# Opposition Brief — Adams-Hedrick v. Liberty Mutual Mutual Insurance Insurance Co Co (No. 06-913)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

No. 06-913

IN THE

Supreme Court of the United States

DONNA ADAMS-HEDRICK, et vir.,
Petitioners,
Vv.
LIBERTY MUTUAL INSURANCE COMPANY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED States Court OF APPEALS
FOR THE FirtH CIRCUIT

BRIEF IN OPPOSITION

Mary M. MARKANTONIS

Dean G. Pappas & Assoc., P.C.
10375 Richmond, Suite 1670
Houston, Texas 77042
(713) 914-6200

Attorneys for Respondent

207135 g

COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

i

COUNTERSTATEMENT OF THE
QUESTIONS PRESENTED

Petitioners appealed the District Court’s Order of
Remand and Order granting attorney’s fees to Liberty Mutual
and sanctioning Petitioners. They further appeal the Fifth
Circuit’s dismissal for lack of jurisdiction based on 28 U.S.C.
§ 1447(d), Louisville & Nashville R. Co. v. Mottley, 211 U.S.
149, 150-153 (1908) and Sitton v. United States, 413 F.2d
1386, 1389 (5" Cir. 1969), affirming of the non-monetary
and monetary sanctions and award of statutory attorney’s fees
against Petitioners, and granting of costs and damages to
Liberty Mutual pursuant to Fed. R. App. Proc. 38 and 28
U.S.C. § 1912. Petitioners attempt to interject non-existent
constitutional issues of a right to be represented in court by
a non-attorney having no basis in Liberty Mutual’s original
petition for judicial review of a final workers’ compensation
administrative decision filed in the Texas state court. The
only questions for review are:

1. Whether an Order of a District Court remanding on the
basis of 28 U.S.C. § 1447(c) is reviewable by the Court of
Appeals.

2. Whether the District Court abused its discretion in
awarding statutory attorney’s fees and sanctions against the
Petitioners.

3. Whether the Court of Appeals abused its discretion in
awarding costs and damages against the Petitioners.

li

STATEMENT PURSUANT TO RULE 29.6

Respondent, Liberty Mutual Insurance Company, has no
parent corporation and no publicly held company owns 10%
or more of its stock.

ili
TABLE OF CONTENTS

COUNTERSTATEMENT OF THE

QUESTIONS PRESENTED ...........000--
STATEMENT PURSUANT TO RULE 29.6 ......
TABLE GP CONTEINIG cccccccvcecsececeedes
TABLE OF CITED AUTHORITIES ............
FIRE onc Vir cbse ence cnvevetreares
SUMMARY OF REASONS TO DENY PETITION
STATEMENT OF THE CASE ....ccsccoscecves

Fic FR OE GD OD on to 0 ck Hee enskseess

BD. FOOCORRINES DOIOW occ ccccesrvesenvteas

1. Ms. Adams’ work related injuries and
workers’ compensation claims .......

2. Federal court litigation history .......
re re rye re

REASONS FOR DENYING THE PETITION ....

I. Appellate review of remand orders is barred
Oy Ze AGA. | SOCIO « o ccstvcsevceasss

Page

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Contents

Page

A. Alternatively, without waiving the

foregoing, Petitioners did not follow the
proper procedure to remove this case. .. ll

1. Petitioners’ Notice of Removal was
I UE bb cb rds siudsnetss il

2. Respondent’s Motion for Remand
Wan Cmiely Tied... ccccccicess 14

3. Petitioners’ Notice of Removal based
upon their own cause of action ... 14

4. Petitioners attempted to remove
abated state court case .......... 15
ae ee errr errs 15

II. There was no abuse of discretion in awarding

or affirming the award of statutory attorney’s

fees to Liberty Mutual the prevailing party in

a removal action and sanctioning the

Petitioners because such an award is

authorized by 28 U.S.C. § 1447(c) when there

is no objectively reasonable basis for seeking

removal and Petitioners violated Rule 11 of
the Federal Rules of Civil Procedure. ..... 17
a gC en re rere 17
ee Sc eG sa Wiener as Baa eeees 19
1. Non-monetary sanctions ........ 21

2. Monetary sanctions ............. 24

Cited Authorities
Page

Il. The Court of Appeals for the Fifth Circuit did
not abuse its discretion in awarding Liberty
Mutual costs and damages for attorney’s fees
because the Petitioners lacked an objectively
reasonable basis for seeking removal and their
appeal was frivolous and caused unnecessary

delay and expense. Fed. R. App. Proc. 38. ... 15
A. Lack of objectively reasonable basis .. 25
B. Petitioners’ appeal was frivolous. .... 25

Sa IUUNOEE | 9-409 AN e acid hind sec emeEeewen 26

vi
TABLE OF CITED AUTHORITIES

Cases:

Ankrom vy. Dallas Cowboys Football Club, Ltd., 900
S.W.2d 75 (Tex. App.-Dallas 1995, writ
EE eer 566 doe oe bose eee ieee

Baron v. Strassner, 7 F. Supp. 871 (S.D. Houston
DEE 1 aeuntectene trdivderdaehes caneneenen

Blackmore v. Rock-Tenn Co., 756 F. Supp. 288
RG Mee BOWED a diced chen vowesuneeeeeens

Brown v. Demco, Inc., 792 F.2d 478 (5" Cir. 1986)

ee)

Business Guides, Inc. v. Chromatic Communications
Enterprises, Inc., 498 U.S. 533 (1991) ........

Caterpillar, Inc. v. Williams, 482 U.S. 386, 107
S. Ct. 2425, 96 L. Ed. 2d 318 (1987) ..........

Certain Underwriters at Lloyd’s v. Bristol-Myers
Squibb Co., 51 F. Supp. 2d 756 (E.D. Tex. 1999)

“eee eeeeeeeeeeeeeeeeeeereeeeeeere eee ee eee

Cervantes v. Tyson Foods, Inc., 130 S.W.3d 152
(Tex. Civ. App.—El Paso 2003) ..............

Chambers v. NASCO, Inc., 501 U.S. 32 (1991)

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
SET i etendwess weed dbdcwar san ecenwees 19-20, 21

Page

15-16

13

23

16

15

Vil

Cited Authorities
Page
Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728
SUNN iva hese sued ekeced nal measkseewes 25
ESIS, Inc., Servicing Contractor v. Johnson,
908 S.W.2d 554 (Tex. Civ. App.—Fort Worth
3 PCT ee Ce ae ee pe 17
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454
GO oss dua hash canbe vsacnlesieteviee 16
Galloway v. Louisiana, 817 F.2d 1154 (Sth Cir.
SEED cashew kde cabal eei eke ee 21
Gravitt v. Southwestern Bell Telephone Co., 430 U.S.
FER GHETED ch duacswiiindaniadssovaweds eis 10
Gully y. National Bank, 29 U.S. 109, 57 S. Ct. 96,
ee fh | SR er rrr eT ere 16
Johnson v. Georgia Highway Fxpress, Inc., 488 F.2d
FORE Ge OPO 2 ka vacbatucadkkdkevaceses 18, 19
Kircher v. Putnam Funds Trust, 546 U.S. __, 126
Pe es ee Ce kb cho ens tae caneeen een: 10, 11
In re Louisiana-Pacific Corp., 112 S.W.3d at 188 ... 4
Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149
SOE bb hk seins be ee lane eadeneneacedadena 10

Lumbermens Mut. Cas. Co. v. Garza, 777 8.W.2d 198
(Tex. Civ. App.—Corpus Christi 1989) ........ 15

vill

Cited Authorities
Page
Martin v. Franklin Capital Corporation, 546 U.S.
Does Ea ae Ge Pe CED vb endo beaenreane 18
Mason City & Fort Dodge Railroad Co. v. Boynton,
a4 U.S. 570, 27 S. Ct. S21 CISGT) og coe ce cwes 15
Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827
CROOE viv bangs ueinv anak bec wen ehh eee 24, 25
Scott v. Communications Services, Inc., 762 F. Supp.
147 (S.D. Tex. 1991), aff’d, 961 F.2d 1571
Cae Rees: SOW ov Senos ene erences 15
Simpson v. State, 998 S.W.2d 304 (Tex. Civ. App.—
AED TTRSR 0 hese sha wee ee ee 17
Thermtron Products, Inc. v. Hermandsdorfer, 423 U.S.
FORE TED 6a ebndscak dances t cena. 10
Things Remembered, Inc. v. Petrarca, 516 U.S. 124
CRUD 5 006 0 0a S eens Chae eee 10
Thomas v. Capital Security Services, Inc. 836 F.2d
SOeta” Ga. TO biases dsteccadeueneees 23
Willy v. Coastal Corp., 855 F.2d 1160 (5 Cir. 1988)
pave eaVerkstekneae ak eR eee 13

Willy v. Coastal Corp., 503 U.S. 131 (1992) ...... 12, 21

1x

Cited Authorities

Page
Statutes:
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ere 7, 24
EE Cebeheseeereescovsessvedveeees 7, 24
EE EE vb be bctersvécccvcecveveseces 7
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ED Svcerivecevevecvevcceeevcess l
ED Si veeverevetecccccsrecvecees |
SPP RROD os ccc cccccvccscceveveveseus 11, 14
CMG Ce AMFEDD wccccceccescceserevees 11,12, 13
EE EMP PEOD cocccrcsccsceocvccesveeurse li, 17
EE EIU). ccc cdcccctvevescceces 1, 10, 25, 26
EE SOMEE) so cccvcsevcecccccccvceres l

TE CMEE csscsepevvervcrcvecesecceves 7

Cited Authorities

Page
Te See OS CPEE ndendidtnrentencesadeinietes 7
Ce aE SUED sek echiseciestersavadieen 7
See; GIS Ge - SEe h cs O40 wal nowdeeoeeen “9
28 Tex. Admin. Code § 150.3(a)(3) ............. 4,9
10%. Led, Code 9 SGI SIS?) an ccccccccuvescess 9
POR, BE CGE GSE cece vcdsntedetsissves 3
OM, La. CORS B GES 0.0 6.00 vanknseecesocess 3
Fens LAD. COR SEITE wisccbvecwecdcesee 9
SOR, ADs CRO BGT ak vcd cw ee decseseees 17, 25
Tex. Lab. Code Ann. § 410.104 ..........-c000- 4
Tex. Lab. Code Ann. §§ 410.151-410.169 ........ 4
Tex. Lab. Code Ann. § 410.169 ................ 17
Tex. Lab. Code Ann. §§ 410.201-410.208 ........ 4
Tex. Lab. Code Ann. §§ 410.251- 410.308 ....... 4
Tex. Lab. Code Ann. §§ 410.024, 410.169, 410.205 4

7OR. LAD. Cogs & GIGZIOMED cccevcccrcvceess 4

XI

Cited Authorities

Page
Rules:
Py Sey Pe, Ws Oe an boa wh en nk664s.9h5eeeeeus 2, 22
Pe as SE OE ws vaca beenwes hae eee ones 19
8 Re A re ere 22
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Pa Wie Gs TUNE DUES Sine ckatatesecweeees 17

]

JURISDICTION

The United States Court of Appeals for the Fifth Circuit
issued its Order dismissing Adams’ and Hedrick’s pro se
appeal to that court on September 15, 2006. On November
16, 2006, Adams and Hedrick, pro se, initially filed their
Petition for Writ of Certiorari and it was docketed on or about
January 6, 2007. Respondent respectfully submits that this
Court lacks and the Fifth Circuit Court of Appeals lacked
jurisdiction to review the District Court’s Order of Remand
granted on the basis of a timely raised defect in removal
or lack of subject matter jurisdiction, pursuant to 28 U.S.C.
§§ 1446 & 1447, and should dismiss the petition as to those
questions. Respondent further submits that this Court does
have jurisdiction to review the District Court’s order granting
Liberty Mutual’s statutory attorney’s fees and sanctioning
Petitioners and the orders of the Court of Appeal for the Fifth
Circuit affirming the District Court’s order on attorney’s fees
and sanctions and granting the Respondent’s motion for costs
and damages, all pursuant to 28 U.S.C. § 1254(1).

SUMMARY OF REASONS TO DENY PETITION

I. Pursuant to 28 U.S.C. § 1447(d), the United Sates
Court of Appeals for the Fifth Circuit did not have jurisdiction
to review a dismissal of an appeal of an Order of Remand
based upon defects in the removal procedure or lack of
jurisdiction, even if erroneously granted.

A. Alternatively, without waiving the foregoing,
Petitioners did not follow the proper procedure to remove
this case from state court to District Court.

B. Alternatively, without waiving the foregoing, the
District Court had no jurisdiction of this case.

2

II. The District Court did not abuse its discretion in
awarding statutory attomey’s fees to Liberty Mutual and granting
monetary and non-monetary sanctions against Petitioners, and
the Court of Appeals for the Fifth Circuit did not abuse its
discretion in affirming same, because Petitioners lacked an
objectively reasonable basis for seeking removal, Petitioners’
conduct during the course of this case up to July 25, 2005,
violated Rule 11 of the Federal Rules of Civil Procedure and
Liberty Mutual was the prevailing party in the case.

Ill. The Court of Appeals for the Fifth Circuit did not abuse
its discretion in awarding Liberty Mutual costs and damages
because Petitioners lacked an objectively reasonable basis for
seeking removal, their appeal is frivolous and has caused
unnecessary delay and expense. Fed. R. App. Proc. 38.

STATEMENT OF THE CASE
A. Nature of the case

This is an appeal of the dismissal of an appeal of an order
of remand in a state workers’ compensation case. Respondent
submits that the only issue for review is wheiher a remand order
of a workers’ compensation case, defectively removed from state
court and over which the federal district court had no jurisdiction,
is reviewable. Alternatively, and without waiving the foregoing,
at issue is whether Petitioners properly removed this case from
state court and whether the District Court had jurisdiction to
hear this case.

Additionally, issues raised, but not briefed by Petitioners,
are whether the Court of Appeals for the Fifth Circuit abused
its discretion in granting Liberty Mutual its costs and damages
and whether the District Court abused its discretion in granting
Liberty Mutual statutory attorney’s fees and in sanctioning the
Petitioners.

B. Proceedings below

This case originated as a suit filed in state district court by
Respondent Liberty Mutual for judicial review of an
administrative decision of the Texas Workers’ Compensation
Commission Appeals Panel by which it was aggrieved with
respect to the workers’ compensation claim of Donna Adams.
Adams answered and counterclaimed for bad faith and Hedrick
intervened. The bad faith claim was severed and abated.

1. Ms. Adams’ work related injuries and workers’
compensation claims

Ms. Adams was employed by IBM as a technical support
representative responsible for going to work sites and setting
up computer systems. Ms. Adams filed two workers’
compensation claims with the Texas Workers’ Compensation
Commission’ (TWCC), the Texas agency charged with the
responsibility of administering workers’ compensation claims
at the time, Tex. Lab. Code § 402.061, (R. 322): one for March
29, 2000 claiming to have suffered an asthma attack after
inhaling dust at the jobsite that was still under construction and
one for August 17, 2000, claiming another asthma attack as a
result of the heat, which resulted in her hospitalization.’

1. By recent amendment effective September 1, 2005, the Texas
Workers’ Compensation Commission was abolished and supplanted by
the Division of Workers’ Compensation within the Texas Department
of Insurance. Tex. Lab Code § 402.001. For purposes of this brief, this
agency will be referred to as the TWCC.

2. During the pendency of these claims, Ms. Adams and Mr.
Hedrick filed suit against the TWCC, hearing officer Kathleen Decker,
Liberty Mutual, its counsel] Tommy Smith, IBM, its chief executive
officer at the time, Louis Gerstner and its employee Michael Clark
(Cause No. H-01-3416). (R. 356) The case was dismissed for lack of
jurisdiction by Judge Hoyt. (R.468-472) Ms. Adams and Mr. Hedrick

(Cont'd)

4

Ms. Adams’ workers’ compensation claims proceeded
and were heard in one contested case hearing. (Pet. App. G)
Ms. Adams appeared at the contested case hearing and was
represented by her husband, Mr. Hedrick.* (Pet. App. G)
(R. 322) The hearing officer’s findings and decision were
affirmed by the Appeals Panel.* On August 21, 2003, Liberty
Mutual filed a suit for judicial review of a portion of the
hearing officer’s decision to state court under Cause No.
25628 in Brazoria County, Texas, the county of residence of
Ms. Adams pursuant to the Texas Labor Code. Tex. Lab. Code
§ 410.252(b)(1). (R.334-348) Ms. Adams did not appeal the
TWCC finding that she did not sustain a compensable injury
on August 17, 2000 and this finding became final. Tex. Lab.
Code § 410.205. On September 26, 2003, she answered the
lawsuit and filed a counterclaim for bad faith. (R.706)

(Cont'd)
appealed to the Court of Appeals for the Fifth Circuit under Case No.

0Q2-20111 and the order of dismissal was affirmed because Ms. Adams
failed to exhaust her administrative remedies.

3. Texas allows a non-attorney to represent a claimant before
the TWCC. 28 Tex. Admin. Code § 150.3(a)(3).

4. “Judicial review is the concluding step of the Act’s four-tier
system for disposition of compensation issues. /n re Louisiana-
Pacific Corp., 112 S.W.3d at 188; see Tex. Lab. Code Ann.
§§ 410.021-410.034 (benefit review conference); Tex. Lab. Code
Ann. §§ 410.104; 410.151-410.169 (arbitration or contested case
hearing); Tex. Lab. Code Ann. §§ 410.201-410.208 (appeals panel
review); Tex. Lab. Code Ann. §§ 410.251- 410.308 (judicial review).
Each step is a prerequisite to the succeeding one. See Tex. Lab. Code
Ann. §§ 410.024, 410.169, 410.205; see also Ankrom v. Dallas
Cowboys Football Club, Ltd., 900 S.W.2d 75, 78 (Tex. App.-Dallas
1995, writ denied) (Act provisions regarding successive steps in the
progress and maturity of a claim are mandatory.).” Cervantes v. Tyson
Foods, Inc., 130 S.W.3d 152 (Tex. Civ. App.—E]I Paso 2003).

5

Ms. Adams also filed motions to allow her husband Mr.
Hedrick to represent her. (R.566-575) Mr. Hedrick intervened
in the lawsuit and made himself a party. (R.576-581) Liberty
Mutual filed a motion to sever the bad faith claim and
specially excepted to the pleadings seeking recognition of
Mr. Hedrick as Ms. Adams’ attorney for purposes of the
litigation.

Liberty Mutual’s motion for severance was set for
hearing with proper notice to Petitioners. Ms. Adams and
Mr. Hedrick failed to appear at the hearing on January 26,
2004. At the conclusion of the hearing held in open court,
the motion for severance was granted and Petitioners’ bad
faith claims were severed from the main case into Cause No.
25628-1. (Pet. App. F) (R.350-353) Liberty Mutual’s special
exceptions have not yet been heard because they are part of
the severed and abated case. (R.154)

2. Federal court litigation history

The removal actions filed by Ms. Adams and Mr. Hedrick
in this case are:

ee

Federal
Docket No.

H-04-0954
H-05-0987
H-05-1974

Date
Filed

3/10/04
3/23/05
6/6/05

State Cause
Remanded

No. 25628
No. 25628
No. 25628-1

Date of
Remand

10/22/04
5/6/05
7/25/05

Judge
Presiding

Hon. Lee Rosenthal
Hon. Lynn Hughes
Hon. Kenneth Hoyt

7

Both prior removals were of the main case (Cause No.
25628), the appeal of the final decision of the Texas Workers’
Compensation Commission Decision and Order. In the first
removal action, no motion for statutory fees was filed, in the
second action one was filed and denied.’

3. This lawsuit

This case involves removal of the abated and severed
bad faith counterclaims of Petitioners who alleged that “This
case became removable on May 24, 2005 upon the United
States District Courts [sic] issuing its last order; Order
Denying Liberty Mutual Insurance Company’s Motion for
Sanctions and Attorney Fees in removed case No. H-05-987.”
(R. 607) Further into the Notice of Removal, they alleged
that they were removing

... all ‘bad faith actions’ and violation of U.S.C.
Title 18 (aka The United States Criminal Code)
against LIBERTY MUTUAL INSURANCE
COMPANY and their ‘insured employer’
International Business Machines contained in the
239" Judicial Court of Brazoria County, Case No.
25628-1 alleging civil and criminal wrongs
not compensable under the Texas Workers’
Compensation Act.

(R. 622-623) Petitioners attempted to assert numerous federal
questions involving 18 U.S.C. §§ 24, 241, 242, 371, 1035,
1347, 1512, and 42 U.S.C. §§ 1981, 1983 and 1985, that
have nothing to do with Liberty Mutual’s suit for judicial
review of a workers’ compensation administrative ruling.

5. The motion was filed to put the pro se Petitioners on notice
that Liberty Mutual could request such relief from, and as a deterrent
to, their frivolous and repetitive removals.

8

As the bad faith claims were severed on January 26,
2004, Liberty Mutual filed its Motion to Remand based on
defects in the statutory removal procedure: the May 24, 2005
Order denying attorney’s fees did not create federal
jurisdiction, Petitioners did not file their notice of removal
within 30 days of the Order of Severance, but instead more
than one year after the Order of Severance and the District
Court lacked jurisdiction over a state workers’ compensation
case. (R 526-531)

Liberty Mutual’s Motion to Remand was set for hearing
with proper notice to Ms. Adams and Mr. Hedrick, but neither
appeared at the hearing on July 25, 2005. (Pet. App. D)
(R. 875) During the hearing, Judge Hoyt attempted to reach
the Petitioners by phone. (Pet. App. D) (R. 1006) At the
conclusion of the short hearing, Judge Hoyt granted the
Liberty Mutual’s Motion to Remand and Motion for
Sanctions and Motion for Statutory Attorney’s Fees and
denied all the motions filed by Petitioners. (Pet. App. B)
(R. 1009, 962-966 & 968) Petitioners appealed all orders to
the Fifth Circuit.© The basis of their appeal was that (1) the
state district court violated Ms. Adams constitutionally
guaranteed right to be properly represented in court,
(2) the District court violated Mr. Hedrick’s constitutional
right to represent his wife in court, (3) the District
and state district courts violated Ms. Adams’ right to access
to court by failing to allow her spouse Mr. Hedrick

6. Order of Remand of July 25, 2005, the Order Granting
Liberty Mutual’s Motion for Sanctions and Motion for Statutory
Attorney’s Fees and the Order denying the numerous motions to
compel joinder of Attorney General of United States, the United
States Department of Justice, International Business Machines (IBM),
Louis V. Gerstner (then acting CEO of IBM), Richard Rodgers, Ellen
O’Brien, Bradley Koeh!, Dr. Ponterio and Michacl Clark, and Motion
to Appoint Guardian, Motion to Disqualify Opposing Counsel,
Motion to Strike All Documents Filed by Opposing Counsel, Motion
to Stay and Motion for Continuance. (R. 977-978)

9

to represent her in court, (4) the District court denied Ms.
Adams’ right to access to court by failing to advise her prior
to any hearings that access via telephone was approved,
(5) the District court erred in ordering attorney fees and
sanctions against Petitioners, and (6) the District court erred
in remanding the case on the basis of lack of subject matter
jurisdiction. Liberty Mutual filed a Motion to Dismiss the
appeal as well as an Appellee’s Brief. The Fifth Circuit
granted Liberty Mutual’s Motion to Dismiss and Motion for
Costs and Damages, and denied all Petitioner’s motions.’

On November 16, 2006, Petitioners filed their Petition
for Writ of Certiorari with the Supreme Court. The
inaccuracies contained in the rendition of the facts made by
Petitioners and the petition’s focus on a non-existent right
of Hedrick, a layman, to represent Adams in a court of law
required Liberty Mutual to file this Brief in Opposition.
Petitioners filed their Petition for Writ of Certiorari asserting
federal questions involving (1) whether the disabled Ms.
Adams’ right to due process was violated by failing to
recognize the status of her spouse Mr. Hedrick to represent
her in court, (2) whether the provisions of Tex. Lab. Code
§§ 401.011(37) & 402.071 and 28 Tex. Admin. Code §
150.3(a)(3), allowing a claimant non-attorney representation
at TWCC hearings, and the provision of the Tex. Gov’t Code
§ 81.102(a), prohibiting non-attorney representation in state
and federal courts violate the due process rights of Ms. Adams
to be represented by her non-attorney spouse who represented
her at the administrative hearing and who was most
knowledgeable of the facts of the case, (3) whether the
District Court and Court of Appeals for the Fifth Circuit
abused their discretion in ordering sanctions and costs against

7. Petitioners’ motion for $20,000 in sanctions, motion to turn
the appeal over to the FBI for investigation of allegations of
conspiracy between employees of the Court of Appeals and motion
to continue all actions pending the outcome of that investigation.

10

Petitioners to “silence” attempts to challenge state laws and
non-attorney representation, (4) whether the Court of Appeals
for the Fifth Circuit erred in dismissing the appeal without
addressing the disabled Ms. Adams’ rights to due process,
representation and protection of fair and equal access to the
court, and (5) whether the District Court and the Court of
Appeals for the Fifth Circuit unfairly issued sanctions and
costs against Petitioners.

REASONS FOR DENYING THE PETITION

I. Appellate review of remand orders is barred by
28 US.C. § 1447(d).

Liberty Mutual’s Motion to Remand, based on defects
in the removal procedure and lack of jurisdiction, was heard
and granted. Therefore, even if erroneous, this Court does
not have jurisdiction to consider a review, by any method, of
the Order of Remand. 28, U.S.C. § 1447(d); Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-128 (1995);
Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723
(1977); Louisville & Nashville R. Co. v. Mottley, 211 U.S.
149, 150-153 (1908) (plaintiff, not defendant, controls
removability of case); Kircher v. Putnam Funds Trust, 546
U.S. __, 126 S. Ct. 2145, 2154 (2006).

Petitioners “appeal to the United States Court of Appeals
for the 5" Circuit from the following orders of the United
States District Court ... Order of Remand entered in this
action on the 25" day of July, 2005.” (R 977)

Courts of appeal lack jurisdiction to hear a direct appeal
of an order of remand based on a defect in the removal
procedure. 28 U.S.C.A. § 1447 (d); Thermtron Products, Inc.
v. Hermandsdorfer, 423 U.S. 336, 346 (1976). Therefore,
this appeal should be dismissed.

11

Even if erroneous, this Court does not have jurisdiction
to consider a review, by any method, of the Order of Remand.
“[R]Jeview is unavailable no matter how plain the legal error
in ordering the remand.’” Kircher v. Putnam Funds Trust,
547 U.S. ___, 126 S. Ct. 2145, 2154 (2006) (quoting Briscoe
v. Bell, 432 U.S. 404, 414 n.13 (1977)). (Where a remand
order is based on one of § 1447(c)’s grounds, review is

unavailable no matter how plain the legal error in ordering
the remand.)

A. Alternatively, without waiving the foregoing,
Petitioners did not follow the proper procedure
to remove this case.

1. Petitioners’ Notice of Removal was untimely
filed

In the alternative, without waiving the foregoing,
Petitioners filed their Notice of-Removal on June 6, 2005.
(R. 8) Petitioners’ Notice of Removal was untimely because
they failed to file their Notice within thirty days of receipt of
either the initial pleading or an amended pleading, motion,
order or other paper from which the Petitioners may have
first ascertained that this case was or had become removable
as required by 28 U.S.C. § 1446(b). (R. 265-266).

Petitioners recited in their Notice of Appeal that this case
became removable on May 24, 2005, the date Liberty
Mutual’s Motion for Sanctions and Attorney’s Fees was
denied by Judge Hughes in the second removal action of the
main case, but failed to include a brief statement
explaining the basis of how this order created federal
jurisdiction.* 28 U.S.C. § 1446(a). (R. 10) Nothing in the

8. Petitioners did not attach a copy of the May 24, 2005 Order
to their Notice of Removal, nor include it in their appendix. It appears
in Respondent’s Appendix as No. 3.

12

May 24" Order in the prior removal action of the main case,
gave rise to a federal question for federal court jurisdiction.
See Willy v. Coastal Corp., 503 U.S. 131, 138 (1992). The May
24" Order was the only “pleading, motion, order or other paper”
at the time of the June 6 Notice of Removal that was less than
thirty days old and that Petitioners could allege to appear timely.
28 U.S.C. § 1446(b). Their statement that the case became
removable on May 24, 2005, because of the May 24, 2005 Order
Denying Motion for Sanctions and Attorney’s Fees was a
frivolous pleading to avoid the Section 1446(b)’s thirty day time
limit. Such order has no bearing on whether the District Court
had jurisdiction of the controversy removed in this case and in
no way relates to any of the numerous statutes Petitioners allege
present a federal question. (R. 10-21)

As another basis for removal to federal court, Petitioners
included the January 26, 2004 state court Order of Severance
and removed the “severed allegations of civil wrongs.”
(Pet. App. F) (R 623). The January 26, 2004 state court Order
of Severance and the Memorandum and Order of Judge
Rosenthal in the first removal action were attached to Petitioners’
Notice of Removal in the second removal action filed on March
23, 2005. (Pet. App. F,) (R.557-565) Clearly, Petitioners had
notice of both orders on March 23, 2005. Therefore, from the
record, March 23, 2005 is the latest date from which Petitioners
could have received notice of and ascertained from those orders
“that the case is one which is or has become removable”. 28
U.S.C. § 1446(b). Assuming they could base removal on their
own pleadings, to be timely, Petitioners must have filed their
Notice of Removal by April 23, 2005. Their Notice of Removal
was filed on June 6, 2005, more than thirty days after
March 23.'°

9. Petitioners used the January 26, 2004 as a ground for removal
in their 2 removal action.

10. In reality, Appellants had notice of these Orders much earlier,
but verification of their reccipt of them before March 23, 2005, is outside
the record.

13

Not having filed their Notice of Removal within 30 days
of the January 26, 2004 Order of Severance, or even 30 days
from notice of the order, the Petitioners waived their night to do
so. 28 U.S.C. § 1446(b); Brown v. Demco, Inc., 792 F.2d 478,
481 (5 Cir. 1986). It was incumbent upon the Petitioners to
show their removal was proper. Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5 Cir. 1988). In their Response to the Liberty
Mutual’s Motion to Remand, Petitioners failed to assert, or make
any showing, that their removal was timely. (R. 881-897) No
facts, argument or authority were asserted by Petitioners in
response to Liberty Mutual’s ground of procedural defects in
the removal. (R. 881-897)

The Petitioner’s Notice of Removal is untimely for the
additional reason that the alleged facts made the basis of the
Petitioners’ third removal are represented by Petitioners as
having taken place prior to the filing of Liberty Mutual’s original
state court action. They attached to their Notice of Removal the
following exhibits dated prior to the filing of Liberty Mutual’s
original state court action in support of their factual allegations:

Exhibit A dated October 2, 2000 (Durable Power of
Attorney signed by Donna Adams appointing Robert
Hedrick her attorney in fact) (R.42);

Exhibit D dated October 10, 2000 —February 26, 2001
(Notes of E. O’Brien) (R. 60);

Exhibit E dated February 2, 2001 (letter from IBM to
OSHA), January 26, 2001 (letter from U.S. Dept. of Labor
to IBM), May 30, 2001 (Letter from IBM to Robert Hedrick)
(R.62);

Exhibit F purportedly dated March 27, 2003 (Purported
deposition of Michael Clark) (R.71);

Exhibit G dated February 3, 2001 (Affidavit of Edith
Knighten) (R.77);

14

Exhibit Q dated May 15, 2001 (Notice of Appraised Value)
(R.90); and

Exhibit Z dated May 30, 2001 (Letter from Tommy Smith
to Louis Gertner) (R.160).

Therefore, in September, 2003, when they filed their answer/
counterclaim in the state district court, Petitioners had already
“ascertained” the existence of most of the facts they alleged
gave rise to the claims asserted in their Notice of Removal.

2. Respondent’s Motion for Remand was timely
filed

Liberty Mutual timely filed its Motion to Remand on June
30, 2005 within thirty days of Petitioners’ Notice. (R. 257)
Liberty Mutual’s Motion to Remand was based in part on
procedural defects in the Appellants’ removal of the case which
included failure to timely remove, failure to state a ground upon
which removal could be based, having the status of a plaintiff
in the action sought to be removed, trying to remove an abated
lawsuit, and basing removal on their own pleadings and not
Liberty Mutual’s original petition. (R. 265-269)

3. Petitioners’ Notice of Removal based upon their
own cause of action

Another basis of Liberty Mutual’s Motion to Remand was
the defect of Petitioners’ Notice of Removal being based upon
their own causes of action and not Liberty Mutual’s original
petition. (R. 267) “In cases removed to federal court, the
plaintiff's well-pleaded complaint, not the removal petition,
must establish that the case arises under federal law.” Id. at
1165.

Liberty Mutual asserted that Petitioners were in fact the
“plaintiffs” in the action they sought to remove and did not
qualify as “a defendant” under 28 U.S.C.A. § 1446(a) to remove

their bad faith action. (R. 267) As the plaintiffs in their cause of
action, they had the choice to file their action either in state
court or District court when they filed their countersuit on
September 26, 2003.

In Certain Underwriters at Lloyd’s v. Bristol-Myers Squibb
Co., 51 F. Supp. 2d 756, 759 (E.D. Tex. 1999), the issue of
whether the removing party was a defendant was addressed.
The factors considered were whether the party’s claims
constitute the “‘mainspring of the proceedings” and whether the
“the institution and continuance of the proceedings depend upon
its will,” citing Mason City & Fort Dodge Railroad Co. v.
Boynton, 204 U.S. 570, 580, 27 S. Ct. 321 (1907). Though Ms.
Adams was the designated defendant in the workers
compensation case, she became a plaintiff when she sued Liberty
Mutual for bad faith. Since the right to removal is limited to
defendants, Ms. Adams, being a plaintiff in the severed
bad faith action, could not remove her case to District Court.

Scott v. Communications Services, Inc., 762 F. Supp. 147, 150
(S.D. Tex. 1991), aff’d, 961 F.2d 1571 (Sth Cir. 1992).

4. Petitioners attempted to remove abated state
court case

Liberty Mutual also asserted that by virtue of the Order of
Severance and Abatement, the Cause No. 25628-1 had been
abated until the main case had been finally determined. (R.268,
350-353) The case having been abated, the Petitioners were
prohibited from proceeding in any manner until the case had
been revived. Lumbermens Mut. Cas. Co. v. Garza, 777 S.W.2d
198, 199 (Tex. Civ. App.—Corpus Christi 1989).

B. Lack of jurisdiction

Liberty Mutual’s Original Petition was based upon a
workers’ compensation claim filed by Ms. Adams over which
federal courts have no jurisdiction. 28 U.S.C. § 1445(c);
Blackmore v. Rock-Tenn Co., 756 F. Supp. 288, 289 (N.D. Tex.

16

1991). Adams was attempting to refile the abated state court
bad faith counterclaim in District Court. Liberty. Mutual’s
Original Petition controls whether this action was removable
to federal court. Caterpillar, Inc. v. Williams, 482 U.S. 386,
392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987). Liberty
Mutual did not allege a federal question on the face of its Original
Petition to which federal jurisdiction could attach. Gully v.
National Bank, 29 U.S. 109, 111-113, 57 S. Ct. 96, 97, 81
L. Ed. 70 (1936). The federal question issues alleged by Adams
(complaint with the trial court’s Order Granting Severance and
Abatement of January 26, 2004, her spouse’s right to act as an
attorney for her in a court of law and her request to have him
appointed guardian and/or guardian ad litem over and/or for his
wife) do not grow out of the same fact situation or controversy
made the basis of the original suit and do not confer subject
matter jurisdiction to this federal court. /d., Baron v. Strassner,
7 F. Supp. 871, 873 (S.D. Houston 1998).

Petitioners have and are by their Petition “challenging the
actions, lack of actions and orders of the ... 239" Judicial
District Court of Texas as being unconstitutional .. .”'' Even if
Judge Hughes May 24, 2005 Order and Judge Sebestra’s January
26, 2004 Order of Severance were final judgments, the District
Court lacked jurisdiction to “review and reverse unfavorable
state-court judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 283-284, 125 S. Ct. 1517, 161 L. Ed. 2d
454 (2005).

The Petitioners added a personal injury action arising out
of the alleged on-the-job injury of August 17, 2000. Ms. Adams’
claim for benefits arising out of the August 17, 2000 occurrence
was presented to and considered by the TWCC. (R.322) The
hearing officer held that Ms. Adams did not sustain a
compensable injury on August 17, 2000. (R. 328) Ms. Adams
did not file an appeal of this issue. Therefore, the finding that

11. Petition for Writ of Certiorari, Page 3.

17

Ms. Adams did not sustain a compensable injury on August 17,
2000 is a final determination of that issue. Tex. Lab. Code §
410.169, ESIS, Inc., Servicing Contractor v. Johnson, 908
S.W.2d 554, 562-563 (Tex. Civ. App.—Fort Worth 1995). Ms.
Adams’ exclusive remedy against her employer and its workers’
compensation carrier for the August 17, 2000 occurrence was
the recovery of workers’ compensation benefits. Tex. Lab. Code
§ 405.001(a). She is precluded from bringing a personal injury
action against Liberty Mutual or its insured based upon the
August 17, 2000 occurrence. Tex. Lab. Code § 405.001(a),
Simpson v. State, 998 S.W.2d 304, 306 (Tex. Civ. App.—Austin
1999).

II. There was no abuse of discretion in awarding or
affirming the award of statutory attorney’s fees to
Liberty Mutual the prevailing party in a removal
action and sanctioning the Petitioners because such
an award is authorized by 28 U.S.C. § 1447(c) when
there is no objectively reasonable basis for seeking
removal and Petitioners violated Rule 11 of the
Federal Rules of Civil Procedure.

A. Attorney’s fees

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. 28 U.S.C.A. § 1447(c). The District
Court is empowered to award reasonable attorney’s fees
to successful litigants seeking remand of cases to state court.
Id., Fed. R. Civ. Proc. 54(d)(2). By filing its Motion to Remand,
Motion to Dismiss Pursuant to Rule 12(b), Motion to Dismiss
for Lack of Subject Matter Jurisdiction and Plea to the
Jurisdiction on June 30, 2005, within thirty (30) days of receiving
on June 9, 2005, Petitioner’s June 6, 2005 Notice of Removal,
and by being the prevailing party in such removal action,
LIBERTY MUTUAL qualified for an award of statutory
“ttomey’s fees. 28 U.S.C. § 1447(c). By filing its Motion for

18

Sanctions and Statutory Attorney’s Fees with a supporting
affidavit from the undersigned attorney contemporaneously with
its motion to dismiss and remand, Liberty Mutual met its burden
to show there is no objectively reasonable basis for the
Petitioners’ third removal and the unusual circumstances present
in this case. Martin v. Franklin Capital Corporation, 546 U.S.
132, 126 S. Ct. 704, 711 (2005).

Liberty Mutual’s Motion for Sanctions and Statutory
Attorney’s Fees set out the repetitive removal actions that
effectively delayed the state court case for almost three years
from the notice of the first removal on March 4, 2004. Petitioners
alleged in their June 6, 2005 (3) Notice of Removal that the
case became removable when on May 24, 2005, an Order was
signed by Judge Hughes denying Liberty Mutual’s Motion for
Sanctions and Statutory Attorney’s Fees. Considering the
circumstances and facts of this case as set out and argued above,
there is no objectively reasonable basis for Petitioners to assert
that Liberty Mutual’s cause of action involved a federal question
requiring federal jurisdiction as a result of an order denying a
statutory attorney’s fee request for fees in a prior removal action
between the same parties. Petitioners did not proffer any non-
frivolous argument or authority on this point in either the District
Court, the Court of Appeals or this Court. There was no basis,
either in law or fact, upon which Petitioners could have prevailed
on any of their claims. The District Court found that the June 6,
2005 removal was in bad faith and without substantial
justification.

As set forth in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-719 (5" Cir. 1974), the guidelines for
awarding attorney’s fees are:

1. Time and labor required;

2. The novelty and difficulty of the questions;

3. The skill requisite to perform the legal service properly;

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4. The preclusion of other employment by the attorney
due to acceptance of the case;

5. The customary fee;
6. Whether the fee is fixed or contingent;

Time limitations imposed by the client or the
circumstances;

The amount involved and the results obtained;
9. The experience, reputation, and ability of the attorneys;
10. The “undesirability” of the case;

11. The nature and length of the professional relationship
with the client; and

12. Awards in similar cases. Johnson, 488 F.2d at 717-
719.

The Order granting the statutory attorney’s fees states on
its face that the Court considered the guidelines set forth in
Johnson, 488 F.2d at 717-719, and that according to such
guidelines, the amount of the fee requested by Liberty Mutual
was reasonable and necessary. (Pet. App. B)

Petitioners have not put forth any argument or authority to
claim that the District Court erred in awarding Liberty Mutual
its statutory attorney’s fees. Therefore, the Court of Appeals for
the Fifth Circuit did not abuse its discretion in affirming the
award of $10,750.00 in attorney’s fees.

B. Sanctions

The District Court did not abuse its discretion in sanctioning
Adams and Hedrick with monetary and non-monetary sanctions
because Adams’ and Hedrick’s conduct during the course of
this case violated Rule 11 of the Federal Rules of Civil
Procedure. The correct standard of review of a district court’s

order under Rule 11 is abuse of discretion. Cooter & Gell v.

20

Hartmarx Corp., 496 U.S. 384, 405 (1990). The central purpose
of Rule 11 is to deter baseless filings'* in district court and thus,
consistent with Rule Enabling Act’s grant of authority, streamline
administration and procedure of federal courts. /d. at 393.

‘Determining whether an attorney has violated
Rule 11 involves a consideration of three types of
issues. The court must consider factual questions
regarding the nature of the attorney’s prefiling
inquiry and the factual basis of the pleading or
other paper. Legal issues are raised in considering
whether a pleading is “warranted by existing law
or a good faith argument” for changing the law
and whether the attorney’s conduct violated Rule
11. Finally, the district court must exercise its
discretion to tailor an “appropriate sanction.”
Id. at 399.

By affirming the sanctions orders against Petitioners on the
basis that there was no abuse of discretion, the appellate court
applied the correct standard of review. Id. at 405.

“{I]jt is well established that a federal court may
consider collateral issues after an action is no
longer pending. ... [An] imposition of a Rule 1
sanction is not a judgment on the merits of an
action. Rather, it requires the determination of a
collateral issue: whether the attorney has abused
the judicial process, and if so, what sanction
would be appropriate.” /d., at 395-396, 110 S. Ct.,
at 2456. Such an order implicates no constitutional
concern because it “does not signify a district
court’s assessment of the legal merits of the

12. Petitioners object to the order of monetary and non-
monetary sanctions on the grounds that they are attempts to “silence
the constitutional issues of the case” and unfair. (Pctition for Writ
of Certiorari, p. 22)

21

complaint.” /d., at 396, 110 S.Ct., at 2456. It
therefore does not raise the issue of a district court
adjudicating the merits of a “case or controversy”
over which it lacks jurisdiction. Willy v. Coastal
Corp., 503 U.S. 131, 137-138 (1992).

1. Non-monetary sanctions

As argued before, the Petitioners’ three removal actions
were groundless and for delay purposes. (R. 261-264) Petitioners
failed to controvert the factual allegations in Liberty Mutual’s
Motion to Remand (R.258-264, 881-888) Petitioners’ modus
operandi is to remove to federal court, file pleadings alleging
conspiracy, fraud and criminal violations, request rulings without
hearings, move to disqualify opposing counsel and the judge,
move to strike opposing pleadings, request a stay, fail to appear
at hearings and file a notice of removal alleging Ms. Adams’
constitutional rights have been violated. (R. 115-120, 132-135,
136 — 141, 513-524, 540-550, 566-574, 876-880) The legal basis
of their removal, based upon the May 24, 2005 Order Denying
Liberty Mutual Insurance Company’s Motion for Sanctions and
Attorney Fees, was groundless and in bad faith. The District
Court’s power to decide a collateral issue of attorney’s fees did
not create federal question jurisdiction over Liberty Mutual’s
suit for judicial review. Willy v. Coastal Corp., 503 U.S. at 137-
138. The common denominator in all of the Petitioners’ filings
is a complaint of the violation of their due process with no
attempt to avail themselves of the procedure in place to prevent
the very same due process violation of which they complain.
Galloway v. Louisiana, 817 F.2d 1154, 1158 (Sth Cir. 1987)
(“An employee cannot ignore the process duly extended to him
and later complain that he was not accorded due process.”’).

Applying the test set forth in Cooter & Gell, 496 U.S. at
399, it was not an abuse of discretion for the District Court to
sanction the Petitioners with monetary and non-monetary
sanctions. The sanction was appropriately tailored to prevent
the continued filings of groundless removal actions whose

22

factual contentions are clearly baseless. Chambers v. NASCO,
Inc., 501 U.S. 32, 51 (1991).

By signing the June 6, 2005 Notice of Removal, Petitioners
certified that to the best of their knowledge, information and
belief, formed after inquiry reasonable under the circumstances,
that the claims and legal contentions of federal jurisdiction made
in their Notice of Removal were warranted by existing law or
by a nonfrivolous argument for the extension, modification,
or reversal of existing law or the establishment of new law.
Fed. R. Civ. P. 11(b)(2).

As evidenced by a comparison of the three Notices of
Removal filed by Petitioners (R. 513-524, 540-550 & 605-640),
the allegations are the same — violation of Ms. Adams’ right to
due process by not allowing her non-attorney husband to
represent her and federal question based upon the state court’s
granting the severance of the bad faith case — but each with a
new twist. The twist has ranged from allegations of not being
provided with proper representation as an alternative to
recognizing her husband as her attorney to allegations of
conspiracy and violations of numerous federal criminal statutes
that have no basis in fact or law. After two attempts to remove
on basically the same grounds and two remands, it is
inconceivable that the Petitioners thought that their claims in
the third Notice of Removal were warranted by existing law or
a non-frivolous argument.

Further, as evidenced by a comparison of the three Notices
of Removal, the facts and events made the basis of this 34
removal were known to them at the time of the F' removal.
Therefore, their statement of jurisdiction based upon the May
24, 2005 Order denying sanctions is merely an attempt to plead
around the untimely filing of this removal attempt. Clearly, the
federal question issues and the pleading, order or paper, that
they complain of (if indeed they have a legitimate complaint) is
the Order of Severance and Petitioners’ erroneous assertion that
Hedrick, a non-attorney, may represent his wife in court.

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Pro se litigants have the duty to investigate the factual basis
of their lawsuit and are subject to the sanctions of Rule 11
for failure to do so. Business Guides, Inc. v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 545-546, 564
(1991).

In determining whether Petitioners made reasonable inquiry
into the law governing this case, the Court may be guided by
Thomas vy. Capital Security Services, Inc. 836 F.2d 866, 875-
876 (5 Cir. 1988). Factors enumerated in Thomas include:

(1) time available to prepare the pleading
(2) plausibility of the legal argument
(3) pro se status of the litigant

(4) complexity of the legal and factual issues raised in
the case. Thomas at 875-876.

LIBERTY MUTUAL asserted that (1) as there was no
deadline to meet, sufficient time was available to Petitioners to
prepare their pleading; (2) their legal arguments lacked any
plausibility; (3) the pro se status of Petitioners had already been
granted accommodation since they had been involved in three
prior federal court proceedings and one appellate proceeding
involving this workers’ compensation case involving the similar
issues and legal arguments on Mr. Hedrick’s non-existent right
to represent his wife; (4) the complexity of this case was average
until the Petitioners began their course of action of removing
this case to federal court; and (5) as shown above, Petitioners
were prohibited from re-litigating the alleged August 17, 2000
on the job injury.

A sanction must be limited to what is sufficient to deter
repetition of such conduct or comparable conduct by others
similarly situated. Fed. R. Civ. P. 11(c)(2). The sanction
prohibiting Petitioners from filing any further pleadings in
federal court on this litigation is specific to this case alone, does

24

not abridge Petitioners’ right to file anything that is meritorious
and non-frivolous and protects Liberty Mutual from having to
defend against the Petitioners’ frivolous actions.

2. Monetary sanctions.

It was not an abuse of discretion for the District Court to
grant monetary sanctions because of the repeated removal
actions. No request for fees was made in the first removal. The
fee request for the second removal was denied. After the second
removal, Petitioners could not argue, and have not argued, that
they were unaware of the possibility that they could be ordered
to pay Liberty Mutual’s attorney’s fees. Had Petitioners stopped
after the second removal, they would not have been sanctioned.

Petitioners’ claims fall into the category described by Justice
Marshall in Neitzke v. Williams as “fantastic or delusional
scenarios”.!3 Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct.
1827, 1833 (1989). But for Petitioners’ course of conduct,
Liberty Mutual would not have incurred additional attorney’s
fees to defend against the frivolous removal of this case to federal
court. Petitioner’s pleadings were a work in progress, adding a
new allegation or changing an approach to the same issue,
requiring close review to avoid overlooking a hidden issue.
Petitioners’ pleadings, the Affidavit of Mary Markantonis
(R. 314) filed with the District Court and the July 25, 2006
Order (R. 962-966) substantiate this point.

13. Petitioners alleged numerous criminal violations including
18 U.S.C. §§ 241, 242, 371 & 1512 (R. 13-22) Petitioners alleged a
conspiracy between Liberty Mutual’s former attorney, Liberty Mutual
and IBM “to violate civil rights and Title 18.” (R. 853, 868)
Petitioners sought to disqualify the undersigned counscl because she
was employed by the same law firm as the former attorney. (R. 867)
Petitioners alleged a conspiracy between the undersigned attorney
and the Fifth Circuit court employees because Liberty Mutual’s
request for extension of time to file brief was addressed to a specific
employee in the clerk’s office instead of the court’s clerk.

25

III. The Court of Appeals for the Fifth Circuit did not
abuse its discretion in awarding Liberty Mutual costs
and damages for attorney’s fees because the
Petitioners lacked an objectively reasonable basis for
seeking removal and their appeal was frivolous and
caused unnecessary delay and expense. Fed. R. App.
Proc. 38.

A. Lack of objectively reasonable basis

Liberty Mutual incorporates all its argument and authority
set forth in Sections I. and IL. above regarding lack of jurisdiction,
defect in the removal process and frivolous nature of this appeal
in support of its assertion that there was no objectively
reasonable basis for Petitioners to file the third Notice of
Removal in this case. Petitioners’ claims (legal representation
by non-attorney husband, violations of criminal statutes,
personal injuries for on the job injury found to be not
compensable) are legally frivolous because Liberty Mutual is
immune from the claims asserted by Petitioners. Tex. Lab. Code
§ 405.001(a); Neitzke, 490 U.S. at 327.

B. Petitioners’ appeal was frivolous.

As this was a workers’ compensation case, Petitioner’s prior
two attempts at removal had failed and federal statute provides
that review of an order of remand is barred, Petitioner’s appeal
of the third Order of Remand was frivolous because it had no
basis in fact or in law. 28 U.S.C. §§ 1445(c) & 1447(d). “[A]
finding of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts available to
contradict them.” Denton v. Hernandez, 504 U.S. 25, 33, 112
S. Ct. 1728, 1733 (1992). (R. 525-531 & 595) Petitioners’ Notice
of Removal described claims arising out of fantastic or

delusional scenarios and therefore were frivolous. Neitzke, 490
U.S. at 327. (R. 10-24)

26

CONCLUSION

Respondent respectfully submits that, for the reasons set
forth above, this Court has no jurisdiction to review this case
on the merits or the issues presented by Petitioners and that the
Court should affirm the Court of Appeals’ Orders denying
Petitioner’s motions and granting Respondent costs and damages
so that the case may return to the District Court for determination
of that amount.

Respectfully submitted,

Mary M. MArRKANTONIS

DEAN G. Pappas & Assoc., P.-C.
10375 Richmond, Suite 1670
Houston, Texas 77042

(713) 914-6200

Attorneys for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1972%3A3. Public record. Not legal advice.