Petition for Writ of Certiorari — Barnes v. Westinghouse Electric Corp.

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

Raprame Court U.S.

Tar? he

92-566|...

NO. SEP 30 1982

IN THE ei OF THE CLERA

Supreme Court of the United States

OCTOBER TERM, 1992

MARK BARNES,

- Petitioner,

WESTINGHOUSE ELECTRIC CORPORATION, WESTINGHOUSE

ELECTRIC SUPPLY COMPANY and/or Wesco DALLAS

and/or WESCO, a division of or wholly-owned subsidiary

of WESTINGHOUSE ELECTRIC CORPORATION,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUL M. SMITH *

JOEL I. KLEIN

RICHARD G. TARANTO

KLEIN, FARR, SMITH & TARANTO

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

RICHARD WARREN MITHOFF

Scott ROTHENBERG

MITHOFF & JACKS

One Allen Center

Houston, TX 77002

(713) 654-1122

Counsel for Petitioner. - ~-

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether statutory limits on removal jurisdiction,

including the bar to removal of diversity cases that have

been pending for more than one year in 28 U.S.C.

$ 1446(b), are waived under 28 U.S.C. § 1447(¢) if not

raised within thirty days after removal.

2. Whether, if the thirty-day deadline for remand mo-

tions applies in this case, petitioner satisfied this require-

ment by filing a timely motion that stated the factual but

not the legal basis for a remand.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES .

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT

REASONS FOR GRANTING THE WRIT _ shncceaaook

CONCLUSION ......

(iii)

Page

i i ai ia

TABLE OF AUTHORITIES

Cases Page

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

1989) . TpitacLatcybaabiaae nse ne aaeiinnicactdamaeamatiniaaeae aa cats 12

American Oil Co. v. . Egan. 357 F. Supp. 610 (D.

PS PE ee scree nee ee ee 13

Ayers v. Watson, 113 US. eel) eon 11

Baris v. Sulptete Lines, Inc., 932 F.2d 1540 (5th

Cir.), cert. denied, 112 S. Ct. 430 (1991) 9

Blackmore v. Rock-Tenn Co., 756 F. Supp. 288

(N.D. Tex. 1991) wicker rete aie eee 17 |

Brock v. Syntex Lab., Inc. ,791 F. Supp. 721 (E.D.

WK PEED Venti restdc kona ckuaetete ea? 14, 15, 18

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343

RIE cdhicorss tuttesceshsnadsdi ainainveta shee odttevanciccta nessa 13

Coogan v. DeBoer Properties Corp., 354 F. Supp.

i tS |: | Sen ee ee eran ee ; 13

FDIC v. Loyd, 955 F.2d 316 (5th Cir. 1992) _.....—s—-« 9, 19

Foiles v. Merrell Nat'l Lab., 730 F. Supp. 108

(N.D. Ill. 1989) .............. 2 ..12, 14, 15

Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d

Cir.), cert. denied, 112 S. Ct. $02 (1991) ........... 18, 17

FSLIC v. Quinn, 419 F.2d 1014 (7th Cir. 1969). 13

Gravitt v. Southwestern Bell Tel. Co., 4830 U.S.

pc MG 3s Seen Selsckot cis creak Loud mae aaUusacaeesiak 19

Gray v. Moore Business Forms, Inc., 711 F. Supp.

Bi Be Se | a eens eee Seer 14

Grubbs v. General Elec. Credit Corp., 405 U.S. 699

NI osha tecetncios ee acnivbses ssanicdcaagtinccs eee ease. 13

Hoyt v. Sears, Roebuck & Co., 130 F.2d 636 (9th

Cir.), cert. denied, 317 U.S. 687 (1942) 13

In re Shell Oil Co., 932 F.2d 1518 (5th Cir. 1991),

cert. denied, 112 S. Ct. 914 (1992)... . 9,19

International Primate Protection League v. Ad-

ministrators of Tulane Educ. Fund, 111 S. Ct.

SI ES hn ea ee 9

Leidolf v. Eli Lilly & Co., 728 F. Supp. 1383 (E. D.

Wis. 1990) ......... 5 WAL RM Rip POE: 14

Lirette v. N.L. Sperry ‘Sun, ‘Ine., 820 F.2d 116

(5th Cir. 1987) . J i 14

McNaught v. Avis Rent a , Car Syste ms, , Ine., “1992

U.S. Dist. LEXIS 8 (N.D. Ill. Jan. 2, 1992)... 14, 18

ee Sr Ne -

TABLE OF AUTHORITIES—Continued

Page

Melahn v. Pennock Ins., Inc., 965 F.2d 1497 (8th

Cir. 1992) , wee

Molden v. Firestone Tire & Rubber Co., “15A F.

Supp. 521 (M.D. La. 1990) 0 14

Moltke v. Intercontinental Shipping Corp., 86 F.

Supp. 662 (S.D.N.Y. 1949) EN EL Os 13

Montalvo Santiago v. Resolution Trust Corp., 779

F. Supp. 632 (D.P.R. 1991) . +: 16

National W. Life Ins. Co. v. Fischer, 722 F. Supp.

oe, ee | ero aa 16

Nolan v. Boeing Co., 919 F.2d 1058 (5th Cir.

1990), cert. denied, 111 S. Ct. 1587 (1991) 12

Ostrowitz v. Eli D. Albert, P.C., 1991 U.S. Dist.

LEXIS 15470 sage Oct. 30, ESOL) ...2: 16

Patient Care, Inc. v. Freeman, 755 F. Supp. 644

GRU OROED scxeveisevctenved lene 17, 19, 20

Perez v. General Packer, Ine., 790 F. Supp. 1464

(oe + Sh. | SRNR el cas, 12, 14, 15,18

Resident Advisory Bd. v. Tate, 329 F. Supp. 427

(E.D. Pa. 1971) snpotenaceentnes 13

Seeligson’s Exv’rs v. Texas Transp. Co., 7 S.W. 708

| eM in, vent 6

Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100

RD ces tds sip kcnecancmenaaecsiceae eee 9

Smith v. MBL Life Assur. Corp., 727 F. Supp. 601

(Picks Ns BOD soot cera ee ene 14, 16

Strickland v. A.P. Propane, Inc., 721 F. Supp. 284

CRY We. TD eccentric 14, 15

Statutes

Judicial Improvements and Access to Justice Act,

Pub. L. No. 100-702, 102 Stat. 4642 (1988) 3, 4, 10

12 U.S.C. § 1441a (1) (8) (A) .000 oe .. tes bee Sick, 17

28 U.S.C. g cet OR RY Re 10

IED ntlocidacdvantesnsd site hehe ee 6, 8, 16

§ 1441 (c) 0... SR SO RNS HI RER REET andes 17

§ 1445(a) PRN TEL SOREN och ROT 6

TABLE OF AUTHORITIES—Continued

Page

§ 1446(c) ........ seota calalee cree iene tae 6,17

Be IRON ooo 55 oa caecauccucede eae _.... passim

EOE x cass xe coc ssamseiaere eas Looceeee ee. PASstm

& 6, | Renee a ‘im aoe

Other Authorities

H.R. Rep. No. 889, 100th Cong., 2d Sess. (1988) ..10, 15, 17

14A C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure (1985) ........................ _ 6,19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No, ————-

MARK BARNES,

? Petitioner,

WESTINGHOUSE ELECTRIC CORPORATION, WESTINGHOUSE

ELECTRIC SUPPLY COMPANY and/or Wesco DALLAS

and or WESCO, a division of or wholly-owned subsidiary

of WESTINGHOUSE ELECTRIC CORPORATION,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 962 F.2d 513, and re-

printed in Pet. App. A. The orders of the United States

District Court for the Northern District of Texas are

unreported and reprinted in Pet. Apps. B, C and D.

JURISDICTION

The Court of Appeals entered judgment on June 8,

1992, and denied a timely petition for rehearing on

July 8, 1992. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

————e

STATUTES INVOLVED

28 U.S.C. § 1446(b) provides:

(b) The notice of removal of a civil action or pro-

ceeding shall be filed within thirty days after the

receipt by the defendant, through service or other-

wise, of a copy of the initial pleading setting forth

the claim for relief upon which such action or pro-

ceeding is based, or within thirty days after the

service of summons upon the defendant if such initial

pleading has been filed in court and is not required

to be served on the defendant, whichever period is

shorter.

If the case stated by the initial pleading is not re-

movable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended plead-

ing, motion, order or other paper from which it

may first be ascertained that the case is one which

is or has become removable, except that a case may

not be removed on the basis of jurisdiction con-

ferred by section 1332 of this title more than 1 year

after commencement of the action.

28 U.S.C. § 1447(¢) provides:

any defect in removal procedure must be made within

30 days after the filing of the notice of removal under

section 1446/a). If at any time before final judg-

ment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An

order remanding the case may require payment of

just costs and any actual expenses, including attorney

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

copy of the order of remand shall be mailed by the

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

may thereupon proceed with such case.

STATEMENT

This is a diversity case that was rernoved to federal

court more than three years after it was filed in state

court.' The removal was improper under 28 U.S.C.

* 1446(b), which prohibits removal on diversity grounds

after a case has been pending for one year. The United

States Court of Appeals for the Fifth Circuit nevertheless

held that petitioner, the plaintiff below, had waived this

issue by failing to file a remand motion based on section

1446(b) within thirty days of the removal. It treated

the violation of the one-year bar to removal of diversity

cases as a “defect in removal procedure” that must be

raised within thirty days under 28 U.S.C. § 1447(e).

Petitioner seeks review of this ruling because it conflicts

not only with a proper reading of the removal statutes but

also with the large majority of decisions on point from

other federal courts.

In this case, petitioner Mark Barnes seeks damages for

severe burns he suffered when he came into contact with

a high-voltage “bus duct” manufactured by respondent

Westinghouse Electric Corp. during work on renovations

at the Dallas/Fort Worth Airport. Petitioner, a resident

of Texas, filed suit in 1985 in a Texas state court against

Westinghouse and various other defendants, including a

Texas corporation. Other defendants were added later.

On December 14, 1988, petitioner voluntarily dismissed

the last remaining Texas defendant. On January 12, 1989,

respondents removed the ease to federal district court,

based on diversity of citizenship. On January 27, 1989,

petitioner filed a motion to remand the case to state court.

This removal and request for remand occurred only

weeks after the effective date of the Judicial Improve-

ments and Access to Justice Act, Pub. L. No. 100-702,

102 Stat. 4642 (signed into law on November 19, 1988).

In that Act, Congress amended 28 U.S.C. § 1446(b) to

provide that ‘a case may not be removed on the basis of

jurisdiction conferred by section 1332 of this title | di-

versity jurisdiction] more than 1 year after commence-

' The caption includes all parties in the court below.

Se an

ment of the action.” Pub. L. No. 100-702, 102 Stat.

4669. The removal of this case was thus plainly illegal.

Because counsel for petitioner were unaware of the

new statute, however, the original remand motion did

not refer to the one-year bar to removal. Instead, while

noting that the case had been pending in state court for

more than three years and was about to go to trial, peti-

tioner relied on pre-1988 law—arguing that respondents

Waived their right to seek removal by waiting four weeks

after diversity had been created and, in the interim, by

seeking affirmative relief from the state court on a dis-

covery matter. The district court, apparently equally un-

aware of the statutory change, decided that it had re-

moval jurisdiction and denied the remand motion on

February 9, 1989. Pet. App. 24a.

On September 21, 1990, while respondents’ motion for

summary judgment remained pending in district court,

petitioner filed a ‘Motion for Rehearing on Motion to

Remand,” relying on the one-year bar in the amended

section 1446(b) and arguing that it is jurisdictional in

nature. The district court denied this motion, holding

that the one-year limitation is not jurisdictional and that

petitioner had waived his right to seek a remand on this

ground by failing to raise it within thirty days of the

removal petition. Pet. App. 2la-22a.

This thirty-day requirement was drawn from another

change made in the Judicial Improvements and Access to

Justice Act, which amended 28 U.S.C. § 1447(¢) to pro-

vide as follows:

A motion to remand the case on the basis of any

defect in removal procedure must be made within 30

days after the filing of the notice of removal under

section 1446/a). If at any time before final judg-

ment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.

While noting that petitioner had filed an original remand

motion within thirty days, raising the factual if not the

legal basis for a remand, the district court treated the

rehearing motion as a new remand request. It held that

this later request was untimely, based on its determina-

tion that respondents’ violation of the one-year bar to

removal was a waivable “defect in removal procedure”

governed by the thirty-day deadline for remand motions.

Pet. App. 20a-21a.

On February 8, 1991, the district court granted sum-

mary judgment on the merits for respondents. Pet. App.

lla-17a. Petitioner appealed to the United States Court

of Appeals for the Fifth Circuit, challenging both the

court’s failure to remand the case and its grant of sum-

mary judgment. The court of appeals affirmed. On the

removal issue, the court drew a distinction between “re-

moval jurisdiction” and “subject matter jurisdiction.”

It held that the thirty-day deadline for remand motions in

section 1447(c) applies to all challenges that do not in-

volve the latter issue—i.e., that do not “go to the ques-

tion of whether the case originally could have been brought

in federal district court.” Pet. App. 6a. In the court’s

view, since the one-year bar to removal of diversity cases

only involves a limitation on removal, a remand motion

based on this bar is waived unless made within the thirty-

day deadline.

REASONS FOR GRANTING THE WRIT

This petition raises an important and recurring issue

on which the lower federal courts are squarely in conflict.

That issue is whether the thirty-day filing deadline for

remand motions based on “defect{[s] in removal proce-

dure” ‘added to section 1447(c) in 1988) applies to

motions relying on statutory prohibitions against re-

moving specific categories of cases. Such statutory pro-

hibitions include not only the bar to removal on diversity

grounds in cases that have been pending more than a

year, 28 U.S.C. § 1446(b), but also the bar to removal in

diversity cases by defendants who reside in the forum

state, id. § 1441(b), and the bar to removal of cases in-

volving the Federal Employer’s Liability Act, the Jones

Act, or workers compensation, id. $$ 1445(a), (c). Peti-

tioner takes the view that when removing defendants

ignore these kinds of mandatory limitations on the re-

moval jurisdiction of the federal courts, the resulting

challenge does not involve a “defect in removal procedure”

and thus is not covered by the thirty-day filing deadline.?

The Fifth Circuit, however, has established a flat rule

that the thirty-day filing deadline for remand motions

applies to all removal challenges that do not question the

federal court’s “original” jurisdiction to hear the case

if it had been filed in federal court from the outset.

Applying that rule here, the court held that the illegality

of the removal of this diversity case more than three years

after its filing became a moot point when it was not raised

by petitioner within thirty days. Two district courts out-

side the Fifth Circuit have adopted the same reasoning.

The Fifth Circuit’s finding of waiver in this case war-

rants review by this Court for several compelling reasons.

First, it is based on a highly strained reading of the

Statutory phrase “defect in removal procedure.” That

phrase is most naturally read as referring to procedural

defaults committed by defendants in the course of seek-

ing removal—matters that sensibly are treated as waived

*It is well established that a denial of remand is reviewable on

appeal where, as here, the district court later enters a final judg-

ment. See 14A C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure § 3740, at 596-97 (1985) (citing cases). The necessary

import of this rule is that a reversal on the remand issue voids the

subsequent final judgment. Here, petitioner challenged both the

denial of remand and the summary judgment on appeal. Thus,

although petitioner does not seek review on the fact-specific sum-

mary judgment issue, if he were to prevail in this court, the

result would be a remand to the Fifth Circuit directing that court

to vacate its affirmance of the summary judgment. The Texas courts

would then consider the merits de novo. See Ss eligson’s Ex'rs v.

Teras Transp. Co., 7 S.W. 708 (Tex. 1888).

if not raised immediately. The one-year bar to removal

in section 1446(b), by contrast, is an unconditional pro-

hibition addressed not to the procedural obligations of

defendants but to the power of the federal court to hear

the case. Indeed, this rule generally comes into play only

where, as here, defendants have sought removal at their

earliest opportunity—i.e., as soon as complete diversity

was created in state court.

In addition, the Fifth Circuit’s rule has been squarely

rejected by the large majority of courts outside the Fifth

Circuit that have addressed this issue. Thus, six district

courts have interpreted section 1446(b) as imposing a

jurisdictional limitation on the power of a federal court

to accept a diversity case that has been pending in state

court for more than a year. They have accordingly held

that this issue is controlled by the second sentence of

section 1447(¢), requiring that a remand based on a lack

of “subject matter jurisdiction” be ordered “at any time

before final judgment.” At least four other district courts

have adopted the same approach with respect to other

statutory limitations on removal.

Yet a third approach, also inconsistent with the Fifth

Circuit’s rule, has been followed by the Third and Eighth

Circuits in cases involving remands based, respectively, on

a forum-selection agreement and abstention. These courts

have held that there are some bases for remand that

simply are not addressed in section 1447(¢) because they

involve neither defects in removal procedure nor juris-

diction. They have concluded that the thirty-day filing

deadline does not apply to remand motions in this third

category. Under this approach, section 1447(c¢) might

also be read as omitting any reference to statutory limits

on removal like the one at issue here—if such limits are

deemed to invelve neither defective removal “procedure”

nor “subject matter jurisdiction.”

This Court should act now to eliminate the abundant

confusion over the proper interpreta::-n of section

1447(\c). While there is, as yet, no direct inter-circuit

conflict on the specific question presented here, that fact

does not argue against a grant of review in this particu-

lar context. The lower federal courts face the issue fre-

quently, and obviously are having great difficulty in

arriving at a consensus. Moreover, even though the issue

arises repeatedly in the district courts, it may be years

before other circuits have an oppertunity to address it.

The reason is that relatively few decisions on remand

motions (for legal and practical reasons) are ever sub-

ject to appellate review. In particular, a district court

ruling granting a remand—including any such ruling

based on perceived “jurisdictional” grounds—may not be

reviewed on appeal. 28 U.S.C. $ 1447(d). The Court

should therefore take this opportunity to clarify the mean-

ing of these important federal statutes governing access

to federal court.*

1. As we have noted, the statutes authorizing removal

of cases to federal court contain a number of specific

limitations on removal. See, e.g., 28 U.S.C. $$ 1441(b),

1445. This Court has indicated that the removal statutes

must be strictly construed, explaining that the “power

reserved to the states under the Constitution to provide

for the determination of controversies in their courts .

may be restricted only by action of Congress,” and that

““tdjue regard for the rightful independence of state

* Petitioner also presents a second question for review, which

would arise only if the Court ultimately accepted the Fifth Cir-

cuit’s position on the main question. That second issue is whether,

even under the Fifth Circuit’s interpretation of sections 1446(b)

and 1447(c), petitioner preserved his claim by filing, within thirty

days, a remand motion that presented the factual if not the specific

legal basis for a remand. (As noted above, petitioner’s first remand

motion did note that the case had been pending in state court for

three years, while making a somewhat different timeliness argument

under pre-1988 law.) While we do not argue that this second issue

is independently worthy of review here, it involves the application

of the same statutory provisions as the first question and, therefore,

it would make sense to consider this issue as well if the Court

chooses to address the first question.

governments, which should actuate federal courts, re-

quires that they scrupulously confine their own jurisdic-

tion to the precise limits which the statute has defined.’ ”

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09

(1941). The Court has thus rejected efforts to broaden

the scope of removal jurisdiction beyond what Congress

has expressly authorized. See, e.g., id.; International

Primate Protection League v. Administrators of Tulane

Educ. Fund, 111 S. Ct. 1700, 1705-10 (1991).

In this case, the basic question is whether Congress, in

the Judicial Improvements and Access to Justice Act,

enacted a rule effectively abrogating the statutory limits

on removal jurisdiction in any case where the plaintiff

fails to raise an objection within thirty days. The Fifth

Circuit has adopted the position that the thirty-day filing

requirement for “defect[s] in removal procedure” applies

to all removal challenges except those that question the

court’s “original” jurisdiction—i.e., its power to have en-

tertained the case if it had been filed originally in federal

court. See Pet. App. 6a; Baris v. Sulpicio Lines, Inc.,

932 F.2d 1540, 1542-46 (5th Cir.) (objection to removal

in maritime case based on “savings to suitors” clause, 28

U.S.C. § 1331/1), is waived if not raised within thirty

days) (“|T]he word ‘procedural’ in section 1447(c) re-

fers to any defect that does not involve the inability of

the federal district court to entertain the suit as a matter

of its original subject matter jurisdiction.”), cert. denied,

112 S. Ct. 430 (1991) ; In re Shell Oil Co., 932 F.2d 1518.

1521-23 (5th Cir. 1991) (objection to removal in diversity

case based on fact that removing defendant is a citizen

of the forum state is waived if not raised within thirty

days}, cert. denied, 112 S. Ct. 914 (1992). This rule

means that, where a case is improperly removed in the

face of a statutory prohibition but the plaintiff fails to

complain within thirty days, the district court need not

~—indeed may not—-remand the case in an effort to re-

spect the limits on its removal jurisdiction. See FDIC

v. Loyd, 955 F.2d 316, 322 (5th Cir. 1992) (district

courts may not sva sponte remand cases, after thirty

days, based on grounds falling into the category of “‘de-

fect{s| in removal procedure”).

Here, for example, Congress mandated in the Judicial

Improvements and Access to Justice Act that cases “may

not be removed” to federal courts on the basis of diversity

“more than 1 year after commencement of the action.” '

This ‘modest curtailment in access to diversity jurisdic-

tion,’ H.R. Rep. No. 889, 100th Cong., 2d Sess. 72

(1988), comes into play chiefly when, as in this case,

complete diversity arises after a case has been pending

in state court for more than a year (i.e., through dismis-

sal of non-diverse defendants).* Congress concluded that

“|r]emoval late in the proceedings may result in substan-

tial delay and disruption.” /d.

The Fifth Circuit held, however, that the illegality of

the removal effected by respondents, in a case that had

been pending for more than three years, was a mere “de-

fect in removal procedure” that was waived when not spe-

cifically raised within thirty days. In so doing, it recog-

nized that section 1447/(c), as amended in 1988, mandates

a remand “at any time before final judgment [where] it

* Congress in this act enacted a number of reforms aimed at deal-

ing with what was viewed as a “torrent of litigation” in the federal

courts. H.R. Rep. No. 889, 100th Cong., 2d Sess. 23 (1988). One

key element was an effort to limit the flow of diversity cases to

federal courts. Thus, in addition to barring removal of diversity

cases that were pending more than a year, Congress raised the

amount in controversy required for diversity cases to $50,000. See

28 U.S.C. § 1332(a).

5 In cases where diversity exists from the start, the one-year rule

generally has no effect. In such cases, section 1446(b) already

required defendants to seek removal within thirty days after serv-

ice of the complaint. This requirement, however, is waivable. See

note 6 infra. Thus, the one-year bar might play a role in this

kind of case, if the defendant has waited more than a year to seek

removal, if the plaintiff has failed to raise the timeliness issue, and

if the bar is construed as a jurisdictional limitation and that cannot

be waived.

i aaa aaa

appears that the district court lacks subject matter juris-

diction.” (Emphasis added.) See Pet. App. 4a n.6. But

it viewed this provision as applicable only to limitations

affecting the court’s original jurisdiction (where, for

example, there is no federal question and no diversity

of citizenship), and thus inapplicable to any limits solely

involving the scope of “removal jurisdiction.” Jd. at 6a.

2. On the merits, this interpretation of section 1447(c)

is highly problematic. In a case like this one, involving

a removal effected in violation of an unconditional statu-

tory prohibition, it is at least doubtful that Congress

would have barred a court from enforcing the prohibition

simply because the plaintiff failed to assert it immedi-

ately after the removal occurred. It is even more doubt-

ful that, if Congress wanted to accomplish that result, it

would have done so by using the phrase “defect in

removal procedure.” As a matter of simple English, it is

difficult to see how there has been a “defect in removal

procedure” in a case where the removing defendant has

followed every applicable procedural requirement, but the

removal is simply illegal.

It is far more plausible to read this phrase as applica-

ble solely to procedural missteps made by defendants in

the course of seeking removal—such as filing defective

removal papers or waiting to file for removal more than

thirty days after receipt of the state-court complaint.

These kinds of technical or formal defects have long been

viewed as waivable by plaintiffs. See, e.g., Ayers v.

Watson, 113 U.S. 594, 598 (1885) (“We see no reason,

for example, why the other party may not waive the

required bond, or any informalities in it, or informalities

in the petition, provided it states the jurisdictional facts

.’). Moreover, it makes sense to believe that Con-

gress would have wanted these kinds of issues to be raised

immediately or put aside."

“There is no doubt that the thirty-day deadline for remand

motions applies at least to all removal challenges based on purely

Under this interpretation of section 1447(¢c), manda-

tory limits on removal jurisdiction would be treated in

one of two ways. They might be viewed as falling within

the scope of the second sentence of section 1447(c), which

mandates a remand at any time prior to final judgment

if it is determined that the court lacks “subject matter

jurisdiction.” As we note below, this is the approach

adopted by the majority of federal courts that have faced

this question.

Alternatively, the section might be read as being simply

silent on the appropriate treatment of removal challenges

based on statutory limitations on removal jurisdiction.

Cf. Melahn v. Pennock Ins., Inc., 965 F.2d 1497, 1503

(8th Cir. 1992) (refusing to apply the thirty-day filing

procedural defects, such as a failure to seek removal within thirty

days after service of a state-court pleading that reveals a basis for

removal, as required by section 1446(b). See, e.g., Nolan v. Boeing

Co., 919 F.2d 1058, 1063 n.6 (5th Cir. 1990), cert. denied, 111 S. Ct.

1587 (1991) ; Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.

1989). The Fifth Circuit here held, in effect, that the one-vear bar

to removal of diversity cases should be treated as equivalent to the

general thirty-day filing deadline for all removal notices. Yet the

differences between these two statutory requirements only serve to

illustrate further the reasons why the one-year bar should not be

viewed as involving a “defect in removal procedure” that the plain-

tiff must raise immediately under section 1447(c). See Perez v.

General Packer, Inc., 790 F. Supp. 1464, 1470 (C.D. Cal. 1992);

Foiles v. Merrell Nat'l Lab., 730 F. Supp. 108, 110 (N.D. Tl. 1989).

The general thirty-day deadline for all removal notices, after all,

is phrased as a procedural obligation imposed on the defendant in

tne course of seeking removal. See 28 U.S.C. § 1446(b) (providing

that the notice of removal shall be “filed within thirty days” of an

initial pleading or some other event establishing a basis for removal )

(emphasis added). By contrast, the one-year bar does not involve

the process for removal and is not phrased in terms of the proce-

dural obligations of defendants seeking removal. Indeed, this bar

is a flat prohibition that is principally addressed to a situation

where a defendant has made no procedural misstep whatever—i.¢.,

where the basis for removal on diversity grounds arises more than

one year after the case was filed and the defendant then seeks

immediate removal.

rule to a remand motion made on abstention grounds)

(“The plain meaning of ‘procedural defect’ would seem

to exclude abstention.”) ; Foster v. Chesapeake Ins. Co.,

933 F.2d 1207, 1215 (3d Cir.) (refusing to apply the

thirty-day filing rule to a remand motion based on a

forum selection agreement) (“Section 1447(c) neither

prohibits nor authorizes the order of remand here, based

on a forum selection clause. It simply does not address

the issue.”), cert. denied, 112 S. Ct. 302 (1991).7 This

reading would leave in place the pre-1988 law on waiver

of this category of challenges. Under this earlier case

law, in a case where there was no removal jurisdiction

but there was “original” jurisdiction (such as diversity

or a federal question), it was clear that a plaintiff could

not raise the issue for the first time on appeal. Grubbs

v. General Elec. Credit Corp., 405 U.S. 699 (1972). But

prior to final judgment in the district courts, statutory

limits on removal jurisdiction were frequently (although

not universally) enforced despite the absence of an objec-

tion by the nonremoving party.*

7 See also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 348, 354-55

& n.11 (1988) (discussing the pre-1988 version of section 1447(c) )

(section does not address courts’ inherent power to remand pendent

claims).

8 See, e.g., Hoyt v. Sears, Roebuck & Co., 130 F.2d 636, 637 (9th

Cir.) (remand required where plaintiff improperly removed based

on defendant’s counterclaim, despite defendant’s acquiescence), cert.

denied, 317 U.S. 687 (1942); Coogan v. DeBoer Properties Corp.,

354 F. Supp. 1058, 1059 (S.D. Tex. 1973) (remand required where

less than all defendants sought removal despite acquiescence of

plaintiffs) ; Resident Advisory Bd. v. Tate, 329 F. Supp. 427, 432

(E.D. Pa. 1971) (remand required where less than al! defendants

sought removal; nonremoving defendants cannot waive this funda-

mental jurisdictional issue); Moltke v. Intercontinental Shipping

Corp., 86 F. Supp. 662 (S.D.N.Y. 1949) (court ordered remand of

improperly removed Jones Act case on its own motion). Cf. FSLIC

v. Quinn, 419 F.2d 1014, 1017 (7th Cir. 1969) (objection to removal

based on fact that state court never had valid jurisdiction is not

waivable even though federal court would have had original juris-

diction over the case) ; American Oil Co. v. Egan, 357 F. Supp. 610,

In sum, a fair reading of the actual language of sec-

tion 1447(c), as amended in 1988, does not justify the

conclusion that Congress intended to require courts to

ignore the limits on their removal jurisdiction whenever

the removal went unchallenged for thirty days. If Con-

gress had intended this rather dramatie result, it would

certainly have said so. It chose instead to apply the

thirty-day filing deadline solely to remand motions based

on “defect{s| in removal procedure’’—a phrase that was

at best an odd choice if it was meant to encompass uncon-

ditional limitations on the power of courts to entertain

particular categories of cases.

3. In any event, it is clear that this Court needs to

address the issues raised here, because the lower federal

courts lack sufficient guidance as to the applicable legal

principles. The Fifth Circuit’s holding that the one-year

bar to removal of diversity cases must be raised within

thirty days is supported by two district court decisions

from other circuits. See Leidolf v. Eli Lilly & Co., 728

F. Supp. 1383, 1388 (E.D. Wis. 1990); Gray v. Moore

Business Forms, Inc., 711 F. Supp. 548, 545 (N.D. Cal.

1989). But it has been rejected by the majority of dis-

trict courts outside the Fifth Circuit that have faced this

issue. See Brock v. Syntex Lab., Inc., 791 F. Supp. 721,

722-23 (k.D. Tenn. 1992); Perez v. General Packer, Inc..,

790 F. Supp. 1464, 1469-71 (C.D. Cal. 1992); McNaught

v. Avis Rent a Car Systems, Inc., 1992 U.S. Dist. LEXIS

8 (N.D. Ill. Jan. 2, 1992); Foiles v. Merrell Nat’l Lab..,

730 F. Supp. 108, 109-11 «N.D. Dll. 1989); Smith ». MBL

Life Assur, Corp., 727 F. Supp. 601, 602-04 (N.D. Ala.

1989); Strickland v, A.P. Propane, Ine., 72) F, Supp.

284, 285-86 (M.D. Fla. 1989). See also Molden v. Fire-

613-14 (D. Minn. 1973) (remanding case after 15 months that had

been improperly removed based on counterclaim, taking into account

absence of injury to removing party). But see, e.g., Lirette v. NL.

Sperry Sun, Inc., 820 F.2d 116, 118 (5th Cir. 1987) (en bane)

(dictum) (where Jones Act case improperly removed, participation

by plaintiff in federal proceedings may amount to a waiver).

stone Tire & Rubber Co., 754 F. Supp. 521, 523 (M.D.

La. 1990) (adopting the same view in dictum prior to the

decision below).

These courts have viewed the one-year bar in section

1446(b) as a jurisdictional limitation on their power to

accept removal—a limitation that is not waived thirty

days after removal and, indeed, must be raised sua sponte

by the federal court. In so ruling, they have relied on

the plain language of section 1446(b), which imposes an

unconditional prohibition on drapegie’s of this category of

diversity cases. See, e J., Brock v. Syntex Lab., Inc., 791

F. Supp. at 722-23 (statute imposes a “blanket prohibi-

tion on removal of diversity cases more than one year

after commencement”); Fotles v. Merrell Nat’l Lab..

730 F. Supp. at 110 (“[T|he Court believes that to

rule otherwise would disregard the plain language of

$ 1446(b) .... The effect would be to rewrite the statute

to read: ‘A case may not be removed . .. more than 1

year after the commencement of the action, unless it is

removed and the adverse party fails to file a timely

motion to remand pursuant to § 1447(¢).’”’).

The courts rejecting the Fifth Circuit’s approach have

also found support in the legislative history, which evinces

an intent to impose a “substantive limit on diversity

jurisdiction.” Foiles ». Merrell Nat’l Lab., 730 F. Supp.

at 110 (citing H.R. Rep. No. 889, 100th Cong., 2d Sess.

72 (1988) ). See also Brock v. Syntex Lab., Inc., 791 F.

Supp. at 723; Strickland v. A.P. Propane, Inc., 721 F.

Supp. at 286. Finally, they have noted that allowing

Waiver of this limitation would encourage abuse. See

Brock v. Syntex Lab., Inc., 791 F. Supp. at 723 (such a

rule “would encourage defendants to remove cases

and hope that the plaintiff had failed to timely move to

remand”); Perez v. General Packer, Inc., 790 F. Supp.

at 1470 (rule would encourage defendants to ignore the

one-year limit and “wager that the plaintiff will not detect

the statutory violation within 30 days”) ; Foiles v. Merrell

Nat'l Lab., 730 F, Supp. at 110 (“If the Court accepted

{defendant’s! view, litigants who abided the statute’s

prohibition against removal would have nothing to gain;

it would always he best to remove and hope the other side

failed to file a timely motion to remand.”).

As we have noted, the Fifth Circuit also applies the

thirty-day filing requirement in section 1447(¢) in cases

involving other statutory limits on removal jurisdiction.

Here again, however, a number of other courts have dis-

agreed. Thus, two recent decisions hold that the acqui-

escence of the plaintiff does not relieve the court of its

obligation to remand a case, at any time prior to final

judgmen., that was removed on diversity grounds by a

citizen of the forum state in violation of section 1441(b).

Ostrowitz v. Eli D, Albert, P.C., 1991 U.S. Dist. LEXIS

15470 (S.D.N.Y. Oct. 30, 1991); National W. Life

Ins. Co. v. Fischer, 722 F. Supp. 554, 555 (E.D. Wis.

1989). Indeed, in Ostrowitz, the court explicitly rejected

the Fifth Circuit’s holding in Shell Oil, supra, that such

a violation constitutes a defect in “procedure” waivable

if not raised within thirty days under sectic 1447(c).

1991 U.S. Dist. LEXIS at *2-*3. It held th + the viola-

tion “is surely more than a defect in procedv.e: 28 U.S.C.

$ 1441(b) represents a Congressional determination as to

what cases may, and may not, be removed.” Jd. at *3

(citing Smith v. MBL Life Assur. Corp., supra\, The

court refused to conclude that section 1447(¢c) “was in-

tended to require district courts to accept jurisdiction of

causes removed contrary to statute simply because counsel]

may have been remiss in their obligations.” Jd. Sce also

National W. Life Ins. Co. v. Fischer, 722 F. Supp. at 555

n.l (citing the “court’s duty to remand a case to state

court when jurisdiction is lacking because removal is

improper”).

Other courts, dealing with other statutory limitations

on removal, have followed similar reasoning. See Mon-

talvo Santiago v. Resolution Trust Corp., 779 F. Supp.

632, 636 (D.P.R. 1991) (statutory requirement that RTC

seek removal within 90 days after substitution as a party,

12 U.S.C. § 1441a(l) (3) (A), is mandatory and not a

defect in removal procedure, and thus not covered by sec-

tion 1447(¢)); Patient Care, Inc. v. Freeman, 755 F.

Supp. 644, 646 n.8 (D.N.J. 1991) (holding that a third-

party defendant facing an indemnity claim based on

federal law lacks the right to seek removal under section

I4dd41lici) (“Because defendants’ objection to removal is

based on an alleged jurisdictional defect, they have not

waived their objections by failing to seek remand earlier

in the proceedings.”); Blackmore v. Rock-Tenn Co., 756

F. Supp. 288, 289 (N.D. Tex. 1991) (remanding, prob-

ably in contravention of prevailing Fifth Circuit law, a

diversity case involving workers’ compensation under

section 1445(c)) (“The court may sua sponte remand

an improperly removed action even after expiration of the

thirty-day period that 28 U.S.C. § 1447(e) sets forth for

filing motions to remand.’’).

Finally, as we have noted, the Fifth Circuit’s rule—

applying the thirty-day deadline in section 1447/¢) to all

removal challenges that do not involve original jurisdic-

tion—was specifically rejected by the Third and Eighth

Circuits in yet another context. In Foster v. Chesapeake

Ins. Co., supra, the Third Circuit held that this deadline

did not apply to a remand motion based on a forum-

selection clause. The defendant had argued that the term

“defect in removal procedure” in section 1447(c) applies

to “all non-jurisdictional motions for remand,” including

those based on forum-selection agreements. 933 F.2d at

1213. The court rejected this interpretation as contrary

to the plain language of the statute. Jd.” It concluded

*The court also noted that the legislative history refers to at

least one non-jurisdictional basis for a remand that is not governed

by the thirty-day deadline-—i.e., when “ ‘disposition of all federal

questions leaves only State law questions that might be decided as

a matter of ancillary or pendent jurisdiction or that instead might

be remanded.’ Foster v. Chesapeake Ins. Co., 985 F.2d at 1212-13

quoting H.R. Rep. No. 889, 100th Cong., 2d Sess. 72 (1988) ).

that, since Congress had not set any time limits for remand

motions based on forum-selection clauses, this was a

matter left to the discretion of the district courts. Jd. at

1213 n.&. See also Melahn v. Pennock Ins., Ine., 965 F.2d

at 1502-03 (rejecting, as contrary to plain language, the

Fifth Circuit’s rule that all non-jurisdictional objections

to removal involve removal “procedure” and refusing to

apply thirty-day deadline to a remand motion based on

abstention }.""

This level of confusion in the application of key federal

statutes plainly warrants a grant of review in this case.

The specific issue raised here arises with great frequency.

See Perez v. General Packer, Inc., 790 F. Supp. at 1470

(“Experience has shown that cases pending over one year

in the state courts are regularly removed ....”).'' More-

over, While this Court might ordinarily await the emer-

gence of a direct inter-circuit conflict, the instant issue

is one that is ordinarily resolved at the district-court

level, without appellate review. Thus, while it is true that

all of the recent decisions that have treated the statutory

limits on removal as jurisdictional come from district

courts, there is a simple reason for this: a remand ordered

on this basis is unreviewable as a matter of law. 28

U.S.C. $ 1447(d) (“An order remanding a case to the

” As we have suggested, see pp. 12-13 supra, this Court might

fairly conclude that Congress was equally silent as to the time

requirements for remand motions based on statutory restrictions

on removal jurisdiction—if it determines that these involve neither

“defect|s| in removal procedure” nor “subject matter jurisdiction.”

The Fifth Circuit’s approach, however, would pretermit this possi-

bility because it categorically treats all removal challenges as “pro-

cedural” if they do not involve original jurisdiction.

1 While this case involved a situation where counsel for plaintiffs

were unaware of the changes made in the Judicial Improvements

and Access to Justice Act, immediately after its passage, more

recent cases make clear that the issue raised here is not merely a

transitional problem. See Brock v. Sunter Lab., Inc., supra; Perez

v. General Packer, Inc., supra; McNaught v. Avis Rent a Car

Systems, Inc., supra,

State court from which it was removed is not reviewable

on appeal or otherwise ....”). See Gravitt v. South-

western Bell Tel. Co., 480 U.S. 723 (1977) (per curiam)

(applying section 1447(d) to bar review of a remand

ordered on jurisdictional grounds) ."’

In light of this fact, a circuit conflict could only con-

ceivably arise if a district court outside the Fifth Circuit

departed from the majority rule and denied a remand

on facts like those presented here. Even then, of course,

further review would only occur if the court proceeded to

enter a litigated judgment (or some other appealable

order) against the plaintiff, see 14A C, Wright, A. Miller

& KE. Cooper, Federal Practice and Procedure § 3740, at

596-98 (1985), and if the plaintiff saw fit to proceed

With an appeal.

In sum, it may be years before there is a second deci-

sion of a court of appeals addressing the question pre-

sented here. In the meantime, the district courts routinely

will be faced with choosing between the Fifth Circuit’s

approach and the approach adopted by most other dis-

trict courts.'* This case provides the appropriate vehicle

for eliminating a fundamental uncertainty that will other-

wise continue to plague both courts and litigants alike.

'2 We note that the Fifth Circuit has issued most of the appellate

decisions applying the thirty-day deadline for remand motions in

section 1447(c). One reason is that the Fifth Circuit has adopted

a highly problematic interpretation of section 1447(d), allowing

appeals from remand orders based on what it views as procedural

defects raised after the deadline has passed. See FDIC v. Loyd,

955 F.2d at 319-21; In re Shell Oil Co., 932 F.2d at 1520-21.

13 In Patient Care, Inc. v. Freeman, supra, the court dealt with

an equally unsettled issue—the availability of removal to third-party

defendants—-ultimately deciding to grant a remand. It noted that

“part of the confusion is due to the silence of the appellate courts.”

755 F. Supp. at 646, adding:

The unfortunate but inevitable result of this [remand] decision

is that it will be unreviewable by the Third Circuit. See 28

U.S.C. § 1447(d). As a consequence, rather than leading to a

‘6 >

T1T10Nn tor

CONCLUSION

it of certiorari should be granted.

Respectfully submitted,

PAUL M. SMITH *

JOEL I. KLEIN

RICHARD G. TARANTO

KLEIN, FARR, SMITH & TARANTO

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

RICHARD WARREN MITHOFF

SCOTT ROTHENBERG

MITHOFF & JACKS

One Allen Center

Houston, TX 77002

(713) 654-1122

Counsel for Petitioner

* Counsel of Record

resolution of this vexing issue, this case will only contribute to

the cacophony of opinions which already exists.

Td. at 652.

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 91-1351

MARK BARNES,

Plaintiff-A ppellant,

WESTINGHOUSE ELECTRIC CORPORATION, et al.

Defendants-A ppellees.

June 8, 1992

EMILIO M. GARZA, Circuit Judge:

During his work on a remodeling project at Dallas

Fort Worth Airport, Mark Barnes was injured after

drilling into a high voltage bus duct which was part of

the building’s electrical system. Barnes filed this per-

sonal injury and product liability action in state court

against Westinghouse—manufacturer of the bus duct—

and others, alleging that their negligence caused his in-

juries. The case was subsequently removed to federal

court, and the district court granted summary judgment

for Westinghouse because Barnes did not file suit within

the ten-year statute of repose. See TEX.CIv.PRAC. & REM.

CopE ANN. § 16.009 (West 1986). Finding no error, we

affirm.

Barnes, an employee of Trinity Contractors, was in-

jured on June 15, 1984 when, during the course of a re-

modeling project, he drilled into a pre-existing electrical

bus duct! manufactured by Westinghouse, and suffered,

among other things, disfiguring burns to approximately

seventy percent of his body. The bus duct which is the

basis for Barnes’ complaint was designed and manufac-

tured by Westinghouse during 1972-73 for permanent

installation into Dallas/Fort Worth airport, including

the equipment room above American Airlines Terminal

3E, where Barnes was injured.*

Barnes filed his Original Petition against Westinghouse

and others in state district court in Tarrant County,

Texas, on July 23, 1985. Approximately four years later,

on January 12, 1989, Westinghouse removed Barnes’ suit

to federal court alleging diversity jurisdiction under 28

U.S.C. § 1332. Barnes promptly moved to remand to

state court, and the district court denied his motion.

Subsequently, Westinghouse filed a motion for sum-

mary judgment, asserting that Barnes’ action was barred

by the Texas ten-year statute of repose—limiting actions

for liability resulting from “improvement|s]” to real

1 Bus duct is a metal-encased structure containing a number of

rounded edge “bus bars” which transport electrical power in com-

mercial buildings. The bus bars are enclosed within housing con-

structed of 14-guage and 16-guage steel. By transporting and dis-

tributing electricity throughout commercial buildings, the bus duct

is meant to facilitate efficient power distribution.

* Specifically, the bus duct was a “POW-R-WAY” bus duct—that

is, a duct specifically manufactured for permanent installation into

particular structures according to design specifications submitted

to Westinghouse. It was in conformity with the plans and speci-

fications submitted by Ling Oliver O’Dywer Electric, Inc., the

electrical subcontractor who installed the bus duct at the airport.

The construction of improvements of Terminal 3E, including the

installation of the bus duct, was substantially completed by Janu-

ary 31, 1974.

property to ten years from “substantial completion” of

that improvement. Trx.C1v.PRac. & REM.CODE ANN.

§ 16.009 (1986). Approximately a year after his mo-

tion to remand was denied, Barnes filed a motion for

rehearing. The district court denied Barnes’ motion for

rehearing, and granted Westinghouse’s motion for sum-

mary judgment. Barnes appeals the judgment for West-

inghouse, arguing that his motion to remand should have

been granted and that summary judgment was improper

because the bus duct was a component part of an im-

provement and, therefore, outside the state of repose.

Barnes argues that the district court erred in denying

his motion for rehearing of his motion to remand on the

grounds that the one-year limitation on removal con-

tained in 28 U.S.C. § 1446(b)* is jurisdictional® and

* The relevant portion of section 16.009 is quoted in its entirety

infra at Part B.

#28 U.S.C. § 1446(b) provides:

If the case stated by the initial pleading is not removable, a

notice of removal may be filed within thirty days after receipt

by the defendant, through service or otherwise, of a copy of an

amended pleading, motion, order or other paper from which

it may first be ascertained that the case is one which is or has

become removable, except that a case may not be removed on

the basis of jurisdiction conferred by section 1332 of this title

more than 1 year after commencement of the action.

° Specifically, Barnes contends:

“|T |hat the district court erred in denying his motion for

rehearing of motion for remand because Westinghouse removed

the suit to federal court over three years after the suit was

filed in state district court in violation of the one year limita-

tion on removal contained in section 1446(b), and the district

court therefore lacked subject matter jurisdiction and should

thereby may be raised at any time prior to judgment

pursuant to 28 U.S.C. $ 1447(¢).° We disagree.

Barnes filed his Sixth Amended Original Petition—a

petition naming for the first time completely diverse de-

fendants—on December 16, 1988. Less than thirty days

. later, Westinghouse filed a petition for removal to the

United States District Court for the Northern District

of Texas. See 28 U.S.C. $1441. Within thirty days of

filing, Barnes filed a motion to remand, claiming that

Westinghouse sought affirmative relief in the state dis-

trict court after the case became removable, thereby

Waiving the opportunity to rightfully remove the case.

The district court denied Barnes’ motion to remand.

Over a year later, in September 1990, Barnes filed a

motion for rehearing of his motion to remand. For the

first time, Barnes argued that a case cannot be removed

to federal court on the basis of diversity more than one

year after commencement of the action. See 28 U.S.C.

§ 1446(b).7 None of the parties dispute that Westing-

have remanded the case to the 48th District Court of Tarrant

County, Texas.”

Brief for Appellant at 14, Barnes v. Westinghouse Electric Corpora-

tion, No. 91-1351 (5th Cir. filed June 17, 1991) [“Appellant’s

Brief’ |. Barnes confuses removal jurisdiction with subject-matter

or original jurisdiction. See infra notes 8-10 and accompanying

text.

828 U.S.C. §$ 1447(c) provides in pertinent part:

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

removal procedure must be made within 30 days after the

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

at any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be re-

manded,

7 Pursuant to an amendment enacted November 19, 1988, section

1446(b) now states that a case may not be removed on the basis

of jurisdiction conferred by section 12332 more than one vear after

commencement of the action, Section 1447(c) of Title 28 states

that a motion to remand a case on the basis of a defect in removal

house removed the case more than one year after the

commencement of the action. The district court, how-

ever, denied Barnes’ motion for rehearing, reasoning that

the removal procedures set forth at 28 U.S.C. $$ 1446 (b)

and 1447(c) were not jurisdictional. Therefore, the dis-

trict court reasoned that if a case was in state court for

over a year, and then removed pursuant to 28 U.S.C.

$ 1332, failure to comply with the thirty-day require-

ment imposed by section 1447(c) results in a waiver of

a plaintiff's rights to object to removal defects result-

ing from noncompliance with section 1446(b). Because

Barnes waited over twenty months to move for rehear-

ing on his motion to remand, based on Westinghouse’s

failure to remove within one year of the original action,

the district court found that Barnes had waived his right

to object pursuant to section 1447(c).

We are not persuaded by Barnes’s arguments that sec-

tion 1446(b) is jurisdictional in nature, and therefore

may be raised at any time. The language of the statute

belies Barnes’ contentions and indicates that. sections

1446(b) and 1447(c¢) are procedural provisions.” As we

stated in Baris v. Sulpicio Lines, “this court has had

little difficulty in distinguishing between removal] juris-

diction,” on the one hand, and original or subject matter

procedure must be made within 30 days after the filing of the

notice of removal under section 1446(a).

The amendments to sections 1446(b) and 1447(c) contain no

effective date. Therefore, the effective date of these sections is the

date the Act was enacted, which is November 19, 1988. See In re

Shell Oil Co., 932 F.2d 1528, 1526 (5th Cir.1991 ), cert. denied,

U.S. ——-, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992) (effective date of

amendment to section 1447(c) is November 19, 1988, and in most

cases, it applies to cases pending on this date); see also In re Shell

Oil Co., 932 F.2d 1518 (5th Cir.1991) (companion case to Shell,

supra); Greer v. Skileraft, 704 F.Supp. 1570, 1582-83 (N.D.Ala.

1989) (en banc) (effective date of amendment to section 1446(b)

is November 19, 1988, and it applies to cases pending on this date).

‘See supra notes 4 and 6.

* See 28 U.S.C. § 1441 (“Actions removable generally”),

jurisdiction,’® on the other hand.” Baris v. Sulpicio Lines,

Ine., 932 F.2d 1540, 1544 (5th Cir.), (footnote omitted)

cert. dé nied, U.S, - . 112 At 430, 116 L.Ed.2d

449 (1991) (‘citations omitted); see also In re Shell Oil

Co., 932 F.2d 1518, 1522-23 (5th Cir.1991), cert. de-

nied, —— U.S. ——, 112 S.Ct. 914, 116 L.Ed.2d 814

1992) ‘noting that defects in removal procedure in-

clude all non-jurisdictional defects, and concluding that

plaintiffs waived any non-jurisdictional grounds for re-

mand existing at time of removal by not moving to re-

mand within 30 days of notice of removal); see also In

re Shell Oil Co., 932 F.2d 1523 (5th Cir.1991) (com-

panion case to Shell, supra).

We have noted that the word “procedural” in section

1447(c) refers to “any defect that does not go to the

question of whether the case originally could have been

brought in federal district court... .” Baris, 932 F.2d

at 1544; see also H.R.ReEp. No. 100-889, 100th Cong., 2d

sess. 7 (1988), reprinted in 1988 U.S.C.C.A.N. 5982,

6032-33 (noting 1988 changes to sections 1446(b) and

1447(¢c) and discussing removal procedure). This dis-

tinction between removal jurisdiction and subject mat-

ter jurisdiction is applicable to section 1446(b), which

speaks of the removal of cases not more than one year

after the commencement of the action. We previously

have noted that “[t|he time limitation for removal is

not jurisdictional; it is merely ‘modal and formal and

may be waived.’” Nolan v. Boeing Co., 919 F.2d 1058,

1063 n. 6 (5th Cir.1990), cert. denied, —— U.S. ,

111 S.Ct. 1587, 113 L.Ed.2d 651 (1991) (citations

omitted). Because Barnes did not move for rehearing

on his motion to remand based on a procedural defect

until approximately twenty months after Westinghouse’s

removal, we find that he waived his opportunity to call

this procedural defect to the district court’s attention.

10 See, e.g., 28 U.S.C. §$ 1831 (“Federal question” jurisdiction)

and 1332 (“Diversity of citizenship” jurisdiction).

Barnes also challenges the district court’s conclusion

that the bus duct was an improvement under section

16.009 of the Texas Civil Practice and Remedies Code,

that no genuine issues of fact existe 1, and that Westing-

house was entitled to summary judgment as a matter of

law. Barnes argues that the district court should not

have granted Westinghouse’s motion for summary judg-

ment because the bus duct was merely a component part

of an improvement and, therefore, outside the statute of

repose. See Tex.Civ.Prac. & REM.CODE ANN. § 16.009

(West 1986). We find Barnes’ contentions without merit.

Section 16.009 provides in relevant part:

(a) A claimant must bring suit for damages for a

claim listed in Subsection (b) against a person who

constructs or repairs an improvement to real prop-

erty not later than 10 years after the substantial

completion of the improvement in an action arising

out of a defective or unsafe condition of the real

property or a deficiency in the construction or re-

pair of the improvement.

Id. The term improvement, set forth in section 16.009,

has been held to include “all additions and betterments

to the freehold.” Dubin v. Carrier Corp., 731 8.W.2d

651, 653 (Tex.App.—Houston [1st Dist.] 1987) (cita-

tion omitted), appeal after remand, 798 S.W.2d 1 (Tex.

App.—Houston [14th Dist.] 1989, writ dism’d by agr.).

An improvement can be anything that permanently en-

hances the value of the premises, and it can even be

something easily removable provided that it is attached

and intended to remain permanently as part of the build-

ing. See Dedmon v. Stewart-Warner Corp., 950 F.2d 244,

247 (5th Cir.1992), citing Ablin v. Morton Southwest

Co., 802 S.W.2d 788, 791 (Tex.App.—San Antonio 1990,

writ denied) and Dubin I, 731 S.W.2d at 654. However,

manufacturers of component parts of an improvement

do not come within section 16.009’s statutory language.

See Conkle v. Builders Concrete Prods. Mfg. Co., 749

S.W.2d 489, 491 (Tex.1988) ‘citation omitted). And,

a materialman who does no more than manufacture or

supply materials does not benefit from—section 5536a,

§ 2, the predecessor statute to—section 16.009."' Reddix

v. Eaton Corp., 662 S.W.2d 720, 724 (Tex.App.—San

Antonio 1983, writ ref’d n.r.e.) (citations omitted).

Barnes relies heavily on Conk/e to support his argu-

ment that Westinghouse manufactured merely a com-

ponent part of an improvement. In Conkle a worker at

a conerete plant was Iilled when he got into a bin of a

concrete batch plant to remove some objects that were

trapped there. His parents sued Dillon Steel, the manu-

facturer of the concrete batch plant. The trial court

granted summary judgment for Dillon Steel on the

grounds that the Conkles’ claim was barred by section

16,009, applicable to claims against persons who construct

improvements to real property. The Texas Supreme Court

held that summary judgment evidence raised fact issues

whether the machinery in which Douglas died was an im-

provement to reai property and whether Dillon Steel

manufactured the entire unit or component parts only.

The court emphasized that:

Roy J. Dillon admitted that Dillon Steel did not

manufacture or construct the mixer apparatus which

is joined with the bins and hoppers to form a con-

crete batch plant. Thus, there was testimony that

Dillon Steel had not manufactured the entire struc-

ture. Further, there was evidence that the plant is

actually portable. The bins were first constructed

at Dillon’s plant and the moved to the batch plant’s

original location on the property of Lok Rok Cor-

poration. It was only later that the plant was even

placed on Builders’ property.

Conkle, 749 S.W.2d at 491.

" Tex.Rev.Civ.Stat.Ann, art. 5536a, $2 (West Supp.1982-83) is

codified as amended in § 16.009.

Barnes’s reliance on Conkle is misplaced. Section

16.009 requires only that the item in question be “an

improvement to real property.” See Rodarte v. Carrier

Corp., 786 S.W.2d 94, 95 (Tex.App.—El Paso 1990, writ

dism’d).'* As the district court noted in this case, the

bus duct was permanently affixed within the structure

of Terminal 3E as part of an overall electrical system

affixed to the terminal.'* Westinghouse manufactured the

bus duct for permanent installation into the terminal.

Thus, the bus duct was an addition and betterment. to

‘In Rodarte, the court held that heater-air conditioner unit

which had electrocuted Rodarte was an improvement to real prop-

erty. The Rodarte court noted the unit was permanently connected

to the premises by its connection to the duct work and that it was

blocked into a corner of a building by other units which were

permanently attached te the structure. Thus, Carrier Corporation

was a manufacturer of an “improvement to real property.” Be-

cause the unit was manufactured and installed more than ten years

before the suit was filed, the court held that the wrongful death

suit barred by section 16.009.

'S Barnes points to the testimony of Dr. Gary Richetto, a Westing-

house expert, to support his contention that the bus duct “is merely

a component of the improvement in question.” Appellant's Brief

at 16. Dr. Richetto testified that he believed the various sections of

busway were individual component parts of an overall electrical

system. We do not find his assertions persuasive or enough to de-

feat summary judgment, because Westinghouse manufactured the

entire bus duct system--an improvement to real property. See

Anderson v. Liberty Lobby, Inc., 477 US. 242, 252, 106 S.Ct. 2505,

2512, 91 L.Ed.2d 202 (1986) (mere evidence of a scintilla of evi-

dence in support of plaintiff's position is insufficient to defeat sum-

mary judgment). And, as Westinghouse indicates, Dr. Richetto

apparently did not examine the bus duct, but based his testimony

upon a review of literature concerning the product.

Barnes also asserts that Westinghouse did not install the bus

duct, and Westinghouse concedes this fact in its brief. This point

will not defeat summary judgment. See Ellerh: ». Otis Elevator

Co., 618 S.W.2d 870, 872 (Tex.Civ.App.—Houston [Ist Dist.] 1981,

writ ref’d n.re.) (manufacturer of elevator would be a person

performing or furnishing construction of the elevator, even though

it did not install it in the building),

aaa

10a

the freehold of Terminal 3E. /d. Barnes’ argument that

Westinghouse was the mere manufacturer of component

parts is not persuasive because Westinghouse manufac-

tured the entire bus duct system. See Dubin v. Carrier

Corp., 798 S.W.2d 1, 2 (Tex.App.—Houston [14th Dist. |

1990, writ dism’d by agr.) (defendant Williams, respon-

sible for manufacturing and designing wall heater unit,

is entitled to statutory protection under section 16.009

because Williams both made a portion of the unit and

also manufactured the entire assembly). Westinghouse,

as an entity that constructed an improvement within the

meaning of section 16.009, is not a mere manufacturer of

component parts and is, therefore, entitled to repose un-

der section 16.009.

II]

Accordingly, we AFFIRM.

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4-89-44-F

MARK BARNES

VS.

WESTINGHOUSE ELECTRIC CORPORATION, WESTINGHOUSE

ELECTRIC SUPPLY COMPANY and or Wesco DALLAS

and/or WESCO, a division of or wholly-owned subsid-

lary of WESTINGHOUSE ELECTRIC CORPORATION

MEMORANDUM OPINION AND ORDER

| Filed Feb. 8, 1991]

The Court now considers defendant’s motion for sum-

mary judgment and plaintiff’s response thereto. After a

thorough review of the issues and applicable law, the

Court makes the following determination.

FACTUAL SUMMARY

Plaintiff, Mark Barnes, originally brought this action

in the 48th Judicial District Court of Tarrant County,

Texas, and said action was subsequently removed to this

Court following the dismissal of all non-diverse defend-

ants in the state court proceeding. The Court, therefore.

has jurisdiction over this cause pursuant to 28 U.S.C.

§ 1332.

In summary, plaintiff alleges that while he was work-

ing at D’FW Airport in Terminal 3E, he attempted to

drill into a structure that he allegedly believed to be

ordinary I-beam, which in fact was electrical busway.

Plaintiff contends that as a result of the lack of warn-

ing, he drilled into the busway whereby he sustained

severe electrical burns and injuries. In plaintiff’s sixth

amended original petition, plaintiff asserts the following:

(1) that Westinghouse! failed to affix proper and

adequate warnings to the subject bus duct;

(2) that Westinghouse breached express and or im-

plied warranties applicable to the subject bus

duct ;

(3) strict products liability with respect to the de-

sign, manufacture, and construction of the sub-

ject bus duct; and

(4) general allegations of negligence with respect

to the design, manufacture, and construction of

the subject bus duct.

The parties stipulate that the plaintiff was an employee

of Trinity Contractors and was at work in the course

and scope of his employment for such employer at the

time of the accident in question on or about June 15,

1984. The parties further stipulate that the section of

busway or bus duct involved in the accident on or about

June 15, 1984 was designed, manufactured, and mar-

keted by the Westinghouse Electric Corporation.

The following facts are undisputed:

The bus duct described in plaintiff’s sixth amended

original petition is located in the machine room above

Terminal 3E and was manufactured by Westinghouse

1 Westingbouse Electric Supply Company, also referred to as

“WESCO’ in plaintiff’s sixth amended original petition, is an un-

incorporated business unit of Westinghouse Electric Corporation.

Additionally, “WESCO DALLAS,” as named in plaintiff’s sixth

amended original petition, is a branch office of Westinghouse Elec-

tric Supply Company. Neither WESCO Dallas nor Westinghouse

Electric Supply Company are independent corporate entities. Thus,

each of the claims asserted in plaintiff's sixth amended original

petition are claims against Westinghouse Electric Corporation.

13a

during 1972-1973. The installation of the bus duct was

substantially completed by Ling Oliver O’Dwyer Electric,

Inc., on or prior to January 31, 1974, which is in excess

of ten years prior to the initiation of this action.

DISCUSSION

Defendant Westinghouse claims that plaintiff’s lawsuit

is barred by the Texas Statute of Repose which is codi-

fied at Texas Civil Practice & Remedies Code § 16.009.

Section 16.009 provides, in relevant part, as follows:

(a) A claimant must bring suit for damages for a

claim listed in Subsection (b) against a person who

constructs or repairs an improvement to real prop-

erty not later than ten (10) years after the substan-

tial completion of the improvement in an action aris-

ing out of a defective or unsafe condition of the real

property or a deficiency in the construction or repair

of the improvement.

In its motion for summary judgment, Westinghouse re-

lies on Rodarte v. Carrier Corporation, 786 S.W.2d 94

(Tex. App.—El Paso 1990, n.w.h.) for the proposition

that manufacturers of products affixed to realty are per-

sons who construct or repair improvements to real prop-

erty, within the meaning of the Statute of Repose. In

Rodarte, the plaintiff was attempting to repair a heater/

air conditioning unit, designed, manufactured and mar-

keted by the Carrier Corporation. In the process, plain-

tiff was electrocuted and his heirs brought suit for wrong-

ful death alleging that “design and marketing defects

were the producing cause of his death.” Jd. at 95. There

was no dispute that the unit had been manufactured and

installed more than 10 years before the suit was filed.

In its defense, Carrier relied upon the Statute of Repose.

The plaintiff in Rodarte argued that the statute should

not apply to Carrier because Carrier was a manufacturer

and not the installer or servicer of the unit. The plaintiff

——

l4a

also argued that the unit was merely a “component part

of a greater system and was not in itself an improve-

ment.” The Court, however, rejected plaintiff's argu-

ments stating: “|t}he statute only requires that the par-

ticular item in question be “‘an improvement to real

property.’ Referring to Dubin v. Carrier Corporation,

731 S.W.2d 651 (Tex. App.—Houston [1st Dist.] 1987,

no writ), the Court in Rodarte, reiterated that an “im-

provement” comprehends all additions and betterments

to the freehold. Rodarte 786 S.W.2d at 95.

Describing the subject heating cooling unit, the Court

in Rodarte stated that ‘“{it] is permanently connected

to the premises by its connection to the duct work and

is blocked into a corner of a building by other units which

are permanently attached to the structure.” Jd. at 96.

In the case at bar, the Court finds from the evidence

before the Court, as established in the uncontroverted

affidavits of James L. Mertz and Robert G. Towne, that

the bus duct was an improvement as contemplated by

Section 16.009. Stated differently, the bus duct in ques-

tion was an addition and betterment to the freehold of

Terminal 3E. See Dubin v. Carrier Corporation, 731

S.W.2d 651. In the aforementioned affidavits, both Mertz

and Towne state that the bus duct was “permanently

affixed within the structure housing Terminal 3E.” The

Court finds that the bus duct, though part of an overall

electrical system, was permanently affixed to the system

and became an improvement to real property. Plaintiff

provides no controverting evidence that the bus duct is

not an improvement. Plaintiff merely argues that the

bus duct should be considered a component part to the

overall electrical system and should therefore not be en-

titled to protection under Section 16.009. The Court,

however, finds pursuant to Rodarte, that the distinction

between component parts are not important for the

Court’s determination of whether the instant bus duct

is an improvement to real property under 16.009.

15a

Plaintiff's alternative argument is that Section 16.009

does not operate to exclude those causes of actions which

are premised on inadequate warning and defective de-

sign. Although it stated in dicta, the Court in Rodarte,

specifically addressed this issue. There the Court stated

that the “statute applies to an action arising out of a

defective or unsafe condition in the construction of the

unit and all of the claims against the manufacturer fall

within those provisions of the statute.” Jd. The plaintiff

correctly points out that this Court need not follow opin-

ions of intermediate appellate courts when the federal

district court has reason to believe that the highest ap-

pellate court of the state in which it sits would decide

the issue at hand differently than previously decided by

the intermediate appellate courts. See Farina v. South-

western Beil Media Inc., 658 F. Supp. 826, 828 n.1 (S.D.

Tex. 1987). In Farina, the Court stated in note 1 that

the “Federal Courts are not bound by the rulings of in-

termediate Texas appeals courts but must make an Ervie-

guess and rule as they believe that the Texas Supreme

Court would rule. 7d. In light of Farina, the Court finds

that it is reasonable to believe that the Texas Supreme

Court would fashion relief in the same manner as the

court in Rodarte.

In summary, the Court finds that the bus duct is an

improvement under Section 16.009 of the Texas Civil

Practice and Remedies Code. The Court further finds

that actions brought against manufacturers for alleged

violations of inadequate warning and defective design are

contemplated by the application of Section 16.009. The

Court further finds that there exists no genuine issue

of material fact and summary judgment is therefore ap-

propriate. Accordingly, the Court GRANTS defendant’s

motion for summary judgment as to all claims asserted

by plaintiff against defendant Westinghouse and _ its

wholly owned subsidiaries. Plaintiff shall take nothing

by this lawsuit and each party shall bear their own

l6a

costs. A judgment consistent with this opinion will be

executed herewith.

Signed this 7th day of February, 1991.

s’ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

17a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No, 4-89-44-E

MARK BARNES

vs.

WESTINGHOUSE ELECTRIC CORPORATION, WESTINGHOUSE

ELECTRIC SUPPLY COMPANY and/or Wesco DALLAS

and/or WESCO, a division of or wholly-owned subsid-

lary of WESTINGHOUSE ELECTRIC CORPORATION

JUDGMENT

| Filed Feb. 8, 1991]

This action came on for decision on defendants’ motion

for summary judgment before the Court, Honorable

Eldon B. Mahon, U.S. District Judge, presiding, and the

issues having been duly considered and an opinion having

been rendered, it is ORDERED and ADJUDGED that

plaintiff take nothing by his lawsuit and that the parties

bear their own costs of action.

Signed this 7th day of February, 1991.

/s/ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

18a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4-89-44-E

MARK BARNES

VS.

WESTINGHOUSE ELECTRIC CORPORATION, WESTINGHOUSE

ELECTRIC SUPPLY COMPANY and or Wesco DALLAS

and or WESCO, a division of or wholly-owned subsid-

iary of WESTINGHOUSE ELECTRIC CORPORATION

ORDER

| Filed Nov. 21, 1990]

The Court now considers plaintiff Mark Barnes’ motion

for rehearing on motion to remand to which the defend-

ants Westinghouse Electric Corporation, Westinghouse

Electric Supply Company, Wesco Dallas, and Wesco, a

division of or wholly-owned subsidiary of Westinghouse

Electric Company, have responded. After a thorough

review of the issues and applicable law, the Court makes

the following determination.

This case was originally filed in the 48th Judicial Dis-

trict Court of Tarrant County, Texas in 1985. In his

original petitions in state court, plaintiff sued various

non-diverse defendants. In December 1988 all non-diverse

defendants were dismissed from the lawsuit and plaintiff

filed his sixth amended petition which created diversity

19a

of citizenship for the first time. On or about January 12,

1989, Westinghouse removed the above-captioned cause

to this Court. Thereafter, on January 25, 1989, plaintiff

filed his motion for remand, which is the subject of the

plaintiffs instant motion for rehearing filed on Septem-

ber 21, 1990.

In his motion for rehearing, plaintiff argues that this

Court lacks subject matter jurisdiction over this cause as

a result of the removal statute set out in the Judicial

Improvements and Access to Justice Act, Public Law No.

100-702, 102 Stat. 4642, which is found in the amended

28 U.S.C. § 1446(B). Defendants argue that the amended

removal statute does not create a jurisdictional requisite,

but rather a procedural one. Defendants further argue

that the plaintiff waived his right to assert the proce-

dural defect when plaintiff waited some 20 months to

file this instant motion to remand.

1988 AMENDMENT-SECTION 1446(b)

Prior to the 1988 amendment, Section 1446(b) pro-

vided for removal within 30 days after receipt by the

defendant of an amended pleading or other paper that

gave defendant notice that the case is removable. There-

fore, removal under the previous statute could occur at

any time as long as there existed a basis for removal.

The amendment in 1988 to Section 1446(b), however,

limited a party’s right to removal of those actions whose

jurisdiction is based solely on diversity. As amended by

the 1988 Act, 28 U.S.C. § 1446(b) reads (in pertinent

part with emphasis supplied) :

If the case stated by the initial pleading is not re-

movable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended plead-

ing, motion, order or other paper from which it may

first be ascertained that the case is one which is or

has become removable, except that a case may not

20a

be removed on the basis of jurisdiction conferred

by section 1332 of this title more than 1 year after

commencement of the action.

Plaintiff argues that the new 1 year limitation acts as

a non-waivable jurisdictional bar. In support of his prop-

osition, plaintiff cites to Foiles By Foiles v. Merrell Nat.

Laboratories, 730 F. Supp. 108 (N.D.IIl. 1989). In Foiles,

the case was removed on June 22, 1988 following the

dismissal of the non-diverse defendants, and the plaintiff

filed for remand on August 25, 1989, some 60 days later.

Notwithstanding the plaintiff’s failure to argue that the

new amendment created jurisdictional limitations, the

Foiles court held that the 1 year limitation is a juris-

dictional one and remanded the case to state court.

At opposite with the holding in Fovtles is the holding in

Leidolf By Warshafsky v. Eli Lilly and Co., Inc., 728 F.

Supp. 1383 (E.D.Wis. 1990). In Leidolf, the court spe-

cifically found that the removal defects arising from

§1446(b) are procedural and not jurisdictional. The

Leidolf court noted that where a case is improperly

removed under 1446(b), the plaintiff may waive his right

to remand if he fails to comply with the 30 day provision

of § 1447(c). As amended by the 1988 Act, 28 U.S.C.

$ 1447(c) reads in pertinent part as follows:

‘c) A motion to remand the case on the basis of any

defect in removal procedure must be made within

30 days after the filing of the notice of removal

under section 1446(a).

Explaining its analysis, the court in Leidolf cited to

Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir.

1980, where the court stated that “[{t]he statutory time

limit for removal petitions is merely a formal and modal

requirement and is not jurisdictional.” !

1 See also Gray v. Moore Business Forms, Inc., 711 F. Supp. 543

(N.D.Cal. 1989). See generally Wilson v. General Motors Corp.,

888 F.2d 779 (11th Cir. 1989).

21a

Having no binding authority on this issue, this Court

must make its determination from analogy to the re-

moval procedures prior to the 1988 amendment. The

majority of the cases involving removal prior to the 1988

amendment agree that the removal procedure restrictions

and limitations are procedural in nature and do not

create jurisdictional requisites. Therefore, this Court

finds that the 1988 amendment to § 1446(b) does not

create a jurisdictional requirement barring all actions in

the district court where the case was removed pursuant

o § 1332 and remained in state court for over one year.

Failure to comply with the 30 day requirement imposed

by § 1447(c) creates a waiver of the plaintiff’s rights

to object to any removal defects brought upon by defend-

ant’s failure to comply with. § 1446(b).

Defendants, however, do not have clean hands in this

case. At the time of removal, defendants removed this

cause contrary to the newly established removal proce-

dures under § 1446(b). On the other hand, plaintiff

waited nearly 20 months to bring this motion to rehear

plaintiff’s motion to remand. Plaintiff’s instant motion,

however, is not a “rehearing,” but rather a new motion

to remand, stating new reasons why this Court should

remand this cause to state court." The Court has reviewed

its previous ruling on plaintiff’s original motion to re-

mand and finds no error.

Plaintiff’s hands are likewise dirty as a result of failing

to assert the proper grounds for remand in January 1989

and then waiting 20 months to bring this renewed motion

to remand. Since the determination of plaintiff’s original

motion to remand in February 1989, both parties have

2 See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.

1987) ; Grubbs v. General Electric Corp., 405 U.S. 699 (1972).

3JIn his original motion to remand, plaintiff argued that because

the defendants took advantage of the state forum for some three

and one half years, defendants should be barred from removing

the cause to the federal court on the eve of trial.

22a

engaged in extensive preparation of this lawsuit. De-

fendants filed a motion for summary judgment on June 7,

1990 and plaintiff responded. The Court held a pretrial

conference on July 16, 1990 on this cause and heard

informal arguments on defendants’ motion for summary

judgment. The final reply on the motion for summary

judgment was filed on July 27, 1990. It was not until the

Court began to deliberate on defendants’ motion for sum-

mary judgment that plaintiff renewed his motion to re-

mand. Plaintiff argues that neither party had the benefit

of the amendment to § 1446(b) as it had not made its

way into the libraries of the respective law firms. While

this is probably true, the Court cannot enforce rules and

laws only upon those that have read them. Once the

amendment became enacted, all parties were given notice.

While defendants had notice of the amendment, plaintiff's

failure to comply with § 1447(c) prevents this Court from

curing such defect. The removal defect is not a jurisdic-

tional defect, and because this Court would have had

jurisdiction over this matter had it been originally filed

in this Court, the Court must deny plaintiff’s renewed

motion to remand.

Accordingly, the Court DENIES plaintiff’s motion for

rehearing on motion to remand. Since the Court stayed

its ruling on defendants’ motion for summary judgment

and said motion is now ripe for ruling, an opinion will be

forthcoming.

Signed this 20th day of November, 1990.

s’ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

eae ened

23a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4-89-44-E

MARK BARNES

vs.

WESTINGHOUSE ELECTRIC CORPORATION, ei al.

ORDER

[Filed Feb. 10, 1989}

The Court has agreed to consider Plaintiff Mark Barnes’

petition for removal on an expedited basis. The petition

was joined on February 6, 1989, and the matter is ripe

for resolution.

Based on the removal record developed in this cause,

the Court finds that Defendant Westinghouse Electric

Corporation timely removed this action from state court

when the last nondiverse defendant was dismissed and

complete diversity of citizenship was created between

the remaining plaintiff and defendant. After diversity

was complete, Westinghouse removed this action within

the 30 day period prescribed by the removal statute,

title 28, section 1446 of the United States Code.

Prior to the time this action became removable, a joint

motion was filed by the defendants, including Westing-

house, in state court for an independent medical exami-

nation of Plaintiff Barnes. Barnes countered in state

24a

court with a motion for protective order. After this case

became removable, a hearing was held in the state court

on the plaintiff's motion for protective order and West-

inghouse’s request for an independent medical examina-

tion. Westinghouse’s appearance at this discovery hear-

ing was preliminary in nature. Nothing in the record

before this Court indicates that Westinghouse’s appear-

ance at the discovery hearing constituted a waiver of

Westinghouse’s right to remove or an agreement on the

part of Westinghouse to submit the merits of case to the

state court for a determination. Short of proceeding to

an adjudication of the case on its merits, defensive actions

in state court do not waive the defendant’s right to re-

move. See, e.g., Gore v. Stenson, 616 F. Supp. 895, 897-98

(S.D. 1984) (“An intent to waive the right to remove...

must be clear and unequivocal, and the waiving party’s

action must be inconsistent with his right to remove.’’).

Accordingly, Plaintiff Barnes’ motion to remand is

DENIED.

Signed this 9th day of February, 1989.

/s/ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

25a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1351

MARK BARNES,

Plaintiff-A ppellant,

versus

WESTINGHOUSE ELECTRIC CORPORATION, et al.,

Defendants-A ppellees.

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 6/8/92, 5 Cir., 1992)

(Filed July 8, 1992)

Before DAVIS, JONES, and EMILIO M. GARZA,

Circuit Judges.

PER CURIAM:

() The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc, (Federal Rules of Appellate Pro-

cedure and Local Rule 35) the Suggestion for Rehearing

En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Emilio M. Garza

United States Circuit Judge

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.