Petition for Writ of Certiorari — Nixon v. Wheatley (No. 06-1242)

supreme Court. U.S.

FILED wes

06124221 2 2007

OFFICE OF THE CLERK

In the Supreme Court of the United States

KEVIN NIXON AND BRANDON ANCELET,

Petitioners,

BURYL WHEATLEY AND P.D. GEORGE COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BRUCE W. COBB

COUNSEL OF RECORD

TEXAS BAR No. 04431900

CRAIG J. SCHEXNAIDER

TEXAS BAR NO. 00797385

3280 DELAWARE

BEAUMONT, TEXAS 77703

PHONE: 409-899-3360

FAX: 409-899-3372

Counsel for Petitioner

AMERICAN FINANCIAL PRINTERS © (202) 464-5500

Questions Presented

Whether a plaintiff may appeal an order denying a

motion to remand to state court after accepting an

offer of judgment under Federal Rule of Civil

Procedure 68 if the plaintiff effectively reserves the

right to appeal and how can such right be reserved?

If the plaintiff in the previous question fails to

effectively reserve the right to appeal, may a federal

court of appeals still review the order denying the

motion to remand if the offer of judgment was invalid

making the resulting judgment void?

Title 28 of the United States Code, Section 1446(d)

provides in relevant part that: “[p]romptly after filing

such notice of removal of a civil action, the defendant

or defendants...shall a file a copy of the notice with

the clerk of such state court, which shall affect the

removal...” Defendants filed copy of the removal

notice with the state court clerk twenty-two (22) days

after filing the removal notice in federal district court.

Was such filing “promptly” made in accordanceé with

the statute? [28 U.S. Code § 1446(d)]

Parties to the Proceeding

The following constitutes a complete list of parties to the

proceeding:

Petitioners: Kevin Nixon

Brandon Ancelet

Residents of Orange woemy, * Texas and Plaintiffs/Appellants

in the courts below.

~ Respondents: Bury! Wheatley

resident of Illinois

P.D. George Company, a corporate

entity based in St. Louis, Missouri, is a member of ALTANA

Chemie Group of Companies. However, to the best of

Petitioners’ knowledge, no parent or publicly held company

owns 10% of more of the corporation’s stock.

‘a

Il.

Table of Contents

Page

CRUG SURO seccicnicisinircssanvsienciniticnictbnnistintens i

List of Parties to the Proceeding.............sssereseers il

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CINE SE sisi vocansessnlhsustinketinivnlonsectandinnien

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Statutory Provisions Involved............:.ccssesseees ] 5

DRRCI. CF TG CMDB secicsscicerceormencesevicinnstimens ]

Reasons for Granting the Petition...................... 5

I. This case raises issues important to

federal civil jurisprudence such as

the proper interpretation of a Federal

Rule of Civil Procedure, etc., which

have not been but should be settled

By TRE iciviicnnicisgccsedicihcciatcanipinn 5

Ii. The Fifth Circuit’s ruling clashes

with prior decisions from other

Cotats 08 AmmORls ....nsscicccoccossenssersees 1]

IIT. This case also involves the proper

interpretation of an Act of Congress

[28 U.S. Code Section 1446(d)] upon

which lower federal courts are

TINE sivcsanisicuceainnbinabietirvaeamiiviiiel 12

ili.

IV. The Fifth Circuit’s ruling calls for an

exercise of this Court’s supervisory

i ciscsevsticchinchevrsnatibevndascinisecnniiveivas 20

GN ivicpdsaswesdevatensatbinissteseradie 24

Pe ichivnsnssipleincenniaisdvihskaaatunnipécieonanin 25

Appendix

Page

Appendix 1 - District Court Order denying

PINE WO TIE ssn ssesssccsieiciopisejuessscteiens Al

Appendix 2 - District Court Order Denying

EMCTIOCUIOTY ADDER cc: ccsceicncscescnsorvessoserrsss All

Appendix 3 - Court of Appeals Order Denying

INO TOT sis faiccscncrnractsipicosinscinceiertvsees A 12

Appendix 4 - Offer of Judgment (letter).................. A 13

Appendix 5 - Acceptance (memo)............::sceseseeeees A 15

Appendix 6 - Notice of Acceptance... A 16

Appendix 7 - District Court Judgment.............:0060+ A 18

Appendix 8 - Court of Appeals per curiam

Opinion (dated: October 27, 2006)............ A 19

Appendix 9 - Fifth Circuit Order Denying

Petition for Rehearing

CORIO BD TNR nieiisscicseocdeccicendaccwcsinins A 20

Appendix 10 - (text) Rule 68 Fed. R. Civ. P.......... A 22

Appendix | 1 - (text) Title 28 U.S. Code

ST Rae i nlicdscsn soins okies sesboicnpasrias A 23

Table of Authorities

Cases Page

Alpena Power Co. v. Utility Workers Union of

America, Local 286, 674 F. Supp. 1286

STs RIT Pincicceensnttaessascssdissinicigeisnssuuphédicdanins 19

Amstar v. Southern Pacific Transp., 607 F.2d 1100

(5" Cir. 1979) cert. den. 449 U.S. 924 1980).......... 5,6,11

Anthony v. Runyon, 76 F.3d 210, (8" Cir. 1996)...... 17

Arnold v. CSX Hotels, Inc., 212 F. Supp. 2d 643

CE Fe A Be ides thidistiasevttndiieitiniciadin i ae

Babbitt v. Clark, 103 U.S. 606, (1880)...............0 15

Barrett v. Southern Ry. Co., 68 F. R. D. 413

A tir eccseheiinidcsheantiealtadidiatiiaaprbtanbonunitiadios 19

Basha vy. Mitsubishi Motor Credit Corp.,

BOF MASE EO CNG. III cies thesenctvarsiesarecctnesee 9

BIW Deceived v. Local S6, 132 F.3d 824

Ce Fe nena peaceninns 8,11,12

Brzozowski v. Correctional Physician Services,

SOO F SATS OF CO isis teenies 7,8,11,

12

Calderon v. Pathmark Stores, Inc., 101 F. Supp. 2d

BOR OEY I re 19

Carter v. Fenner, 126 F.3d 1000 (5" Cir. 1998) ..... 10

Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996)........... 21

Vv.

Colletti v. Ovaltine Food Products, 274 F. Supp.

Bi 8) ge 3g aabeetintmioreanrutn mimtite nee meer 19

Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236

ge 8), REREAD Arse aoe E GU EME 12

Delta Airlines, Inc. v. August, 450 U.S. 346 (1981)..5

Doherty v. Goslin, 2000 U.S. Dist. Lexis 15083

Ge i So icccsiesiecebecéinsabsiinioibedssidinitesionuticsdensstvcidale 19

Dugas v. Trans Union Corp., 99 F.3d 724

ree: Si critica eee oieces 5,8,23

F.D.IC. v. Meyer, 510 U.S. 471 (1994) .ssecosssssseeee 13

Florida v. Rodriguez, 469 U.S. 1,7 (1984)................ 22

Gavoni v. Dobbs House, Inc., 164 F.3d 1071

FFE, I visi witinicsctinne Sc saliniesthosnnchlaiea 6,9

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

Eee acitiig toh dassuh ititannsceesdsdunissaasncobusoncscieuiemicioerteusamiels 13

In re Politz, 206 U.S. 323 (1907)......cscccseccoccocenesecseess 21

Juntunen v. Seu-Con Services, Inc. 879 F.2d 154

I a 7

La Maina vy. Brannon, 804 F. Supp. 607 —

8 AGAR SRSEREASCEESS oa aati Anais ghee nee? 19

Lamar y. United States, 241 U.S. 103 (1916)............ 13,16

Lefall vy. Dallas Indep. School Dist., 28 F. 3d 521,

gh AR, Rede REN a eC Blo Nite ECE Ra a 13

Vi.

Manufacturers & Traders Trust Co. v. Hartford

Accident & Indem. Co.,434 F. Supp. 1053,

Ca FIT icetncensvesendcisiviieindabeeiisintipegpedanitionen 14,19

Marek v. Chesny, 473 U.S. 1 (1985)........cceceseseeseeeeee 5,8

Master Equipment, Inc._v. Home Insurance Co.,

342 F. Supp. 549 (E.D. Pa. 1972)..........sscerercesesseees 19

McIntosh vy. Antonino, 71 F. 3d 29 (1" Cir. 1995).... 18

Nat. Bank of Oregon v. Independent Ins. Agents

of America_Inc., 508 U.S. 439 (1993)......cceseseseereees 13

Nixon v. Wheatley; 368 F. Supp. 2d 635 (E.D. Tex.

y_-: PRE ict Oras eee ROE ARAN Ry RI eC MOE OME 3

Parker v. Malone, 2004 WL 190430 (W.D.

A Mi ee Rises icish accede bac chcemiitcaneds cadababascedsennaiecesunliosia 19

Ramming v. Natural Gas Pipeline Co. of Am.,

990 F.3d BGG (5 Cit. 2ODG).icisecsecsosseccacsevvesoevsoscente 6,8,11,

y i AP

Rubio vy. Allegheny Intern. Inc., 659 F. Supp. 62

SRG EF ivcihin petcaceenidietemeriseriegaibeosmeeiinmmpernineds 19

Shamrock Oil & Gas Corp. v. Sheets,

SEF Bs De EP sitincicnccestitsindicesininintsinipeisinieteaiiel 13,15,16

Shores v. Sklar 885 F.2d 760 (11™ Cir. 1989)........... 5,8,23

State of South Carolina v._Moore, 447 F.2d 1067,

1073 n. 16 (4° Cir. 1971).....sceeseeeees -edchinsemabsuiciahes 20

vi. ,

Thomas v. NFL Players Assn., 273 F.3d 1124

oS Ga M5 SEBRRSRIOE AS Deane iter report ny VERE OR 6,9

Vil.

United »:* 2s v. Ron Pair Enterprises, Inc..,

ME Di Bot Ck. hic atnidsibeiabitinicesaaienine 13,14

Verzilli y. Flexon 295 F.3d 421 (3" Cir. 2002)...... 6,7

Whitaker v. Associated Credit Services, Inc.,

DOG PF VATE OC, VOGT isos iivccscsesicesiscsprsioeninis 12

Whitney v. Wal-Mart Stores, Inc., 2004 L 1941345

CE Be Be iiresicnssisnbicstnvicsenccnacicitncss cotoccumidisienanecten 19

Statutes

28 U.S. Code Section 144G(d)........cecscccsssscoccesseceeee 1,5,10,

12,14,

15,19,

20,21,23

Rules

Federal Rule of Civil Procedure 68...................00008 1.5.9.22.

23

Wright, Miller & Cooper, Federal Practice & Procedure §

FIG OE, FID iiiicicn vcciedasstcaivscheceindoedetsincctacaciits 14

Miscellaneous

Black’s Law Dictionary, Third Edition 1933 (2004) 18

Cambridge Dictionary_of American English (2004)..18

U.S. Congress and Admin. News. P. 1268

eg REN ITED WROONES ined Ju MRI Hy Ener NE ret SAPS 20

Webster's New International Dictionary of the

English Language, Second Edition 1941.........0:.00006 17

Vill.

Webster’s New English Language Dictionary........... 17,18

Random House Webster’s Unabridged Dictionary

SINCE NUIT, citcce sip ebbareaiboicweboowirtiaasanmdeteenretebetybeswisess 18

Opinions Below

The decision of the district court is reported at 368 F.

Supp. 2d 635 (E.D. Tex. 2005) The Fifth Circuit’s opinion

and order denying both petitions for panel rehearing and

rehearing en banc were not reported. See Appendix App. 9.

Jurisdiction

This Court has jurisdiction over this case under 28

U.S. Code Section 1254(1). The Fifth Circuit issued its per

curiam opinion and judgment dismissing the appeal on

October 27, 2006. The order denying the petition for panel

rehearing and rehearing en banc was entered December 11,

2006.

Statutory Provisions Involved

The relevant text of Federal Rule of Civil Procedure

68 and Title 28 U.S. Code Section 1446(d) are contained in

the Appendix App. 10. -

Statement of the Case

Petitioners were the plaintiffs in the district court

below; respondents were the defendants.

Plaintiffs Kevin Nixon and Brandon Ancelet’s pickup

truck collided on January 3, 2003 with an 18-wheeler truck

driven by Defendant Buryl Wheatley who Plaintiffs allege

was in the course and scope of his employment with P.D.

George Company at the time of accident. Plaintiffs

contended that Defendant Wheatley was negligent while

driving the 18-wheeler truck and that such negligence

proximately caused the collision. (R. Vol. I, p. 207)

Defendants denied liability (Vol. I., p. 20) Defendants also

]

served Plaintiffs with various discovery requests: request for

disclosure, request for production, and a_ set of

interrogatories to each Plaintiff. (Vol. I, p. 60-143) In

addition, on March 1, 2005, Defendants noticed for written

deposition all of both Plaintiffs’ health care providers. (Vol.

I, p. 144) Nevertheless, on January 26, 2005, Defendants

filed their Notice of Removal with the United States District

Court for the Eastern District of Texas, Beaumont Division.

(Vol. I, p. 8) On February 16, 2005, Plaintiffs moved for

remand back to the state courts. (R. Vol. I, p. 38) Plaintiffs

urged three grounds for removal: (1) both defendants did not

sign the notice of removal or a separate form agreeing to the

remova! notice (written consent to removal by all served

defendants); (2) As of February 15, 2005, Defendants had

failed to file copy of the notice of removal with the state

court clerk; and (3) Defendants waived their right to remove

by filing considerable discovery in state court. (Vol. I, pp.

38-39) Defendants filed a vigorous response. (Vol. I, p. 45,

167)

On March 24, 2005, the district court entered a

Memorandum Opinion and Order denying the Motion to

Remand. (Vol. L., p. 172-181) The district court rejected all

three grounus for removal urged by Plaintiffs. The district

court also held that Defendants’ actions in delaying the filing

of the copy of the removal notice for twenty-two (22) days

with the state court clerk was “reasonably prompt under the

circumstances, and remand based on undue delay in filing

the notice of removal in state court is inappropriate.” (Vol. I,

p. 178) Finally, the district court held that Defendants’

actions in engaging in discovery prior to removal and

afterwards did “not indicate an intent on behalf of

Defendants to waive their right to remove.” (Vol. I, p. 180)

Accordingly, the Plaintiffs’ Motion to Remand was denied.

Id.

Eleven (11) days later, Plaintiffs filed a Motion for

Reconsideration and/or Certification under 28 U.S. Code

Section 1292(b) asking the district court to reconsider the

denial of their Motion to Remand and/or in the alternative,

moves for certification under 28 U.S. Code Section 1292(b)

so that the order may be certified for interlocutory appeal.

(Vol. I, pp. 182-188) However, on April 12 2005, the

district court denied both the Motion for Reconsideration

and/or Certification under 28 U.S. Code Section 1292(b).

(Vol. I, p. 209)

Plaintiffs next petitioned the Fifth Circuit for a Writ

of Mandamus and moved for stay pending its consideration.

See In re Kevin Nixon; Brandon Ancelet, Petitioners, Cause

No. 05-40579 (5 Cir. 2005) The Fifth Circuit denied both

the Motion to Stay and the Petition for Writ of Mandamus.

(Vol. I, p. 219) (Order, May 5, 2005)

After conducting discovery and filing a Motion for

Partial Summary Judgment, Defendants made an offer of

judgment under Rule 68, Fed. R. Civ. P. to Plaintiffs which

Plaintiffs accepted. (Vol. I, p. 337) Plaintiffs successfully

reserved ‘the right to appeal any interlocutory orders merged

within the final judgment (to wit: denial or Motion to

Remand, etc.)” Id. On December 19, 2005, the district court

entered its Final Judgment based upon the offer or judgment

and ruled: ‘all relief not herein granted is denied.” (Vol. I,

p. 344) On January 13, 2006, Plaintiffs filed their Notice of

Appeal specifying the order ‘denying Plaintiffs’ Motion to

Remand dated 3/24/2005” and the order denying the

‘Motion for Reconsideration” (Vol. I, p. 345) Hence,

Plaintiffs Kevin Nixon and Brandon Ancelet appealed to the

Court of Appeals for the Fifth Circuit.

After the case was fully briefed and matter set for

oral argument, Respondents filed a Motion to Dismiss the

3

Appeal to which Petitioners responded to the Motion arguing

among other things that the “Rule 68 offer was invalid

making the judgment void.” (Response page 3) This

contention had been previously made in the Reply Brief on.

October 10, 2006. The Court of Appeals initially ordered

that the motion to dismiss the appeal is ‘tarried with the

case.” Then, just before ori argument, the Clerk of the

Court of Appeals advised that the matter would be submitted

without argument. Then, on October 27, 2006, the Fifth

Circuit entered its per curiam opinion and order granting the

Motion to Dismiss (App. 8) Nixon and Ancelet filed both a

petition for panel rehearing and a petition for rehearing en

banc. The Fifth Circuit denied both petitions on December

11, 2006.

Reasons for Granting the Petition

I. This cases raises issues important to federal civil

jurisprudence such as the proper interpretation of a

Federal Rule of Civil Procedure, etc., which have not

been, but should be settled by this Court. 3

In Marek vy. Chesny, 473 U.S. 1 (1985), this Court

granted certiorari based upon the importance of the question

itself. “This case requires us to decide whether the offer in

this case was a proper one under Rule 68 [Fed. R. Civ. P.

68], and whether the term ‘tosts” as used in Rule 68

includes attorneys’ fees awardable under 42 U.S.C. 1988.”

473 U.S. at 5. This_Court in Marek also cited its previous

decision in Delta Airlines, Inc. v. August, 450 U.S. 346

(1981). In the Delta Airlines case, this Court also granted

certiorari on the mere importance of the question.

(construction of rule 68) 450 U.S. at 350. Therefore, the

proper construction of Fed. R. Civ. P. 68 is a question

important to federal civil jurisprudence.

Here, this case involves questions of construction of

Federal Rule of Civil Procedure 68 as well as an Act of

Congress {28 U.S. Code Section 1446(d)]. Petitioners urged

in their initial Brief that they ‘effectively reserved their right

to appeal the order denying their motion to remand.”

Appellant’s Brief pp. 18-24. Respondents asserted that in

the Fifth Circuit, a consent judgment cannot be appealed

even when the parties agree to allow the appeal. Cf Amstar

v. Southern Pacific Transp., 607 F.2d 1100 (5" Cir. 1979)

cert. den. 449 U.S. 924 (1980) When Amstar was reviewed

by this Court, the denial of certiorari drew a vigorous dissent

from Justice Blackmon. See 449 U.S. at 924-925. More

recently, the Fifth Circuit recognized citing the Eleventh

Circuit in Shores ‘v=Sklar 885 F.2d 760 (11™ Cir. 1989) that

in a class action context, a Rule 68 judgment may be

5

appealed if the plaintiff reserves the right to appeal. See

Dugas vy. Trans Union Corp., 99 F.3d 724, 728 (5"™ Cir.

1996) Other Federal Courts of Appeals allow appellate

review from a consent judgment if there is an explicit

reservation of a right to appeal. See e.g. Verzilli v. Flexon

295 F.3d 421, 423 (3 Cir. 2002) (recognizing the exception

and questioning Amstur). For this very reason, Petitioners

sought en banc determination by Fifth Circuit, which was

denied. After this denial and the filing of a Reply Brief, the

Fifth Circuit notified the parties that the case was selected

for oral argument. Thereafter, Respondents filed a Motion to

Dismiss the Appeal to which Petitioners filed a Response. In

both the Reply Brief and Response to Motion to Dismiss,

Petitioners pointed out that the offer of judgment was void

because it did not allocate the offer between the two

plaintiffs. See Reply Brief pp. 2-3; Response to Motion to

Dismiss pp. 3-4. Two Courts of Appeals have held that an

unallocated offer of judgment to multiple plaintiffs is not

effective under Rule 68. Thomas v. NFL Players Assn., 273

F.3d 1124 (D.C. Cir. 2001); Gavoni v. Dobbs House, Inc.,

164 F.3d 1071 (7" Cir. 1999) The Gavoni and Thomas

decisions were cited in the Petition for Rehearing en bunc

filed by Petitioners. Despite Petitioners’ arguments, the

Fifth Circuit, in its per curiam Opinion and Order held:

A party must reserve its right to

appeal prejudgment rulings in the offer of

judgment, otherwise no appeals from

judgment will be allowed.” Ramming v.

Natural Gas Pipeline Co. of Am., 390 F.3d

366, 370 (5™ Cir. 2004) (emphasis in

original). Plaintiffs’ failure to do so here

extinguished their right to appeal, and their

subsequent statement purporting to reserve

this right could not resurrect it.

(App. — 8, A-19, Opinion and Order dated 10-27-2006)

6

Then, the Fifth Circuit granted the Motion to Dismiss

the Appeal. Petitioners filed both a panel Petition for

Rehearing and a Petition for Rehearing en banc. Both

petitions were denied by Fifth Circuit Order dated December

11, 2006. .

What Fifth Circuit held was that the reservation of

the right to appeal must be included in the offer of judgment

itself or else, no appeal may be had. /d. the text of Rule 68

Fed.R.Civ.P. does not speak to the issue of reserving the

right to appeal. None of the Courts of appeals from other

circuits have held that a reservation of the right to appeal a

judgment based on a Rule 68 offer must be in the offer of

exact acceptance itself. This issue is a matter that is

unquestionably important and should be settled by this

Court.

Other Federal courts of Appeal in a non-Rule 68

context have held that a reservation of right to appeal a

consent judgment can take various forms. It can be

contained in the stipulation between the parties. See Verzilli

v. Flexon, 295 F.3d at 424. See also Juntunen vy. Sea-Con

Services, Inc. 879 F.2d 154, 155 (5" Cir. 1989) (settlement

agreement making ‘i specific and complete reservation of all

rights...with regard to the ruling of this Court issued on

August 9, 1998..”) The Third Circuit Court of Appeals held

that the plaintiff made a sufficient reservation of her right to -

appeal a consent judgment. Brzozowski v. Correctional

Physician Services, 360 F.3d 173 (3 Cir. 2004) Plaintiff

sought to review an interlocutory order refusing joinder of an

additional party. Plaintiff agreed to a stipulation of judgment

to be taken against the Defendant. 360 F. 3d at 176. In

accordance with the stipulation the district court entered

judgment . /d. The intention to appeal was not included in

the stipulation, it was made clear in a letter by plaintiffs

7

counsel to the district court forwarding the stipulation for

approval and filing. Jd. the Court of Appeals stated:

Although it would have been the_better

practice to add a statement to that effect in the

stipulation itself, we are satisfied that the letter

was adequate to establish-plaintiff’s intent to

appeal. We conclude, therefore, that the

objections to our jurisdiction must be denied.

360 F.3d at 176-177 (emphasis added).

Although a Rule 68 offer of judgment was not

mentioned, the stipulation in Brzozowski was very close in

fact to the Rule 68 offer and acceptance in this case. Ifa

letter can preserve the right to appeal, the Notice of

Acceptance was more than adequate to do the same in this

case. Further, this Court has ample discretion to review a

district court’s refusal to remand a lawsuit back to state court

notwithstanding plaintiff's later consent to the entry of final

judgment. See BIW Deceived v. Local S6, 132 F.3d 824,

828-829 (1" Cir. 1997) Their motion sought a ‘final and

appealable judgment.” Jd. The record showed the ‘plaintiff’

unequivocal intention.” /d. Plaintiff did not waive his right

by failing to seek an interlocutory appeal. It is significant in

the BIW case that the Defendant did not specifically agree to

the right of appeal; it simply “agreed not to oppose the omy

of judgment in its favor.” 132 F, 3d at 828.

Accordingly, a “gap” exists those previously

mentioned authorities and the ruling of the Fifth Circuit. The

questions of how the right to appeal may be properly

reserved in an offer of judgment situation will reoccur in

future cases. See Shores vy. Sklar (11" Circuit); Dugas v.

Trans Union (5" Circuit); Ramming (5" Circuit), etc. This

Court should intervene and settle the matter once and for all.

a

Further, if this Court determines that Petitioner did

not properly reserve their right to appeal, this Court should

next look at a vital issue ignored by the Fifth Circuit; but

deemed important by this Court in Marek v. Chesny: is offer

of judgment in this case a valid one?

Respondent’s offer of judgment states:

Pursuant to Federal Rule of Civil Procedure

68, Defendants Buryl Wheatley, and P.D.

George Company make the following offer of

judgment to your clients, Kevin Nixon and

Brandon Ancelet. Defendants Buryl Wheatley

and P.D. George Company agree to allow

Plaintiffs Kevin Nixon and Brandon Ancelet to

take judgment against them for the sum of

$45,000.00. This offer of judgment includes

all of your clients’ costs and attorneys’ fees

now accrued...

(R. p. 340; Exhibit 2, Motion to Dismiss)

Does this offer of judgment meet the requirements of

Rule 68? Petitioners say NOT. This Court in Basha y,

Mitsubishi Motor Credit Corp., 336 F.3d 451 (5" Cir. 2003)

recognized that Rule 68 offers must provide a clear baseline

from which Plaintiffs may evaluate the merits of their case

relative to the value of the offer. Busha cited two cases from

other circuits with approval: Thomas v. NFL Players Assn.,

273 F.3d 1124 (D.C. Cir. 2001) and Gavoni v. Dobbs House,

Inc., 164 F.3d 1071 (7" Cir. 1999) Both of these cases held

that an unallocated offer-of judgment to multiple plaintiffs is

not effective under Rule 68. See Thomas 273 F.3d at 1130;

Gavoni, 164 F.3d at 1076. Basha dealt with the validity of

an offer of judgment which ‘purported to settle all claims,

yet failed to quantify damages.” Jd. No Fifth Circuit

9

authority exists on this exact point. If the D.C. and Seventh

Circuits are correct in their interpretation of Rule 68, then

Defendants’ Rule 68 offer was invalid.

If the Rule 68 offer is invalid, does it follow that the

judgment based upon such offer is void? That controversy

presents another matter, which should be settled by this

Court. If the Rule 68 judgment is void, the Court should

hold that the order denying the motion to remand may be

reviewed. Voidness of a judgment will reach situations

where the parties’ failure to follow relevant law or procedure

in securing the judgment will undermine its ultimate validity.

See Curter v. Fenner, 126 F.3d 1000,1005 (5" Cir. 1998)

[construing Fed.R.Civ.P. 60(b)(4) and holding that a consent

judgment is void where the parties fail to follow the state

statutory requirements regarding settlement of a minor’s

claim.] However, rather than just vacating the Fifth Circuit's

order and the district court’s judgment, this Court should

review the merits of the removal/remand appeal since the

lower federal courts disagree on how to interpret the term

‘promptly” as that term is used in 28 U.S. Code Section

1446(d). Thus, Petitioners submit that this case involves

questions important to federal civil jurisprudence, which

should be resolved by this Court.

10

II. The Fifth Circuit’s ruling clashes with prior decisions

from other federal courts of appeals.

The Fifth Circuit’s ruling conflicts with other

decisions from other Federal Court of Appeals in the various

circuits. The Fifth Circuit was undoubtedly influenced by its

previous decision in Amstar v. Southern Pacific Transp. Co.

607 F.2d 1100 (5" Cir. 1979) cert. den. 449 U.s. 924 (1980).

Amstar held contrary to other authorities that a consent

judgment may not be appealed even with consent of the

parties. In their Motion to Dismiss the appeal, Respondents

relied heavily on Amstar and never even cited Ramming for a

different proposition. Therefore, the Fifth Circuit’s

construction of Rule 68 which held that a reservation of right

to appeal must be in the offer of judgment itself operated as a

surprise. The practical significance of this ruling is only that

the Defendant may appeal the judgment since Rule 68 only

allows Defendants to make offers of judgment. A plaintiff

would be allowed to appeal only though the ‘Zrace” given by

the Defendant. However, if such right is not written into

offer of judgment, then, no such night to appeal exists. In a

non Rule 68 context, Federal Courts of Appeal differ on the

question of whether the right to appeal was sufficiently

reserved. The Third Circuit in Brzozowski v. Correctional

Physician Services, 360 F.3d at 176-177 held that a mere

letter by plaintiffs attorney to the district court was

sufficient to reserve the right to appeal. the parties’

stipulation did not include any mention of the intent to

appeal. /d. Also, the First Circuit in B/W Deceived v. Local

“$6, 132 F.3d 824, 828-829 held that the Court of Appeals

had ample discretion to review a district’s refusal to remand

despite the plaintiff's consent to judgment. The defendant in

that case did not even specifically agree to the nght of

appeal. 132 F.3d at 828. Petitioners expressly reserved their

right to appeal in their Notice of Acceptance (R. Vol. L., p.

337) The district court entered judgment afterwards. The

1}

Fifth Circuit held that the notice was ineffective to reserve

the right to appeal. (App. 9) This ruling conflicts with that

of the Third Circuit in Brzozowski and that of the First

Circuit in BJW. Even without a reservation of rights, other

Federal Courts of. Appeals recognized that Rule 68

judgments may be appealed. See Colonial Penn Ins. Co. v.

Coil, 887 F.2d 1236 (4™ Cir. 1989); Whitaker v. Associated

Credit Services, Inc., 946 F. 2d 1222 (6" Cir. 1991)

Ill. This case also involves the proper interpretation of an

Act of Congress [28 U.S. Code Section 1446(d)]

upon which lower federal courts are divided.

A. The district court erred in ignoring the established

rules of statutory construction in determining whether

Defendants acted ‘promptly’ as required by 28 U.S.

Code Section 1446(d).

Plaintiffs Nixon and Ancelet timely filed a Motion to

Remand the case back to state court. Among the grounds for

remand, was the assertion that Defendants failed to

‘promptly” file a copy of their removal notice with the state

court clerk as required by 28 U.S. Code Section 1446(d).

Defendants do not dispute that the copy of the removal

notice was filed with the state district clerk twenty-two (22)

days later. The question remains: was this action ‘prompt’?

28 U.S. Code Section 1446(d) provides:

Promptly after the filing of such notice of

removal of a civil action the defendant or

defendants shall give written notice thereof to

all adverse parties and shall file a copy of the

notice with the clerk of such state court,

which shall effect the removal and the state

court shall proceed no further unless and until

the case is remanded. (emphasis added)

12

a

So, what does ‘promptly” mean with respect to 28

U.S. Code § 1446(d)? In all cases involving statutory

construction, the Court’s starting point must be the language

employed by Congress. Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999) The term ‘promptly” is not defined by

statute. Therefore, in the absence of a specific definition, a

statutory term must be construed in accordance with its

ordinary or natural meaning. F.D.1.C. v. Meyer, 510 U.S.

471 (1994) In other words, the statute’s ‘plain meaning”

must be given effect. See Nat. Bank of Oregon v.

Independent Ins. Agents of America Inc., 508 U.S. 439

(1993). The plain meaning of a statute is conclusive except

in the rare cases in which the literal application of a statute

will produce a result demonstrably at odds with the intention

of the drafters. United States v. Ron Pair Enterprises, Inc.,

489 U.S. 235, 242 (1989) In addition to the ‘plain meaning”

rule, a court must construe the removal statutes strictly

against the removing party. Lefall v. Dallas Indep. School

Dist., 28 F. 3d 521, 524 (5™ Cir. 1992). See also, Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941)

(mandating strict construction of removal statutes.)

Petitioners submit that the plain meaning of the

statute together with the rule of strict construction of the

removal statutes mandates the conclusion that Defendants did

not act ‘promptly” in filing a copy of the removal notice with

the state court clerk as required by statute. This Court has

held that the plain meaning of a statute is to be ascertained

using standard dictionaries in effect at the time of the

statute’s enactment. Lumar v. United States, 241 U.S. 103,

113 (1916) the term ‘promptly” was first used in the 1949

amendments to the statute. The Historical and Revision

Notes of the 1949 Act, 63 Statutes at Large 101 (May 24,

1949) state: “...this amendment clarifies the intent of section

1446(e) of title 28 [now Section 1446(d)] to indicate that

notice need not be given simultaneously with the filing (in

13

federal court), but may be given promptly thereafter.”

(emphasis added) Therefore, Petitioners will tender the

appropriate definitions to aid in construction of the statute.

The district court, however, did not attempt such

construction. After viewing the text of the statute, the Court

below cited a district court decision (from another circuit)

Parker v. Malone, 2004 WL 190430 (W.D. Va. 2004), which

in turn cited Volume 14C. Wright, Miller & Cooper, Federal

Practice & Procedure § 3736 (3d ed. 1998) See

Memorandum and Order, page 6, 368 F. Supp. 2d at 640.

The Court below also noted another district court decision

from outside the circuit, Manufacturers & Traders Trust Co.

v. Hartford Accident & Indem. Co., 434 F. Supp. 1053, 1055

(W.D.N.Y. 1977) which acknowledged that in the context of

the statute [1446(d)], ‘the word ‘promptly’ has not been

construed to mean simultaneously.” Jd. Other than that, the

district court did not discern the plain meaning of

‘promptly’. 368 F. Supp. 2d at 640. The district court

proceeded to note that filing a copy of the notice of removal

in state court is a procedural act and failure to do so does not

defeat the federal court’s jurisdiction. /d. Then, the district

court while noting that the state court took no action during

the delay held that Defendants’ ‘actions in effecting removal

were reasonably prompt under the circumstances” and that

remand based upon that ground was “inappropriate.” 368 F.

Supp. 2d at 640 (opinion page 7) Accordingly, the district

court made no attempt at construction of the term “promptly”

in its plain meaning. The district court gave no reason why

the ‘plain meaning” of the term “promptly” would be at odds

with the statute’s drafters. See United States v. Ron Puir

Enterprises, Inc., 489 U.S. at 242. Also, the district court

failed to give ‘promptly” a strict construction as Congress

has intended for removal statutes. This failure runs contrary

to this Court’s policy of strict construction of the removal

statutes. Actually, the district court gave a liberal not strict

14

construction of the term ‘promptiy.” It follows that the

district court ignored the established rules of statutory

construction: ‘plain meaning” coupled with _ strict

construction in construing 28 U.S. Code Section 1446(d).

B. ‘Promptly” as used in 28 U.S. Code Section 1446(d)

means physically filed or placed in the mail by the

next day after filing the removal notice in federal

court.

Petitioners submit that after construing the plain

meaning of the term ‘promptly’ as used in 28 U.S. code

Section 1446(d) coupled with the rule of strict construction,

‘promptly’ means that a copy of the removal notice must be

physically filed with the state court clerk or placed in the

U.S. mail by the next day after filing the removal notice in

federal district court. Plaintiffs assert that the general rule

should have only two exceptions: (1) if extraordinary

circumstances cause a delay in filing or serving notice and

(2) if the next day after the removal notice is filed in federal

court falls on a Saturday, Sunday, or federal holiday.

Removal remains a creature of statute; therefore, the

removal statute requires compliance with its terms. See

Babbitt v. Clark, 103 U.S. 606, 607 (1880)(The right to

remove from a state court to a federal court being statutory,

all the requirements of the statute must be followed.) See

also, Shamrock Oil & Gus Corp. v. Sheets, 313 U.S. at 107

(The right to remove an action from a state to a federal court

turns on the meaning of the removal statute.)

28 U.S. Code Section 1446(d) requires defendants

and their counsel to take certain steps ‘promptly after” filing

the notice of removal in federal court. The defendants or

their counsel must give written notice to the Plaintiffs or

their counsel. (‘*..shall give written notice thereof to all

15

adverse parties...”) The defendants or their counsel must

also file a copy of the removal notice with the clerk of the

state court. (“.. shall file a copy of the notice with the clerk

of such state court, which shall effect the removal...”) 28

U.S. Code Section 1446(d).

Further, this statutory language remains subject to_

strict construction. More than sixty years ago, this Court

stated:

Not only does the language of the Act of 1887

evidence the Congressional purpose to restrict

the jurisdiction of the federal courts on

removal, but the policy of the successive acts

of Congress regulating the jurisdiction of

federal courts is one calling for strict

construction of such legislation. (removal

statutes) The power reserved to the states

under the Constitution to provide for the

determination of controversies in their courts,

may be restricted only by the action of

Congress in conformity to the Judiciary

Articles of the Constitution. “Due regard for

the rightful independence of _ state

governments, which should actuate federal

courts, requires that they scrupulously confine

their own jurisdiction to the precise limits

which the statute has defined.’ (citations

omitted)

Shamrock Oil & Gus Corp. v. Sheets, 313 U.S. at

108-109.

So, how do we construe the term “promptly” in its

plain and ordinary meaning and strictly so as to comply with

the will of Congress? Since the statutory language was

16

adopted in 1949, we should start by consulting the standard

dictionaries available at that time. See Lamar, 241 U.S. at

113.

Black’s Law Dictionary, Third Edition 1933, defines

“promptly” as the “adverbial form of the word ‘prompt”

which means ready and quick to act as the occasion

demands... The meaning of the word depends largely on the

facts of the case.” Webster’s New International Dictionary

of the English Language, Second Edition 1941 (p. 1981)

defines “prompt” in describing action: 1. Ready and quick

to act as the occasion demands; responding instantly; alert; 2.

Done or rendered readily or immediately; given without

delay or hesitation; as, prompt assistance or decisions. The

word ‘prompt” is synonymous with ‘punctual, ready,

expeditious.” “Prompt implies quick or instant action (often

with alacrity) as occasion demands.” Jd. ‘“Expeditious

which is characterized by, or leads to, prompt or speedy

performance.” Jd.

In the context of the average defense attorney in

complying with the statutory removal procedure, ‘promptly

after” means that actions to give notice of the removal must

take place immediately after the filing of the removal notice

in federal court. These actions can be done that day if

practicable. The average defense attorney can serve notice to

Plaintiff and/or his attorneys under Rule S(b) F.R. Civ. P.

which includes personal delivery, mail (“Service by mail is

complete on mailing’), or electronic means. Jd. The average

defense counsel usually serves notice to opposing counsel on

the same day he files the pleading. However, notice to the

state court clerk remains a different matter. 28 U.S. Code

Section 1446(d) requires the defendant or his attorney to

‘file a copy of the removal notice” with the clerk of the state

court. This operative act “effect[s] the removal.” See

Anthony v. Runyon, 76 F.3d 210, 214 ( 8"" Cir. 1996) The

17

federal rules note the difference between service by mail and

filing papers with the court. Compare Rule 5(b) F. R. Civ. P.

with Rule 5(e) F.R Civ.P. The filing of a document by mail

is not complete until it is received by the clerk’s office. See

McIntosh v. Antonino, 71 F. 3d 29, 36 (1* Cir. 1995) It

would be better practice if the federal and state courthouses

are not more than one hundred (100) miles apart, to file the

removal notice in the federal court, then file a copy of the

removal notice (preferably filed stamped) with the clerk of

the state court immediately afterwards. Both actions should

not take more than three (3) hours. In this case, the distance

between the federal courthouse (300 Willow, Beaumont,

Texas) and the state courthouse (801 W. Division, Orange,

Texas) was approximately 24.7 miles. This entire process

could have been completed within one hour (to include travel

time). In proper context, “promptly” could mean on the

same day if practicable.

The pre-1949 definition stays consistent with the

more contemporary definitions. A pocket version of

Webster’s New English Language Dictionury defines

‘promptly’ (adverb) on page 174 as ‘ts quickly as possible.”

See Webster's Id. (Popular Group 2004) Promptly has been

defined also as follows: ‘Carried out or performed without

delay.” See Webster’s Id. (Popular Group 2004) (emphasis

added); ‘done, spoken etc. without waiting See Webster's Id.

(Popular Group 2004) (Wiley 1998) (emphasis added);

‘done, performed, delivered, etc. at once or without delay”

Random House Webster’s Unabridged Dictionary (p. 1548)

(2 Ed. Random House 2001) (emphasis added); “done

quickly and without delay” (prompt) Cumbridge Dictionary

of American English (2004) (emphasis added) and ‘in a

prompt manner, readily, quickly, directly, at once, without a

moment’s delay.” Oxford English Dictionary Vol. XII p. 620

(2™ Ed. Clarendon Press 1989) (emphasis added). A

consensus of all definitions, old and contemporary, appears

18

that the term “promptly” means that the removal notice must

be filed or served ‘immediately and without delay.” In the

context of the average attorney serving or filing motions or

notices, “promptly” means either the same day that the

removal notice is filed or the next day if that day is a normal

business day excluding Saturdays, Sundays, and legal

holidays. Vetitioners submit that the above definition of

‘promptly’ constitutes its ‘drdinary and plain” meaning

coupled with a strict construction of that term.

The federal courts differ in their interpretation of the

meaning of ‘promptly” Compare Colletti v. Ovaltine Food

Products, 274 F. Supp. 719, 723 (D.P.R. 1967) (five (5) day

delay not prompt); Rubio v. Allegheny Intern. Inc., 659 F.

Supp. 62 (S.D. Fla. 1987) (forty-two (42) day delay held not

prompt); Doherty v. Goslin, 2000 U.S. Dist. Lexis 15083

(E.D. Pa. 2002) (twenty-seven (27) day delay held not

prompt); La Maina v. Brannon, 804 F. Supp. 607 (D.N_J.

1992) (four (4) day delay held not prompt) with Barrett v.

Southern Ry. Co., 68 F. R. D. 413 (D.S.C. 1975) (seven (7)

days delay held prompt);-Master Equipment, Inc._v. Home

Insurance Co., 342 F. Supp. 549 (E.D. Pa. 1972) (nine (9)

days held prompt); Alpena Power Co. v. Utility_Workers

Union of America, Local 286, 674 F. Supp. 1286 (E.D. Mich.

1987) (thirteen (13) day delay held prompt); Calderon y.

Pathmark Stores, Inc., 101 F. Supp. 2d 246 (S.D.N.Y. 2000)

(thirty-five (35) day delay held prompt); Manufacturers &

Traders Trust Ge.-v- Hartford Acc. Co., 434 F. Sup. 1053

(W.D.N.Y. 1977) (forty-five (45) day delay held prompt);

Parker v. Malone, 2004 WL 190430 (W.D.Va. 2004)

(twenty-two (22) day delay held prompt); Nixon v. Wheatley,

368 F. Supp. 63 (E.D.Tex. 2005)(same) and Whitney v. Wal-

Mart Stores, Inc., 2004 L 1941345 (D. Me 1004) (six month

delay held prompt) Except for a couple of instances, most of

these cases did not rely on the statutory language in 28 U.S.

Code Section 1446(d), but on other cases and Wright, Miller

19

and Cooper, Federal Practice and Procedure, Section 3736

(3 ed. 1998). (remand may be appropriate “When there is

undue delay.”) Petitioners assert that although the cases

differ with varying terms of delay, the basic operative facts

which take place every time a defendant’s counsel serves or

files a removal notice will not change. An exception should

exist when factual circumstances cause a delay in service or

filing e.g. when a hurricane strikes the area. This situation

does occur. See e.g. Arnold v. CSX Hotels, Inc., 212 F.

Supp. 2d 643 (S.D. W.Va. 2002) (defendant acted in good

faith in mailing copy of removal notice to plaintiff's

counsel). Petitioners submit that their proposed

interpretation more accurately reflects the actual intention of

Congress in 1949, The legislative history provides no help

discerning this intention. See 1949 U.S. Congress and

Admin. News. P. 1268 (USPO 1949) [‘In addition, this

amendment clarifies the intent of section 1446(e) (now

1446(d)) of Title 28 U.S.C., to indicate that notice need not

be given simultaneously with the filing, but may be given

promptly thereafter.”"] Section 83, H.R. 3762 1949 Act.

House Report No. 352. See also, Stute of South Carolina v.

Moore, 447 F.2d 1067, 1073 n. 16 (a Cir. 1971) (noting the

statutory changes in the 1949 Act when the initial words

‘promptly after” were substituted for “upon” ) Such a

proposed interpretation would minimize any time period

where federal and state courts share concurrent jurisdiction

and prevent any prejudice to Plaintiffs relying on a state

forum. It makes it less likely that federal district courts will

deal with the problem of default judgments rendered in state

courts. This Court should adopt Petitioners’ proposed

interpretation of ‘promptly’ and reverse the district court’s

rulings. A twenty-two day delay is not ‘prompt’ and should

not comply with 28 U.S. Code Section 1446(d).

IV. The Fifth Circuit’s decision has so far departed from

the accepted and usual course of judicial proceedings

20

as to call for an exercise of this Court’s supervisory

power.

Petitioners have demonstrated that the Fifth Circuit

so far has sanctioned the district court’s departure in ignoring

the well-established canons of statutory construction with

respect to an Act of Congress, to wit: 28 U.S. Code Section

1446(d). Petitioners requested interlocutory appeal of the

order denying the motion to remand. However, permission

was denied by the district court. Next, Petitioners attempted

review by mandamus with the Fifth Circuit. That attempt

was denied. When Respondents made an offer of judgment

to Petitioners, Petitioners reserved the right to appeal the

denial of the remand motion in the notice of acceptance filed

with the district court. Nevertheless, the Fifth Circuit held

that ‘failure to (reserve its right to appeal prejudgment

rulings in the offer of judgment)...extinguished [Petitioners]

right to appeal.” (App. 8)

An order denying a motion to remand a case back to

state court remains an interlocutory and unappealable order.

It is not a ‘collateral order.” Its denial cannot be remedied

by a writ of mandamus to this Court. See Jn re Politz, 206

U.S. 323 (1907) Such order can conceivably be reviewed

upon final judgment. However, after full consideration of

the merits, review will be unlikely. Cuterpillar, Inc. vy.

Lewis, 519 U.S. 61 (1996).

Most of the lower federal court decisions construing

the term “promptly” in 28 U.S. Code Section 1446(d) arrived

at their rulings not by ascertaining the statute’s ‘plain

meaning” or subjecting the statute to “Strict construction” as

directed by this Court. These lower courts considered other

district court rulings and used secondary sources. See cases

cited on page 17 of the Petition. This approach has resulted

21

in a disarray of authority, which can only be corrected by

this Court’s intervention.

_ Fifth Circuit’s own action deprived Petitioners of a

meaningful opportunity to be heard on an important issue of

law. Petitioners’ right to have their case determined in a

state forum deserves protection from this Court. As the

Court of last resort in the federal system, this Court has

supervisory power over the lower federal courts and

therefore, must occasionally perform a pure error-correcting

function in federal litigation. See Florida v. Rodriguez, 469

U.S. 1,7 (1984) (Stevens J. dissenting) This case

demonstrates the erosion of the legal principles established

by Congress in the removal statutes, the strict interpretation

of removal statutes and the frustrating inability of a plaintiff

to obtain appellate review of a district court’s order denying

his Motion to Remand the case back to the state court. A

proper interpretation of a Federal Rule of Civil Procedure

remains important to the lower federal courts. Does Rule 68

allow for a reservation of rights to appeal? Does such

allowance go against the Rule’s purpose? How does one

reserve a right of appeal in the context of the Rule?

The Fifth Circuit in our case citing its prior decision

in Ramming vy. Natural Gas Pipeline held that such

reservation must be in the offer itself. However, the facts of

Ramming differ from the facts in our case. In Ramming, a

defendant appealed a summary judgment granted for the

plaintiffs and a refusal of the district court to enter a

judgment based upon Rule 68 Fed.R.Civ.P. offer.

The defendant in its own offer of judgment to the

plaintiff, which was accepted, reserved the right to appeal the

district court’s summary judgment. 390 F.3d at 371. This

case unlike Ramming involved plaintiffs seeking to reserve

the right to appeal a pretrial ruling. The Court of Appeals in

22

Ramming cited the Eleventh Circuit in Shores v. Sklar, as

support for the proposition. 390 F.3d at 370. In Shores, a

class representative appealed the district court’s denial of his

motion to certify a class. Shores accepted an offer of

judgment then filed with the district court notice of his

acceptance of the offer. 885 F.2d at 762. Nowhere in the

offer, notice of acceptance, etc. did Shores manifest his

intention to appeal the order denying class certification. 885

F.2d at 763. By contrast, Petitioners in the notice of

acceptance filed in district court reserved the right to appeal

the order denying their Motion to Remand. (R. Vol. I, p.

337) Therefore, the facts in this case differ from those in

Ramming or Shores v. Sklar, So, what forms the basis of the

Fifth Circuit’s ruling? Why do the principles stated in

Ramming or Shores apply to this case even though the facts

are different?

Accordingly, the answer must be found in the proper

interpretation of Rule 68 Fed.R.Civ.P. This interpretation

should be made by this Court if not, the situation in this case,

Ramming, Shores, Dugas. etc. will reoccur again and again.

Only a party ‘defending against a claim” may serve a Rule

68 offer upon his opponent. However, ‘either party may

then file the offer and notice of acceptance together with the

proof of service thereof and thereupon, the clerk (or district

court) shall enter judgment.” Rule 68 Fed.R.Civ.P. The text

of Rule 68 requires either party to file the offer and

acceptance in order to empower the clerk (or the district

court) to enter judgment. Petitioners submit that a plaintiff

can reserve the right to appeal pretrial ruling in his Rule 68

acceptance or a writing filed in proximity to that acceptance.

Petitioners further submit that an invalid Rule 68 offer makes

the resulting judgment void. In every case, where a question

is raised on appeal concerning the validity of the Rule 68

offer, a Court of Appeals should decide the issue and if the

offer is held invalid, the appellate court should vacate the

23

judgment and remand the case back to the district court.

These failures by the lower federal courts can only be

corrected by this Court.

Conclusion

The Petition for Writ of Certiorari should be granted.

Dated: March 12, 2007

Respectfully submitted,

Bruce W. Cobb

(Counsel of Record)

Texas Bar No. 04431900

Craig J. Schexnaider

Texas Bar No. 00797385

3280 Delaware

Beaumont, Texas 77703

Phone: 409-899-3360

Fax: 409-899-3372

COUNSEL FOR

PETITIONERS

24

Appendix 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

KEVIN NIXON and

BRANDON

ANCELET

Plaintiffs,

1:05-CV-05 1

BURYL WHEATLEY

and P D GEORGE

COMPANY,

Defendants. §

MEMORANDUM AND ORDER

Pending before the court is Plaintiffs Kevin Nixon

("Nixon") and Brandon Ancelet's ("Ancelet") Motion to

Remand (#5). Plaintiffs seek remand to state court of this

personal injuryaction against Defendants Buryl Wheatley

("Wheatley") and P D George Company ("George"), asserting

that Defendants did not obtain written consent for removal

from both Wheatley and George, Defendants failed to file a

copy of the notice of removal with the state court in a timely

manner, and Defendants waived their right to remove.

Having reviewed the motion, the submissions of the parties,

the pleadings, and the applicable law, the court is of the

opinion that remand is not warranted.

§

8

S

§

§

versus § CIVIL ACTION NO.

8

8

§

§

L Background

On December 30, 2004, Plaintiffs filed suit in the 260th

Judicial District Court of Orange County, Texas, against

Defendants, alleging that on January 3, 2003, they were injured

when the vehicle in which they were nding collided with a

Al

vehicle driven by Wheatley, who was allegedly operating a

vehicle owned by George within the course and scope of his

agency and/or employment with George. Plaintiffs allege

that Wheatley was negligent in his operation of the vehicle

and was negligent per se in violation of the Texas Uniform

Traffic Act. See TEX. TRANSP. CODE ANN. §545.401.

On January 26, 2005, Defendants, who are

represented by the same attorney, timely removed the case to

federal court pursuant to 28 U.S.C. § 1441(a) on the basis of

diversity of citizenship, alleging that complete diversity exists

between the parties and that the amount in controversy exceeds

$75,000.00, exclusive of interest and costs. See 28 U.S.C. §

1332. Defendants filed a copy of their notice of removal with

the Orange County District Clerk's Office on February 17,

2005.

Plaintiffs filed their motion to remand on February 16,

2005, contending that the removal was procedurally defective

on the grounds that both Wheatley and George did not sign the

notice of removal or a separate form agreeing to the notice of

removal, a copy of the notice of removal was not timely filed

with the Orange County District Clerk's Office, and Defendants

waived their right to remove by serving discovery requests

upon Plaintiffs.

IL. Analysis

A. Federal Jurisdiction in Removed Actions

"Federal courts are courts of limited jurisdiction.”

Peoples Nat'l Bank v. Office of Comptroller of the Currency

of United States, 362 F.3d 333, 336 (Sth Cir. 2004); accord

Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (Sth Cir.),

cert, denied, 534 U.S. 993 (2001) (citing Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

Federal courts have subject matter jurisdiction and are

AZ2

authorized to entertain causes of action only where a question of

federal law is involved or where there is diversity of citizenship

between the parties and the amount in controversy exceeds

$75,000.00. See 28 U.S.C. §§ 1331, 1332; Grupo Dataflia

v. Atlus Global Group, L.P., 541 U.S. 567, , 124 S. Ct.

1920, 1923 n.1 (2004); Howery, 243 F.3d at 914-15; Hart v.

Bayer Corp., 199*F.3d 239, 246 (Sth Cir. 2000); Allen v.R&H

Oil & Gas Co., 63 F.3d 1326, 1330 (Sth Cir. 1995). In a

removed action, a district court is required to remand a case to

state court if, at any time before final judgment, it determines

that it lacks subject matter jurisdiction. See 28 U.S.C. §

1447(c). The removing party bears the burden of showing that

federal jurisdiction exists and that removal was proper. See

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720,

723 (Sth Cir. 2002); Howery, 243 F.3d at 919; De Aguilar v.

Boeing Co., 47 F.3d 1404, 1408 (Sth Cir.), cert, denied, 516

U.S. 865 (1995).

The existence of federal subject matter jurisdiction is

determined at the time of removal from state court. See

Bissonnet Invs. LLC v. Quinlan, 320 F.3d 520, 525 (Sth Cir.

2003) (citing Arnold v. Garlock, 278 F.3d 426, 434 (Sth Cir.

2002)). In order to determine whether jurisdiction is present,

the claims set forth in the state court petition are considered as

of the time of removal. See Munguno, 276 F.3d at 723; Gebbia

v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (Sth Cir. 2000);

Cavalliniv. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264

(Sth Cir. 1995). Any ambiguities are construed against removal

because the removal statute is strictly construed in favor of

remand. See Bosky v. Kroger Tex., LP, 288 F.3d 208, 211

(Sth Cir. 2002); Manguno, 276 F.3d at 723; Acuna v. Brown

& Root Inc., 200 F.3d 335, 339 (Sth Cir.), cert, denied, 530

U.S. 1229 (2000).

§ Consent to Removal

The procedure for effectuating removal is set forth in

A 3

28 U.S.C. § 1446. See Johnson v.

Heublein, Inc., 227 F.3d 236, 240 (Sth Cir. 2000). Section

1446(a) provides:

A defendant or defendants desiring to

remove any civil action or criminal

prosecution from a State court shall file in the

district court of the United States for the

district and division within which such action

is pending a notice of removal signed

pursuant to Rule i1 of the Federal Rules of

Civil Procedure and containing a short and

plain statement of the grounds for removal,

together with a copy of all process, pleadings,

and orders served upon such defendant or

defendants in such action. 28 U.S.C. §

1446(a).

While not stated explicitly in the statute, removal

generally requires the joinder or consent of all the named and

served defendants. See Gillis v. Louisiana, 294 F.3d 755, 759

(Sth Cir. 2002); Jernigan v. Ashland Oil Co., 989 F.2d 812,

815 (Sth Cir.), cert, denied, 510 U.S. 868 (1993); Doe v.

Kerwood, 969 F.2d 165, 167 (Sth Cir. 1992); Furias v. Bexar

County Bd. of Trustees for Mental Health Mental

Retardation Servs., 925 F.2d 866, 871 (Sth Cir.), cert. denied,

502 U.S. 866 (1991); Getty Oil Corp. v. Insurance Co. ofN.

Am., 841 F.2d 1254, 1261 (Sth Cir. 1988); McCrary v.

Kansas City S. R.R., 121 F. Supp. 2d 566, 570 (E.D. Tex.

2000).

The courts have read the governing statute to mean

that, “if there is only one defendant then that defendant may

remove die case; however, if mere is more than one defendant,

then the defendants must act collectively to remove the case."

Doe, 969 F.2d at 167. Hence, although "[fjhere is no express

A 4

statutory requirement for joinder or consent by codefendants

... the case law firmly establishes this requirement, which is

known as the '' rule of unanimity.’ Spillers v. Tillman, 959 F.

Supp. 364, 368 (S.D. Miss. 1997) (quoting Martin Oil Co. v.

Philadelphia Life Ins. Co:, 827 F. Supp. 1236. 1237 (N.D.

W.Va. 1993)); see Chicago, R. I. & P. Ry. Co. v. Martin,

178 U.S. 245, 247-48 (1900).

The United States Court of Appeals for the Fifth Circuit

has held mat there must be a timely filed, written indication

from each served defendant, or from some person purporting

to act formally on his behalf and with the authority to do so,

that he has actually consented to removal. See Gillis. 294

F.3d at759; Gem' Oil Corp.. 841 F.2d at 1262 n.il; Spillers,

959 F. Supp. 2d at 369. "Although it is not necessary that all

defendants sign the notice of removal, each defendant who has

been served must at least communicate its consent to the court

no later than thirty davs from the day on which the first

defendant was served.” /d. at 368. Under the general rule, the

failure to include all defendants properly joined and served in

the state action renders the notice of removal defective. See

Farias, 925 F.2d at 871; Acme Brick Co. v. Agrupacion

Exportudoru de Maquinaria Ceramica, 855 F. Supp. 163,

165 (N.D. Tex. 1994). Nonetheless, such failure is a

waivable, non-jurisdictional defect. See Johnson, 892 F.2d at

423; Robertson v. Ball, 534 F.2d 63, 64-65 (Sth Cir. 1976);

Moody v. Commercial Ins. Co., 753 F. Supp. 198, 200 (N.D.

Tex. 1990); IntercoastalRefining Co. v. Jalil, 487 F. Supp.

606, 608 (S.D. Tex. 1980).

In the case at bar, Wheatley and George are represented

by the same counsel. In the notice * of removal, Defendants

State that "both defendants file and join in this Notice of

Removal.” Plaintiffs assert that Defendants’ notice was

defective because neither Wheatley nor George signed the

notice of removal "or a separate form agreeing to the notice

of removal." Defendants, however, need not have personally

A 5

signed the notice of removal. See Getty Oil Corp., 841 F.2d

at 1262 n.Il. It is sufficient that consent to removal come "from

some person purporting to act formally on [the defendant’ s]

behalf and with the authority to do so." Id.; accord Gillis, 294

F.3d at 759. Here, Defendants’ counsel had the authority to

remove on their behalf and did so. See id. As a consequence,

the proper parties joined in the notice of removal, and remand

for lack of consent is unfounded.

2. Filing Notice of Removal in State

Court

Plaintiffs further allege that Defendants’ removal was

defective because they did not timely file a copy of the notice

of removal with the state court. Section 1446(d) provides:

Promptly after the filing of such

notice of removal of a civil action the

defendant or defendants shall give

written notice thereof to all adverse

parties and shall file a copy of the

notice with the clerk of such State

court, which shall effect the removal

and the State court shall proceed no

further unless and until the case is

remanded.28 U.S.C. § 1446(d).

Here, Defendants filed their notice of removal in

federal court on January 26, 2005, and on February 17, 2005,

the Orange County District Clerk’ s Office received a file-

stamped copy of the notice. Plaintiffs contend that the elapse

of twenty-two days between Defendants’ filing their notice of

removal in federal court and their filing a copy of the notice in

state court was not "prompt," and, thus, removal was not

properly effected. Although § 1446(d) does not define

“promptly,” remand may be appropriate "when there is undue

A 6

delay” in filing the copy of the notice of removal. Parker v.

Malone, No. Civ. A. 7:030/00742, 2004 WL 190430, * at *1

(W.D. Va. Jan. 15, 2004) (citing 14C CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,

FEDERAL PRACTICE & PROCEDURE § 3736 (3d ed. 1998)). In

the context of § 1446(d), however, "the word’ promptly’ has not

been construed to mean simultaneously." Manufacturers &

Traders Trust Co. v. Hartford Accident & Indem. Co., 434 F.

Supp. 1053, 1055 (W.D.N.Y. 1977); see Whitney v. Wal-Mart

Stores, Inc., No. Civ. 04-38-P-H, 2004 WL 1941345, at *1 (D.

Me. Aug. 31, 2004) (six-month delay in filing a copy of the

notice of removal in state court did not thwart the purpose of the

removal statute); Parker, 2004 WL 190430, at *2 (twenty-two

day delay in notifying the state court clerk of removal was

sufficiently prompt and did not upset any statutory purpose).

Moreover, filing a copy of the notice of removal in

state court is a procedural act. and failure to do so does not

defeat the federal court’ s jurisdiction.See Dukes v. South

Carolina Ins. Co., 770 F.2d 545. 547-48 (Sth Cir. 1985); Poly

Prods. Corp. v. AT&T Nassau Metals. Inc.

839 F. Supp. 1238, 1240 (E.D. Tex. 1993). "[F]ederal

jurisdiction commences when the defendant files the notice of

removal with the district court, and filing the notice with the state

clerk affects the state’ s jurisdiction rather than federal

jurisdiction." Parker, 2004 WL 190430, at *2 (citing Peterson

v. BMIRefructories, 124 F.3d 1386, 1395 (11th Cir. 1997));

seeLindenv. Chase Manhattan Corp., 52 F. Supp. 2d 387, 388

(S.D.N.Y. 1999) (holding that "the jurisdiction of the federal

court attaches as soon as the petition for removal is filed with it,

and that both state and federal courts have jurisdiction until the

process of removal is completed") (quoting Berberian v.

Gibney, 514 F.2d 790, 792-93 (1st Cir. 1975)).

The purpose of filing a copy of the removal petition

with the state court "is to inform the state district judge that he

A7

can no longer proceed with the case until the federal court

decides *. whether it will retain jurisdiction or not." Adair

Pipeline Co. v. Pipeliners Local Union No. 798, 203 F. Supp.

434, 437 (S.D. Tex. 1962); see Hampton v. Union Pac. R.R.

Co., 81 F. Supp. 2d 703, 705 (E.D. Tex. 1999); 14C

FEDERAL PRACTICE & PROCEDURE § 3736. A review of the

state court record in the case at bar reveals that no action was

taken by the state court between January 26, when the notice

of removal was filed in federal court and February 17, when a

copy of the notice was filed in state court. Therefore, the

passage of twenty-two days prior to Defendants’ tiling a copy

of the notice of removal with the Orange County District Clerk

did not result in any action by the state court, and the purpose

of § 1446(d) would not be undermined by this court’ s exercise

of jurisdiction. Hence, Defendants’ actions in effecting

removal were reasonably prompt under the circumstances, and

remand based on undue delay in filing the notice of .removal

in state court is inappropriate.

3. Waiver

A defendant may waive its right to removal "by

proceeding to defend the action in state court or otherwise

invoking the processes of that court." Brown v. Demco, Inc.,

792 F.2d 478, 481 (Sth Cir. 1986). This waiver, however,

“must be clear and unequivocal; the right to remove is not lost

by participating in state court proceedings short of seeking an

adjudication on the merits." Tedford v. Wurner-Lambert Co.,

327 F.3d 423, 428 (Sth Cir. 2003) (citing Beighley v. FDIC,

868 F.2d 776, 782 (Sth Cir. 1989) (quoting 1A JAMES W.

Moorg, ET AL., MOORE'S FEDERAL PRACTICE § 0.157 [9] at

153 (3d ed. 1987))); see City of New Orleans v. Municipal

Admin. Servs., 376 F.3d 501, 504 (Sth Cir. 2004), cert,

denied, 73 U.S.L.W. 3274 (Feb. 28, 2005); Ortiz v.

Brownsville Indep. Sch. Dist., 257 F. Supp. 2d 885, 889 (S.D.

Tex. 2003). * Further, the waiver must "indicate a specific,

positive intent to proceed in state court." Jacko v. Thorn

A 8

Am. icas, Inc., 121 F. Supp. 2d 574, 575 (E.D. Tex. 2000).

To determine whether there is clear and specific intent

sufficient to waive removal, it is necessary to establish

"whether the actions were taken by the defendant in state

court for the purpose of preserving the status quo, or did they

manifest an intent to litigate the merits of the claim." Jd. at

576. ' “Actions that may result in a disposition on the merits

of the state court action, in whole or in part, have also been

found to evidence the requisite intent.’ "Jd. (quoting Bolivar

Sand Co. v. Allied Equip., Inc., 631 F. Supp. 171, 173 (W.D.

Tenn. 1986)). In the instant case, Plaintiffs allege that

Defendants waived the right to remove this lawsuit by serving

“considerable discovery" before they removed the case to

federal court and by sending Plaintiffs notices of intent to

depose certain individuals after removal, which still bear the

state court style. Defendants contend that their actions did not

evince a clear and specific intent to proceed in state court.

The record reflects that, prior to removal, Defendants

engaged in limited activity in state court, including filing an

original answer and sending interrogatories, a request for

production, and a request for disclosure to Plaintiffs. It is

apparent that "[conducting limited discovery and filing counter

and cross-claims does not seek a resolution of the dispute on

the merits." Hydro-Action, Inc. v. Jesse James, 233 F. Supp. 2d

836, 840 n.I (E.D. Tex. 2002). Engaging in such limited, non-

dispositive activity in state court prior to removal does not

demonstrate a specific and positive intent to proceed in that

forum. As for the discovery propounded after remioval,

Defendants maintain that placing the state court style on the

notices was merely a clerical error. Although Defendants’

counsel should have been more careful, this oversight is

immaterial and does not indicate an intent on behalf of

Defendants to waive their night to remove. Accordingly,

Plaintiffs’ assertion of waiver is without merit, and remand on

that ground is not required.

A9

Il. Conclusion

In summary, in the case at bar, both Wheatley and

George consented to and joined in the notice of removal, a copy

of the notice was filed in a reasonably timely manner in state

court, and Defendants did not waive their right to remove this

action by engaging in limited discovery in the state court action.

Therefore, the removal of this case was properly effected, it

falls within this court’ s diversity jurisdiction, and remand is

not warranted.

Accordingly, Plaintiffs’ Motion to Remand is

DENIED.

IT IS SO ORDERED.

SIGNED at Beaumont, Texas, this 24th day of March, 2005.

/Marcia A. Crone/

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

A 10

Appendix 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

KEVIN NIXON and

BRANDON

ANCELET

Plaintiffs,

1:05-CV-051

BURYL WHEATLEY

and PD GEORGE

COMPANY,

Defendants.

S

§

S

8

8

versus § CIVIL ACTION NO.

8

8

§ JURY TRIAL

§

8

ORDER DENYING PLAINTIFFS' MOTION FOR

RECONSIDERATION AND/OR CERTIFICATION

UNDER 28 U.S.C. § 1292(B)

CAME ON TO BE CONSIDERED Plaintiffs’ motion

for reconsideration and/or certification under 28 U.S.C. §

1292(b). The Court, having considered the motion, the

response, the pleadings on file herein, and the applicable

law, is of the opinion that said motion is neither meritorious

nor well-taken.

Accordingly, Plaintiffs’ motion for reconsideration

and/or certification under 28 U.S.C. § 1292(b) is DENTED.

It is so ORDERED.

Signed this the 12th day of April, 2005S.

{Marcia A. Crone/

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

Appendix 3

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 05-40579

IN RE: KEVIN

NIXON and

BRANDON

ANCELET

Petitioners

COMPANY,

§

§

§

§

§

§

§

§

§

§

S

Responsdents. §

Petition for Writ of Mandamus to the United States

District Court for the

Eastern District of Texas, Beaumont

Before DEMOSS, GARZA, and CLEMENT; Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petitioners’ motion for stay

pending writ of mandamus is DENIED.

IT IS FURTHER ORDERED that the petition for writ of

mandamus be DENIED.

Appendix 4

Hays, McConn, Rice & Pickering

A PROFESSIONAL

CORPORATION

ATTORNEYS AT LAW

400 TWO ALLEN CENTER

MICHAEL M.GALLAGHER

1200 SMITH STREET

HOUSTON, TEXAS 77002

TELEPHONE (713) 654-1111

TELECOPIER (713) 650-0027

November 9, 2005

Via Facsimile: (409)

861-3529

Craig J. Schexnaider

Attorney at Law

3280 Delaware

Beaumont, TX 77703

Re: Kevin Nixon and Brandon Ancelet vy. Jiuryl

Wheatley and P D George Company; Civil Action No.

1:05-CV-51; In the United States District Court for the

Eastern District of Texas, Beaumont Division

Dear Mr. Schexnaider,

Pursuant to Federal Rule of Civil Procedure 68,

Defendants Bury! Wheatley and P D George Company make

the following offer of judgment to your clients, Kevin Nixon

and Brandon Ancelet. Defendants Buryl Wheatley and P D

George Company agree to allow Plaintiffs Kevin Nixon and

Brandon .Ancelet to take a judgment against them for the sum

A 13

of $45,000.00. This offer of judgment includes all of your

clients' costs and attorney’ s fees nawcrued.

Please let me know, in writing, whether your clients

accept or reject this offer within ten (10) days. I hope that this

letter finds you well, and I look forward to hearing from you.

Sincerely Yours,

HAYS, McCONN, RICE

&

PICKERING

Michael M.

Gallagher

MMG

cc: Shannon Robbie

Ramirez [Firm]

Appendix 5

CONLEY « SCHEXNAIDER

Attorneys at Law

Craig J. Schexnaider, CPA William H. Conley, CPA

November 23, 2005

Mr. Michael Gallagher Via fax: 7/3-650-0027

Hays, McConn, Rice &

Pickering

400 Two Allen Center

1200 Smith Street

Houston, TX 77002

Re: Civil Action No. 1:05-CV-51; Kevin Nixon and Brandon

Ancelet.v. Buryl Wheailey and P D George Company;

In the United States District Court for the Eastern

District of Texas: Beaumont Division

Dear Mr. Gallagher:

My clients Kevin Nixon and Brandon Ancelet agree to

take a judgment against P.D. George for the sum of $45,000.

Sincerely,

/Craig J. Schexnaider/

Craig J. Schexnaider

CJS:ksb

(409) 899-3360 3280 Delaware, Beaumont, Texas 77703

Fax (4091 899-3372

AIS

Appendix 6

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

KEVIN NIXON and

BRANDON

ANCELET

Plaintiffs,

CIVILACTION NO.

1:05-CV-05 1

versus

BURYL WHEATLEY

and PD GEORGE

COMPANY,

Defendants.

COR UP PO? 6 MM CL Mmm

NOTICE OF ACCEPTANCE OF OFFER OF

JUDGMENT PURSUANT TO RULE 68 FED. R. CIV. P.

KEVIN NIXON and BRANDON ANCELET, accept

the offer of judgment made by Defendants. Plaintiffs timely

accepted this offer on Wednesday, November 23, 2005. Rule

6(a) Fed. R. Civ. P. excludes Saturdays, Sundays, and legal

holidays (such as Veteran' s Day and Thanksgiving Day)

from computation. Plaintiffs request the clerk to enter

judgment for $45,000.00 to include the costs of court.

Defendants' offer and Plaintiffs' acceptance are attached

hereto as Exhibits "A" and "B" respectively and incorporated

herein by reference. Plaintiffs reserve the right to appeal any

interlocutory orders merged within the final judgment (to

wit: denial of Motion to Remand, etc.)

A 16

Respectfully submitted,

By:

CRAIG SCHEXNAIDER

3280 Delaware

Beaumont, Texas 77703

State Bar No. 00797385

BRUCE W.COBB

State Bar No. 04431900

Phone: (409)899-3360

Fax: (409) 899-3372

Attorneys for Plaintiffs

Brandon Ancelet and Kevin

Nixon

Appendix 7

UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF TEXAS

KEVIN NIXON and §

BRANDON ANCELET §

Plaintiffs, §

versus § CIVIL ACTION NO.

§ 1:05-CV-051

BURYL WHEATLEY § JURY

and PD GEORGE COMPANY §

Defendants. §

FINAL JUDGMENT

Defendants Buryl Wheatley and P.D. George Company

made an offer of judgment under Rule 68 Fed. R. Civ. P. to

Plaintiffs Kevin Nixon and Brandon Ancelet, which they

timely accepted and gave notice of the acceptance.

In accordance with the above-referenced / accepted offer

of judgment, it is, therefore, ORDERED and ADJUDGED that

Plaintiffs Kevin Nixon and Brandon Ancelet shall collectively

recover $45,000.00 from Defendants Buryl Wheatley and P.D.

George Company.

The parties shall bear their own costs. This order

disposes of all claims in this court and all relief not herein

granted is denied.

SIGNED and ENTERED this 19th day of December,

2005 at Beaumont, Texas.

/Marcia A. Crone/

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

Appendix 8

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40148

KEVIN NIXON; BRANDON ANCELET

Plaintiffs - Appellants

v.

BURYL WHEATLEY; P D GEORGE COMPANY

Defendants — Appellees

Appeal from the United States District Court

for the Eastern District of Texas, Beaumont

No. 1:05-CV-51

Before KING, BENAVIDES, and CLEMENT, Circuit

Judges. PER CURIAM:

"A party must reserve its right to appeal prejudgment

rulings in the offer of judgment, otherwise no appeals from

judgment will be allowed." Ramming v. Natural Gas

Pipeline Co. of Am., 390 F.3d 366, 370 (Sth Cir. 2004)

(emphasis in original). Plaintiffs’ failure to do so here

extinguished their right to appeal, and their subsequent

statement purporting to reserve this right could not resurrect

it.

Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

The Motion to Dismiss the Case is GRANTED.

Appeal DISMISSED. Costs shall be borne by plaintiffs.

A 19

Appendix 9

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40148

KEVIN NIXON; BRANDON ANCELET

Plaintiffs - Appellants

v.

BURYL WHEATLEY; P D GEORGE COMPANY

Defendants - Appellees

Appeal from the United States District Court for the Eastern

District of Texas, Beaumont

ON PETITION FOR REHEARING AND REHEARING

EN BANC

{Opinion 10/27/06, 5 Cir., , F.3d.

bsinicaniaee

Before KING, BENAVIDES and

CLEMENT, 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, (Feb. R. App. P. and 5™ Cir. R. 35)

the Petition for Rehearing En Banc is also DENIED.

( ) 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 and not disqualified not having

A 20

voted in favor, (FED. R. App. P. and 5™ Cir. R. 35) the

Petition for Rehearing En Banc is also DENIED.

(-) A member 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 and

not disqualified not having voted in favor, Rehearing En

Banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Appendix 10

FRCP 68. OFFER OF JUDGMENT

At any time more than 10 days before the trial begins, a party

defending against a claim may serve upon the adverse party an

offer to allow judgment to be taken against the defending party for

the money or property or to the effect specified in the offer, with

costs then accrued. If within 10 days after the service of the

offer the adverse party serves written notice that the offer is

accepted, either party may then file the offer and notice of

acceptance together with proof of service thereof and thereupon

the clerk shall enter judgment. An offer not accepted shall be

deemed withdrawn and evidence thereof is not admissible except

in a proceeding to determine costs. If the judgment finally

obtained by the offer is not more favorable than the offer, the

offer must pay the costs incurred after the making of the offer.

The fact that an offer is made but not accepted does not preclude

a subsequent offer. When the liability of one party to another has

been determined by verdict or order or judgment, but the amount

or extent of the liability remains to be determined by further

proceedings, the party adjudged liable may make an offer of judg-

ment, which shall have the same effect as an offer made before

trial if it is served within a reasonable time not less than 10 days

prior to the commencement of hearings to determine the

amount or extent of liability.

A 22

Appendix 11

$1446. Procedure for removal

(d) Promptly after the filing of such notice of removal of a,:, civil

action the defendant or defendants shall give written notice thereof to

all adverse parties and shall file a copy of the notice with the clerk of

such State court, which shall effect the removal and the State court

shall proceed no further unless and until the case is remanded.

A23