# Opposition Brief — Envirocare of Texas, Inc. v. Waste Control Specialists, LLC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0869%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 531 U.S. 956 ## Text : 2 Supr me Court, US. | Zz) FILED No. = EP 2 5 vn In The + ENVIROCARE OF TEXAS, INC; ENVIROCARE OF UTAH, INC; KHOSROW B. SEMNANI; CHARLES A. JUDD; FRANK C. THORLEY, Petitioners, WASTE CONTROL SPECIALISTS, LLC, Respondent. . On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit ¢ OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ¢ MIcHAEL A. CARVIN Counsel of Record ANbDREW G. MCBRIDE Noe J. FRANCISCO Cooper, CARVIN & SIDNEY POWELL ROSENTHAL, PLLC DEBORAH PEARCE REGGIO Suite 200 Powe. & ASSOCIATES 1500 K Street, N.W. 1920 Abrams Parkway, #369 Washington, D.C. 20005 Dallas, TX 75214 (202) 220-9600 (214) 653-3933 Counsel for Respondent ~ COCKLE LAW BRIEF PRINTING CO., (800) 225-694 OR CALL COLLECT (402) 342-2831 i TABLE OF CONTENTS Page ERP RIRIED 5 hoon na cent cesses sensei etente ean 1 SIATEMEENE OF TEE CARB... uw... ccc cacsccneeases 1 AEGRITEN, 05565 006560 can iccccacds daubecaeesbans 5 I. Certiorari Should Be Denied Because Substantial Jurisdictional Questions Preclude This Court From Addressing The Merits Of The Questions gr Aree ie rer irneeen, On ee 5 A. Envirocare Did Not Comply With The 30- Day Rule Of Section 1446(b).............. 6 B. Section 1447(d) Precludes This Court From Reviewing The Fifth Circuit’s Order Remanding This Case To State Court...... 10 II. The Court Of Appeals’ Conclusion That Removal Was Improper On The Unique Facts Of This Case Is Not Worthy Of This Court’s SNS on ona d 4 hS ss beet ends comaendekwakedn 13 III. The Court Should Deny Certiorari On The PONE DOOD hack ces canescnhepesqacntascnaees 23 SREP MERIEE Sends noc nckan ss sunheeekehnebeenbnes 30 ii TABLE OF AUTHORITIES Page Cases Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464 (1947) .... 11 Akin v. Ashland Chem., 156 F.3d 1030 (10th Cir. 1998), cert. denied, 526 U.S. 1112 (1999)............ 29 Am. Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951)....... 25 Aqualon Co. v. MAC Equip., Inc., 149 F.3d 262 (4th oD | er rrr rrr eo 29 Archer v. Arms Tech., Inc., 72 F. Supp. 2d 784 (E.D. Mich. 1999). . ....cncvcesvensenneapepeeeeswebwekeen 20 ARCO Envtl. Remediation v. Dep't of Health & Env't Quality, 213 F.3d 1108 (9th Cir. 2000) ..16, 17, 20, 21, 22 Arizonans For Official English v. Arizona, 520 U.S. GD (UGG7) ac vnc canwcveccsveeeskon3ebha tiers 7 Barbara v. New York Stock Exch., 99 F.3d 49 (2d Cir. SUPE). gc cc cvkcccpitnvkneksévauweayeneeeeeeee 28, 29 Baron v. Strassner, 7 F. Supp. 2d 871 (S.D. Tex. | Seni Us 20 Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th RE | | re re yO 29, 30 Brennan v. Southwest Airlines, 134 F.3d 1405 (9th | ry roe ery ea 22 Buchanan v. Delaware Valley News, 571 F. Supp. 868 FED. Pa. TORR. s occdknccttvecstaivi eee 19 Cades v. H&R Block, 43 F.3d 869 (4th Cir. 1994)...... 29 Caravanas v. Hall, No. 99-1405, 1999 U.S. Dist. LEXIS 12741 (E.D. La. Aug. 10, 1999).............. 20 be ee SN Le Rie ee, es MANTRA Hl i han mr ee ee ae EAN OE REDE NES TNA A RTS tall aN a aad nd a es itis ili TABLE OF AUTHORITIES - Continued Page Cerpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d oR eer errr Te rere ress reas y Case v. Webb, No. 98-10064-CIV, 1998 U.S. Dist. LEXIS 21679 (S.D. Fla. Dec. 8, 1998) .............. 20 Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996) ...... passim Chivas Prods. Ltd. v. Owen, 864 F.2d 1280 (6th Cir. Py Pere ve Teer eye CP ee terre tere ge 28 Citizens Bank v. Operman, 249 U.S. 448 (1919)......... 7 Dep't of Banking v. Pink, 317 U.S. 264 (1942).......... 7 Desaigoudar v. California Micro Devices Corp., No. 98-15116; 1999 U.S. App. LEXIS 1067 (9th Cir. a Ee rrerrrrr ree rereers 17, 18, 19, 20 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)....... 5, 26 Ex Parte Matthew Addy S.S. Commerce Corp., 256 ON RE re er ee ret eee rr eee 11 Fax Telecommunicationes, Inc. v. AT&T, 138 F.3d 479 Rs SA Shade caste sneasen eneee 17, 18, 20 FEC v. NRA Political Victory Fund, 513 U.S. 88 ET Nee fa Va be nib wr hsseh C64 Kets secrete 8 Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394 eh al Se shape ee aes: 6s een wh oe ks 08 15, 19 Franchise Tax Bd. v. Construction Laborers Vacation er rere 14 Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th ee can i aly Car boa ir bu § 6a 05 8 ee O60 06 4en ee 8 Geer Hae, Be WS. Bd (BODE)... wees se sesceens 11 German Nat'l Bank v. Speckert, 181 U.S. 405 (1901) .... 11 iv TABLE OF AUTHORITIES - Continued Page Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306 (3d Cir. 1994), cert. denied, 514 U.S. 1063 PROT ee eee eer er eee 17, 18, 20 Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699 ee eee mere rer rar. 25, 29 Herron v. Local Union 25, No. 96-1335, 1998 U.S. App. LEXIS 1322 (6th Cir. Jan. 27, 1998)....... 29, 30 In re NASDAQ Market-Makers Antitrust Litig., 929 P. Gee. TR CERIN. E. BORG) oi cence cvincwsvccvess 19 In re Pennsylvania Co., 137 U.S. 451 (1890)........... 11 In re Wiring Device Antitrust Litig., 498 F. Supp. 79 GAT HUME hacia cen etsd ou sehen ceekueenp Rade 20 Kidd v. Southwest Airlines, 891 F.2d 540 (5th Cir. Se ne errr eT er re eee ny Sere 28 Kobaissi v. Am. Country Ins. Co., 80 F. Supp. 2d 488 Gea UE + kx cennds Viccdemeceesaustawaenekbae 20 Koehnen v. Herald Fire Ins. Co., 89 F.3d 525 (8th Cir. RTT TT OTE TEC ET OTT eee TCT ree eee re 29 Lewis 9. Casey, SEB US. DED CIR) occ ne wnsscescvees 12 Lexecon, Inc. v. Milberg Weiss Bershad Hynes & ee Bk Re | ee re re ee 8 Lowe v. NASD Regulation, Inc., No. 99-1751, 1999 U.S. Dist. LEXIS 19489 (D.D.C. Dec. 14, 1999)..... 20 M. Nahas & Co. v. First Nat'l Bank, 930 F.2d 608 i SPR cette pp errr Ty 17, 18, 20 Matton Steamboat v. Murphy, 319 U.S. 412 (1943)...... 7 Vv TABLE OF AUTHORITIES - Continued Page Mech. Rubber & Supply Co. v. Am. Saw & Mfg. Co., 747 F. Supp. 1292, vacated in part, 810 F. Supp. SOG Cah OR. TOGO issn ceccknvayccscee races ues 19 Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804 (PPDG) « «cs avnawanissd coolsntteeacdh heen bene penmaee 16 Missouri v. Jenkins, 495 U.S. 33 (1990) .............. 7,8 Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205 CRF OG) ccancccsnksvvecasuseuneheagnae veeee eae Rae 16 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., Se STS. DUO CEI sve viechocwtncennsepeseunbeenss 8 Northern Illinois Gas Co. v. Airco Indus. Gases, 676 ae. 27O CG Ge. BORE) «kena carncdvindvssene ees 8 Patriot Cinemas, Inc. v. General Cinema Corp., No. 86-1190-Y, 1986 U.S. Dist. LEXIS 17085 (D. Mass. Dec. 1, 1986), vacated and remanded, 834 F.2d 208 oo ge Pere ere eer es err ere 19 Popular Democratic Party v. Puerto Rico, 24 Supp. 20 TOG GPR. BG0G) ae sc cc neccacsrcsesss 20 Portage County Bd. of Comm'rs v. City of Akron, 12 F. Supp. 2d 693 (N.D. Ohio 1998)...........0000. 20 Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92 SUE ands bacacbcencbe at echaqe vee esanse can heneeke’ 6 Prospect Dairy Inc. v. Dellwood Dairy Co., 237 FE Supp. 176 (N.D.N.Y. 1966)... 5002 ccenvccensess 20 Reynolds v. Fergusson, 73 F. Supp. 2d 841 (W.D. SOF ova cndvsaes Reed endeeseweeueewe ckeees 20 Rivet v. Regions Bank, 522 U.S. 470 (1998)..... 12, 14, 27 Schact v. United States, 398 U.S. 58 (1970)........... 7, 8 vi TABLE OF AUTHORITIES - Continued Page Schappel v. UICI, No. 3:99-CV-1544-G, 1999 U.S. Dist. LEXIS 19444 (N.D. Tex. Dec. 3, 1999)........ 20 Servia-Mendoza v. Burgos, 31 F. Supp. 2d 35 (D.P.R. BOGS). cc ccccccvccesduct Ob snewh 5s SERRE EEE Re eiaS 20 Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1923) oc .sccccsscrvanereeenengae Kank Dea Ch aeons 16 Steel Co. v. Citizens For A Better Env’t, 523 U.S. 83 (1DDE) . 00 ccccdcncnctss sic v0eees ea een ane 3 6 Temptations, Inc. v. Wager, 26 F. Supp. 2d 740 CD.NL]. 1998) .. 0c sccvnveschentacaseen peewee tene 20 Thermatron Prods., Inc. v. Hermansdorfer, 423 U.S. 586 (1976)... os sca vcunsucsscmeven see beneunan ates 12 Three J Farms, Inc. v. Alton Box Bd. Co., No. 78-1257, 1978 U.S. Dist. LEXIS 14134 (D.S.C. Nov. 29, 1978), rev'd, 609 F.2d 112 (4th Cir. 1979) .......... 20 Vector Research v. Howard & Howard, 76 F.3d 692 Gils Cie, BIDE). os csecavas dedeencn ce eennean 28, 29 Village of Alden v. Cablevision Indus., No. 98- CV-325S(H), 1998 U.S. Dist. LEXIS 20339 , CVDIN.Y. Oct. 36, FOR iiceccvinscd ehisteeeees 20 Volvo of Am. Corp. v. Schwarzer, 429 U.S. 1331 CPRP OR kos senses becti niu Shares seteciakeee te 11 Westwood Nursing Ctr. v. Haveman, No. 98- CV-74023-DT, 1998 U.S. Dist. LEXIS 20584 (E.D. SA. SOs DR ko bo ek A oes ce ee 20 XF Enterprises, Inc. v. BASF Corp., No. 99-3693, 1999 U.S. Dist. LEXIS 16834 (E.D. Pa. Nov. 2, PP reer ery cee CSCEMEE RAE SOUL GREER 18 Vii TABLE OF AUTHORITIES - Continued Page OTHER Se ns IP EME io snaked eak iver ceeeeaaleee nl 4 a8 USC. § 1407) ........° ARR aene enw ss Melee 8 a es Be PE 5 oe esd Nason eens x 6, 7, 30 ers IE Saigo FREER Ke 4s ch oun eke 2 Pe es Ee EE oo i ved ced cee nadhacaeebans >, 6, i UGG BOR oii ks 6, 10, 11, 12 Be Bees EE HA GNES cntkeh a cece hoasewearebis 7 14b Wright, Miller and Cooper § 3722 .............. 15 Arthur R. Miller, Artful Pleading: A Doctrine In Search Of A Definition, 76 Tex. L. Rev. 1781 (1998) .... 15 Comprehensive Environmental Response, Com- pensation, and Liability Act, 42 U.S.C. § 9601, et Texas Free Enterprise Code and Antitrust Act of 1993, Tex. Bus. & Com. Code § 15.05(b) SEP E Cer cha peh ene lakaresceumicenauainvanns i, 9, 16 1 ‘ INTRODUCTION This case presents a peculiar instance in which a fed- eral district court removed plaintiff’s purely state law claim from Texas state court to federal court, based solely on the district court’s evaluation of Texas law. That is, the sole basis for the exercise of federal jurisdiction was the district court’s determination that plaintiff’s state law claim was “not viable” under Texas law. In so holding, the district court at once denied plaintiff of both its chosen state court forum, and, because it had already deemed plaintiff’s state law claim “not viable” its state law claim as well. Plaintiff therefore had no choice but to amend its complaint to allege a federal cause of action, lest it face the certainty of immediate dismissal in federal court. The unanimous court below correctly concluded that on such extraordinary facts, the district court’s actions could not be sustained. For the reasons discussed below, this Court should deny certiorari. STATEMENT OF THE CASE On May 2, 1997, Plaintiff-Petitioners Waste Control Specialists (“WCS”) sued Defendant-Respondents Envi- rocare of Texas, et al. (“Envirocare”), alleging only state law causes of action. In particular, WCS alleged that Envi- rocare had a monopoly in the business of disposal of low- level radioactive and mixed waste, and had used its monopoly position to prevent the State of Texas from approving WCS’s bid to enter the market for low-level radioactive and mixed waste. In doing so, WCS alleged, Envirocare violated the Texas Free Enterprise Code and Antitrust Act of 1993, Tex. Bus. & Com. Code § 15.05(b) (1987) (“Texas Antitrust Act”), as well as the Texas com- mon law of libel, slander, business disparagement, and tortious interference with prospective business relations. The parties engaged in extensive discovery while in state court, resulting in 44 depositions and the production by WCS of approximately 68,134 pages of documents, as well as the appointment of a special master to resolve discovery 2 disputes. On March 13, 1998, WCS amended its Original Petition; again, however, WCS alleged only violations of Texas antitrust and common law. Thereafter, on April 13, 1998, approximately ten months after WCS initially filed suit, Envirocare sought to remove this case to the United States District Court for the Western District of Texas pursuant to 28 U.S.C. § 1447(b). WCS immediately filed a motion to remand the case to state court on the ground that its complaint alleged only violations of Texas law. The district court, however, denied this motion. The district court acknowledged that under the well-pleaded complaint rule, “the plaintiff is ‘the mas- ter of his complaint,’” Pet. App. 47a (citation omitted), and further acknowledged that “[flederal antitrust law does not pre-empt Texas’s antitrust law.” Pet. App. 52a. Nevertheless, the district court held that under the Fifth Circuit’s prior decision in Carpenter v. Wichita Falls Indepen- dent School District, 44 F.3d 362 (5th Cir. 1995), it was obligated to deny the motion to remand if, in its view, plaintiff had “no legitimate or viable state cause of action, but only a federal claim.” Pet. App. 48a. The district court then conducted a detailed analysis of Texas antitrust law, see Pet. App. 51a-56a, ultimately concluding that “the Texas Antitrust Act does not apply to Plaintiff’s claims of anti-competitive behavior.” Pet. App. 56a.1 The district court emphasized that it was “not address[ing] the merits of the Plaintiff’s federal antitrust claim, but only whether the Plaintiff ha[d] alleged a viable state antitrust claim.” Pet. App. 56a n.8. 1 In so holding, the district court adopted the argument advanced by Envirocare in its opposition to WCS’s motion to remand, wherein Envirocare asserted: “Here the only antitrust remedy available to WCS is federal, not because of federal preemption but because, under long-established Texas law, the Texas antitrust statute does not reach to exclusively interstate transactions — like those pled in WCS’ First Amended Petition.” Resp. App. 49a (emphasis in original). 3 The district court also held that Envirocare’s notice of removal, filed ten months after the Original Petition, com- plied with the 30-day Rule set forth in 28 U.S.C. § 1446(b), pursuant to which a notice of removal must be filed within thirty days of receipt of a pleading “from which it may be first ascertained that the case . . . is or has become remov- able.” The district court reasoned that it was only when WCS filed its First Amended Petition on March 13, 1998, that Envirocare was able to first ascertain that the case was removable; therefore, the notice of removal, filed within thirty days of the First Amended Petition, was timely filed. See Pet. App. 56a-57a. In the face of a district court decision that both denied WCS its state court forum and rejected WCS’s state law claims on their merits, WCS filed a Second Amended Complaint, wherein for the first time, it alleged violations of federal antitrust law. R. 1372-1421. Thereafter, the district court granted Envirocare’s Rule 12(b)(6) Motion to Dismiss the Second Amended Com- plaint. Pet. App. 14a-44a. The district court accorded WCS eleven days and ten pages to respond to this motion, and then held that both the state and federal claims were foreclosed by the Noerr-Pennington doctrine. Pet. App. 44a. A unanimous panel of the Court of Appeals for the Fifth Circuit reversed the district court. Pet. App. 1a-13a. The court expressly declined to address the merits of WCS's claims, but instead, reversed the district court on the sole ground that removal was improper. Pet. App. 6a-7a. The court first held that the district court erred in denying WCS’s motion to remand the case, explaining that the district court’s error rested on its erroneous “adoption ' of language in Carpenter to support its holding that the artful pleading doctrine could apply irrespective of the lack of complete preemption.” Pet. App. 5a. The court explained that Carpenter was, by its terms, limited to instances where a state law claim was not viable because it had been completely preempted by federal law. Carpenter was 4 therefore inapplicable to the present case. Pet. App. 6a. The court thus concluded: In this circumstance, WCS remained master of its complaint. Although WCS could have alleged a federal cause of action in its state petition, it did not. It filed a complaint in state court alleging wholly state claims in a non-preempted field. Its choice is entitled to respect and precluded removing the case to federal court absent circum- stances not presented here. For certain, we express no opinion as to the viability of WCS’s state law claims. That is for a Texas court to decide. The district court’s order, issued without jurisdiction, can have no preclusive effect. Pet. App. 6a-7a (internal citation omitted). The court also held that WCS had not waived its right to challenge the improper removal on appeal when, after the district court had deemed its state law claim “not viable,” WCS filed a Second Amended Complaint alleging, for the first time, federal antitrust claims. Pet. App. 7a-11a. Applying the equitable test announced in Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996), the court concluded that “the doctrine of waiver after improper removal is not applica- ble on these facts.” Pet. App. 11a. As the court explained, in Caterpillar, this “Court noted that the plaintiff, ‘by timely moving for remand, did all that was required to preserve his objection to removal,’ and held that a plaintiff in this predicament need not seek permission for a 28 U.S.C. § 1292(b) interlocutory appeal in order to preserve the error.” Pet. App. 8a (internal citation omitted). Rather, “Caterpillar holds that timely objection can preserve the jurisdictional claim despite subsequent amendment, even if other considerations [i.e., finality, efficiency, and econ- omy] may ultimately outweigh that objection.” Pet. App. 8a. In this case, the Fifth Circuit concluded that “other considerations” did not outweigh WCS’s properly pre- served objection. In particular, the court noted that “[t]his case consumed, relatively, a minimum of judicial 5 resources,” Pet. App. 11a, explaining that “in deciding that waiver is not applicable to WCS, [it was] greatly influ- enced because there was no trial on the merits,” which it noted was at the opposite end of the procedural spectrum from a Rule 12(b)(6) dismissal. Pet. App. 9a-10a. In addi- tion, the court noted that unlike Caterpillar, this was not a “diversity case” wherein “[t]here is no difference [between a federal and state court] in treatment of the substance of plaintiff’s claims; the change is largely procedural if at all,” Pet. App. 8a n.2 (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)), and “f[ound] merit in . . . the narrowness of [WCS’s] amendment,” which “state[d] the one and only claim the district court suggested it had.” See Pet. App. lla n.5. Accordingly, the court ordered that the district court’s “orders are therefore VACATED, and the case is REMANDED to the district court with instructions to remand this action to the state court from which it was removed in accordance with 28 U.S.C. § 1447(c).” Pet. App. 13a. The court below denied Envirocare’s motion to Stay its mandate, and Envirocare has not asked this Court to stay that mandate pending resolution of its petition for cer- tiorari. Resp. App. 1a-3a. This case, therefore, has already been remanded to the Texas state court, Resp. App. 4a-6a, where proceedings are currently ongoing. Indeed, the Texas District Court of Andrews County, Texas, 109th Judi- cial District, has set this case to begin trial on November 27, 2000, at 9:00 a.m. Resp. App. 7a. ARGUMENT I. Certiorari Should Be Denied Because Substantial Jurisdictional Questions Preclude This Court From Addressing The Merits Of The Questions Presented. Two separate and independent jurisdictional bars, which this Court is obliged to address, see Steel Co. v. Citizens For A Better Env't, 523 U.S. 83, 94-95 (1998), pre- vent this Court from reaching the merits of the questions 6 presented. First, Envirocare did not comply with the 30- day Rule set forth in 28 U.S.C. § 1447(c), which, by its express terms, prohibits a federal court from taking removal jurisdiction of a case unless the notice of removal was filed within thirty days of a pleading from which the defendant could ascertain that the case was removable. Second, 28 U.S.C. § 1447(d) prohibits any review “by appeal or otherwise,” including review by this Court, of an order remanding a case to a state court in accordance with 28 U.S.C. § 1447(c). A. Envirocare Did Not Comply With The 30-Day Rule Of Section 1446(b). Section 1446(b) states that a “notice of removal ... shall be filed within thirty days after receipt . . . of the initial pleading” or, “[i]f the case stated by the initial pleading is not removable, . . . within thirty days after receipt . . . of an amended pleading . . . or other paper from which it may be first ascertained that the case . . . is or has become removable.” 28 U.S.C. § 1446(b) (emphasis added).2 Envirocare, by failing to file its notice of removal until ten months after WCS filed its Original Petition, plainly violated this 30-day Rule. Therefore, the district court and, consequently, this Court, lack jurisdiction of this case. See Steel Co., 523 U.S. at 94-95.3 2 Prior to 1948, the predecessor to section 1446(b) did not contain a specified time period for filing a notice of removal, but simply provided that the petition for removal “may [be] ma[de] and file[d]” at a certain time. Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 100 (1898) (quoting Act of Mar. 3, 1887, c. 373, as corrected by Act of Aug. 13, 1888, c. 866, 25 Stat. 435) (emphasis added). This discretionary authorization in the predecessor statute (which was held to be merely “ ‘modal and formal,’ ” id. at 98 (citation omitted)), is obviously fundamentally distinct from section 1446(b)’s current mandatory deadline. 3 Because the Fifth Circuit disposed of this case on what, in its view, was an alternative jurisdictional ground, see Pet. App. 7 This Court’s decisions in Schact v. United States, 398 U.S. 58 (1970), and Missouri v. Jenkins, 495 U.S. 33 (1990), make clear that section 1446(b)’s 30-day Rule is jurisdic- tional. Under those cases, a filing deadline explicitly pre- scribed by statute is deemed a jurisdictional limit on the judicial power. In Schact, the Court held that the filing deadline prescribed by then Supreme Court Rule 22(2) was not jurisdictional, explaining that “it must be remembered that this rule was not enacted by Congress but was pro- mulgated by this Court” and, therefore, could “be relaxed by the Court in the exercise of its discretion.” Schact, 398 U.S. at 64. Justice Harlan, in a concurring opinion, expounded upon the difference between a court-created rule and a duly-enacted act of Congress, and more partic- ularly, why the latter was jurisdictional but the former was not. “In the absence of language providing for waiver,” he explained, “we have without exception treated the statu- tory limitations as jurisdictional.” Id. at 65 (Harlan, J., concurring) (citing Matton Steamboat v. Murphy, 319 U.S. 412 (1943); Dep't of Banking v. Pink, 317 U.S. 264 (1942); Citizens Bank v. Operman, 249 U.S. 448 (1919)). He elabo- rated: As a matter of statutory interpretation, the Court has not presumed the right to extend time limits specified in statutes where there is no indication of a congressional purpose to authorize the Court to do so. Because we cannot “waive” congres- sional enactments, the statutory time limits are treated as jurisdictional. Id. at 68. In accordance with Schact, this Court, in Missouri v. Jenkins, 495 U.S. 33 (1990), held that 28 U.S.C. § 2101(c) - which provides that an “appeal or any writ of certiorari to . . . the Supreme Court for review shall be taken or 7a, it had no obligation to address whether Envirocare had satisfied section 1446(b)’s 30-day Rule. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66-67 (1997). 8 applied for within ninety days after the entry of such judgment or decree” - “is mandatory and jurisdictional,” and a court has “no authority to extend the period for filing except as Congress permits.” 495 U.S. at 45. See also FEC v. NRA Political Victory Fund, 513 U.S. 88, 90, 99 (1994). Cf. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 357 (1999) (Rehnquist, C. J., joined by Scalia and Thomas, J. J., dissenting) (referring to section 1446(b) as a “jurisdictional statute[ ]”).4 In this case, the district court held that Envirocare could not ascertain the removability of this case from WCS’s Original Petition, and so applied the 30-day Rule 4 Notwithstanding Jenkins and Schact, some lower federal courts have held that the 30-day Rule is not jurisdictional. See, e.g., Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982); Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212-13 (9th Cir. 1980). Even these courts, however, hold that the 30-day Rule “is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived.” Northern Illinois Gas Co., 676 F.2d at 273. See also Fristoe, 615 F.2d at 1212. Here, there is no argument that WCS waived or is estopped from raising Envirocare’s failure to comply with the 30-day Rule, as it vigorously raised this objection both before the district court, see Plaintiff's Motion to Remand, R. 637-639; Pet. App. 56a-57a, as well as the court of appeals. See Brief of Appellant 25-38, No. 98-50952 (5th Cir. Dec. 23, 1998). Thus, even if it is not jurisdictiorial, the district court’s violation of the 30-day Rule provides a compelling, threshold basis for denying removal here, and thus a significant obstacle to this Court reaching the merits of the questions presented by petitioners. In this regard, it should be noted that the district court’s subsequent decision on the merits provides no basis for ignoring or excusing its failure to comply with the 30-day Rule. See Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 42-43 (1998) (Distinguishing Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996), this Court invalidated a full federal trial because the district court had, contrary to the mandate of 28 U.S.C. § 1407(a), refused to remand the case to another federal court). 9 only to WCS’s First Amended Petition. This holding was clear error. Indeed, that Envirocare’s basis for removal could be “ascertained” from the Original Petition is not even in dispute in this case, for Envirocare did in fact ascertain in its Original Answer the very basis upon which it would, nine months later, seek to remove this case to federal court. Specifically, in its notice of removal, the sole basis upon which Envirocare asserted that this case was remov- _ able was that “Plaintiff’s First Amended Petition states clearly for the first time that Plaintiff’s allegations of anti- trust violations exclusively involve interstate commerce.” Resp. App. 9a (emphasis added).5 In its Original Answer filed on June 9, 1997, however, Envirocare explicitly acknowledged that it had already ascertained this very basis for removing the case: Defendants specially except to the allegation in Plaintiff’s Original Petition that the Defendants violated the Texas Free Enterprise and Antitrust Act of 1983 for the reason that the Plaintiff has failed to properly allege a monopoly violation against the Defendants. The disposal of low-level radioactive wastes and/or “mixed wastes” referred to in the Original Petition involve exclusively interstate commerce. Transactions which exclusively involve interstate commerce are not subject to Texas antitrust laws and instead are governed by the federal antitrust laws. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging an actionable violation of the Texas Free Enterprise and Antitrust Act of 1983 against the Defendants. Resp. App. 15a (emphasis added). In short, Envirocare did, on the basis of WCS’s Origi- nal Petition, in fact “ascertain{ ] that th[is] case is one ° This was likewise the basis upon which the district court sustained the removal. See Pet. App. 55a-56a. 10 which is or has become removable.” 28 U.S.C. § 1446(b). Accordingly, Envirocare’s notice of removal, filed ten months after WCS filed its Original Petition, was filed out of time and, therefore, this Court has no jurisdiction to reach the merits of the questions presented. B. Section 1447(d) Precludes This Court From Reviewing The Fifth Circuit’s Order Remanding This Case To State Court. Pursuant to the Fifth Circuit’s mandate, this case has already been remanded to state court, where a November 27, 2000, trial date has been set. A decision to grant review in this case would therefore entail the necessity of staying an ongoing state court proceeding and removing the action to federal court. Envirocare has not explained the procedure by which such a stay could be entered. More- over, any such action would seem to be inconsistent with the principles of Younger v. Harris, 401 U.S. 37 (1971). See id. at 45 (“the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions”). By failing to seek from this Court an immediate stay of the remand order, Envirocare has made any review by this Court impossible without confronting the significant federalism issues raised by intervening in ongoing state court litigation. This alone constitutes a reason for denying the writ. It is perhaps for these reasons that Congress, in enact- ing 28 U.S.C. § 1447(d), specifically precluded any review, “on appeal or otherwise,” of any “order remanding a case to the State court from which it was removed.”® Section 6 Section 1447(d) provides: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis added). Section 1443, which refers to removal in civil rights cases, is not applicable to the present case. 11 1447(d) is as applicable to this Court as it is to a court of appeals.” Nothing in the text of the statute limits the proscription on review to orders issued by, district (as opposed to appellate) courts. The statute’s proscription, moreover, is complete, extending to all review “on appeal or otheru'se.” 28 U.S.C. § 1447(d) (emphasis added).® See 7 Cf. Volvo of Am. Corp. v. Schwarzer, 429 U.S. 1331 (1976) (Rehnquist, Circuit Justice) (denying stay of district court remand order because review of the order is barred by section 1447(d)); Ex Parte Matthew Addy S.S. Commerce Corp., 256 U.S. 417, 418-19 (1921) (predecessor of section 1447(d) barred Supreme Court from reviewing remand order on petition for writ of mandamus); In re Pennsylvania Co., 137 U.S. 451, 453-54 (1890) (same). 8 Section 1447(d)’s predecessor statute was held not to bar Supreme Court review by writ of certiorari. See Gay v. Ruff, 292 U.S. 25, 28-30 (1934); Aztna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 466-67 (1947). Unlike section 1447(d), however, that predecessor statute barred only review by “ ‘appeal or writ of error.’ ” See Gay, 292 U.S. at 28 (quoting Judicial Code § 28). This distinction is crucial because, as Gay explained, the Circuit Court of Appeals Act of 1891 had granted the Court the power to review by certiorari decisions that had not reached final judgment, see Gay, 292 U.S. at 30 —- that is, decisions that could not be reviewed by appeal or writ of error. See German Nat’! Bank v. Speckert, 181 U.S. 405, 409 (1901). Certiorari review, therefore, provided a separate basis for reviewing the court of appeals’ remand. In 1948, however, immediately after Aetna summarily reaffirmed the holding of Gay, Congress enacted the broad language of section 1447(d), extending the statutory proscription to any review “on appeal or otherwise,” 28 U.S.C. § 1447(d) (emphasis added) - thus clarifying that the statute barred review by writ of certiorari, as well as by appeal or writ of error. In addition, whereas the predecessor statute batred review only of “ ‘the decision of the district court so remanding,’ ” Gay, 292 U.S. at 28 (quoting Judicial Code § 28), section 1447(d) bars review of any “order remanding a case to the State court from which it was removed,” 28 U.S.C. § 1447(d), including review by this Court of an order issued by a court of appeals. 12 Thermatron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976) (“There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, Congress immunized from all form of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court.”). Indeed, this case is the quintessential example of the evil section 1447(d) was designed to prevent since the Court would have to further delay a pending state court trial in order to resolve the already “protracted litigation of jurisdictional issues.” Id.? Here, the court below issued an order that this case be remanded to the state court from which it was removed, Pet. App. 13a, and in accordance with this order, this case has been remanded to the state court where it is currently being litigated. Resp. App. 4a-7a. Accordingly, section 1447(d) precludes this Court from reviewing “on appeal or otherwise” the court’s order remanding this case to state court.!0 9 This Court has reviewed cases in a procedural posture similar to this, i.e., where the court of appeals reversed the district court’s denial of a plaintiff’s motion to remand. See, ¢.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61 (1996). However, the Court never confronted the propriety of doing so in light of section 1447(d), and has “repeatedly held that the existence of unaddressed jurisdictional defects ha[ve] no precedential effect.” Lewis v. Casey, 518 U.S. 343, 353 n.2 (1996). 10 Section 1447(d) does not insulate from this Court’s review all lower court decisions interpreting the remand statutes, for this Court retains unfettered authority to review appellate court decisions affirming a district court’s denial of a motion to remand, as this Court has done on numerous occasions. See, e.g., Rivet v. Regions Bank, 522 U.S. 470, 473-74 (1998). 13 II. The Court Of Appeals’ Conclusion That Removal Was Improper On The Unique Facts Of This Case Is Not Worthy Of This Court’s Review. Even assuming the substantial jurisdictional and pro- cedural problems with this case were resolved in petitioner’s favor, the case is not worthy of this Court's review on the merits. Contrary to the petition’s misleading characterization (as we further explain below), the court below did not opine or suggest that a state law claim which embodies a “substantial-federal-question” could not be removed, for the simple reason that this issue was not before the court since no one contended that WCS’s anti- trust claim required the court to resolve any federal law issues. Thus, the court below discussed only the “complete preemption” exception to the well-pleaded complaint rule simply because that was the only exception potentially implicated by the case - not because it was sub silentio rejecting another possible exception. Specifically, the dis- trict court here believed it could remove a state law claim that was not “viable” because it had no merit under state law, but the Fifth Circuit correctly held that courts can remove only state claims that are rendered not “viable” because they are completely preempted by federal law. No inferior appellate court disagrees with the Fifth Circuit's holding or reasoning; no federal appellate court has other- wise articulated any rule which authorized removal in this case and there is no split among the federal courts on the vitality of the “substantial-federal-question” exception after Rivet - even if that question were presented here. We will examine each point in turn. 1. The district court here removed a purely state - antitrust claim to federal court on the grounds that “the Plaintiff has not adequately alleged a Texas antitrust action” because, as the “Texas Supreme Court has long recognized,” the “Texas antitrust statutes do not apply to actions that are wholly interstate in nature.” Pet. App. 54a, 52a (emphases added). Thus, under the district court’s astonishing reasoning, a federal court may take a purely state law claim from state court if, under state law, it 14 believes the plaintiff fails to state a claim on the merits. There is, of course, no support or logic for the notion that a federal court may remove a purely state law claim if it determines that the claim is not “viable” because there is no merit to it under state law. Pet. App. 50a, 56a n.8. Rather, it may remove a state law claim if the claim is not viable because it has been completely preempted by fed- eral law. In certain circumstances, the “pre-emptive force of [federal law] is so powerful as to displace entirely any state cause of action.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23 (1983). In these rare cases, then, “any claim purportedly based on that pre-empted state-law claim is considered, from its inception, a federal claim, and therefore arises under federal law.” Rivet v. Regions Bank, 522 U.S. 470, 476 (1998). Here, it was and is undisputed that federal antitrust law does not completely preempt state antitrust laws, so this doctrine is wholly inapplicable. See Pet. 12; Pet. App. 4a, 52a. Nevertheless, the district court, misinterpreting scat- tered phrases from complete preemption cases, created a new and facially erroneous removal doctrine — removal is authorized if a state law cause of action fails to state a meritorious claim under state law. The Fifth Circuit simply corrected this obvious error. Citing Rivet and other pre- vious cases, the court below held that it was wrong for the district court to opine on the “viability of WCS’s allega- tions . . . [w]ithout complete preemption” because “the viability of WCS’s state law claims . . . is for a Texas court to decide.” Pet. App. 4a, 7a. The only question for the federal court is whether the viability of the state law claim has been eliminated through complete preemption. There is nothing remotely controversial or questionable about this plainly correct decision. Apparently recognizing this, petitioners struggle mightily to recast the decision below as somehow rejecting a ground for removal other than complete preemption - i.e., the “substantial-federal-question” exception — which, petitioner maintains, continues to be recognized by other lower courts, and in an article by Professor Arthur Miller, 15 as viable after this Court’s Rivet decision. Pet. 13-18. But petitioner’s basic premise is facially erroneous: The court below did not reject removal of state law claims which necessarily require resolution of “substantial-federal-ques- tions.” It did not do so for the obvious reason that this issue was neither presented nor argued. There is no fed- eral question embedded in WCS’s state law claim and no one has ever argued that there was. A brief analysis of petitioner’s argument is necessary to demonstrate how it seeks to present an issue that was not ruled upon by the court below and is not implicated by this case. The basic thrust of the petition is that, accord- ing to Professor Miller, removal is appropriate in “three distinct classes of cases,” not just in cases involving com- plete preemption of state law. Pet. 16 (quoting 14b Wright, Miller and Cooper § 3722, at 436). See also A. Miller, “Artful Pleading: A Doctrine in Search of a Definition,” 76 Tex. L. REV. 1781, 1784 (1998). Specifically, Professor Miller’s article states: The Supreme Court has recognized three sepa- rate categories of cases in which federal courts may deviate from the well-pleaded complaint rule: substantial-federal-question cases, complete preemption cases, and a rather amorphous cate- gory apparently based on notions of federal claim preclusion, relevant only to removal juris- diction and developed by a number of courts of appeals pursuant to the Supreme Court’s deci- sion in Federated Department Stores Inc. v. Moitie. Arthur R. Miller, Artful Pleading: A Doctrine In Search Of A Definition, 76 Tex. L. Rev. 1781, 1784 (footnote omitted). It is incontrovertible that the third exception referenced — the “Moitie footnote two exception” - was eliminated by this Court’s decision in Rivet, leaving only the “complete pre- emption” and “substantial-federal-question” exceptions. Since the court below explicitly acknowledged the “com- plete preemption” exception, it must be Envirocare’s argu- ment that the court below somehow eliminated the “substantial-federal-question” exceptior 16 The “substantial-federal-question” exception to the well-pleaded complaint rule arises where a plaintiff's ostensibly state-law cause of action has, as an essential element, a substantial issue of federal law.'! Here, the court below never so much as mentioned the “substantial- federal-question” exception, much less held that the excep- tion no longer existed. As noted, this is because Envirocare could not and did not argue its applicability. Thus, this case does not present a vehicle for addressing the contin- ued existence or scope of this exception. Indeed, nowhere in the many pleadings, orders, and opinions that form the record in this case, does any party or any court so much as cite this Court’s decisions in Smith, Merrell Dow, or Moore, see supra note 11, or any other decision arguably within the “substantial-federal-ques- tion” line of cases. Rather, in their briefs before the court below, the only argument that Envirocare advanced was that removal was proper because, under the Texas courts’ interpretation of the Texas Antitrust Act, WCS’s state law antitrust claim was “no[t] viable,” Resp. App. 36a, and, accordingly, this was the only argument that the court below had occasion to address. See Pet. App. 4a-7a. Nor can it plausibly be argued that WCS’s state anti- trust claim would fall within the “substantial-federal- 11 ARCO Envtl. Remediation v. Dep't of Health & Env'’t Quality, 213 F.3d 1108, 1116 (9th Cir. 2000) (“federal jurisdiction may still lie if ‘it appears that some substantial, disputed question of federal law is a necessary element of one of the well- pleaded state claims’ ”). See Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921); Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 805 (1986) (rejecting removability of state-law products liability suit that alleged “that the drug Bendectin was ‘misbranded’ in violation of the Federal Food, Drug, and Cosmetic Act”); Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205, 214-15 (1934) (rejecting federal question jurisdiction of state law personal injury action alleging that plaintiff’s injury was caused by defendant’s failure to comply with the Federal Safety Appliance Act). 17 question” exception even had Envirocare made this argu- ment. Here, WCS’s state law antitrust claim is totally independent of federal law: it stands or falls completely on the application of Texas state law, as the district court's evaluation as to its “viability” makes abundantly clear. See Pet. App. 51a-56a. In short, this case cannot provide a vehicle for addressing the question presented: the “substantial-fed- eral-question” exception to the well-pleaded complaint rule was not raised or addressed in the courts below and is inapplicable to this case. 2. In any event, contrary to Envirocare’s assertion, there is no circuit split as to the continued existence of the “substantial-federal-question” exception to the well- pleaded complaint rule; every court that has addressed the issue has held that it exists. The cases that Envirocare believe reject its existence do not do so, but rather, like the court below, simply do not address the issue. Envirocare cites three circuit court cases that, in its view, are inconsistent with the court decision below, see Pet. 17 & n.3 — two from the Ninth Circuit, and one from the Second Circuit.!2 It also cites two circuit court cases that are consistent with the court below, see Pet. at 17 n.4, and, presumably, inconsistent with the Second and Ninth Circuit decisions cited above - one from the Third Circuit, and one from the Eighth Circuit.!3 These decisions, how- ever, are fully consistent with one another and with the court’s decision below for three separate reasons. 12 See ARCO Envtl. Remediation, 213 F.3d at 1113-14; Desaigoudar v. California Micro Devices Corp., No. 98-15116, 1999 U.S. App. LEXIS 1067 (9th Cir. Jan. 22, 1998) (unpublished memorandum); Fax Telecommunicationes, Inc. v. AT&T, 138 F.3d 479, 486-87 (2d Cir. 1998). ; 13 See Goepel v. Nat'l Postal Mail Handlers Union, 36 F.3d 306, 311-12 (3d Cir. 1994), cert. denied, 514 U.S. 1063 (1995); M. Nahas & Co. v. First Nat'l Bank, 930 F.2d 608, 612 (8th Cir. 1991). 18 First, and most importantly, none of these decisions reject the existence of the “substantial-federal-question” exception to the well-pleaded complaint rule.'* As in the case below, neither Goepel nor M. Nahas even addressed, much less resolved, this question. In M. Nahas, the Eighth Circuit sustained the removal, reasoning that the plaintiff's purportedly state law claim had been completely pre- empted by federal law. See M. Nahas, 930 F.2d at 612. The Eighth Circuit court therefore had no cause to opine on the applicability or existence of the “substantial-federal-ques- tion” exception. Likewise, in Goepel, the Third Circuit merely held that removal was improper because plaintiffs’ New Jersey statutory and contract claims were not “com- pletely preempted” by federal law. See Goepel, 36 F.3d at 314. The court did not address the “substantial-federal- question” exception, much less whether it would have provided an alternative basis for removal.!> Because nei- ther Goepel nor M. Nahas even addressed the existence of the “substantial-federal-question” exception, they are not at all inconsistent with ARCO, Desaigoudar, and Fax, which do acknowledge its existence (though, as discussed below, none apply it).'¢ \4 This is equally true of the district court decisions cited in footnote 4 of Envirocare’s petition. Pet. 17 n.4. Indeed, one of these decisions, XF Enterprises, Inc. v. BASF Corp., No. 99-3693, 1999 U.S. Dist. LEXIS 16834, at *6-7, 10 n.3 (E.D. Pa. Nov. 2, 1999), expressly acknowledges its existence. 15 While there is dictum in Goepel that could be read to suggest that complete preemption is the only valid ground for removal, see 36 F.3d at 311-12, the Third Circuit did not purport to analyze or resolve this question. Not surprisingly, lower courts in the Third Circuit have not read Goepel as passing on this issue. See, e.g., XF Enters., Inc., 1999 U.S. Dist. LEXIS 16834, at *10 n.3 (“The court does not read Goepel as eliminating removal based upon a substantial-federal-question.”). 16 See ARCO, 213 F.3d at 1114; Desaigoudar, 1999 U.S. App. LEXIS 1067, at *4; Fax Telecommunicationes, 138 F.3d at 486-87. 19 Second, all of these cases are consistent with the court below’s resolution of the issue it did address - that is, whether a case can be removed from state to federal court solely because a plaintiff’s state law claim is “not viable” - since none of these cases even mention, much less accept, this argument. Indeed, the Ninth Circuit’s decision in Desaigoudar, which Envirocare believes supports its view of the law, explicitly rejects the argument that it advanced in the courts below. In Desaigoudar, “[i]n an effort to shore up their position, Defendants also argue[d] that Desaiguador’s third cause of action, as pleaded, does not adequately state a claim under California law.” Desaigoudar, 1999 U.S. App. LEXIS 1067, at *6 n.3. The Ninth Circuit dismissed this argument out of hand, stating that “it is enough to simply note that by pleading a state cause of action poorly, a plaintiff does not forfeit her right to a state court forum, nor does she transmogrify her cause of action into a federal one.” Id. Indeed, the only cases that Envirocare cites as suppor- tive of this theory, set forth in footnotes 2 and 3 of the petition, Pet. 15 n.2, 17 n.3, are district court decisions, several of which were reversed on appeal. All of the district court decisions in footnote 2 of the petition, how- ever, either explicitly rely on Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981), footnote two!” - the reasoning of which was explicitly rejected by this Court in Rivet — or, worse still, are the very decisions cited in Moitie 17 See In re NASDAQ Market-Makers Antitrust Litig., 929 F. Supp. 174, 178 (S.D.N.Y. 1996); Mech. Rubber & Supply Co. v. Am. Saw & Mfg. Co., 747 F. Supp. 1292, 1294-95, vacated in part, 810 F. Supp. 986 (C.D. Ill. 1990); Patriot Cinemas, Inc. v. Gen. Cinema Corp., No. 86-1190-Y, 1986 U.S. Dist. LEXIS 17085, at *6 (D. Mass. Dec. 1, 1986), vacated and remanded, 834 F.2d 208, 217 n.4 (1st Cir. 1987); Buchanan v. Delaware Valley News, 571 F. Supp. 868, 871 (E.D. Pa. 1983). 20 footnote two.'8 The decisions cited in footnote 3 of the petition suffer from the same flaw’? or are irrelevant because they address either the propriety of removal under diversity jurisdiction,2° complete preemption,?! or the “substantial-federal-question” exception.22 None of these decisions even arguably support the novel theory advanced by Envirocare below, viz., that removal is appro- priate where a plaintiff’s state law claim is “not viable” as a matter of state law. 18 See In re Wiring Device Antitrust Litig., 498 F. Supp. 79 (E.D.N.Y. 1980); Three J Farms, Inc. v. Alton Box Bd. Co., No. 78-1257, 1978 U.S. Dist. LEXIS 14134 (D.S.C. Nov. 29, 1978), rev'd, 609 F.2d 112 (4th Cir. 1979); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F. Supp. 176 (N.D.N.Y. 1964). 19 See Temptations, Inc. v. Wager, 26 F. Supp. 2d 740, 743-44 (D.N.J. 1998). 20 See Kobaissi v. Am. Country Ins. Co., 80 F. Supp. 2d 488, 489 (E.D. Pa. 2000). 21 See Reynolds v. Fergusson, 73 F. Supp. 2d 841, 843-44 (W.D. Mich. 1999); Archer v. Arms Tech., Inc., 72 F. Supp. 2d 784, 786-88 (E.D. Mich. 1999). 22 See Lowe v. NASD Regulation, Inc., No. 99-1751, 1999 U.S. Dist. LEXIS 19489, at *9-11 (D.D.C. Dec. 14, 1999); Servia- Mendoza v. Burgos, 31 F. Supp. 2d 35, 39-40 (D.P.R. 1998); Popular Democratic Party v. Puerto Rico, 24 F. Supp. 2d 184, 188-90, 195 (D.P.R. 1998); Portage County Bd. of Comm'rs v. City of Akron, 12 F. Supp. 2d 693, 703 (N.D. Ohio 1998); Case v. Webb, No. 98-10064-CIV, 1998 U.S. Dist. LEXIS 21679, at *11 (S.D. Fla. Dec. 8, 1998); Westwood Nursing Ctr. v. Haveman, No. 98-CV-74023-DT, 1998 U.S. Dist. LEXIS 20584, at *4-6 (E.D. Mich. Dec. 3, 1998); Village of Alden v. Cablevision Indus., No. 98-CV-325S(H), 1998 U.S. Dist. LEXIS 20339, at *11-12 (W.D.N.Y. Oct. 26, 1998). 23 Only three district court cases cited in footnote 3 of the petition even arguably support Envirocare’s theory. See Caravanas v. Hall, No. 99-1405, 1999 U.S. Dist. LEXIS 12741, at *2-6 (E.D. La. Aug. 10, 1999); Schappel v. UICI, No. 3:99-CV-1544- G, 1999 U.S. Dist. LEXIS 19444, at *7-8 (N.D. Tex. Dec. 3, 1999); Baron v. Strassner, 7 F. Supp. 2d 871, 874-76 (S.D. Tex. 1998). All 21 Third, in none of the circuit court cases cited by Envi- rocare would the “substantial-federal-question” exception have been applicable, and so the holdings of these cases are all fully consistent with one another.24 In other words, under the reasoning of any of these cases, including the case sub judice, the outcomes would remain unchanged. With respect to the cases that did explicitly reference the exception - ARCO, Desaigoudar, and Fax - all three con- cluded that removal was improper; they therefore obvi- ously found the “substantial-federal-question” exception inapplicable to the facts presented.25 In M. Nahas, the “complete preemption” exception provided a basis for removal and, therefore, resort to the “substantial-federal-question” exception was wholly unnecessary. See M. Nahas, 930 F.2d at 612. And finally, with respect to Goepel, although the court did not expressly address the “substantial-federal-question” exception, its discussion of the complaint makes clear that all of the plaintiff's claims were based exclusively on New Jersey statutes or common law. 36 F.3d at 309. Although petitioner principally relies on the Ninth Circuit’s decision in ARCO, that decision neither conflicts with the decision below nor supports Envirocare’s theory three of these cases, however, are in the Fifth Circuit; they therefore are no longer good law, for they are now governed by the decision below, which has unequivocally rejected Envirocare’s theory of removal. 24 The same is true of the district court cases cited in footnote 4 of the petition. Pet. 17 n.4. 25 Although the Second Circuit in Fax ultimately sustained the district court’s denial of the plaintiff’s motion to remand, it did so because it concluded that the plaintiff had waived his objection to removal by not objecting to it. See Fax Telecommunicationes, 138 F.3d at 487. The Second Circuit, however, was quite clear that “[t]he district court . . . erred when it took jurisdiction over the case” and that “if Fax had objected to removal in the district court, we would vacate the judgment and remand with instructions to return the case to state court.” Id. 22 of removal. First, ARCO merely acknowledges the exis- tence of the “substantial-federal-question” exception.?® This hardly conflicts with the decision below, which is completely silent on the subject. Moreover, the “substan- tial-federal-question” exception, as articulated in ARCO (or anywhere else), does not support removal in this case for here, as in ARCO, federal law is “not an element” of the state law cause of action. 213 F.3d at 1116. Nor does ARCO otherwise remotely endorse the “not viable state law claim” theory advanced by petitioner and embraced by the district court. In short, all of the circuit court cases that Envirocare cites are consistent with one another; none accept the only reasoning upon which removal in this case could be sus- tained, viz., that removal is proper simply because a plain- tiff’s state law claim is “not viable” under applicable state law; and at least one case explicitly rejects that reasoning. Every court that has addressed the “substantial-federal- question” exception issue agrees that it exists. And the decisions that Envirocare believes are to the contrary, including this one, simply did not address the issue. Accordingly, this case is not worthy of certiorari. See Sup. Ct. Rule 10(a). 3. Finally, as this complete absence of support reflects, the court below was clearly correct on the issue that it did address. Federal courts have no more authority 26 The Ninth Circuit also recognized a third exception, “where the claim is necessarily federal in character.” See ARCO, 213 F.3d at 1114, 1115-16. This, however, is a special exception limited to federal statutes that - like the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. - contain “specific statutory language authorizing exclusive federal jurisdiction” over certain causes of action. ARCO, 213 F.3d 116 (citing Brennan v. Southwest Airlines, 134 F.3d 1405 (9th Cir. 1998)) (emphasis added). 23 or justification to remove nonmeritorious state law claims than they do to remove meritorious ones. III. The Court Should Deny Certiorari On The Waiver Issue. Nor should the Court grant certiorari to resolve the inherently fact-bound question whether the court below correctly applied the equitable balancing test set forth in this Court’s unanimous decision in Caterpillar. Caterpillar held that, in certain circumstances, a plaintiff’s meritorious objection to removal can nonetheless be ignored where, at the time of judgment, a district court has subject matter jurisdiction. See 519 U.S. at 73-78. Caterpillar involved an instance where diversity jurisdiction, lacking at the time of removal, existed at the time of judgment. See id. at 70. The holding and reasoning of the court below does not conflict with Caterpillar or any lower court’s interpretation of Cat- erpillar and, in any event, does not present an appropriate vehicle for resolving any ambiguity that may remain in the wake of Caterpillar. As an initial, and dispositive, matter, this case cannot possibly provide any general guidance on the circum- stances in which it is permissible to overlook an improper removal on the grounds that the court has jurisdiction at the time of judgment. Rather, this case presents a unique and bizarre factual scenario that is created only by virtue of the district court’s initially erroneous conclusion that removal is proper because the state law claim had no merit under state law. Since removal was justified on the ground that the state law claim was without merit, the district court, when removing the case, necessarily simultaneously decided that it would dismiss the state law claim that WCS sought to pursue. Thus, the removal decision simul- taneously deprived respondent of both its state court forum and the possibility of pursuing a state law claim in the federal forum. In these unique circumstances, WCS could either add the federal antitrust claim - “the one and only claim the district court suggested it had,” Pet. App. 24 1la n.5 — or lose its case on the merits. Accordingly, the action allegedly creating federal jurisdiction after removal — adding the federal antitrust claim - was plainly forced on WCS by the district court: it either added the claim or lost the case. No other plaintiff removed to federal court has ever faced such an insoluble dilemma since, as noted, no other appellate court has granted removal on the ground that the state law claim was not “viable” under state law. Thus, the decision below cannot conflict with Caterpillar or any other removal case, since in those other cases plaintiffs always had the opportunity to have their state law claim heard on the merits by the federal court. Eaually important, WCS’s decision to add the federal claim cannot be fairly characterized as “voluntary” and no fair balancing of the equities would retroactively justify the district court’s improper - and properly objected to - removal on the grounds that WCS added a federal claim. Accordingly, the Court’s resolution of this case cannot clarify whatever ambiguity exists in federal courts con- cerning the circumstances in which Caterpillar authorizes or requires tolerating improper removal because the fed- eral court possessed jurisdiction at the time of judgment. Moreover, as we discuss below, the court’s application of Caterpillar to these extraordinary facts was undoubtedly correct and, in any event, the circuit split that Envirocare alleges is illusory. 1. Envirocare’s argument that the Fifth Circuit’s deci- sion is somehow inconsistent with Caterpillar is predicated both on a misreading of Caterpillar and the decision below. Caterpillar did not hold that a properly preserved objection to removal was waived whenever “post-removal events have occurred that confer jurisdiction on the federal court,” Pet. 19; indeed, it held precisely to the contrary. See Caterpillar, 519 U.S. at 73-74. Rather, as the court below correctly explained, Caterpillar held that a “timely objec- tion can preserve the jurisdictional claim . . . , even if other considerations” — i.e., “finality, efficiency, and economy” — “may ultimately outweigh that objection.” Pet. App. 8a. In other words, Caterpillar recognized an equitable exception 25 to the general rule that lack of jurisdiction at the time of removal is fatal to all that follows in federal court. Faith- fully applying Caterpillar’s legal standard to the facts of this case, the court below merely held that on the facts presented, considerations of “finality, efficiency, and econ- omy” did not outweigh WCS’s properly preserved objec- tion to the district court’s removal. In Caterpillar, this Court held that the “district court’s error in failing to remand a case improperly removed is not fatal to the ensuing adjudication,” 519 U.S. at 64 (emphasis added) — in other words, that such error did not automatically result in invalidation of the jury verdict. Rather, it explained that it would examine certain factors to determine whether the district court's judgment could stand notwithstanding the improper removal. Most important is whether the plaintiff has properly preserved the objection. If not, then the objection to removal is waived, pursuant to American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951), and Grubbs v. General Electric Credit Corp., 405 U.S. 699 (1972). See Caterpillar, 519 U.S. at - 72. This Court explained, however, that “neither [Finn nor Grubb] resolves dispositively a controversy .. . involv[ing] a plaintiff who moved promptly, but unsuc- cessfully, to remand a case improperly removed from state court to federal court, and then challenged on appeal a judgment entered by the federal court.” Caterpillar, 519 U.S. at 70-71. Rather, where, as here, a plaintiff properly Preserves his objection to removal, that objection to the erroneous removal is not waived even if the district court subsequently acquires subject matter jurisdiction of the case. Such a plaintiff, “by timely moving for remand, did all that was required to preserve his objection to removal,” and “is [not] . . . required to seek permission to take an interlocutory appeal . . . in order to avoid waiving what- ever ultimate right of appeal he may have.” Id. at 74. Nevertheless, the Court held, a plaintiff's properly preserved objection to removal could be overcome by con- sideration of certain equitable factors — that is, the district 26 court’s original error was “not fatal” to its ensuing adjudi- cation on the merits. Id. at 64. As the Court explained, “once a diversity case has been tried in federal court, with rules of decision supplied by state law under the regime of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), considerations of finality, efficiency, and economy become overwhelming.” Id. at 75. Caterpillar was a diversity case, where the defen- dant has a statutory right to have a state law claim adjudi- cated by a federal court, see id. at 75, where the federal litigation already had proceeded for three-and-one-half years including a six-day jury trial, see id. at 65-67, and where any retrial in state court would involve precisely the same state law issues already adjudicated. For these compelling reasons, this Court found that “[t]o wipe out the adjudication postjudgment, and return to state court a case now Satisfying all federal jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted admin- istration of justice.” Id. at 77. There can be no doubt that the court below properly applied Caterpillar to the facts of this case. In contrast to Caterpillar’s three-and-one-half years of federal litigation culminating in a six-day jury trial, this case spent a total of four months before the federal district court and was resolved on the pleadings pursuant to Rule 12(b)(6). The only federal litigation, aside from the removal question itself, was Envirocare’s Rule 12(b)(6) motion, to which WCS had just eleven days to respond. See Pet. App. 11a. This case, moreover, did not involve diversity jurisdiction, pursuant to which the same state law is applied to a plaintiff’s state law claim regardless of which forum is selected. Rather, in this case, the district court compelled WCS to plead a federal cause of action in order to have a case at all. See Pet. App. 8a n.2. Finally, it must be empha- sized that this case is currently being litigated in state court, and, indeed, a state court trial date has already been set. On these facts, there is no doubt but that pursuant to Caterpillar’s equitable factors of “finality, efficiency, and 27 economy,” this case should remain where it currently is - in Texas state court. Notwithstanding Envirocare’s fulminations to the con- trary, the rule enunciated by Caterpillar, and applied below, is not “illogic{al]” or “perverse.” Pet. 27. Indeed, the test is eminently logical. Caterpillar confronted a dilemma posed by a properly preserved statutory objection, on the one hand, and the need to preserve scarce judicial resources on the other. This Court, therefore, crafted a standard pursuant to which these competing interests could be weighed. And it held that in a diversity jurisdiction case in which enormous amounts of federal judicial resources had already been con- sumed, the balance weighed decisively in favor of preserving the federal jury verdict, albeit at the admitted cost of the plaintiff’s properly preserved and meritorious statutory objection. The same simply cannot be said of the present case.?7 2. Envirocare argues that the court below announced a per se rule that whenever an improperly removed case has been decided pursuant to Rule 12(b)(6), the appellate court must reverse the district court’s decision and remand the case to state court. See Pet. 21. This assertion, moreover, is the 27 Envirocare argues that the interest in preserving the district court’s judgment in this case is no different than in a diversity case because “the federal District Court would assess the First Amendment principles underlying the Noerr- Pennington doctrine in the same manner as would the state court.” Pet. 25. It would be directly contrary to the basic rationale of the well-pleaded complaint rule, however, to allow a federal court to ignore a properly preserved objection to federal question removal on the ground that the defendant could assert the same federal defense in both state and federal court. For the well-pleaded complaint rule rests on the basic principle that ” ‘a case may not be removed to federal court on the basis of a federal defense, . . . even if the defense -is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.’ ” Rivet, 522 U.S. at 475 (citation omitted). 28 precise basis upon which Envirocare alleges that the circuits are split: “there is a conflict in the Circuit Courts as to the proper outcome when the ‘ensuing adjudication’ to which Caterpillar refers is made pursuant to a motion to dismiss.” See Pet. 21-22 (citing cases). As the forgoing discussion makes clear, the court below adopted no such per se rule. Rather, the fact that the federal litigation consumed few federal judicial resources was but one of several factors — albeit an important one — considered by the court in applying Caterpillar’s equitable test. In addi- tion to considering the fact that “[t]his case consumed, rela- tively, a minimum of judicial resources,” Pet. App. 11a, the court considered the fact that this was not a diversity case, see Pet. App. 8a n.2, and “the narrowness” of WCS’s amend- ment, which reflected “the one and only claim the district court suggested it had.” See Pet. App. 11a n.5. In any event, the alleged circuit split on this issue is completely contrived. Envirocare argues that the Second and Sixth Circuits have held that a properly preserved objection to removal is waived or mooted where the federal litigation has been resolved pursuant to a Rule 12(b)(6) motion.?® Envirocare then contends that the Fifth Circuit (in this case and previously) and a different panel of the Sixth Circuit have held that the objection is not waived or mooted where there has been a Rule 12(b)(6) adjudication.2? These cases, however, do not even arguably present a circuit split on “the proper outcome [of a case] when the ‘ensuing adjudication’ to which Caterpillar refers is made pursuant to a motion to dismiss.” Pet. 21-22. Fatal to Envirocare’s assertion is the simple fact that all four of these cases were decided prior to Caterpillar; they 28 See Pet. 22 (citing Barbara v. New York Stock Exch., 99 F.3d 49 (2d Cir. 1996); Vector Research v. Howard & Howard, 76 F.3d 692 (6th Cir. 1996)). 29 See Pet. 22 (citing Chivas Products Ltd. v. Owen, 864 F.2d 1280 (6th Cir. 1988); Kidd v. Southwest Airlines, 891 F.2d 540 (Sth Cir. 1990)). 29 therefore could not possibly represent “a conflict in the Circuit Courts” as to the meaning of “the ‘ensuing adjudica- tion” to which Caterpillar refers.” Pet. 22. At a minimum, this Court’s limited resources should not be used to clarify its holding in Caterpillar before the circuit courts even have an opportunity to apply that decision. In any event, the decision below is perfectly consistent with Barbara and Vector Research — the two decisions allegedly creating the split. Neither Barbara nor Vector Research even addressed the question whether resolution of the waiver issue should be affected by the stage to which the federal litigation had advanced. Even more important, unlike this case or Caterpillar, the plaintiff did not object to the removal in either of these cases. See Barbara, 99 F.3d at 55; Vector Research, 76 F.3d at 697. Thus, both were decided pursuant to this Court’s decisions in Grubbs and Finn?° — which, as Caterpillar directly held, are inapplicable to cases where the plaintiff has properly objected to the removal. See Caterpillar, 519 U.S. at 70-71.31 30 See Barbara, 99 F.3d at 55 (citing Grubbs and Finn); Vector Research, 76 F.3d at 697 (citing Grubbs). 31 As petitioner’s cursory treatment reflects, none of the six decisions cited in footnote 5 of the petition suggest any split. Half of them were decided prior to Caterpillar (Koehnen v. Herald Fire Ins. Co., 89 F.3d 525 (8th Cir. 1996); Bernstein v. Lind-Waldock & Co., 738 F.2d 179 (7th Cir. 1984); Cades v. H&R Block, 43 F.3d 869 (4th Cir. 1994)), and all of them are totally consistent with the decision below. Koehnen involved oniy the question whether the plaintiff could object to a notice of removal filed out of time; the court simply never addressed the difference between adjudication under Rule 12(b)(6) versus summary judgment. See 89 F.3d at 528-29. The other 5 cases involved summary judgments after removal, not the Rule 12(b)(6) resolution involved here. See Akin v. Ashland Chem., 156 F.3d 1030, 1033 (10th Cir. 1998), cert. denied, 526 U.S. 1112 (1999); Aqualon Co. v. MAC Equip., Inc., 149 F.3d 262, 264 (4th Cir. 1998); Cades, 43 F.3d at 872; Herron v. Local Union 25, No. 96-1335, 1998 U.S. App. LEXIS 1322, at *2 (6th Cir. Jan. 27, 1998) (unpublished); Berstein, 738 F.2d at 182. Herron, 30 In short, there is no circuit split on the question whether there is a per se rule that a plaintiff may successfully chal- lenge removal on appeal after a judgment entered pursuant to Rule 12(b)(6), but not after summary judgment - an issue that in any event was not even addressed by the court below. CONCLUSION For the forgoing reasons, the petition for a writ of certiorari should be denied. Respectfully submitted, MIcHAEL A. CARVIN Counsel of Record Anprew G. McBripe Noe J. FRANCISCO Cooper, CARVIN & ROSENTHAL, PLLC Suite 200 1500 K Street, N.W. Washington, D.C. 20005 (202) 220-9600 Counsel for Respondent SIDNEY POWELL DesporAH PEARCE REGGIO Powe.tt & ASSOCIATES 1920 Abrams Parkway, #369 Dallas, TX 75214 (214) 653-3933 moreover, was explicitly predicated on the court’s finding that nothing in the record “suggest[ed] that [the plaintiffs] were substituting federal claims only as a result of the district court’s denial of their motion to remand.” Herron, 1998 U.S. App. LEXTS 1322, at *11. Thus, Herron recognized one of the central concerns of the court below in this case — plaintiff was deprived of both its claim and its forum by an erroneous removal ruling and thereby “coerced” into pleading a federal claim. See Pet. App. 3a, lla n.5. And Berstein, decided pre-Caterpillar, relied on reasoning that Caterpillar expressly rejected. That is, Berstein reasoned that in order to avoid waiver, the plaintiff should have “stuck by his guns” — i.e., foregone amending his complaint to add a federal claim — “and we would have vindicated his position on appeal.” 738 F.2d at 185. In Caterpillar, however, this Court explicitly stated that “by timely moving for remand, [the plaintiff] did all that was required to preserve his objection to removal,” and that “a plaintiff [is not] required to seek permission to take an interlocutory appeal . . . in order to avoid waiving whatever ultimate appeal right he may have.” Caterpillar, 519 U.S. at 74. la FILE COPY United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK CHARLES R. FULBRUGE III TEL. 504-589-6514 CLERK 600 CAMP STREET NEW ORLEANS, LA 70130 April 4, 2000 MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: No. 98-50952 Waste Control Spec v. Envirocare of Texas USDC No. MO-98-CV-62 Enclosed is an order which has been entered in the appea! referenced above. Sincerely, CHARLES R. FULBRUGE III, Clerk By: /s/ Debbie Kranz Debbie Kranz, Deputy Clerk Ms Sidney Katherine Powell Mr Roy Q Minton P.S. To Ms Powell: In light of the mandate having issued this day, under separate cover, your request to issue the mandate forthwith is considered moot. MOT-2 2a IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-50952 WASTE CONTROL SPECIALISTS, LLC Plaintiff - Appellant v. ENVIROCARE OF TEXAS INC; ET AL Defendants ENVIROCARE OF TEXAS INC; ENVIROCARE OF UTAH INC; KHOSROW B SEMNANI; CHARLES A JUDD; FRANK C THORLEY Defendants —- Appellees Appeal from the United States District Court for the Western District of Texas, Midland (Filed Apr. 4, 2000) ORDER: (x) The motion of Envirocare of Texas, Envirocare of Utah, Khosrow B Semnani, Charles A Judd and Frank C Thorley for ( X ) stay ( ) recail and stay of the issuance of the mandate pending petition for writ of certiorari is DENIED. () The motion of Envirocare of Texas, Envirocare of Utah, Khosrow B Semnani, Charles A Judd and Frank C Thorley for ( X ) stay ( ) recall and stay of the issuance of the mandate pending petition 3a for writ of certiorari is GRANTED to and includ- ing - The stay is in force until the final disposition of the case by the Supreme Court, provided that the certificate of the Clerk of the Supreme Court advising that the certiorari peti- tion has been filed is also filed with this court within the time stated above. The clerk shall issue a mandate upon the filing of a copy of an order of the Supreme Court denying the writ, or upon the expiration of this stay unless the certif- icate is filed with the clerk of this court within that time. /s/ E. Grady Jolly E. GRADY JOLLY UNITED STATES CIRCUIT JUDGE 4a IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLANDS-ODESSA DIVISION WASTE CONTROL SPECIALISTS, LLC, Plaintiff ‘ MO-98-CA-62 ENVIROCARE OF TEXAS, INC.; ENVIROCARE OF UTAH, INC.; KHOSROW B. SEMNANI; CHARLES A. JUDD; FRANK C. THORLEY; BILLY W. CLAYTON; AND NANCY M. MOLLEDA, Defendants i ORDER REMANDING CASE TO STATE COURT (Filed June 19, 2000) The above referenced case is an antitrust and busi- ness tort action by a waste disposal business against a competitor, alleging state antitrust and business tort claims based on disposal of waste generated by United States Department of Energy. The case was originally brought in the 109th District Court, Andrews County, Texas. Defendants removed the case to federal court on April 13, 1998. This Court denied Waste Control Special- ists’ motion to remand, and dismissed Plaintiff's com- plaint on ground that defendant's activities were protected under Noerr-Pennington doctrine. Plaintiff 5a appealed to the Fifth Circuit Court of Appeals, which held that this Court lacked subject matter jurisdiction over the case, concluding that this action was improperly removed to federal district court and that Waste Control Specialists’ motion to remand should have been granted. The Fifth Circuit further directed this Court to award costs and fees to Waste Control Specialists upon submis- sion of proper proof. Upon Defendants’ petition for panel rehearing, the Fifth Circuit withdrew the portion of its opinion regarding attorneys’ fees and directed the district court to decide “whether the removal of this case was or was not objectively reasonable, and, thus, whether to enter an appropriate award of attorney’s fees as provided in [28 U.S.C.] § 1447(c).” (citing Valdes v. Wal-mart Stores, Inc., 199 F.3d 290 (5th Cir. 2000). Now before the Court is Plaintiff’s Withdrawal of Claim for Attorneys Fees, and Request for Summary Issuance of the Mandate Remand- ing the Case to State Court. Plaintiff disclaims its pending request for attorneys fees and costs and requests this Court to remand the case to the district court in Andrews County, Texas. Because Waste Control Specialists no longer urges its request for attorneys fees, the issue of whether it is entitled to attorneys fees is now moot and nothing prevents this Court from remanding the case to the state court from which it was removed, in accordance with the Fifth Circuit’s mandate. Accordingly, IT IS ORDERED that this case be remanded to the 109th Judicial District Court of Andrews County, Texas, in accordance with 28 U.S.C. § 1447(c) and the Fifth Circuit’s mandate. 6a IT IS FURTHER ORDERED that no costs and fees shall be awarded to Waste Control Specialists, as it has waived its entitlement to recovery. SIGNED this 19 day of June, 2000. /s/ Lucius D. Bunton LUCIUS D. BUNTON, III SENIOR UNITED STATES DISTRICT JUDGE 7a CAUSE NO. 14,580 WASTE CONTROL \( SPECIALISTS, LLC. \( IN THE Plaintiff, )( DISTRICT )( COURT OF bd )( ANDREWS ENVIROCARE OF )( COUNTY, TEXAS TEXAS, INC., )( 109th JUDICIAL ENVIROCARE OF ( DISTRICT UTAH, INC., )( KHOSROW B. SEMNANI,__ CHARLES A. JUDD, )( FRANK C. THORLEY, : Defendants \( ORDER SETTING TRIAL (Filed July 17, 2000) Parties are advised that the above styled and num- bered cause is set for trial beginning Monday, November 27, 2000 at 9:00 o’clock a.m. SIGNED this the 14th day of July, 2000. /s/ James L. Rex JUDGE PRESIDING 8a IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND DIVISION WASTE CONTROL SPECIALISTS, LLC, Plaintiff, MMMM MN V. ENVIROCARE OF TEXAS, INC., § ENVIROCARE OF UTAH, INC., 8 CASE NO. KHOSROW B. SEMNANI, M098CA062 CHARLES A. JUDD, FRANK Cc. § THORLEY, BILLY W. CLAYTON § and NANCY M. MOLLEDA, Defendants. § Mm MM DEFENDANTS’ NOTICE OF REMOVAL (Filed Apr. 13, 1998) TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: Defendants Envirocare of Utah, Inc., Envirocare of Texas, Inc., Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, Billy W. Clayton, and Nancy Molleda file this notice of removal to the United States District Court for the Western District of Texas, Midland Division. The grounds for removal are as follows: 1. The Defendants (except Billy Clayton and Nancy Molleda) are engaged in the business of disposing low- level radioactive waste. Envirocare of Utah owns and operates a disposal site in the State of Utah for low-level radioactive and mixed wastes. The Plaintiff is attempting 9a to enter into this market in Andrews, Texas. After failing to receive the requisite permits and other business, on May 2, 1997, Plaintiff sued the Defendants in the 109th Judicial District Court of Andrews County, Texas, Cause No. 14,580, alleging causes of action for violations of the Texas Free Enterprise and Antitrust Act of 1983, libel, slander, business disparagement, and tortious interfer- ence with prospective business relations. 2. On March 13, 1998, Plaintiff filed Plaintiff’s First Amended Petition against the Defendants once again alleging causes of action for violations of the Texas Free Enterprise and Antitrust Act of 1983, libel, slander, busi- ness disparagement, and tortious interference with pro- spective business relations and seeking damages in excess of $3 billion. However, the alleged antitrust viola- tions as stated in Plaintiff’s First Amended Petition are fundamentally different than previously alleged and for the first time invoke the federal jurisdiction of the United States District Courts. 3. Specifically, Plaintiff's First Amended Petition states clearly for the first time that the Plaintiff’s allega- tions of antitrust violations exclusively involve interstate commerce. Plaintiff’s Original Petition alleged no geo- graphic market and merely alleged monopolization of “the private sector market for the disposal of low-level radioactive wastes” and disposal of “mixed wastes.” In contrast, Plaintiff’s First Amended Petition alleges a monopoly in “the off-site private disposal market for DOE’s mixed wastes” and in “the off-site private disposal market for DOE’s low-level radioactive wastes.” Plain- tiff’s First Amended Petition further alleges in Paragraph 27 that “the relevant market, for each of these products, is 10a the entire continental United States.” Plaintiff alleges that Defendants Envirocare of Utah, Envirocare of Texas, and Semnani used their monopoly power to prevent the Plaintiff from receiving waste from the Department of Energy. Plaintiff specifically complains about not receiv- ing a contract from the U.S. Army Corps of Engineers to dispose of certain quantities of DOE’s low-level radioac- tive and mixed wastes and a disposal contract to receive waste from DOE’s Fernald Ohio Facility. Clearly, although Plaintiff purports to allege antitrust violations under Texas law (and the Defendants recognize that the Texas statute is not preempted by the Sherman Act), Plaintiff is really alleging strictly federal antitrust viola- tions since Texas law cannot regulate the stream of strictly interstate commerce as alleged in Plaintiff’s First Amended Petition. Thus, if Plaintiff’s antitrust allegations state a claim at all, they can only state a claim arising under federal law, the Sherman Act, 15 U.S.C. § 1 et seq. 4. This removal is filed pursuant to 28 U.S.C. § 1441(a), which provides for the removal of any civil action filed in a state court of which federal courts have original federal jurisdiction under 28 U.S.C. § 1331. Under 15 U.S.C. § 1 et seq., federal courts have original jurisdiction over violations of the federal antitrust laws. The claims for libel, slander, business disparagement, and tortious interference with prospective business relations are also properly removable under the supplemental jurisdiction of the district courts of the United States in that they are so related to the federal antitrust claims that they form part of the same case or controversy. 5. Defendants received a copy of Plaintiff’s First Amended Petition on March 13, 1998. This notice is thus lla timely having been filed within thirty days of the receipt by the Defendants of the pleading made the basis of this removal, as required by 28 U.S.C. § 1446(b). 6. Plaintiff requested a jury trial in the state court proceeding. 7. All of the Defendants are represented by the undersigned counsel and consent to the removal of this action. 8. Defendants will promptly give Plaintiff written notice of the filing of this notice of removal as required by 28 U.S.C. § 1446(d). Defendants will also file a copy of this notice with the Clerk of the District Court of Andrews County, Texas, also pursuant to 28 U.S.C. § 1446(d). 9. Attached as Exhibit A is a copy of Plaintiff's First Amended Petition. With the filing of this Notice of Removal, Defendants have filed a copy of the state court pleadings with the Clerk of this Court. Dated this 13th day of April, 1998. Respectfully submitted, MINTON, BURTON, FOSTER & COLLINS A Professional Corporation 1100 Guadalupe Street Austin, Texas 78701 (512) 476-4873 (512) 476-1315 (telecopier) 12a /s/ Roy Q. Minton Roy Q. Minton State Bar No. 14196000 Martha S. Dickie State Bar No. 05833100 Michael Burnett State Bar No. 00790399 Rick D. Davis, Jr. COTTON BLEDSOE TIGHE & DAWSON 500 West Illinois, Suite 300 Midland, Texas 79701 (915) 684-5782 (915) 682-3672 (telecopier) Bert G. Smith, Jr. LAW OFFICES OF BERT SMITH 1504 N. Main Street Andrews, Texas 79714 (915) 523-3877 (915) 523-3878 (telecopier) Gary A. Weston NIELSEN & SENIOR 60 East South Temple, Suite 1100 Eagle Gate Plaza & Office Tower Salt Lake City, Utah 84147 (801) 532-1900 (801) 532-1913 (telecopier) ATTORNEYS FOR THE DEFENDANTS 13a CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been forwarded to the following by certified mail on the 13th day of April, 1998: Joseph R. Egan John W. Lawrence EGAN & ASSOCIATES, P.C. 2300 N Street, N.W., Suite 600 Washington, D.C. 20037 Dan Sullivan ATTORNEY AT LAW 119 N. W. Avenue A Andrews, Texas 79714 Frank W. Mitchell SMITH, MARTIN & MITCHELL, L.L.P. 3700 Two Houston Center Houston, Texas 77010 Broadus A. Spivey SPIVEY, GRIGG, KELLY & KINSLEY, P.C. 48 East Avenue Austin, Texas 78701 J. Mark Gidley WHITE & CASE, L.L.P. 601 Thirteenth Street, N.W. Washington, D.C. 20005 Lonny Morrison MORRISON & SHELTON 807 Eighth Street, Suite 400 Wichita Falls, Texas 76301 /s/ Roy Q. Minton Roy Q. Minton l4a CAUSE NO. 14,580 WASTE CONTROL SPECIALISTS, LLC, Plaintiff, IN THE DISTRICT COURT V. ENVIROCARE OF TEXAS, INC., ENVIROCARE OF 8 8 a § | OF ANDREWS & UTAH, INC., KHOSROW : 8 8 § 8 8 § 8 COUNTY, TEXAS B. SEMNANI, CHARLES A. JUDD, FRANK C. THORLEY, GEORGE W. HELLSTROM, BILLY W. CLAYTON, and NANCY M. MOLLEDA, Defendants. 109TH JUDICIAL DISTRICT DEFENDANTS’ ORIGINAL ANSWER (Filed Jun. 9, 1997) TO THE HONORABLE JUDGE OF SAID COURT: Defendants Envirocare of Texas, Inc., Envirocare of Utah, Inc., Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, and Nancy M. Molleda (hereinafter collectively referred to as the “Defendants”) file the following Original Answer to Plaintiff’s Original Petition: i S Ni ' 15a GENERAL DENIAL I. As authorized by Rule 92 of the Texas Rules of Civil Procedure, Defendants enter a general denial of the mat- ters pleaded by the Plaintiff and request that the Court require Plaintiff to prove its charges and allegations as required by the law. SPECIAL EXCEPTIONS Il. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants violated the Texas Free Enterprise and Antitrust Act of 1983 for the reason that the Plaintiff has failed to properly allege a monopoly violation against the Defendants. The disposal of low-level radioactive wastes and/or “mixed wastes” referred to in the Original Petition involve exclusively interstate commerce. Transactions which exclusively involve interstate commerce are not subject to Texas anti- trust laws and instead are governed exclusively by the federal antitrust laws. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging an actionable violation of the Texas Free Enterprise and Antitrust Act of 1983 against the Defen- dants. Il. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants violated the Texas Free Enterprise and Antitrust Act of 1983 for the 16a reason that the Plaintiff has failed to properly allege a monopoly violation against the Defendants. Defendants stand in the relationship of principal and agent; therefore, as a matter of law Envirocare of Utah, Inc. and/or Envi- rocare of Texas, Inc. could not have conspired with Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, or Nancy M. Molleda in violation of the antitrust laws to create a monopoly violation as alleged by the Plaintiff. Defen- dants request that the Court sustain this special exception and require the Plaintiff to replead alleging an actionable violation of the Texas Free Enterprise and Antitrust Act of 1983 against the Defendants. IV. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants violated the Texas Free Enterprise and Antitrust Act of 1983. The Plaintiff fails to properly allege and identify the “relevant market” for antitrust purposes. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging the “relevant market” for purposes of a claim under the Texas Free Enterprise and Antitrust Act of 1983. V. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Plaintiff is entitled to damages for violation of the Texas Free Enterprise and PaitiectPcwsircny 17a Antitrust Act of 1993, libel and slander, business dispar- agement, and tortious interference with prospective busi- ness relations. Plaintiff's alleged damages are not capable of reasonable ascertainment, but instead are speculative and conjectural. Defendants request that the Court sus- tain this special exception and require the Plaintiff to replead alleging damages for purposes of a claim under the Texas Free Enterprise and Antitrust Act of 1983 which are capable of reasonable ascertainment. VI. Defendants Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, and Nancy M. Molleda specially except to Plaintiff’s Original Petition in which it is alleged that they are individually liable for violating the Texas Free Enterprise and Antitrust Act of 1983, libel and slander, business disparagement, and/or tortious interference with pro- spective business relations. Defendants Khosrow B. Sem- nani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, and Nancy M. Molleda deny that they are liable in the individual capacity in which they have been sued for the reason that the Defendants were at all material times acting as the agents of Envi- rocare of Utah, Inc. and/or Envirocare of Texas, Inc. and . within the scope of proper authority. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging the manner in which each of the individual Defendants are liable in their individual capacities for each cause of action. 18a Vil. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants are liable to the Plaintiff for libel and slander. Plaintiff fails to identify the defamatory statements each of the particular Defen- dants published. Defendants request that the Court sus- tain this special exception and require the Plaintiff to replead alleging the defamatory statements each particu- lar Defendant allegedly published to a third party VII. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants are liable to the Plaintiff for tortious interference with prospective business relations. Plaintiff alleges that each of the Defen- dants “intentionally interfered with the Plaintiff’s busi- ness relations with governmental agencies having authority to issue authorizations for the Plaintiff’s entry into relevant markets for the storage, treatment, and/or disposal of low-level radioactive and mixed wastes, and / or to provide the Plaintiff with government contracts of substantial value to the Plaintiff.” Plaintiff fails to iden- tify and give the Defendants fair notice of the referenced prospective “business relations,” “governmental agen- cies,” “relevant markets,” and “government contracts.” Defendants request that the Court sustain this special exception and require the Plaintiff to replead identifying the prospective business relations, governmental agen- cies, relevant markets, and government contracts. 19a IX. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants are liable to the Plaintiff for tortious interference with prospective business relations. Plaintiff fails to allege and identify that with a “reasonable probability” the Plaintiff would have entered into a contract or business relationship with a governmental agency or other entity but for the Defen- dants’ interference. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging facts sufficient to support a claim that with a “reasonable probability” the Plaintiff would have entered into a contract or business relation with a govern- mental agency or other entity but for the Defendants’ interference. X. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Defendants are liable to the Plaintiff for tortious interference with prospective business relations. Plaintiff fails to properly allege a cause of action for tortious interference with prospective busi- ness relations against the Defendants because the Plaintiff does not adequately plead how the complained of actions violated the antitrust laws or caused the governmental agencies or other entities to refuse to deal with the Plain- tiff. Defendants request that the Court sustain this special exception and require the Plaintiff to replead alleging how the complained of conduct violated the antitrust laws or caused any third party to refuse to deal with the Plaintiff. 20a XI. Defendants specially excepts to the allegation in Plaintiff’s Original Petition that the Defendants are liable to the Plaintiff for business disparagement for the reason that it fails to allege a cognizable cause of action under Texas law. Business disparagement is not a recognizable separate cause of action from libel which can afford inde- pendent relief to the Plaintiff. XII. Defendants specially except to the allegation in Plain- tiff’s Original Petition that the Plaintiff “has realized pecuniary loss in the form of specific lost sales... . ” However, the Plaintiff never identifies the “specific lost sales” which is necessary to allow the Defendants the opportunity to raise appropriate defenses. Defendants request that the Court sustain this special exception and require the Plaintiff to replead identifying with at least a reasonable degree of particularity the “specific lost sales.” AFFIRMATIVE DEFENSES XIII. By way of further answer, if any is necessary, Defen- dants allege that the alleged defamatory statements at issue are true and/or substantially true. eee pe Ea pk eee PEEP OAL LO LS 55 HF IA RPL F li LO TER IE IE OFS NICE PRO ROR MS EET RAD ane LOD OE NIT ets OED Sn i I tla re cats Lk : ore ~~ " 2la XIV. By way of further answer, if any is necessary, Defen- dants allege that the alleged defamatory statements at issue contain statements of opinion and other statements that are not actionable assertions of fact about the Plain- tiff. » XV. By way of further answer, if any is necessary, Defen- dants allege that they are entitled to immunity from any liability under the Texas Free Enterprise and Antitrust Act of 1983 as it relates to the allegations that the Defen- dants improperly lobbied and contacted governmental officials. Defendants specifically deny that they ever did anything to improperly influence government officials. Nonetheless, efforts to influence public officials do not violate the antitrust laws even if the intended result is the elimination of competition. Stated differently, persons who engage in a publicity campaign directed toward influencing governmental action is immune, even if dis- honest means were used in the publicity campaign and even if a side effect of the campaign was to injure the competitor’s campaign. XVI. By way of further answer, if any is necessary, Defen- dants allege that if the Defendants have obtained monop- oly power, it was not willfully acquired or maintained. Instead, it resulted from growth of development as a 22a consequence of a superior product, business acumen, or historical accident. XVII. By way of further answer, if any is necessary, Defen- dants Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, and Nancy M. Molleda allege that they are not liable in their individual capacities. XVIII. By way of further answer, if any is necessary, Defen- dants allege that they are privileged from liability for any of the complained of conduct. The Defendants only engaged in reasonable competition within the realm of fair play. COUNTERCLAIMS XIX. Defendants allege that Plaintiff’s action is groundless and brought in bad faith or for the purpose of harass- ment. Defendants therefore request that they be awarded their costs, reasonable attorney’s fees, and other litigation expenses from the Plaintiff. WHEREFORE, Defendants Envirocare of Texas, Inc., Envirocare of Utah, Inc., Khosrow B. Semnani, Charles A. Judd, Frank C. Thorley, George W. Hellstrom, Billy W. Clayton, and Nancy M. Molleda request that the Court sustain their special exceptions and ultimately obtain a 23a judgment of the Court that the Plaintiff, Waste Control Specialists, LLC, take nothing by this suit and that the Defendants recover their costs, reasonable attorney’s fees, and other litigation expenses. Respectfully submitted, MINTON, BURTON, FOSTER & COLLINS A Professional Corporation 1100 Guadalupe Street Austin, Texas 78701 (512) 476-4873 (telephone) (512) 479-8315 (facsimile) /s/ Roy Q. Minton ROY O- MINTON State Bar No. 14196000 Michael Burnett State Bar No. 00790399 Barry N. Beck Rick Davis COTTON, BLEDSOE TIGHE & DAWSON A Professional Corporation 500 West Illinois, Suite 300 P.O. Box 2776 Midland, Texas 79701-4337 (915) 684-5782 (telephone) (915) 682-3672 Bert Smith Attorney at Law 1504 N. Main Street Andrews, Texas 79714 (915) 523-3877 (telephone) (915) 523-3878 (facsimile) COUNSEL FOR THE DEFENDANTS 24a CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served on the following on this 9th day of June, 1997: Dan Sullivan 119 N.W. Avenue A Andrews, Texas 79714 Joseph R. Egan John W. Lawrence Egan & Associates, P.C. 2300 N Street, N.W. Washington, D.C. 20037 Frank W. Mitchell Smith, Martin & Mitchell, L.L.P. 3700 Two Houston Center Houston, Texas 77010 Broadus A. Spivey Spivey, Grigg, Kelly & Kinsley, P.C. 48 east Avenue Austin, Texas 78701 /s/ Roy Q. Minton ROY Q. MINTON VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Frank C. Thorley, a duly autho- rized representative of Environcare of Utah, Inc. and Envirocare of Texas, Inc., who, after being duly sworn, stated that he has read the above pleading and that the statements contained in Paragraphs III, XIV, XV and XVIII 25a of the pleading are within his personal knowledge and” are true and correct. /s/ F. C. Thorley Frank C. Thorley SUBSCRIBED AND SWORN TO BEFORE ME on the 4 day of June, 1997. /s/ Deborah R. Pariseau Notary Public in and for the State of Utah My commission expires Sept. 13, 1999 [SEAL] Notary Public DEBORAH R. PARISEAU 4181 West Kirkcaldy Circle South Jordan, Utah 84095 My Commission Expires September 13, 1999 State of Utah VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Khosrow B. Semnani, who, after being duly sworn, stated under oath that he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ Khosrow B. Semnani Khosrow B. Semnani 26a SUBSCRIBED AND SWORN TO BEFORE ME on the 4 day of June, 1997. /s/ Deborah R. Pariseau Notary Public in and for the State of Utah My commission expires Sept. 13, 1999 [SEAL] Notary Public © DEBORAH R. PARISEAU 4181 West Kirkcaldy Circle South Jordan, Utah 84095 My Commission Expires September 13, 1999 State of Utah VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Charles A. Judd, who, after being duly sworn, stated under oath t..at he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ Charles A. Judd Charles A. Judd eee eee 27a SUBSCRIBED AND SWORN TO BEFORE ME on the 4 day of June, 1997. /s/ Deborah R. Pariseau Notary Public in and for the State of Utah My commission expires Sept. 13, 1999 [SEAL] Notary Public DEBORAH R. PARISEAU 4181 West Kirkcaldy Circle South Jordan, Utah 84095 My Commission Expires September 13, 1999 State of Utah VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Frank C. Thorley, who, after being duly sworn, stated under oath that he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ F.C. Thorley Frank C. Thorley 28a SUBSCRIBED AND SWORN TO BEFORE ME on the 4 day of June, 1997. /s/ Deborah R. Pariseau Notary Public in and for the State of Utah My commission expires Sept. 13, 1999 [SEAL] Notary Public DEBORAH R. PARISEAU 4181 West Kirkcaldy Circle South Jordan, Utah 84095 My Commission Expires September 13, 1999 State of Utah VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared George W. Hellstrom, who, after being duly sworn, stated under oath that he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ George W. Hellstrom George W. Hellstrom 29a SUBSCRIBED AND SWORN TO BEFORE ME on the 4 day of June, 1997. /s/ Deborah R. Pariseau Notary Public in and for the State of Utah My commission expires Sept. 13, 1999 [SEAL] Notary Public DEBORAH R. PARISEAU 4181 West Kirkcaldy Circle South Jordan, Utah 84095 My Commission Expires September 13, 1999 State of Utah VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Billy W. Clayton, who, after being duly sworn, stated under oath that he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ Billy W. Clayton Billy W. Clayton 30a SUBSCRIBED AND SWORN TO BEFORE ME on the 4th day of June, 1997. /s/ Myra Sutherland Notary Public in and for the State of Texas My commission expires 3-30-01 [SEAL] MYRA SUTHERLAND Notary Public, State of Texas My Commission Expires MARCH 30, 2001 VERIFICATION Before me, the undersigned Notary Public, on this day personally appeared Nancy M. Molleda, who, after being duly sworn, stated under oath that he is the defen- dant in this action; that he has read the above pleading; and that every statement contained Paragraphs III, VI, XIV, XV, XVII, and XVIII of the pleading are within his personal knowledge and are true and correct. /s/ Nancy M. Molleda Nancy M. Molleda 3la SUBSCRIBED AND SWORN TO BEFORE ME on the 4th day of June, 1997. /s/ Bennie Anderson Notary Public in anu for the State of Texas My commission expires es | 5-4-2001 [SEAL] BENNIE ANDERSON Notary Public, State of Texas My Commission Expires MAY 4, 2001 32a NO. 98-50952 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT WASTE CONTROL SPECIALISTS, L.L.C., Plaintiff-Appellant Vv. ENVIROCARE OF TEXAS, INC., ENVIROCARE OF UTAH, INC., KHOSROW B. SEMNANI, CHARLES A. JUDD, AND FRANK C. THORLEY, Defendants-Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION MO-98-CV-62 BRIEF FOR APPELLEES Roy Q. Minton, State Bar No. 14196000 Martha S. Dickie, State Bar No. 05833100 MINTON, BuRTON, Foster & COLLINS A Professional Corporation 1100 Guadalupe Street Austin, TX 78701 (512) 476-4873; (512) 476-1315 (telecopier) Don C. Lewis, Texas State Bar No. 12275600 VERNER LuperT BERNHARD McPHERSON AND HAND 901 15th Street, N.W. Washington, D.C. 20005-2301 (202) 371-6000; (202) 371-6279 (telecopier) 33a Rick D. Davis, Jr., State Bar No. 05537700 Cotton, BLEDsor, TiGHE & Dawson, P.C. P.O. Box 2776 Midland, Texas 79702 (915) 684-5782; (915) 682-3672 (telecopier) + = * TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS......... ii CORPORATE DISCLOSURE STATEMENT .......... iv STATEMENT REGARDING ORAL ARGUMENT.... v Oe GA I ok nk 5 Coeds oe ewia Lacs ccs vi ee Ry ee ere ix stAramemren OP THE BGUGG o.oo oi ccc ccccccss 1 EPURCenee GOP TOE CAIIB. oon. 5 ccs icc anvicuscves 1 A. Course of Proceedings and Disposition in the Ee NN A556 5 66 Saws Shed ln doe ew chao Sos 1 a ee eee 2 SUMMARY OF THE ARGUMENT ................. 4 ARGUMENT AND AUTHORITIES................. 5 I. WAIVER OF THE RIGHT TO OBJECT TO PIs <5 05a VERUAIR ah KK kei wkekaxi vac 5 A. Waiver as a Result of WCS’ Voluntary I so wa ehns ec hicanié ieee as 645 5 B. Remand is Improper Because Federal Juris- diction Clearly Existed at the Time of Final PINE 5 «iki tock ban kcices os kastin's tees ecu e Il. THE DISTRICT COURT’S DENIAL OF WCS’ MOTION TO REMAND WAS CORRECT....... 10 i 34a The First Amended Petition’s Antitrust Allega- tions Could Only Be Addressed Through Application of the Sherman Act............. 1. The First Amended Petition Does Not Allege Harm To Any Texas Consumer ... 2. The First Amended Petition Involves Issues of Interstate Commerce Only.... Removal Was Proper Despite the Lack of PUOCIIID s o vs 5 i005 CARS ES os ie ee ROMOVal WAS THE ose ceiisc ee cte ees THE DISTRICT COURT’S ORDER OF DIS- MISSAL, WAS CURRE s 66660 ce ke Seo We ei ces A. WCS’ Antitrust Claims Were Properly Dis- aA a EERE aS ARR IR MEN CoM AN ek 1. WCS’ Antitrust Claims Are Barred by PUOESE TION 6 5o 56 in a seeds avons a). WCS Admits That Envirocare’s Petitioning Was Aimed at Securing a Result Favorable to Envirocare and Detrimental to WCS......... b). WCS Cannot Sustain its Claim of eo ge Pte i. Envirocare’s TNRCC License er ey ear ere ii. Envirocare’s Remaining Peti- tioning Conduct Was Also- | Ee Op sT eT 2. WCS Complains of Harm Caused by Valid Governmental Decision-making, RCE Wy II oi ia is eee eke 35a 3. WCS Failed to State a Section 2 Claim in PO I oes isk Halen exieidss.. 48 B. WCS’ Tort Claims Were Properly Dismissed 50 1. WCS’ Tort Claims Are Barred by the Principles Discussed Above ........... 50 2. WCS Waived Any Appeal on this Point 50 a). Waiver in the District Court ...... 50 b). Waiver in this Court.............. 51 C. Dismissal of WCS’ “Supplementary Preda- tory Claims” Was Proper ................. 52 1. WCS Failed to State a Claim for Any “Supplementary Predatory Claims.” ... 52 2. WCS Waived Any Appeal on this Point 54 Bee ee 55 CRRIIFELATE OF SERVICE.................0.05.5. 56 CERTIFICATE OF COMPLIANCE.................. 57 In this case, WCS cured any alleged federal jurisdic- tional defect by voluntarily amending its Complaint to expressly allege a federal cause of action and by doing so confirmed its consent to adjudicate its suit in federal court. Following such amendment, this case proceeded to judgment and fairness to both parties was uncom- promised throughout the process. The District Court clearly obtained jurisdiction before the entry of final judgment, and case law confirms that since federal juris- diction existed, remand is improper. 36a II. THE DISTRICT COURT’S DENIAL OF WCS’ MOTION TO REMAND WAS CORRECT. Even if WCS may challenge the District Court’s deci- sion on the remand issue, that challenge should be rejected. A. The First Amended Petition’s Antitrust Allega- tions Could Only Be Addressed Through Application of the Sherman Act. Where a state claim and a federal claim are available to plaintiff, it may avoid removal by bringing only the former in a state court. Plaintiff may not, however, avoid removal by pleading in state law terms a claim that is, in fact, solely federal in nature. Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (Sth Cir. 1995). The Texas Free Enterprise and Antitrust Act, Tex Bus. & Com. Cope §§ 15.01 et seq., (“Texas Act”) does not apply to WCS’ antitrust claims. Because WCS’ allegations could be addressed only through application of the Sherman Act, 15 U.S.C. §§ 1 et seq., no viable state claim was available and removal was proper. See Carpenter, 44 F.3d at 366 (case removable where plaintiff “has available no legitimate or viable state cause of action”). 3 Numerous cases have upheld removal on this ground in the antitrust context. See, e.g., Metro Ford Truck Sales, Inc. v. Ford Motor Co., CA 3-95-CV-1010-G (N.D. Tex. 1996) (attached at Tab B), aff'd, 145 F.3d 320 (5th Cir. 1998), cert. denied, 1999 WL 8053 (U.S. Jan. 11, 1999); In re NASDAQ Mkt. Makers Antitrust Litig., 929 F. Supp. 174 (S.D.N.Y. 1996); Mechanical Rubber & Supply Co. v. American Saw & Manuf. Co., 747 F. Supp. 1292, vacated in part 37a 1. The First Amended Petition Does Not Allege Harm To Any Texas Consumer. Antitrust law protects consumers, not individual competitors. Roy B. Taylor Sales v. Hollymatic Corp., 28 F.3d 1379, 1382 (Sth Cir. 1994); Scott v. Galusha, 890 S.W.2d 945, 950 (Tex. App. - Fort Worth 1994, writ denied). The Texas Act makes this clear: The purpose of this Act is to maintain and promote economic competition in trade and commerce occurring wholly or partly within the State of Texas and to provide the benefits of that competition to consumers in the state. Tex. Bus. & Com. Cove § 15.04. See Caller-Times Publishing Co. v. Triad Communications, Inc., 826 S.W.2d 576, 581 (Tex. 1992) (Texas Act seeks to “benefit the consumers of the state,” not individual competitors). WCS’ First Amended Petition alleged (1) that the product (more accurately, service) market at issue was on other grounds, 810 F. Supp. 986 (C.D. Ill. 1990); Patriot Cinemas, Inc. v. General Cinema Corp., 1987-1 Trade Cases (CCH) { 67,453 (D. Mass. 1986), vacated and remanded on other grounds, 834 F.2d 208 (1st Cir. 1987); Buchanan v. Delaware Valley News, 571 F. Supp. 868 (E.D. Pa. 1983); Salveson v. Western States Bankcard Ass’n, 525 F. Supp. 566 (N.D. Cal. 1981), modified, 731 F.2d 1423 (9th Cir. 1984); In re Wiring Device Antitrust Litig., 498 F. Supp. 79 (E.D.N.Y. (1980); Three J Farms, Inc. v. Alton Box Bd. Co., 1979-1 Trade Cases (CCH) { 62,423 (D.S.C. 1978); Prospect Dairy, Inc. v. Dellwood Dairy Co., 237 F. Supp. 176 (N.D.N.Y. 1964). Such cases rebut WCS’ suggestion, discussed infra, that removal in this context cannot occur because such removal would be improperly based on a “federal defense” of “preemption” or because the alleged conduct affected a business located in the State at issue. 38a limited to private disposal of DOE’s radioactive waste and (2) that the sole purchaser of that service was DOE. See, e.g., FAP {¥ 12, 27, 91-107 (R. 277, 281, 307-10). Thus the only consumer whose interest is affected by the state of competition in the relevant market is the United States government. In such circumstances the Texas Act does not apply. See Destec Energy, Inc. v. South- ern California Gas Co., 5 F. Supp. 2d 433, 464 (S.D. Tex. 1997) (Texas Act does not apply simply because conduct at issue “has some effect on a Texas entity”; Act inappli- cable where defendant did nothing “affecting the ability of Texas consumers to obtain the benefits of competi- tion”); IP. AREEDA & H. Hovenxamp, ANtTiTRusTt Law { 216 at 295 (rev. ed. 1997) (hereinafter “AREEDA [ ___”) (state statute applies where case involves “sufficient injury to [the state’s] consumers”). WCS tries to skirt the issue by suggesting that its pleading implicates the interest of Texas citizens or tax- payers generally. Brief 32-33. This ignores the point of antitrust law, which is to benefit those who purchase the product in the relevant market by promoting competition therein. Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979); Caller-Times, 826 S.W.2d at 582 (central goal of Texas act is “{llow prices for consumers”). This is undoubtedly why the Legislature, having used the broad term “person” throughout the Act, chose instead the precise term “con- sumer” in § 15.04. If any impact on a “citizen” of a state were sufficient to invoke that state’s antitrust law, then federal question removal in antitrust cases would never be appropriate since the realities of modern commerce dictate that one 39a could always divine some impact attenuated or other- wise, upon one or more taxpayers or businesses in a given state. The courts reject such an overly-broad inter- pretation.‘ 2. The First Amended Petition Involves Issues of Interstate Commerce Only. WCS’ First Amended Petition claims that Envirocare prevented WCS from entering into contracts with a fed- eral agency, which harmed competition in the national market for disposal of federal waste, where the only consumer is the United States. Having made such allega- tions, WCS cannot support its argument that this case somehow presents issues of intrastate commerce that invoke the Texas Act. Perhaps to muddy the water, WCS discusses preemp- tion, but this is not a preemption case and the issue is a red herring.5 Envirocare also does not dispute the straw- man argument that the Texas Act does not lose its force simply because a case involves a restraint touching on both interstate and intrastate commerce.6 Where the only 4 See cases cited at notes A > Under some circumstances a plaintiff could choose either a Texas antitrust claim or a Sherman Act claim. See ArEepa { 216. The Texas Act is a valid law; it just does not apply because, under the facts here alleged, the essence of WCS’ own claim, not any defense, is necessarily federal in nature. WCS’ argument that a defense cannot provide the basis for removal is irrelevant. Brief 17-24. © Elray, Inc. v. Cathodic Protection Serv., 507 S.W.2d 570 (Tex.Civ.App. - Houston {14th Dist.] 1974, no writ) stands for 40a commerce at issue is interstate, however, the Texas Act has no application. Pounds Photographic Labs, Inc. v. Nor- itsu America Corp., 818 F.2d 1219, 1224 (5th Cir. 1987); Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 383 F.2d 97, 107 (5th Cir. 1967). WCS’ suggestion that the Texas Act applies merely because WCS alleges harm to its business in Texas evinces a basic misunderstanding of the purpose of anti- trust law. As noted above, antitrust law is not aimed at protecting individual competitors. Roy B. Taylor Sales, 28 F.3d at 1382 Rather, antitrust statutes are concerned with the state of competition in the relevant market and the consumers who make purchases therein. Doctor’s Hosp. v. Southeast Medical Alliance, Inc., 123 F.3d 301, 306 (5th Cir. 1997). Where the very nature of the commerce at issue, not to mention the sole purchaser, is federal or interstate in nature, then the mere fact that an affected competitor happens to be located in a given state is insufficient to invoke that state’s antitrust law. This principle is estab- lished by the cases cited herein. See notes 3, 7. More fundamentally, it is a principle that flows naturally from the difference between antitrust (which protects competi- - tion) and other laws, such as torts (which protect the businessman). this unremarkable proposition. There, Texas law applied to an agreement executed in Texas between two Texas entities involving anticompetitive contractual restrictions on Texas manufacturing and Texas sales. The Court’s decision that Texas law applied even though both in-state and out-of-state sales were involved is not surprising, but it sheds no light on the rule applicable here. 4la Simply put, WCS never answers the real question: Why should the State of Texas care about the price paid by the United States Government for disposal of DOE waste? WCS asserts that Texas law applies “if any compo- nent of a transaction affects intrastate commerce,” (Brief 29) but what does that mean? The cases make clear that it does not mean that any impact felt, or activity occurring, within Texas is sufficient to invoke the Texas Act.” Even assuming that the “transaction” analysis fits the instant case, where is the “component” that can be isolated as adversely affecting intrastate commerce in a pleading concerning federal waste disposal pursuant to federal contracts and a federal procurement process, where the only purchaser is a federal agency, where the whole point of the case is alleged interference with federal authoriza- tion to do business, and where the “sole and exclusive” legal authority over the entire matter is proclaimed by WCS itself (R. 933-34) to reside in the federal gc ->rn- ment? 7 See Cherokee, 383 F.2d 97 (federal, not Texas, antitrust law applied even though conduct occurred in Texas and harmed Texas business); Denison Mattress Factory v. Spring-Air Co., 308 F.2d 403, 413 (5th Cir. 1962) (federal antitrust law applied even though party claiming violation was Texas business engaged in manufacturing and sales in Texas); Hughes Bros. Mfg. Co. v. Cicero Trust & Sav. Bank, 24 F.2d 199 (Sth Cir. 1928) (transaction interstate in nature despite harm to Texas business); Destec, 5 F. Supp. 2d at 464; Albertype Co. v. Gust Feist Co., 114 S.W. 791 (Tex. 1908); Sloan v. Miami Margarine Co., 247 S.W.2d 159 (Tex. Civ. App. - Dallas 1952, writ ref’d n.r.e.); Green v. Temple-Stuart Co., 408 S.W.2d 744, 746 (Tex. Civ. App. - Fort Worth 1966, no writ). 42a Not so fast, says WCS: what about the DOE “Pantex” site in Amarillo? WCS argues that the District Court “[w]rongly and inappropriately resolv[ed] key factual disputes” in rejecting WCS’ argument in this regard. Brief 18 n.18. Unfortunately for WCS, no fact dispute had to be resolved in this issue: as noted above, its own pleading framed the issues in the case. Texas’ manifest lack of interest in the economics of DOE waste disposal would not be altered simply because a shipment of such waste happened not to cross state lines. See E.F.I., Inc. v. Mar- keters Int'l, Inc., 492 S.W.2d 302, 304 (Tex. Civ. App. - Houston [1st Dist.] 1973, writ ref’d n.r.e.) (federal anti- trust law governs if intrastate nature of party’s business is “merely incidental to the interstate nature of it”). WCS’ charge against the District Court is ironic in any event, since removal was based on the face of the First Amended Petition, which contains not a word about Amarillo or Pantex or shipments from there to WCS. WCS’ “cite” on this point is not to its pleading, but rather to a page in a WCS Motion filed below. Brief 5 n.8 (citing R. 636 [page 6 of its Motion to Remand, in turn citing testimony wherein the word “Pantex” is mentioned]). That WCS would (1) attempt to support a “fact” (itself of questionable import since unpled®) with a reference to its own Motion, (2) then “support” its assertion regarding 8 The focus is on the face of the pleading, not post hoc attempts by plaintiff to add some local color to its allegations. 16 J. Moore, Moore’s Feperar Practice § 107.41[1][e][ii] at 167-99 (3d ed. 1998) (on remand motion, inquiry focuses on complaint “as it is stated at the time of removal”). 43a Pantex with sheer speculation (i.e., failure to point to a shred of admissible evidence that there even is any radio- active waste at Pantex, or that DOE needs to dispose of it off-site, or that DOE would have any desire to ship it to WCS in any event), and (3) then take the District Court to task for “inappropriately” resolving “key factual dis- putes” when it was WCS who failed to plead those sup- posedly-crucial “facts” in the first place, is suggestive of the length to which WCS has strayed from cogent argu- ment. WCS points to P [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0869%3A2. Public record. Not legal advice.