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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 999

## 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

iv

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 -

Vv

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

|

vi

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

2

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.

ae

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:

(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). 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

3

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

4

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

~

oO

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

a

6

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).

7

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

S

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.

|

9
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

10

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

11

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

12

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.

ee

13

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,

14

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).

15

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

16

{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

17

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) ).

18

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,

19

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

a

20

CONCLUSION

W

*

i

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

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 91-1351

MARK BARNES,
Plaintiff-A ppellant,

V.

WESTINGHOUSE ELECTRIC CORPORATION, et al.
Defendants-A ppellees.

b

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.

3a

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.

II
A

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

4a

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

5a

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”),

el

6a

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).

7a
B

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.

8a

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.

9a

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

ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1388%3A1. Public record. Not legal advice.