to

28 U.S.C. 1332. On the 5th of August, 1991, Morton filed

an answer to the Complaint. On the 6th of August 1991,

mover SELLICK was served through the Secretary of

State of the State of Louisiana.

On the 12th of March, 1992, service having been had

against SELLICK but no action having been taken against

A51

that defendant by the Respondent Boutte, his case against

SELLICK was dismissed pursuant to ULLR 11.02(W) by

Robert H. Shemwell, Clerk of Court.

On the 13th day of April, 1992, Respondent Boutte

filed a Motion to Reinstate the claim against SELLICK

and annexed to that Motion a copy of an Answer SELL-

ICK had filed in the State Court pleadings after removal

had been accomplished. However, SELLICK entered no

appearance in the removed suit and in fact, the Order

entered on April 13, 1992, reinstating the action against

SELLICK, specifically required issue as to SELLICK

“must be joined within thirty (30) days by answer filed or

request for default judgment or the case will again be

dismissed.”

On the 27th of April, 1992, Respondent Boutte moved

ex parte to dismiss Morton and Derise, the original remov-

ing defendants. He specifically and expressly reserved

any claims against SELLICK, which was described as “the

remaining defendant...” Although the motion repre-

sents that SELLICK had been contacted and voiced no

opposition to the granting of the Motion for Non-Suit, no

appearance had been entered by SELLICK in the District

Court action.

On the 5th of May, 1992, nearly eleven months after

the removal petition, Respondent Boutte filed a Motion to

Remand without citing statutory or other grounds there-

for; representing that counsel for SELLICK, who still had

entered no appearance in the District Court suit, was

“concurrently filing his consent to the remand,” a docu-

ment which is conspicuously absent from the record; and

A52

the Respondent District Judge Richard Haik signed the

Order.

SELLICK maintains Respondent Judge Haik’s Order

of the 5th of May, 1992, exceeded his statutory authority

under 28 USC 1447(c); is, therefore, a nullity; and as the

Order can have no effect, this matter must be reinstated

on his civil docket.

On the 27th day of August, 1993, SELLICK filed a

Motion to Vacate the Remand Order previously entered

by Respondent Judge Haik. The matter was scheduled for

hearing, and Judge Haik chose to have a telephone con-

ference with the attorneys involved before issuing his

ruling. In his Written Reasons for Ruling, Judge Haik did

make note of the fact that the parties SELLICK and BOU-

TTE had apparently consented to the remand at the time

the Order was originally entered, and made note in his

reasons about specifically questioning current counsel for

SELLICK on this point. That apparent consent formed the

major thrust of Judge Haik’s reasons for denying the

Motion to Vacate the Remand Order previously entered,

with those written reasons being filed on the 18th day of

October, 1993, and mailed to counsel on 20th October,

1993.

It is from the Order of Judge Haik denying the

Motion to Vacate the Remand Order previously entered

that this application for Writ of Mandamus proceeds.

Among other things, SELLICK takes the position that,

even if prior counsel for SELLICK had consented to the

remand, the Respondent District Judge still did not have

the authority to sign the Order under 28 USC 1447(c).

A53

ARGUMENT AND LAW SUPPORTING THE

ISSUANCE OF THIS WRIT

NO STATUTORY BASIS EXISTED FOR REMAND OF

THIS CAUSE TO STATE COURT

The question now before the Court is whether a

United States District Judge has the authority to remand a

properly removed suit, over which it has subject matter

jurisdiction of the one remaining defendant, when the

only cause given by the Court was that the remand was

concurred in by both parties. Stated another way, the

query is: May parties to a lawsuit combine to deprive the

Federal Court of jurisdiction by consent?

Clearly, the contrary question, whether parties can

combine to confer jurisdiction upon the District Court, is

answered in the negative. See, e.g., A.L. Rowan & Son v.

Department of Housing & Urban Development, 611 F. 2d 997

(Sth Cir. 1988). In the present case, no clause of 28 U.S.C.

1447(c) is cited, or even referenced by implication, in the

respondent Boutte’s Motion to Remand or the Court's

Written Reasons. The United States Supreme Court has

held that such an Order is not immune from review.

Thermtron Products, Inc. v. Hermansdorfer, 96 S. Ct. 584, 423

U.S. 336, 46 L.Ed. 2d. 542 (1976), and that a Writ of

Mandamus such as this one is the proper procedural

vehicle to pursue that review.

In that case, apparently on its own Motion, a Federal

District Judge remanded a properly removed diversity

case when his docket was too crowded. The Court of

Appeal denied the Petition for Writ of Mandamus. How-

ever, the Supreme Court entertained the petition on the

ground that an otherwise properly removed action may

A54

no more be remanded because a district court considers

itself too busy to try it than an action properly filed in

Federal Court in the first instance may be dismissed or

referred to state courts for that reason. The Supreme

Court, per Justice White, held that a district court, which

remands a case to state court on any ground other than

that the case was removed “improvidently and without

jurisdiction,” exceeds its statutorily-defined power.

Thermtron Products, Inc., 96 S. Ct. at 593. See also In re

Wilson Industries, Inc., 886 F.2d 93 (5th Cir. 1989); Royal v.

State Farm Fire and Casualty Co., 685 F.2d 124 (5th Cir.

1982) (per curim [sic]); In re Merrimack Mutual Fire Insur-

ance Co., 587 F.2d 642 (5th Cir. 1978); In re Surinam Air-

ways Holding Co., 974 F.2d 1255 (11 Cir. 1992); Nasuti v.

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

In the case at bar, like in Thermtron, and In re Surinam

Airways Holding Co., the District Court remanded the

action based upon non-statutorily-endorsed grounds. It is

undisputed that at the time this Court signed the remand

Order, SELLICK had been served, and its presence in the

case did not destroy the subject matter jurisdiction con-

ferred upon the Court by 28 U.S.C. 1332 and designated

as such in the removal petition. The parties implicitly, if

not explicitly, recognized SELLICK’S position in the

removed case by reinstating the original action against

SELLICK after it had been dismissed under the local rules

for non-prosecution, and then by specifically reserving

rights against SELLICK in the Federal Court pleading

which dismissed Morton and Derise.

If the failure of Morton to join SELLICK in its original

removal of the case was a defective use of 28 U.S.C. 1441,

that defect was waived when Respondent Boutte waited

ASS

more than thirty days to move to remand. 28 U.S.C.

1447(c) provides, in pertinent pait:

A motion to remand the case on the basis of any

defect in removal procedure must be made

within thirty days of 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.

The Motion to Remand could not fit under any statutory

“cubbyhole” of 1447(c), and the Respondent District

Judge is vested with no more authority to remand a case

when the parties consent to its remand than it is to

remand a case when its docket is so crowded that it feels

it must do so in the interest of justice. Thermtron Products,

Inc., 96 S. Ct. at 590; Romero v. ITEN Imperial Corp., 332 F.

Supp. 523 (P.R. 1971); Isbrand T Sen Co. v. District 2,

Marine Engineers Ben. Assoc., 256 F. Supp. 68, 77 (E.D.N.Y.

1966).

In the case sub judice, even if both parties consented

to a remand, as Judge Haik found in his written reasons,

the district court must refuse that Motion if the case is

otherwise properly before the Court. To do otherwise

would destroy traditional concepts of federal-state com-

ity, and cast in doubt the validity of other efforts of

district courts — such as the Anti-Injunction Act Cases, 28

USC 2283 - to guard against encroachments upon the

jurisdiction given them by the constitution and the Con-

gress.

A56

WAIVER — PROCEDURAL POSTURE OF THIS MOTION

Respondents may oppose this Motion on the basis

that SELLICK has waived its right to complain, since it

took no further action to remove the suit after the

“remand” at issue, or to appeal the remand order. But as

pointed out by Professor Wright: “Courts are slow to find

such a waiver, even when the complaining defendant had

taken action in state court and then sought removal of the

action.” Wright, Law of the Federal Courts, Student Ed.

Section 38, pg. 218 (1984).

In any case, SELLICK could not participate in an act

which attempted to cloak this Court with an authority not

conferred upon it by statute. Likewise, neither in Respon-

dent Judge Haik’s opinion, nor by Respondent Boutte,

has there been any claim of prejudice brought about as a

result of such delay.

As to the additional question, that is, whether a

closed case can be reopened, we contend this Court’s

general equitable powers, particularly those in aid of its

own jurisdiction, 28 USC 1651, may be invoked to over-

turn an erroneously-entered, invalid Order.

In that event, this case is different from Three ] Farms,

Inc. v. Alton Box Car Company, 609 F. 2d. 112 (4th Cir.

1979). There, the District Court remanded a case without

giving the removing defendants an opportunity to argue

their position. The Court stated this was done “by mis-

take and inadvertence.” While giving lip service to the

principle of review as enunciated by Thermtron, the

remand accomplished by the Judge in Three ] was done

pursuant to Section 1447(c), or at least purported to be.

| illietiecheaeaaiiiir ead

ny pibbionatiad

A57

But the Circuit Court distinctly reserved for a later

case the question of “whether a district court has the

authority to vacate a remand order which was entered by

‘mistake and inadvertence’ in the true sense of that

phrase ... ” No other case has raised this question, and

none has resolved it.

CONCLUSION AND RELIEF SOUGHT

We urge this Court to recognize what occurred in this

case for what it is: a mistake. As no statutory authority

was cited, the Respondent District Judge was without

authority to remand this case to the 16th Judicial District

Court of the Parish of Iberia. If the parties truly wanted

to consent to litigate their case in State Court, that result

could have validly been accomplished by dismissing the

federal suit without prejudice. As Sellick had at that stage

extended no appearance in the federal court suit, its

consent to such a motion was not required. Rule 41(a)(1),

FRCP.

If a District Judge cannot allow collusion to create

jurisdiction - and he clearly cannot — he should not allow

the parties to destroy it in that fashion.

It would set a dangerous precedent for this Court to

endorse an action by the Respondent District Judge

which is not sanctioned by statute. No Federal Circuit has

taken such a step, and the result, if not the specific

procedure, has been assailed and disallowed by the U.S.

Supreme Court.

Therefore, petitioner prays this Honorable Court

issue a Writ of Mandamus directed to the Honorable

A58

Judge Richard T. Haik, Judge of the Western District

Court of the State of Louisiana directing him to send this

Court a certified copy of the proceedings entitled “Joseph

M. Boutte v. Morton International, Inc., et al” docket No.;

CV-91-1556-L-O on the docket of the said court and lately

pending therein to the end that the validity of the ques-

tioned order may be ascertained, and enjoining the said

respondents from proceeding further in the cause until

judgment shall be pronounced by further order of this

Court.

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has

been served upon:

(1) Richard Ducote, 335 Decatur Street, New

Orleans, Louisiana 70130, (504) 581-5152, Attor-

ney for Joseph M. Boutte, Respondent /Appel-

lant.

(2) Darrell Cherry; Deutsch, Kerrigan & Stiles,

755 Magazine Street, New Orleans, Louisiana

70130, (504) 581-5141, Attorneys for Morton

International, Inc. and James Derise, Defendant.

(3) Honorable Richard T. Haik, United States

Western District Judge, Lafayette - Opelousas

Division, 213 Federal Building, 705 Jefferson

Street, Lafayette, Louisiana, 70501, (318)

262-6875.

ee ee ee ee Oe eS = eS

A59

by depositing a copy of same to in the United States Mail,

properly addressed and postage prepaid on this 10th day

of November, 1993.

/s/ James B. Doyle

JAMES B. DOYLE

WR ec Sf wage)

A60

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-5487

IN RE:

SELLICK EQUIPMENT, INC.,

Petitioner.

Petition for Writ of Mandamus and/or Prohibition

to the United States District Court for the

Western District of Louisiana

(Filed Nov. 16, 1993)

Before GARWOOD, SMITH AND DeMOSS, Circuit

Judges :

BY THE COURT:

IT IS ORDERED that the petition for writ of man-

damus is DENIED.

MOT-6F

Rev. 3/91

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.