# Opposition Brief — International Paper Co. v. Grassi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1149%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 917 ## Text Supreme Court, US. | ee SB. SEP 10 1992 No. 92-291 OFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1992 INTERNATIONAL PAPER COMPANY, Petitioner, ALEXANDER GRASSI, SR., ET AL., Respondents. Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit ¢ BRIEF IN OPPOSITION t _ ] Neit E. NorQuesi , J Law Orrice oF Neit E. NorQuesi j 3700 Nerth 10th Street, Ste. 101 McAllen, Texas 78501 Ha j Telephone: (512) 682-3195 — Telecopier: (512) 682-6693 Attorney of Record COCKLE LAW BRIEF PRINTING CO. (800) 225 6964 OR CALL COLLECT (402) 342 2831 Deer ew R aos ots Sa ET - — eS QUESTION PRESENTED FOR REVIEW Where a court adheres strictly to the settled federal defi- nition of the term “civil action” under 28 U.S.C. § 1441, should it be prohibited from referring to state laws to determine whether the remedies provided therein consti- tute new and independent “civil actions” within the accepted federal definition? PARTIES TO THE PROCEEDING Ciba-Geigy PLC (“PLC”) is the judgment debtor in the underlying action. Petitioner, International Paper Company (“IPC”), appellant below, is a named defendant in a turnover proceeding brought to enforce the judg- ment. Respondents, appellees below, are Alexander Grassi, Sr. and Karen S. Grassi (individually and as next friends of Alexander Grassi, Jr., Wendy Lou Grassi, and Kristin Susan Grassi, minors), and IRI Internacional Limitada. ill TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW ............ POReReeey OUP ENTE FROM EELS... ee ect ees ii PS Ae EP Ay eS 2S | iv REPLY TO THE STATEMENT OF THE CASE...... 2 ee ee a eee ewe 2 ee re UCCEIM MOP TOIW Es ou ce ceive cee danas 3 a re are a 6 [A] QUESTION PRESENTED FOR REVIEW. (Peti- EMC Sie ena SRE Lk ASA ES es 6 {[B] RESPONSE TO THE REASONS ASSERTED BY PETITIONER FOR THE GRANTING OF A |) 6 [1] The Fifth Circuit’s Holding is Consistent With the Holdings of This Court....... 6 [2] The Fifth Circuit’s Holding is Consistent With the Holdings of the Second, Fourth, Eighth and Ninth Circuits.............. 12 [3] The Fifth Circuit’s Holding Did Not Con- flict With Prior Fifth Circuit Precedent . 13 Ey Ge cn ee 16 TABLE OF AUTHORITIES CASES Able v. Upjohn Co., Inc., 829 F.2d 1330 (4th Cir. Action Auto Stores, Inc. v. United Insurance Com- pany, No. 5:91-CV-32, 1992 WL 21203 ......... Adrianenssens v. Allstate Ins. Co., 258 F.2d 888... American National Bank of Austin v. Mort- gageamerica Corp., 714 F.2d 1266 (5th Cir. 1983) Bado Equipment v. Bethlehem Steel, 814 S.W.2d 464 (Tex.App. — Houston [14th Dist.] 1991, no writ) .. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) 1989) Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986)... Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979). . Cantwell v. Wilson, 241 S.W.2d 366 (Tex.Civ.App PE Eee, OO We hss nwa cen spas Central of Georgia Ry. Co. v. Riegel Textile Corp., 426 Fdd 98S (Sth Cit, 1970)... cos cc cece ccs eans Chicago R.I. and P.R. Co. v. Stude, 346 U.S. 574 PRE Seah ar Kren Ke Sie Re Le See eae Childre v. Great Southwest Life Insurance Co., 700 S.W.2d 284 (Tex.App. - Dallas 1985, no writ)... First City National Bank of Beaumont v. Phelan, 718 S.W.2d 402 (Tex.App. - Beaumont 1986, writ ig Be A eigen teary iar ee ern 1] Page ae 1] ea) .14 13 , as TABLE OF AUTHORITIES — Continued Page Grubbs v. General Electric Credit Corporation, 405 U.S GRE GIST SD odoin ecu scs sae eeancueaee 11, 14 Hallack v. Hawkins, 409 F.2d 627 (6th Cir. 1969)...... 10 Jones v. Roadway Exp., Inc., 931 F.2d 1086 (5th Cir. | eee Nene ea nr yoann. 14 London v. Lancashire Indem. Co. v. Courtney, 106 P28 277 (1G Cle. TARR). onsen) eek ones 8 McCarthy Western Constructors, Inc. v. Phoenix Resort Corp., 951 F.2d 1137 (Sth Cir. 1991)...:.52:. 13 Norsul Oil & Mining Ltd. v. Commercial Equipment Leasing Co., 703 S.W.2d 345 (Tex.App. — San Antotiio 1965, WO WED 3a<4 vss oan 505sesanne ane 9, 11 Paxton v. Weaver, 553 F.2d 936 (5th Cir. 1977)..... 14, 15 Randolph v. Employer’s Mutual Liability Ins. Co. of Wisconsin, 260 F.2d 461 (8th Cir. 1958) .......... 8, 13 Road District v. St. Louis S.W. Ry. Co., 257 U.S. 547 (FOIE Ce ns nae Shaun nx ss endear eee nes 12 Schultz v. Fifth Judicial District Court of Appeals at Dallas, 810 S.W.2d 740 (Tex. 1991)............... 9, 11 Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100 (RPSRS a unka och vnccs ces tcsmen se eaee ae eee 12, 14 Stewart v. EGNEP (PTY) Ltd., 581 F.Supp. 788 (C.D. 8) eer cy eer ry eos 8, 9 Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 yo 2, | re rr errr rey ee 13 28 USC. G14461.. «00.0565 ee eee USC. GI4Q0D)... .. .00.66ras ace eee 4,6 No. 92-291 + In The Supreme Court of the United States October Term, 1992 é a INTERNATIONAL PAVvER COMPANY, Petitioner, ALEXANDER GRASSI, SR., ET AL., Respondents. ¢———_—_—_ Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit e BRIEF IN OPPOSITION ¢ COME NOW ALEXANDER GRASSI, SR. and KAREN S. GRASSI, Individually and as Next Friends of ALEX- ANDER S. GRASSI, JR., WENDY LOU GRASSI, and KRISTIN SUSAN GRASSI, minors, and IRI INTERNA- CIONAL LIMITADA, and respectfully pray that Peti- tioner’s request for issuance of a Writ of Certiorari herein be denied. Petitioner will be referred to throughout as “IPC”; Ciba-Geigy PLC, the judgment debtor, will be referred to as “PLC”: Respondents will be referred to as “Respondents”; Petitioner’s Petition for a Writ of Cer- tiorari will be referred to as “Petition, at p. ” Of ] “Appendix ”; and emphasis in all quotations will be Respondents’ throughout, unless otherwise indicated. REPLY TO THE STATEMENT OF THE CASE A. Summary of Facts An accurate Summary of Facts may be found in the “BACKGROUND” section of the Court of Appeals’ Opin- ion (Appendix A), at pp. 2a through 5a. Petitioner’s Sum- mary of Facts contains the following inaccuracies, to-wit: First, Petitioner incorrectly maintains that on three occasions the Respondents attempted to prevent “the exercise of the Defendant’s right of removal”, and thereby attempts to portray as non-meritorious Respondents’ remand motions. In fact, however, it is the PLC/IIford/ IPC group! which has steadfastly sought to prevent the proper exercise of state court jurisdiction in this matter. The Ilford removal, which bought PLC the time necessary to sell the Ilford stock before a turnover could be effected, was itself improper. The propriety of IPC’s removal at the instant stage of the turnover proceeding is, of course, the subject of this appeal. | The Court will note that, despite the facts that neither IPC nor its property are at risk in the turnover proceeding and that IPC has additionally been fully indemnified by PLC’s parent, Ciba-Geigy, for any possible loss incurred as a result of the turnover proceeding (Appendix “A”, p. 3a), IPC vigorously assails not only the instant turnover proceeding, but also Respondents’ prior attempts to collect their Judgment from Ciba-Geigy and Ilford (Petition, at pp. 2, 3). IPC further incorrectly represents (Petition, p. 3), that Respondents’ October 26, 1988 turnover proceeding seek- ing recovery of the Ilford shares was merely a “stratagem to defeat federal jurisdiction” culminating in the “volun- tary [dismissal of] the action against Ilford Photo” on August 29, 1990, id. In fact however, Ilford’s improper removal was itself demonstrated to be but a “stratagem” to defeat state jurisdiction — a stratagem which, while a legal failure, was a tactical success in the sense that it gave PLC time to sell the Ilford Photo stock before a turnover thereof could be effected. Appendix A, at p. 3a. Yet again, IPC incorrectly represents that the Respon- dents have now brought a “fraudulent conveyance action against IPC”, when in fact the turnover proceeding to which IPC now finds itself a party is not brought “against IPC.” See, post, at pp. 9-11. By misrepresenting the nature of the relief sought by Respondents, Petitioner has con- trived to make it appear that “Respondents have sought to divest the federal courts of removal jurisdiction [over] a new claim... against a new party, IPC ...”, when in fact the only relief sought in the turnover proceeding is against PLC and property (the Ilford shares) of which it retains equitable ownership by having fraudulently attempted to transfer same to IPC with full knowledge of the Respondents’ rights thereto. See, Appendix A, p. 3a. B. Proceedings Below On August 29, 1990, Respondents amended their Application for Turnover Relief, naming IPC as a party- defendant and seeking to have the transfer to IPC el declared void. As in their Original Application, Respon- dents sought to have the Ilford stock turned over to them in satisfaction of their judgment against PLC. Appendix A, p. 4a. Significantly, they did not seek to hold IPC liable to satisfy their judgment against PLC. Petitioner nevertheless again incorrectly represents (Petition, p. 3 “Proceedings Below”) that Respondents “filed a fraudulent conveyance action seeking relief against IPC,” when in fact neither IPC nor its property are at risk, the only relief sought being against PLC and its property (the Ilford shares), and only then if same is proved to be the property of PLC. See post, at pp. 8, 9. Yet again, in representing that it “timely removed this action on September 21, 1990” Petition at 3, 4, Peti- tioner mischaracterizes as uncontested “facts” both the proposition that its removal was “timely” (when that is the precise, and undetermined, issue before the Court), and that what it removed was a new and independent “action” rather than an ancillary post-judgment proceed- ing. In remanding this matter to the federal district court, the Fifth Circuit held that 28 U.S.C. § 1446(b)’s one-year removal bar applied to prevent a removal of this case unless the Respondents have stated a new and indepen- dent civil action against the Petitioner in their Amended Application for Turnover Relief, which would render the one-year bar inapplicable. That question, in turn, depends upon whether the Texas Turnover Statute encompasses the precise relief sought in the Amended Application (a determination of whether property in the hands of the Petitioner actually belongs to PLC, and is therefore subject to execution) - not whether the Texas courts have “classified” or “charac- terized” the proceeding as ancillary or independent. The Fifth Circuit held that if the Texas Turnover Statute does encompass such relief, then the instant proceeding cannot be classified as a new and independent civil action under the established federal definition of that term, but is instead a mere continuation of the 1983 lawsuit against PLL. It was within this context that the Fifth Circuit held that the district court must determine whether a Plaintiff may seek, as a part of his application for turnover relief, to prove that property in the hands of a third-party was fraudulently conveyed and therefore actually belongs to the Judgment-Debtor. If the Texas Turnover Statute is found to comprehend such a determination, then, the court held, the Respondents’ Amended Application is but a mere continuation of the action filed in 1983, and not a new and independent “civil action” within the meaning of § 1441. See, Appendix A, at pp. 7a, 8a. The court did not hold that the terms “civil action” or “new and inde- pendent action” may be defined by reference to state characterizations of the Texas Turnover Statute, or that the State of Texas is competent to classify the relief embraced by its turnover statute as either “independent” or “ancillary”; rather, it held that the question of classi- fication itself depends upon the nature of the relief afforded by the statute. Said the court: “If the district court determines that the Grassis can allege that Interna- tional Paper is a fraudulent transferee as part of their claim for turnover relief, then the Amended Application is an extension of the 1983 suit and the district court must remand this case to state court under the one-year rule of § 1446(b).” Appendix A, at p. 8a. Finally, Petitioner is incorrect in stating that the Fifth Circuit’s decision “contravened earlier rulings of the Fifth Circuit and [this court]... ” As will be shown in more detail, post, the Fifth Circuit’s holdings are completely consistent with all relevant prior decisions. Accordingly, the Fifth Circuit correctly denied Petitioner’s Petition for Rehearing and Suggestion for Rehearing En Banc. ¢ ARGUMENT [A] QUESTION PRESENTED FOR REVIEW. (Petition, pp. i, 5) Petitioner has misstated the question for review to be whether a court may “decide whether a proceeding is an independent and removable ‘civil action’ under 28 U.S.C. § 1441 by referring to state, rather than federal law”, (Petition, at pp. i, 5), when in fact, the only question presented here is whether courts are to be prohibited from referring to state laws for the purpose of determin- ing whether the remedies provided therein constitute independent “civil actions” within the accepted federal definition of that term. [B]} RESPONSE TO THE REASONS ASSERTED BY PETITIONER FOR THE GRANTING OF A WRIT. (Petition, pp. 6-16). [1] The Fifth Circuit’s Holding is Consistent With the Holdings of This Court. In holding that a federal district court may look to state law to determine whether a particular remedy exists for the purpose of classifying a proceeding as either independent or ancillary, the Fifth Circuit did not deviate from the principal that federal law controls the process of classification. Indeed, it is precisely because the scope of relief provided by a state statute is determinative of its characterization under established federal standards that federal courts can and do routinely look to the state laws to determine what they encompass. The case of Action Auto Stores, Inc. v. United Insurance Company, No. 5:91-CV-32, available on Westlaw as 1992 WL 21203 (W.D. Mich. 1992), relied upon by Petitioner (Petition, at p. 10), is a case in point. In Action Auto, the court looked to the actual remedy provided, and found that “despite the label placed upon the action, the proceedings are treated in many ways as separate civil actions”. Appendix E, at 4. Were the court to have been prohibited from referring to the laws of Michigan to determine the nature of the remedies actually embraced by the Ruies in question, as Petitioner demands, it would have had no basis upon which to arrive at a correct characterization of the garnishment proceeding in question. Only by referring to the actual nature of the garnishment remedy provided could the court arrive at an accurate charac- terization of same under a uniform federal standard. It is for this reason that in deciding the removability of post-judgment proceedings, the courts invariably turn to the nature of the relief afforded to determine whether a proceeding brought thereunder is a new and independent “civil action”, or merely a continuation of the underlying lawsuit, the determining factor most often being whether or not the proceeding involves “litigating the existence of a new liability”, Butler v. Polk, 592 F.2d 1293, 1295 (5th Cir. 1979).2 It would stretch credulity to assert that a court could successfully determine whether such a proceeding was “independent” or “ancillary” without first determin- ing the nature of the relief afforded by the statute or rule in question. In the instant case, the Respondents have sought relief which is, by its very nature, ancillary rather than independent. Unlike those instances wherein judgment creditors seek to make garnishees liable for their judg- ments, the Respondents here have not sought to impose 2 See, Adrianenssens v. Allstate Ins. Co., 258 F.2d 888, 890: “(t]he issue between the parties was whether the insurer was liable under its policy”; London v. Lancashire Indem. Co. v. Courtney, 106 F.2d 277, 283 (10th Cir. 1939): “any process ... which when served upon [the defendant insurance company] as garnishee would have the effect to authorize an order or judgment in per- sonam against him... is to be regarded . . . as an independent proceeding. The Motion for Writ of Garnishment under such condition ...is in effect an independent and original action... ”; Bridges v. Bentley, 716 F.Supp. 1389, 1392 (D. Kansas 1989): “The garnishment action is a suit involving a new party litigating the existence of a new liability [because] [t]he garnishment petition is couched in terms of individual liability on the part of Farmer’s Casualty Company Mutual”; Stewart v. EGNEP (PTY) Ltd., 581 F.Supp. 788, 790 (C.D. Illinois 1983): “Even though [the gar- nishee] submitted itself to the state court's jurisdiction, it is now faced with a substantially new and different cause of action, . . . For the first time, [the garnishee] is faced with $56,000,000 of personal liability, instead of an order to turn over one of its depositor’s assets.” In Randolph v. Employer's Mutual Liability Ins. Co. of Wisconsin, 260 F.2d 461 (8th Cir. 1958) relief upon by Petitioner, the court held that “the only issue [in a garnishment action against a defendant's insurance carrier] is the liability of the garnishee on its insurance contract...” any personal liability upon IPC or to place IPC’s property at risk. (The only property sought herein are the shares of Ilford, and only then if they are found to be the property of PLC). Significantly, the courts have been invariably careful to distinguish actions instituted for the purpose of impos- ing liabilities upon new parties from proceedings such as the instant one which are instituted for the sole purpose of identifying and seizing property of the judgment debtor which may be found in the hands of third parties. This distinction has been repeatedly recognized and empha- sized by both federal and state courts in the context of fraudulent transfer, turnover and garnishment proceed- ings. See.e.g., American National Bank of Austin v. Mort- gageamerica Corp., 714 F.2d 1266, 1272, 1273, 1275 (5th Cir. 1983), and Bado Equipment v. Bethlehem Steel, 814 S.W.2d 464, 474 (Tex.App. — Houston [14th Dist.] 1991, no writ) (construing the Fraudulent Transfer Act), Schultz v. Fifth Judicial District Court of Appeals at Dallas, 810 S.W.2d 740 (Tex. 1991), Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 227 (Tex. 1991), Norsul Oil & Mining Ltd. v. Commercial Equipment Leasing Co., 703 S.W.2d 345, 349 (Tex.App. - San Antonio 1985, no writ), and Childre v. Great Southwest Life Insurance Co., 700 S.W.2d 284, 288 (Tex.App. — Dallas 1985, no writ) (construing the Turnover Statute), and Stewart v. EGNED Ltd., supra, wherein the court distin- guished between situations in which garnishees are mere stakeholders and those in which they are sought to be made personaily liable for the indebtedness of the judg- ment debtor. In American National Bank of Austin v. Mon- teageamerica, supra, for example the Fifth Circuit correctly 10 identified the process of recovering property pursuant to the Fraudulent Transfer Act as follows: [T]he remedy afforded a successful claimant [in a fraudulent transfer action] relates entirely to the debtor’s fraudulently transferred property and entails no personal liability on the part of those responsible for the transfer, see, e.g., Cantwell v. Wilson, 241 S.W.2d 366 (Tex.Civ.App. — Austin 1951, no writ) (construing predecessor statute). A suite under the Texas [Fraudulent Transfers] Act, in other words, pursues the debtor’s prop- erty. ... The basic principle of a fraudulent transfers act,... is that ‘[a]s to the creditors, the property continues in the debtor, and it or its proceeds are liable to the creditor’s demands.’ Hallack v. Hawkins, 409 F.2d 627, 630 (6th Cir. 1969) (con- Sstruing the Uniform Fraudulent Conveyance Act). at pp. 1271, 1273. Later in the same opinion, the Fifth Circuit again identified the process as: [e]ssentially [an attempt to recover] property which properly belongs to the debtor and which the debtor has fraudulently transferred in an effort to put it out of the reach of creditors ... the transferee may have colorable title to the prop- erty, but the equitable interest at least as far as the creditors (but not the debtor) are concerned — is considered to remain in the debtor so that creditors may . . . execute judgment upon it as though the debtor had never transferred it. (Emphasis supplied), at p. 1275. In Bado Equipment v. Bethlehem Steel, supra, the court put it more succinctly, to wit: “[A] cause of action [brought 11 pursuant to the Fraudulent Transfer Act] is against the party making the transfer, not against the party accepiing the transfer”, Id., at 474. The Texas Turnover Statute likewise exists only to better permit the assets of judgment debtors to be reached, it is mot used as a vehicle to impose liability upon third parties, viz: “[T]exas courts do not apply the turnover stat- ute to [i.e., do not impose personal liability upon] mon- judgment debtors”, Beaumont Bank, N.A. v. Buller, supra, at 227. Nevertheless, the Turnover Statute can and does serve as a vehicle to identify and recover the property of a judgment debtor which is in the hands of third parties. Schultz, supra, at 740, Norsul Oil & Mining Ltd., supra, at 349, Childre, supra, at 288, First City National Bank of Beaumont v. Phelan, 718 S.W.2d 402 (Tex.App. - Beaumont 1986, writ ref’d n.r.e.). Despite this settled law, IPC argued in the courts below that the question of whether the Ilford stock belongs to PLC is not one which can be raised in a turnover proceeding. Pretermitting that question, the Fifth Circuit merely held that if the Turnover Statute properly comprehends a determination of that issue, then the relief sought by Respondents herein is clearly ancil- lary, and not independent. Appendix A, p. 8a. Such hold- ing manifestly does not conflict with prior decisions of this Court. For example, this Court’s holding in Grubbs v. General Electric Credit Corporation, 405 U.S. 697, 705 (1972) that state laws may not pre-empt federal criteria for determin- ing removal jurisdiction is in no manner contravened by 7 12 the Fifth Circuit’s holding herein that state law may be referred to for the purpose of determining whether the federal criteria have been met. Similarly, this Honorable Court’s holdings in Sham- rock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941), Chicago R.I. and P.R. Co. v. Stude, 346 U.S. 574, 580 (1954), and Road District v. St. Louts S.W. Ry. Co., 257 U.S. 547, 551 (1922), that state laws cannot pre-empt federal character- izations which are determinative of federal jurisdiction, are not contravened by the Fifth Circuit’s holding herein that state laws may be looked to for the purpose of determining whether the federal characterizations are applicable in each of the disparate circumstances under which their application is sought. The uniformity of a standard is not jeopardized by the process of identifying the variegated circumstances under which its application may be sought. The Fifth Circuit in the instant case did not hold that state charac- terizations may be relied upon to determine whether a proceeding is “ancillary” or “independent”, but rather that the nature of the state remedies afforded the Respon- dents must be looked to in determining whether estab- lished federal criteria have been met. Such a holding manifestly does not contravene the prior holdings of this Court. [2] The Fifth Circuit’s Holding is Consistent With the Holdings of the Second, Fourth, Eighth, and Ninth Circuits. Just as it did not contravene the holdings of this Honorable Court, the Fifth Circuit’s holding in the instant 13 case does not conflict with the holdings of the various Circuit Courts of Appeals. The Fifth Circuit herein did not hold that the law of Texas could “supersede the privilege of removal granted by a federal statute”, Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 862 (2d Cir. 1988), or that the construction of the removal statutes is not “purely a matter of federal law”, Able v. Upjohn Co., Inc., 829 F.2d 1330, 1333 n.2 (4th Cir. 1987), or that courts need not “look to federal criteria”, Randolph v. Employer's Mutual Liability Ins. Co. of Wisconsin, supra, at 463, or that “the classification which [state] courts give [post-judg- ment] proceedings” is somehow binding upon federal Courts, Randolph, 265 F.2d at 464, or that federal law should not be looked to to determine whether the “ele- ments of removal jurisdiction have been established under the statutes”, McCarthy Western Constructors, Inc. v. Phoenix Resort Corp., 951 F.2d 1137, 1140 (9th Cir. 1991). Rather, the Fifth Circuit held that the district court must ascertain the extent of the relief afforded by the Texas Turnover Statute and, if it embraces the determina- tion sought by Respondents, remand the turnover pro- ceeding as one which is ancillary to the underlying (non- removable) claim. [3] The Fifth Circuit’s Holding Did Not Con- flict With Prior Fifth Circuit Precedent. The distinction between accepting a characterization and making an independent determination has, of course, been consistently recognized and applied by the Fifth Circuit. In Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979), for example, the Fifth Circuit recognized that while “the 14 proper characterization [of a post-judgment garnishment proceeding] under §1441 is essentially a matter of federal law... ”, the cases which construe garnishment actions “reflect the recognition that [such actions] are in effect suits involving a new party litigating the existence of a new liability”, Id., at 1296. The court thus acknowledged the necessity of referring to federal criteria and to the nature of the state remedy in arriving at a proper characterization thereot. It further recognized the distinction which exists between independent actions which seek to impose new liabilities and ancillary proceedings which do not. Id., at 1296. In Jones v. Roadway Exp., Inc., 931 F.2d 1086, 1092 (Sth Cir. 1991), the Fifth Circuit again turned to state law (Title 130 of the Revised Civil Statutes of Texas, including art. 8307c) to determine whether it was the intent of the Texas Legislature that art. 8307c remain an integral part of the Texas Workers’ Compensation scheme, even while applying the applicable federal criteria in making the appropriate classification. [d., at 1092. Yet again, in Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986), the court merely applied the rule laid down by this Court in Shamrock, supra, that the removal statute is “unaffected by local law definition or characterization of the subject matter to which it is to be applied... ”; it did not destroy the very process by which such characterizations are made by holding that a court may not refer to state law for the purpose of determining the nature of the remedy afforded thereby. Id., at 480. Yet again, in neither Paxton v. Weaver, 553 F.2d 936 (5th Cir. 1977) nor Central of Georgia Ry. Co. v. Riegel Textile Corp., 426 F.2d 935 (5th Cir. 1970) did the Fifth Circuit construe this Court’s holding in cases such as Grubbs, supra, and Shamrock, supra in the 15 manner advocated by Petitioner. Indeed, in Paxton, the court once again referred to the remedies afforded by the law of Mississippi in arriving at its own characterization. Paxton, supra, at 939, fn.2. “We only need to decide whether, under a liberal review of Mississippi law or what it might be, arguable grounds exist for a recovery under appellants’ theories.” There thus exists no “irreconcilable conflict” between the Fifth Circuit’s prior holdings and its holding in the instant case. On the contrary, its holding herein is entirely consistent with all such prior decisions. Petitioner’s contention that “Congress could not and did not intend that the right of removal should depend upon state law”, Petition, at p. 10, is thus simply not true in the sense intended by Petitioner. References to state laws and the remedies provided therein are in may cases absolutely essential to a proper application of the federal removal standards. Because the Fifth Circuit’s holding in the instant case did not contravene, but was fully consistent with, all relevant prior decisions, the Fifth Circuit correctly denied Petitioner’s Petition for Rehearing and Suggestion for * Petitioner’s attempts to create conflicts between state court interpretations of the Texas Turnover Statute and that statute’s proper “characterization” under appropriate federal criteria are, to paraphrase Petitioner “flawed both in their rea- soning and in their result”. Petition, at p. 10. The proposition that a party’s removal “rights” would ve lost by a “broad” construction of the removal statute to embrace the relief requested by Respondents is totally irrelevant to the issue of whether such a remedy, if it exists, provides for “independent” or “ancillary” relief under the appropriate federal standards. 16 Rehearing En Banc, and its Petition herein should also be, in all things, denied. CONCLUSION Wherefore, Respondents respectfully pray that the request of Peiitioner that a Writ of Certiorari issue herein be in all things denied. Respectfully submitted, Neit E. NorQuest State Bar No. 15088500 LAw Orrice oF Neit E. NorQuest 3700 North Tenth St., Suite 101 McAllen, Texas 78501 Telephone: (512) 682-3195 Telecopier: (512) 630-5199 Attorney for Respondents GorDON L. Briscoe State Bar No. 03010000 Law OFFICE OF GORDON L. BriIscoE Rt. 6, Box 748 Harlingen, Texas 78550 Telephone: (512) 423-2255 Fax: (512) 423-0758 Of Counsel for Respondents Grassi Norton A. Co vin, Jr. State Bar No. 04632100 RopriGuez, Coivin & CHANEY P.O. Box 2155 Brownsville, Texas 78523 Telephone: (512) 542-7441 Telecopier: (512) 541-2170 Of Counsel for Respondent 1.R.1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1149%3A2. Public record. Not legal advice.