Petition for Writ of Certiorari — Rendon v. Excel Corp.

Supreme Court, U.8.

} riLagpD

97-36 JUN 1 31997

No. Uric’ OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

In re: EXCEL CORPORATION, CARGILL, INC.

FREDDIE FRANKLIN; STEVE STEFFE,

Vv.

EFREN RENDON, et al.,

Petitioners.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Kevin Glasheen

FADDUOL, GLASHEEN & VALLES, P.C.

1115 Broadway

Lubbock, Texas 79401

(806) 763-9377

Attomeys for Petitioners

‘Eh fee

QUESTIONS PRESENTED FOR REVIEW

WHETHER A UNITED STATES COURT OF

APPEALS EXCEEDS ITS JURISDICTIONAL

BOUNDARIES BY REVIEWING A

CONSOLIDATION AND REMAND ORDER

ISSUED BY A DISTRICT COURT WHEN THE

DISTRICT COURT GIVES A LACK OF SUBJECT

MATTER JURISDICTION AS ONE OF ITS

REASONS FOR REMAND.

WHETHER A UNITED STATES DISTRICT

COURT’S ORDER OF CONSOLIDATION MADE

SPECIFICALLY FOR THE PURPOSE OF

REMAND IS REVIEWABLE DESPITE THE FACT

THAT THE ORDER FOR REMAND IS NOT

REVIEWABLE.

LIST OF ALL PARTIES

PETITIONERS:

l. Efren Ren

Mr. Rendon is Plaintiff at the trial court level in

case No. B-94-313, Rendon v. Excel Corporation,

Cargill, Inc., and Freddie Franklin.

2. Ramon Trevizo

Mr. Trevizo is Plaintiff at the trial court level in

case No. B-94-321, Trevizo v. Excel Corporation,

Cargill, Inc., and Freddie Franklin, and in case No. B-

94-322, Trevizo v. Excel Corporation, Cargill, Inc.,

and Freddie Franklin.

3. Roberto Moreno

Mr. Moreno is Plaintiff at the trial court level in

case No. B-94-323, Moreno v. Excel Corporation,

Cargill, Inc., and Steve Steffe.

4. Alfredo Quezada, Charles White, Oscar Mendez, Mary

Morales, Alfredo Vuittonet, Phiilip Riley, Thongkhoun

Vongsaphay, Geralindine Marlow, Maria Grado, Nona

Acy, Olga Mills, Mark Livar, Rudy Raygoza, Carmen

Cuellar, Ben Wallace, Martin Ellis, Sixto Reveles,

Guadalupe Bautista, Jerry McClarty, Mary Alvarez,

Jesse Mendoza, Gene Hemandez, Elio Mata, Anthony

Ramsey, Alex Bonney, Mary Mallett, Blanca Rios,

Lupe Ramirez, Manuel Alarcon, Fermin Barrera,

ee

Santos Briones, Oscar Aparicio, Martha Elena Chavez,

Romulc Avina, Benny Dunn, Gerardo Camarillo,

Gustavo Garcia, Bertha Carrera, Rudy Gonzales,

Manuel Contreras, Gumaro Chavarria, Ramon

Enriquez, Eddie Hernandez, Carlos Garza, Esperanza

Lara, Jim Nabours, George A. Richardson, Jr.

Juan Meza, Alfredo Vara, Guadalupe Robledo, Edith

Ortiz, Jonathan Lopez, Eligio Quantanilla, Silvino

Calderon, Dianna Westbrook, Nicholas Sanchez,

Arthuro Silva, Ray Williams, Jacque Williams,

Guadalupe Castillo, Carmela Sifuentes, Macario

Ojeda, Octavio Chavez and Alberto Rodriquez.

The above-named persons are Plaintiffs at the

trial court level in case No. B-95-26, Quezada, et al. v.

Excel Corporation and Cargill, Inc.

Gloria Rhoads, Linda Collins, Jose Luis Marquez,

Miguel Angel Hernandez, Agustin Lara, Daniel

Mendoza, Lawanda Hunt, Teddy Gutierrez, Jesse

Tarango, Marixa Sotelo, Irma Lomas and Margarita

Torres.

The above-named persons are Plaintiffs at the

trial court level in case No. B-95-37, Rhoads, et al. v.

Excel Corporation and Cargill, Inc.

Javier Arpero, Bobby Darty, Andres de la Rosa, Narcy

Espinoza, Selma Guzman, Leon Hemandez, Jr., Maria

Teresa Nieto, Horacio Nunez, John Snell, Gumercindo

Villa and Wanda Yado.

The above-named persons are Plaintiffs at the

trial court level in case No. B-95-115, Arpero, et al. v.

Excel Corporation and Cargill, Inc.

7. Santiago Morales

Mr. Morales is Plaintiff at the trial court level

in case No. B-95-169, Morales v. Excel Corporation

and Cargill, Inc.

RESPONDENTS:

l. Excel Corporation

2. Cargill, Inc.

The above-named entities are Defendants at the

- tnial court level in each of the eight cases that are the

subject of this Writ of Certiorari.

3. Freddie Franklin

Mr. Franklin is a Defendant at the trial court

level in case No. B-94-313, Rendon v. Excel

Corporation, Cargill, Inc., and Freddie Franklin, case

No. B-94-321, Trevizo v. Excel Corporation, Cargill,

Inc., and Freddie Franklin, and in case No. B-94-322,

Trevizo v. Excel Corporation, Cargill, Inc., and

Freddie Franklin.

4. Steve Steffe

Mr. Steffe is a Defendant at the trial court level

in case No. B-94-323, Moreno v. Excel Corporation,

Cargill, Inc., and Steve Steffe.

-iv-

ATTORNEYS FOR PETITIONERS:

l. Kevin Glasheen

Fadduol & Glasheen, P.C.

1115 Broadway

Lubbock, Texas 79401

2. Frank L. Branson

George (Tex) Quesada

The Law Offices of Frank Branson, P.C.

4514 Cole Avenue, 18" Floor

Dallas, Texas 75205

3. Frank Costilla

Law Office of Frank Costilla

5" East Elizabeth St.

Brownsville, Texas 78520

ATTORNEYS FOR PARTY RESPONDENTS:

l. Robert M. Cohan

Scott M. McElhaney

COHAN, SIMPSON, COWLISHAW &

WULFF, L.L.P.

2700 One Dallas Centre

350 North St. Paul Street

Dallas, Texas 75201-4283

- ATTORNEYS FOR CARGILL, INC.

2. Robert L. Craig

CRAIG, TERRILL & HALE, L.L.P.

P.O. Box 1979

Lubbock, Texas 79408-1979

ATTORNEYS FOR EXCEL CORPORATION,

FREDDIE FRANKLIN and STEVE STEFFE.

3. Rene O. Oliveira

ROERIG, OLIVEIRA & FISHER

Suite 9, 855 W. Price Road

Brownsville, Texas 78520

LOCAL COUNSEL FOR CARGILL, INC., EXCEL

CORPORATION, FREDDIE FRANKLIN, and

STEVE STEFFE

-Vi-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................... i

Rae OP ALL PARTON ...... 2... ec ccc ccc ccee T

WOME I CPTI ooo 5 5 oo bobs cee vnneanee a. vii

TABLE OF AUTHORITIES ........................ ix

STATEMENT OF JURISDICTIONAL GROUNDS .____. l

RELEVANT STATUTORY PROVISIONS .........___. 2

STATEMENT OF THECASE ....................... 3

I. THE COURT OF APPEALS REVIEWED A

CONSOLIDATION AND REMAND ORDER IN

DIRECT CONFLICT WITH RELEVANT

DECISIONS OF THIS COURT ................ 5

A. Appellate review of Remand Orders is an

important Federal Question .............. 5

B. Relevant decisions of this Court and others

demonstrate that the District Court’s Order of

Remand was not reviewable because

lack of subject matter jurisdiction was one of

-vii-

the reasons given by the District Court for its

SOT ID oko o-g5'c hs yes awd cen Ces 6

C. A United States District Court’s Order of

Consolidation made specifically for the

purpose of remand is not reviewable ....... 8

CONCLUSION AND PRAYER FOR RELIEF .......... 10

SP oA ks se 6 6a oes RA a a 13

U.S. District Court For the Southern District of Texas

Order granting Plaintiffs’ Motion to Consolidate,

Motion for Remand and for Ruling of Pending Motions

to Remand with attached Findings of Fact and

Conclusions of Law (Oct. 23, 1996) ............ 14

U.S. District Court For the Southern District of Texas

Order adopting the Order of Remand of the Honorable

Fidencio Garza, Jr. (Nov. 21, 1996)............ 24

Fifth Circuit Opinion regarding Petition for Wnt of

Mandamus to the U.S. District Court for the Southern

District of Texas filed Feb.19, 1997 in Jn re: Excel

Corp.; Cargill, Inc., Freddie Franklin;

Steve Steffe ..........0 0005. ih GO RP ee 30

Fifth Circuit decision denying Petitioners’ Petition for

Rehearing and Suggestion for Rehearing en Banc filed

DO So Ee hi SaRER eed on cee eae ees es 40

-Vili-

TABLE OF AUTHORITIES

Page

FEDERAL STATUTES

i 2,3

28 U.S.C. § 1447(c\d) .............. 2,3,4,6,7,8,9

UNITED STATES SUPREME COURT CASES

Chemical Waste Management, Inc. v. Hunt,

rs 1]

Gravitt v. Southwestern Bell Telephone Co.,

Se ee) 5,6,7,8

Mansfield, Coldwater & Lake Michigan Railway Co.

v. Swan,

111 U.S. 379, 384 (1884) ...0.. 4

New York City Transit Auth. v. Beazer,

itd i) 11

Quackenbush v. Allstate Insurance Co.,

116S. Ct. 1712 (1996) ......0000 00 37

Things Remembered, Inc. v. Petrarca,

1168S. Ct. 494(1995) 00. » We

Thermtron Products, Inc. v. Hermansdorfer,

Es 5,7

United Mine Workers of Am., District 12 v.

Illinois State Bar Ass'n,

ee 1]

-ix-

United States v. Huckabee,

ee ke kee en axes tawasus tes 4

Volvo of America Corp. v. Schwarzer,

of LS a ee Ere 5,8

Waco v. United States Fidelity and Guaranty Co.,

ee ee ee ee eee 10

FEDERAL CASES

Linton v. Airbus Industries,

30 F.3d 592 (5" Cir. 1994) .................... 7

In re Merrimack Mutual Fire Insurance Co.,

587 F.2d 642 (5" Cir. 1978) .................. 7

Tillman v. CSX Transportation Inc.,

929 F.2d 1023 (S" Cir. 1991) .............. 8,9,10

In re Weaver,

610 F.2d 335 (5" Cir. 1980) ................. 7,8

STATEMENT OF JURISDICTIONAL GROUNDS

On September 26, 1996, Petitioners filed a “Motion to

Consolidate, Motion for Remand and for Ruling on Pending

Motions to Remand.” After reading Respondent’s Response,

the Magistrate Judge entered an Order and made F indings of

Fact and Conclusions of Law on October 23, 1996. The

Respondents filed Objections to the Magistrate’s Order and

Findings, and on November 21, 1996, the District Judge

entered an order which adopted the Magistrate’s order and

findings, and set forth reasons for remand which included lack

of subject matter jurisdiction.

Respondents complained of the United States District

Court’s order consolidating the cases and remanding the

consolidated case to state court. The Respondents filed a

Petition for Writ of Mandamus requesting that the Fifth Circuit

Court of Appeals order the United States District Court to

withdraw its order of remand and consolidation. The Fifth

Circuit ruled on the Petition for Writ of Mandamus on

February 19, 1997, vacating the United States District Court’s

original orders for remand and consolidation.

Petitioner subsequently brought a Petition for Review

and a Suggestion for Rehearing En Banc, raising the

jurisdictional issue of whether the Fifth Circuit had the

jurisdiction to review the District Court’s remand order. The

Petition for Rehearing and Suggestion for Rehearing En Banc

were denied on March 17,1997.

ilu

According to 28 U.S.C. § 1254, the Supreme Court of

the United States has jurisdiction in this matter. Title 28

U.S.C. § 1254 states that a case in the courts of appeals may be

reviewed by the Supreme Court by granting a Wnt of

Certiorari to any party to a civil case, before or after rendition

of any decree; such is the case at bar.

RELEVANT STATUTORY PROVISIONS

28 U.S.C. § 1445(c):

(c) A civil action in any State court arising under the

workmen’s compensation laws of such State may not be

removed to any district court of the United States.

28 U.S.C. § 1447(c)(d):

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

defect 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

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.

(d) An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a case to the

State court from which it was removed pursuant to

section 1443 of this title shall be reviewable by appeal or

otherwise.

STATEMENT OF CASE

The Respondants operate two meat-packing plants in

the Texas Panhandle. Each Petitioner was employed as a

laborer in one of the plants. Each Petitioner has filed a lawsuit

against Excel Corporation, and its parent corporation Cargill,

Incorporated. Several of the Petitioners named a non-diverse

individual Defendant, either Steve Steffe or Freddie Franklin.

Each state court action is a claim for personal injuries and

retaliation or wrongful discharge. |

After being removed to Federal Court, the District

Court for the Southem District of Texas, Brownsville Division

consolidated all the cases and remanded the consolidated case

to state court. Among its conclusions, the District Court found

that there was ne Federal Question, no Diversity Jurisdiction,

and that the removal of the claims was prohibited under 28

U.S.C. § 1445(c), a provision which forbids removal of civil

actions arising under state worker’s compensation laws. After

granting Respondent’s Writ of Mandamus, the Fifth Circuit

Court of Appeals evaded the well-settled prohibition against

review of remand orders by finding that the remand order was

“.

based “solely” on § 1445(c), effectively ignoring all other

District Court conclusions.

This cause should never have been in the federal

system as no federal jurisdiction ever existed. More

importantly, Petitioners contend that the Fifth Circuit Court of

Appeals had no jurisdiction to review the United States

District Court’s remand order based on 28 U.S.C. § 1447(d).

This Court, the Supreme Court of the United States,

traditionally exercises jurisdiction to review an appellate

court’s decision where the appellate court erroneously assumed

jurisdiction.

Usually where a court has no jurisdiction of a case, the

correct practice is to dismiss the suit, but a different

rule necessarily prevails in an appellate court in cases

where the subordinate court was without jurisdiction

and has. . . improperly decreed affirmative relief to a

claimant.

Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan,

111 U.S. 379, 384 (1884). See also, United States v.

Huckabee, 16 Wall. 414 (1872). In the case at bar, the Fifth

Circuit Court of Appeals erroneously assumed jurisdiction to

review the United States District Court’s remand order after

the United States District Court affirmatively decreed that no

federal jurisdiction existed. Therefore, based on well-

established case law, this Court has jurisdiction to review the

Fifth Circuit’s decision in order to redress the Fifth Circuit’s

improper exercise of jurisdiction.

eahahediiatiel ate ota an see ea

I. THE COURT OF APPEALS REVIEWED A

CONSOLIDATION AND REMAND ORDER IN

DIRECT CONFLICT WITH RELEVANT

DECISIONS OF THIS COURT.

A. Appellate review of Remand Orders is an

important Federal Question.

This case commands the attention of the United States

Supreme Court because the actions of the Fifth Circuit Court of

Appeals interjected into the case the important federal question

of whether a remand order is subject to review under these

circumstances.

This Court has heard numerous cases regarding

appellate review of remand orders. Quackenbush v. Allstate

Ins. Co., 116 S. Ct. 1712 (1996); Things Remembered, Inc. v.

Petrarca, 116 S. Ct. 494 (1995); Gravitt v. Southwestern Bell

Telephone Co., 430 U.S. 723 (1977); Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336 ( 1976); Volvo of

America Corp. v. Schwarzer, 429 U.S. 1331 (1976). The

number of cases this Court has heard regarding appellate

review of remand orders affirmatively demonstrates the

importance of this issue as a Federal Question.

Nothing tempts a court to exercise jurisdiction more

than being told it has no power to act. This Court has told the

Fifth Circuit in the past not to review an order of remand based

.%

on lack of subject matter jurisdiction, however this present

action represents an attempt to carve out an exception to the

rule. Gravitt v. Southwestern Bell Telephone Co., 430 US.

723 (1977). The rule prohibiting the review of remand orders

is meaningless if the circuit courts can side step the rule.

In the case at bar, appellate review of the remand order

is governed by several federal statutes, including 28 U.S.C.

§1445 and § 1447. The uniform interpretation and

enforcement of these federal statutes is paramount for the

uniform application of federal law. By granting certiorari, this

Court can remedy the dangerous precedent established by the

Fifth Circuit regarding the important federal question of

remand order review and continue to insure the uniform

application of federal law.

B. Relevant decisions of this Court and others

demonstrate that the District Court’s Order

of Remand was not reviewable because lack

of subject matter jurisdiction was one of the

reasons given by the District Court for its

Order of Remand.

Appellate jurisdiction to review a district court’s order

of remand is governed by 28 U.S.C § 1447(d). Section

1447(d) declares that “[a]n order remanding a case to the State

court from which it was removed is not reviewable on appeal

or otherwise. .. .” 28 U.S.C. § 1447(d). The Supreme Court

of the United States has coupled this statutory provision with

-6-

the grounds specified :in § 1447(c), absolutely barring all

appellate review of remand orders based on lack of subject

matter jurisdiction by appeal, mandamus, or otherwise. See 28

U.S.C. § 1447(c); See also, Quackenbush v. Allstate Ins. Co.,

116 S. Ct. 1712, 1718 (1996); Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336 (1976); Gravitt v. Southwestern

Bell Telephone Co., 430 U.S. 336 (1976); Linton v. Airbus

Industries, 30 F.3d 592 (5* Cir. 1994). However, a narrow

exception to this absolute bar of appellate review of remand

orders has emerged when the remand order is explicitly outside

the realm of 28 U.S.C. § 1447(c). See, Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336 ( 1976); Things

Remembered, Inc. v. Petrarca, 116 S. Ct. 494 (1995); In re

Merrimack Mutual Fire Ins.. Co., 587 F.2d 642, 647 (5" Cir.

1978).

Additionally, even if a remand order is conspicuously

void of any reference to § 1447(c), “the order is unreviewable

if, by substantially similar language, it is evident that the court

intends to remand for the grounds recited in § 1447(c).”

Things Remembered, Inc. v. Petrarca, 116 S. Ct. at 494.

Courts have consistently held that any substantive adherence to

§ 1447(c), even in the absence of a specific reference, is

sufficient to preclude review. See In re Weaver, 610 F.2d 335,

337 (S® Cir. 1980) (denying writ of mandamus despite the

absence of specific § 1447(c) words, when the district court

based remand upon its belief that jurisdiction was lacking). See

also Merrimack, 587 F.2d at 647-48 (holding that the District

Court’s order, while not referring to § 1447(c) by number,

7

stated as one of its grounds no jurisdiction, thereby precluding

review by mandamus).

Similarly in the case at bar, the United States District

Court, without specifically citing § 1477(c), expressly

concluded remand was proper due to lack of subject matter

jurisdiction. If a district court cites lack of subject matter

jurisdiction as just one of its grounds for remand, the entire

remand order is sufficiently cloaked under § 1447(c) and

receives “absolute immunity from review.” Tillman v. CSX

Transp. Inc. 929 F.2d 1023, 1028 (5" Cir. 1991) (citing

Gravitt, 430 U.S. at 723-24; Volvo of America Corp. v.

Schwarzer, 429 U.S. 1331, 1333, (1976); In re Weaver, 610

F.2d at 337). Therefore, because the District Court explicitly

cited lack of subject matter jurisdiction as one of the reason for

remand, the Fifth Circuit had no jurisdiction to review the

Remand Order.

td A United States District Court’s Order of

Consolidation made specifically for the

purpose of remand is not reviewable.

Since the Fifth Circuit lost jurisdiction over the remand

order because it was remanded, in part, for lack of subject

matter jurisdiction, there was no way for the Fifth Circuit to

review the accompaning consolidation order. Because these

two orders were collateral with one another, they were

inseparable for the purpose of review.

aap neta ee

oe

The United States District Court consolidated all these

cases for the purpose of remanding them all in one order. The

District Court’s Finding of Facts and Conclusions of Law were

made for no other reason than for the purpose of determining

whether or not to remand these causes back to state court. All

of these cases naturally have different factual scenarios,

different remand schedules, and some even have additional

defendants, but the factual reason why these causes were

consolidated remains the same: remand. Remand was the

singular purpose for consolidating all of these cases, all of these

cases are state law tort claims with no federal jurisdiction

which, for that reason alone, required that they be remanded.

In vacating the United States District Court’s original

remand order, the Fifth Circuit looked to the preceding

consolidation order and found it improper. The Fifth Circuit

found that the District Court abused its discretion by

consolidating the cases for purposes of determining remand.

After determining that the consolidation order was improper,

the Fifth Circuit used the improper consolidation order as

leverage for assuming jurisdiction over the remand order. The

District Court reasoned that because the consolidation order

was improper, the subsequent remand order was also improper

and therefore reviewable.

In Tillman v. CSX Transportation, Inc., 929 F.2d 1023

(S" Cir. 1991), the District Court allowed the joinder of an

additional defendant, and then remanded for lack of subject

matter jurisdiction. The Fifth Circuit found that review was

-9-

barred by U.S.C. 28 § 1447(d), and that it did not matter

whether the amended pleadings and joinder were proper. The

Fifth Circuit even held that it did not matter that the trial court

was mistaken in its belief that it lacked subject matter

jurisdiction and even emphasized its “complete inability to do

anything about the trial court’s joinder order, whether

interlocutory or final, because what we cannot review we

cannot by some juridical self-help get back to federal court.”

Id. at 1028. Where review of the District Court’s joinder order

for the purpose of remand was unreviewable in Tillman,

likewise in the case at bar, the District Court’s consolidation

order for the purpose of remand was also unreviewable.

Additionally, even if the consolidation order was

reviewable, it could not affect the remand order. See, 7i//man,

at 1026 (citing Waco v. United States Fidelity and Guaranty

Co., 293 U.S. 140 (1944). Both the Tillman and the Waco

courts held that the remand order for lack of subject matter

jurisdiction was not reviewable, even if related orders that

might form the basis for the remand were reviewable.

CONCLUSION AND PRAYER FOR RELIEF

The Fifth Circuit, through its judicial gyrations and

gymnastics, has failed to follow the clear, mandatory precedent

established by this Court and others in applying these Federal

Statutes. The Fifth Circuit has engaged in juridical self-help to

justify jurisdiction. This Court has previously granted certiorari

in cases where substantial conflicts with relevant decisions

-10-

exists. Chemical Waste Management, Inc. v. Hunt, 504 U.S.

334 (1992) (certiorari granted because “of the importance of

the federal question and the likelihood that it had been decided

in a way conflicting with applicable decisions of the Courts);

See also New York City Transit Auth. v. Beazer, 440 U.S. 568

(1979); United Mine Workers of Am. District 12 v. Illinois

State Bar Ass'n, 389 U.S. 217 (1967). The case as bar merits

this Court’s consideration because of the importance of the

issue in question and the manner in which the Fifth Circuit

deviated from the clear, mandatory precedent established by

this Court and others.

Additionally, the Fifth Circuit’s review of an

accompanying order of consolidation with remand, highlights

an important question of federal law that has not been, but

should be, settled by the United States Supreme Court. The

question of whether or not an accompanying order of

consolidation for the purpose of remand is reviewable even

though the remand order itself is not reviewable is a question

which this Court has never specifically addressed and deserves

consideration.

WHEREFORE, premises considered, Petitioners

respectfully request that this Court grant Petitioners’ Petition

for Writ of Certiorari and clarify the correct interpretation and

application of Federal Law.

sits

Respectfully Submitted,

FADDUOL, GLASHEEN & VALLES, P.C.

1115 Broadway

Lubbock, Texas 79401

(806) 741-0284

(806) 763-2146 Fax

Kevin Glasheen

Texas State Bar No. 08001510

-]2.

APPENDIX

-13.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

EFRAIN RENDON, §

V. § CA-B-94-3 13

EXCEL CORPORATION, § (1 Case)

et. al §

ROBERTO MORENO, §

V. § CA-B-94-323

EXCEL CORPORATION, § (1 Case)

et. al §

RAMON TREVIZO, §

V. § CA-B-94-321

EXCEL CORPORATION, § (1 Case)

et. al §

RAMON TREVIZO, §

V. § CA-B-94-322

EXCEL CORPORATION, § (1 Case)

et. al §

ALFREDO QUEZADA, §

et al §

V. § CA-B-95-26

EXCEL CORPORATION, § (64 Cases

et. al § consolidated)

GLORIA RHOADS, §

et al §

V. § CA-B-95-37

EXCEL CORPORATION, § (12 Cases

et. al § consolidated)

-14-

JAVIER ARPERO, §

et al §

V. § CA-B-95-115

EXCEL CORPORATION, § (11 Cases

et. al § consolidated)

SANTIGO MORALES §

V. § CA-B-95-169

EXCEL CORPORATION, § (1 Case)

et. al §

ORDER

On the 23™ day of October, 1996, came on to be heard

Plaintiffs’ Motions to Consolidate, Motion for Remand and for

Ruling on Pending Motions to Remand in the above-entitled and

numbered causes. After due consideration of Plaintiffs’ Motion,

the Court finds that Plaintiffs’ Motion to Consolidate, Motion for

Remand and for Ruling on Pending Motions to Remand should be

GRANTED. Attached to this Order are findings of fact and

conclusions of law.

IT IS THEREFORE ORDERED, ADJUDGED, and

DECREED that Plaintiffs’ Motion to Consolidate, Motion for

Remand and for Ruling on Pending Motions to Remand is

GRANTED.

IT IS FURTHER ORDERED, that the above-entitled and

numbered causes shall be consolidated under C.A. No. B-94-313.

-15-

IT IS FURTHER ORDERED, that the consolidated

cause be remanded to State Court.

SIGNED this 23" day of October, 1996.

nf Pidencin Coscia }

JUDGE PRESIDING

-16-

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

ALFREDO QUEZADA, et al., § CA-B-95-26

3

GLORIA RHOADES, et al., § CA-B-95-37

§

JAVIER ARPERO, et al., § CA-B-95-115

§

EFREN RENDON, § CA-B-94-313

§

ROBERTO MORENO, § CA-B-94-323

§

RAMON TREVIZO, § CA-B-94-321

§

RAMON TREVIZO, § CA-B-94-322

§

SANTIAGO MORALES § CA-B-95-169

Plaintiffs, §

§

Vs. §

5

EXCEL CORPORATION, §

et al., §

§

Defendants. § BROWNSVILLE, TEXAS

-]7-

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On this 23rd day of January, 1996, came on to be

considered Plaintiffs' Motion for Remand. After considering

the Motions, Briefs, Reply Briefs, Affidavits and arguments of

counsel, the Court finds that the Motion should be granted.

The Court makes the following findings of fact and

conclusions of law:

FINDINGS OF FACT

l. THE COURT FINDS THAT these cases were

originally filed in the State District Courts of Cameron

County and thereafter removed to this Court and

assigned the cause numbers as stated below. In

addition, each cause number consists of the said claims

of the stated number of Plaintiffs:

Cause No. CA-B-95-26

Alfredo Quezada, et al.

(64 cases consolidated; filed 2/3/95)

Cause No. CA-B-95-37

Gloria Rhoads, et al.

(12 cases consolidated; filed 3/3/95)

Cause No. CA-B-95-115

Javier Arpero, et al.

(11 cases consolidated; filed 7/20/95)

-18-

Cause No. CA-B-94-113

Efren Rendon

(1 case; filed 11/21/94)

Cause No. CA-B-95-169

Santiago Morales

(1 case; filed 10/13/95)

Cause No. CA-B-94-323

Roberto Moreno

(1 case; filed 12/9/94)

Cause No. CA-B-94-321

Ramon Trevizo

(1 case; filed 12/9/94)

Cause No. CA-B-94-322

Ramon Trevizo

(1 case; filed 12/9/94)

THE COURT FINDS THAT the Defendants timely

removed the actions. The Defendants allege Federal

Jurisdiction (based upon Federal Question) and

Diversity Jurisdiction (based upon claims of Fraudulent

Joinder). The claims of Fraudulent Joinder refer to the

joinder of Cargill, Inc., a corporate defendant, and to

various individual defendants, including Steve Steffe,

Mark Neill, Dave Stafford and Freddie Franklin, as

those individuals are named in the individual pleadings;

THE COURT FINDS THAT the above entitled cases

-19-

are consolidated for the purposes of considering

Plaintiffs Motions to Remand, which are timely filed in

the consolidated case.

4. THE COURT FINDS THAT each Plaintiff has alleged

a cause of action sounding in personal injury. Each of

the Plaintiff's personal injury claims are alleged to have

occurred while in the course and scope of their

employment for Excel and/or Cargill, Inc.

5. THE COURT FINDS THAT in each claim, the

Plaintiff has alleged discrimination or retaliation under

Tex. Rev. Civ. Stat. Art. (ann.) 8307(c). The petitions

allege that each of the Plaintiffs are systematically

retaliated against and discriminated against for having

pursued a claim for personal injury. Additionally, some

of the petitions include allegations of wrongful

discharge.

6. THE COURT FINDS THAT at all times relevant to

these causes of action, the Plaintiffs were individuals

employed by Excel and/or Cargill, Inc.;

7. THE COURT FINDS THAT each Plaintiff has alleged

independent causes of action against Cargill, Inc.,

based upon theories of negligence in providing safety

management and safety consultation services to Excel

-20-

ee

10.

11.

Corporation. Accordingly, THE COURT FINDS

THAT a cause of action exists against Cargill, Inc.,

based upon an independent theory negligence, thereby

making them susceptible to potential independent

liability for Plaintiff's individual claims.

THE COURT FINDS THAT evidence was presented

sufficient to create a fact question that Cargill, Inc.,

exercises independent management control of the

claims for injury presented by the Plaintiffs.

Accordingly, THE COURT FINDS THAT Cargill,

Inc., is potentially liable to claimants for claims of

discrimination or retaliation under Tex. Rev. Civ. Stat.

Art. (ann.) 8307(c)

THE COURT FINDS THAT at all times relevant to

these causes of action, the individual Defendants, Steve

Steffe, Mark Neill, Dave Stafford and Freddie

Franklin, had authority for matters of safety at the

relevant Excel Plant(s) and the terms and conditions of

Plaintiffs’ employment;

THE COURT FINDS THAT Defendant Steve Steffe is

a Texas resident;

THE COURT FINDS THAT Defendant Mark Neill is

a Texas resident.

-21-

12.

13.

14.

15.

THE COURT FINDS THAT Defendant Dave Stafford

is a Texas resident.

THE COURT FINDS THAT Defendant Freddie

Franklin was a New Mexico resident;

THE COURT FINDS THAT Excel Corporation and

Cargill, Inc., are both incorporated in the State of

Delaware and their principal places of business in the

States of Kansas and Minnesota, respectively.

THE COURT FINDS THAT each Plaintiff is a

resident of Texas or New Mexico and has joined a non-

dive 3 individual defendant.

Based upon the foregoing, the Court reaches the

following:

CONCLUSIONS OF LAW

THE COURT CONCLUDES THAT there is at least a

possibility that the State Courts would hold that there are

causes of action against the instate Defendants and that

fact issues remain as to these causes of action;

THE COURT CONCLUDES THAT there is no

Fraudulent Joinder as it relates to the individual

defendants, Steve Steffe, Mark Neill, Dave Stafford and

29

1996.

Freddie Franklin, and, no Fraudulent Joinder as it relates

to the corporate defendant, Cargill, Inc.

THE COURT CONCLUDES THAT there is no Federal

Question presented;

THE COURT CONCLUDES THAT there is no

Diversity Jurisdiction;

THE COURT CONCLUDES THAT the Plaintiffs’

claims are not preempted by the Employment Retirement

Income Security Act (ERISA), 29 U.S.C. 1001, et. seq.;

THE COURT CONCLUDES THAT removal of these

claims is prohibited because they each arise under Texas

Workers' Compensation Law, and

THE COURT CONCLUDES THAT the cases, as cited

in Paragraph 1 in its Findings of Fact, should be

remanded to the State Court(s) from which they were

removed.

SIGNED at Brownsville, Texas, this 23™ day of October,

a) Fidencio G j

FIDENCIO GARZA, JR.

United States Magistrate Judge

-23-

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

EFRAIN RENDON,

V.

EXCEL CORPORATION,

et. al

CA-B-94-313

ROBERTO MORENO,

V.

EXCEL CORPORATION,

et. al

CA-B-94-323

RAMON TREVIZO,

V.

EXCEL CORPORATION,

et. al

CA-B-94-321

>>? QO??? OO?

RAMON TREVIZO,

V.

EXCEL CORPORATION,

et. al

CA-B-94-322

>? 2

ALFREDO QUEZADA,

et al

V.

EXCEL CORPORATION,

et. al

CA-B-95-26

OOO? O?

GLORIA RHOADS,

et al

V.

EXCEL CORPORATION,

QO?

CA-B-95-37

S

i

et. al

ar

JAVIER ARPERO, et al

V.

EXCEL CORPORATION,

et. al

CA-B-95-115

SANTIGO MORALES

V.

EXCEL CORPORATION,

et. al

CA-B-95-169

ror or am 2? >a

ORDER

Before this Court is Plaintiff's Motion to Consolidate and

Remand. After a De novo review, this Court fully adopts the

Order of Remand by the Honorable Fidencio Garza, Jr. United

States Magistrate Judge, signed October 23, 1996.

Regarding the diversity issue, it has been alleged that

Plaintiff's joined non-diverse individual Defendants in order to

defeat the federal diversity jurisdiction. Where the removing

party alleges “fraudulent joinder,” the burden is upon that party

to prove diversity. The removing party must show “that there is

no possibility that the plaintiff would be able to establish a cause

of action against the in-state defendant in state court.” B., Inc. vs

Miller Brewing Company, et al, 663 F.2d. 545, 549 (5* Cir.

1981). The record reflects that the individual defendants in

-25-

question were employed by Excel corporation at the time of the

alleged incidents. Further, these individuals held positions of a

managerial capacity which included responsibilities that directly

pertained to employment safety. The Defendants have argued

that the individual defendants cannot be held liable as agents of

Excel Corporation, however that does not eliminate the

“possibility” of a valid cause of action set forth by the Plaintiffs.

The burden is very difficult, and the district court must evaluate

all of the factual allegations in the light most favorable to the

plaintiff. Jd. The claims that do not involve issues of diversity

jurisdiction are not adversely affected by the findings of fact and

conclusions of law regarding diversity jurisdiction.

The Plaintiffs in these cases, basically have two main

claims: work related personal injury claims caused by unsafe

working conditions and retaliatory discharge claims for reporting

such injuries. This Court holds that both claims “arise under” the

Workmen’s Compensation Laws of Texas, and pursuant to 28

U.S.C. § 1445(c) both claims are not removable. Section 1445(c)

states that a civil action in any State court arising under the

Workmen’s Compensation Laws of such State may not be

removed to any district court of the United States.” This Court

further holds that neither claims are preempted by ERISA.

In Hook v. Morrison Milling Co, 38 F2d 776 (5® Cir.

-26-

1994), the Court held that a work related personal injury claim

against an employer, “which was a nonsubscriber to the worker's

compensation system and which provided employees with a

workers’ compensation-like ERISA plan, was not preempted by

ERISA.” The Court rules that Plaintiffs’ personal injury claims

are not removable under section 1445(c) and that the ERISA

preemption does not apply.

According to Jones V. Roadway Exp.. Inc, 931 F.2d

1086, 1090 (5" Cir. 1991), employees have a right to be free

from a retaliatory discharge for pursuing workers’ compensation

claims. “This right originated from Texas law which was enacted

to protect employees seeking compensation for work related

injuries.” Id. The Jones court was satisfied that a retaliatory

discharge case arises under the workers’ compensation laws of

Texas within the meaning of section 1445(c). Jd. at page 1093.

The Defendant argues that they are nonsubscribers to the

Texas Workers’ compensation system and that ERISA preempts

the Plaintiff's causes of action. The issue to consider is whether

the retaliatory discharge claim is independent or if it “relates to”

an employee benefit plan. Rozzell v. Security Services, Inc., 38

F.3d 819, 821 (5* Cir. 1994). This Court holds that the removal

was improper under section 1445(c), and that ERISA will not

preempt the Plaintiff's discharge claim. The substance of the

-27~

ee

Plaintiff's claim is limited to the state law retaliatory discharge

~ cause of action, and Plaintiff does not state a cause of action

which “relates to” an employee benefit plan. Jd. at page 822-823.

Further, this Court adopts the logic and “classic metaphor that the

ERISA preemption may be used as a shield but not as a sword in

order to avoid litigation in state court.” Rokohl v. Texaco, Inc., 77

F.3d 126, 130 (5* Cir. 1996).

Regarding consolidation of these cases for the purposes

of remand, it has been alleged that consolidation was improper

because it was used to join the substantive claims of all parties.

The District Courts have broad discretion under subdivision (a)

of Rule 42, Federal Rules of Civil Procedure to consolidate

causes pending in the same jurisdiction. In re Dearbomm Marine

Service, Inc., C.A. Tex.1974, 499 F.2d 263, rehearing denied 512

F.2d 1061, certiorari dismissed 96 S.Ct. 163, 423 U.S. 886, 46

L.Ed.2d 118. In the cases presented to the magistrate,

consolidation is not clearly erroneous and contrary to law.

Each of these claims involve the same issues of law and

fact with regard to the necessity of remand. Both the personal

injury and the wrongful discharge claims arise under the Texas

Workers Compensation Act which renders both claims non-

removable under 28 U.S.C. § 1445(c). Therefore, consolidating

these cases for the purposes of remand is within the discretion of

-28-

the Magistrate Judge.

Accordingly, the Plaintiffs’ Motion for Remand is

GRANTED.

Done this 21st day of November, 1996.

/s/ Filemon B. Vela

: FILEMON B. VELA

UNITED STATES DISTRICT JUDGE

EE SF ee Oe nt en

-29-

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-41220

In re: EXCEL CORPORATION; CARGILL,

INCORPORATED; FREDDIE FRANKLIN;

STEVE STEFFE,

Petitioners.

Petition for Writ of Mandamus to the

United States District Court for the

Southern District of Texas, Brownsville

Before JONES, DeMOSS, and PARKER, Circuit Judges.

BY THE COURT:

Petitioners Excel Corporation (Excel), Cargill, Inc.

(Cargill), Freddie Franklin, and Steve Steffe (collectively “the

defendants”) filed this petition for writ of mandamus pursuant

to 29 U.S.C. § 1651 and FED. R. App. P. 21(a). The

defendants ask this court to issue a writ of mandamus

directing the district court to vacate its order that consolidated

for purposes of remand the claims and parties of the eight

-30-

underlying cases at issue. Because we hold that the district

court erred in consolidating these cases and remanding the

cases on the basis of that consolidation order, we grant the

writ of mandamus, vacate the consolidation order and the

remand order, and direct the district court to reconsider the

motions to remand on a case by case basis.

BACKGROUND

Eight civil actions were originally filed against the

defendants in various state district courts in the southern-most

county in Texas, Cameron County, between June 1994 and

August 1995.' The plaintiffs’ claims arise out of their

employment at two Excel meat packing plants located in the

' The eight cases at issue are styled as follows:

1. Rendon v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-313,

2. Trevizo v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-321 (Trevizo I);

3. Trevizo v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-322 (Trevizo Il);

4. Moreno v. Excel Corporation, Cargill, Inc., and

Steve Steffe, No. B-94-323;

5. Quezada, et al. v. Excel Corporation, Cargill, Inc.,

No. B-95-26;

6. Rhoads, et al. v. Excel Corporation, Cargill, Inc.,

No. B-95-37;

7. Arpero, et al. v. Excel Corporation, Cargill, Inc., No.

B-95-115; and

8. Morales v. Excel Corporation, Cargill, Inc., No. B-

95-169.

-31-

Texas Panhandle towns of Plainview, Hale County, Texas, and

Friona, Parmer County, Texas. The defendants timely

removed these cases to the United States District Court for

the Southern District of Texas, Brownsville Division.

Plaintiffs are employees of Excel, a wholly owned

subsidiary of Cargill, and brought these suits alleging various

claims of personal injury due to negligence and a single claim

of wrongful discharge based on an attempt to pursue a

compensation claim for a work related injury. Plaintiffs are all

citizens of either New Mexico or Texas. Excel is a Delaware

corporation with its principal place of business in Kansas.

Cargill is a Delaware corporation with its principal place of

business in Minnesota. The individual defendants, Freddie

Franklin and Steve Steffe, are citizens of either Texas or New

Mexico.

In the first four cases, Rendon, Trevizo I, Trevizo II,

and Moreno, an individual plaintiff sued Excel, Cargill, and

one of the individual defendants. In three of these cases, the

plaintiffs alleged that they suffered personal injuries due to the

defendants’ failure to provide a safe workplace. In Trevizo II,

the plaintiff alleged that he was wrongfully discharged after he

attempted to pursue a claim for compensation for a work-

related injury. Defendants invoked diversity jurisdiction in

Rendon, Trevizo I, and Moreno, based on the alleged

fraudulent joinder of the non-diverse defendant. In 7revizo II,

the defendants assert that federal question jurisdiction exists

and removal is proper because the plaintiffs wrongful

discharge claim falls under the purview of the Employee

-32-

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§ 1001 ef seg. (1994), due to Excel’s decision not to become

a subscriber under the Texas workers’ compensation statute.

In the second set of four cases, the plaintiffs sued

Excel and Cargill alone. Quesada involves 64 plaintiffs,

Rhoads involves 12 plaintiffs, Arpero had 11 plaintiffs, and

Morales is a single plaintiff case. These plaintiffs allege that

they suffered personal injuries in the course of their

employment due to the defendants’ negligent failure to

provide a safe workplace. The 88 plaintiffs involved in these

four cases did not name a non-diverse defendant. As such,

defendants invoked diversity jurisdiction.”

On September 27, 1996, Plaintiffs filed a “Motion to

Consolidate, Motion to Remand and for Ruling on Pending

Motions to Remand.” The case had been assigned to a

magistrate judge. The magistrate judge entered an order

consolidating these eight cases and adopted verbatim the

proposed findings and conclusions submitted by the plaintiffs. *

2 We also note that some of these plaintiffs may have failed to

timely file motions to remand. For example, the defendants timely

removed the Rendon case on November 21, 1994. The plaintiff

filed a motion to remand on January 3, 1995, 43 days after the

defendants removed the case. Additionally, the plaintiffs in Rhoads

waited 41 days to file their motion to remand.

3 In its findings and conclusions, the magistrate consolidated the

eight cases for purposes of considering the plaintiffs’ motions to

remand. The magistrate expressly found the remand motions to be

3.

The defendants filed timely objections to the magistrate’s

order. On November 21, 1996, approximately two weeks

after the magistrate’s consolidation and remand order, the-

district court issued an order approving the consolidation of

these cases for purposes of remand and remanded these cases

based on its determination that the claims raised in the

consolidated case arise under the Texas Workers’

Compensation Act, which rendered them non-removable

under 28 U.S.C. § 1445(c).

ANALYSIS

We must first ascertain whether we have jurisdiction

to review the district court’s order of consolidation and

remand. 28 U.S.C. § 1447 (d) severely restricts our authority

to review remand orders. “An order remanding a case to the

State court from which it was removed is not reviewable on

appeal or otherwise. . . .” 28 U.S.C. § 1447 (d). The Supreme

court has thrice held that Ҥ 1447 (d) must be read in pari

materia with § 1447 (c), so that only remands based on

grounds specified in § 1447 (c) are immune from review under

timely. Although we do not reach this issue, it appears from the

face of the record that at least two of the motions to remand were

“each Plaintiff is a resident of Texas or New Mexico and has joined

a non-diverse individual defendant.” As explained herein, a

consolidation order cannot serve to merge the suits into a single

cause. As such, four of the eight cases do not have non-diverse

defendants.

-34-

§ 1447 (d).” Quackenbush v. Allstate Ins. Co., 116 S.Ct.

1712, 1718 (1996); see also Things Remembered, Inc. v.

Petrarca, 516 U.S. __, —_, 116 S. Ct. 494, 495 (1995);

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

345-46, 96 S. Ct. 584, 590 (1976). As such, only remand

orders based on lack of subject matter jurisdiction or on

defects in removal procedure are affirmatively barred from

appellate review. See Quackenbush, 116 S. Ct. at 1718;

Linton v. Airbus Industries, 30 F.3d 592, 600 (5* Cir. 1994).

The district court determined that this case involves a

worker’s compensation remand order based on 28 U.S.C. §

1445 (c) (“A civil action in any State court arising under the

workmen’s compensation laws of such State may not be

removed to any district court of the United States.”). Because

we are reviewing a remand order which is not grounded on

subject matter jurisdiction or defects in removal procedure

under 28 U.S.C. § 1447 (c) we have jurisdiction to consider

the propriety of such order.

The Supreme Court has recognized that mandamus

may be an appropriate remedy where the district court has

remanded the case on grounds not authorized by removal

statutes. See Quackenbush, 116 S. Ct. at 1718; Thermtron,

423 US. at 353, 96 S. Ct. at 594. This Circuit has recognized

this exception and concluded that “[w]e may review a remand

order on a petition for writ of mandamus... provided that it

was entered on grounds not authorized by § 1447 (c).” Inre

Allstate Ins. Co., 8 F.3d 219, 221 (5* Cir. 1993); see also In

re Shell Oil Co., 932 F.2d 1518, 1521 (5* Cir. 1991).

2s.

In the non-§ 1447 (c) context, the Supreme Court in

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.

Ct. 614, 623 (1988), held that a district court has discretion to

remand a case involving pendent claims upon a determination

that retaining jurisdiction over such a case would be

inappropriate. See also Bogle v. Phillips Petroleum Co., 24

F.3d 758, 761 (5™ Cir. 1994) (“a remand order is reviewable

if it is based upon the Carnegie-Mellon rationale, but is

immune from review if it is based upon the grounds

enumerated in Section 1447(c).”).

Relying on Cohill, this Court has held that courts of

appeals may review remand orders that are issued on grounds

other than § 1447 (c). See Bogle, 24 F.3d at 761. Because

the Supreme Court has permitted our review of remand orders

based on provisions other than § 1447 (c), Quackenbush, 116

S.C. at 1718, and because we are bound by prior panel

opinions, Trizec Prop., Inc. v. United States Mineral Prod.

Co., 974 F.2d 602, 604 N.9 (5 Cir. 1992) (recognizing that

we are “bound to prior panel opinions absent en banc

reconsideration or a superseding contrary Supreme Court ;

case”), Bogle permits our review of the district court’s order

remanding this case on § 1445 (c) grounds. Bogle, 24 F.3d at

761.

In the instant case, the district court issued an order

consolidating these eight cases, and then based its decision to

remand the eight cases by considering them as a single cause.

The district court then applied 28 U.S.C. § 1445 (c), the

provision which forbids removal of civil actions arising under

-36-

state worker’s compensation laws, to the consolidated case

and remanded the cause to state court.‘ The district court

found that both the personal injury claims and the wrongful

discharge claim arose under the worker's compensation laws

of the State of Texas and ruled that the magistrate’s order

consolidating these cases for purposes of remand was,

therefore, proper. Accordingly, the district court’s remand

order in this case was based solely on § 1445 (c) not § 1447

(c) and, therefore, we may review the propriety of that order.

See Bogle, 24 F.3d. at 761.

Having established our jurisdiction to consider this

case, this Court will issue a writ of mandamus “to remedy a

clear usurpation of power or abuse of discretion.” In re

F.D.LC., 58 F.3d 1055, 1060 (5* Cir. 1995) (citations and

quotations omitted). Here, the district court adopted the

magistrate’s order consolidating these eight cases for purposes

* Section 1445 (c) is not jurisdictional. If a defendant removes a

civil action arising under a state’s workers’ compensation laws, we

have held that the wrongful removal is a procedural defect is waived

under 28 U.S.C. § 1447 (c), if not raised in 30 days. Williams v.

AC Sparkplugs, 985 F.2d 783 (5® Cir. 1993).

On remand from this decision, the district court should first

ascertain whether each individual case does, in fact, arise under the

workers’ compensation laws of Texas. See Patin v. Allied Signal,

Inc., 77 F.2d 782, 786 (5® Cir. 1996) (analyzing when a cause of

action arises under the administrative procedures applicable to a

state workers’ compensation claim). If the individual cases do arise

under the workers’ compensation laws of Texas, the district court

should determine whether the plaintiffs properly and timely objected

to the removal under § 1447 (c).

37.

of remand. By consolidating these cases and then remanding

them on § 1445 (c) grounds, the district court erred by

merging these suits into a single cause which altered the rights

of some of the parties involved. See Johnson v. Manhattan

Railway Co., 289 U.S. 479, 496-97 (1933); Langley v.

Jackson State Univ., 14 F.3d 1070, 1073 n.5 (5* Cir. 1994);

Kuehne & Nagle (AG & Co.) v. Geosource, Inc., 874 F.2d

283, 287 (5* Cir. 1989). Before Rule 42 (a) was adopted, the

Supreme court in Johnson v. Manhattan Railway Co., 289

U.S. at 496-97, held that consolidation “does not merge suits

into a single cause, or change the rights of the parties, or make

those who are parties in one suit parties in another.” We have

adhered to this instruction after the adoption of Rule 42 (a).

See Langley, 14 F.3d at 1073; Kuehne, 874 F.2d at 287;

McKenzie v. United States, 678 F.2d 571, 574 (5™ Cir. 1982);

Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL

2d § 2382 at 430 (1995). Consequently, the district court

abused its discretion by consolidating these suits for purposes

of determining the propriety of remand.

In four of these cases, the plaintiffs did not sue a non-

diverse defendant. Further, it appears that the plaintiffs in the

Rendon case filed their motion to remand on January 3, 1995,

43 days after the defendants removed the case. Additionally,

the plaintiffs in Rhoads waited 41 days to file their motion to

remand. By considering these eight cases as one single cause

after the consolidation order, the district court adversely

affected the rights of the defendants by failing to separately

determine the jurisdictional premise upon which each stands

-38-

and the propriety of removal or remand resulting therefrom.

CONCLUSION

Finding that the order of consolidation and the ensuing

remand order on the basis of that consolidation adversely

affected the parties in this case, we grant the defendants’ writ

of mandamus, vacate the consolidation and remand order, and

instruct the district court to consider each plaintiffs’ motion to

remand on a case by case basis, determining in each case as

appropriate the issues of diversity of citizenship, federal

question, fraudulent joinder,’ timeliness of remand motion and

non-removability of workers’ compensation claims.

5 While we express no opinion as to the resolution of this issue, the

recently decided Supreme Court of Texas case Leitch v. Hornsby,

935 S.W.2d 114, 120 (Tex. 1996) may be pertinent to a

determination of the defendants’ fraudulent joinder claims. In

Leitch, the court held that a company’s employees have no duty to

furnish a safe work place and, as such, may not be held liable in

their individual capacities for the company’s negligent failure to

provide a safe place to work. Leitch, 935 S.W.2d at 120.

-39-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-41220

In Re: EXCEL CORPORATION; CARGILL

INCORPORATED; FREDDIE FRANKLIN; STEVE

STEFFE

Petitioners

Appeal from the United States District Court for the

Southern District of Texas, Brownsville

(Opinion 2/19/97, 5 Cir., : , F.3d

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

(X) 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, (FRAP and Local Rule 35) the

Suggestion for Rehearing En Banc is also DENIED.

-40-

- Nera ee

( ) The Petition for Rehearing is DENIED and the

court having been polled at the request of one of the

members of the court and a majority of the judges who are

in regular active service not having voted in favor, (FRAP

and Local Rule 35) the Suggestion for Rehearing En Banc is

also DENIED.

( ) Amember of the court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

REHG-4

-41-