Opinion
Civil Action No. 3:01-CV-0587-D
July 25, 2001
ORDER
The court grants plaintiff Donna M. Ervin's ("Ervin's") June 25, 2001 motion to remand remands this case to state court.
Defendants removed this case from state court based on 28 U.S.C. § 1445(b) and § 144: an action preempted by the Carmack Amendment). See Jt. Not. Rem. at ¶¶ 2-3. Ervin contends has not pleaded a federal-law claim that would support removal based on federal question jurisdiction.
Defendants' reliance on § 1445(b) is misplaced. As the court pointed out in its June 26, 2 order, § 1445(b) is a limit on the removal of cases that fall within 28 U.S.C. § 1337. It is no independent grant of removal jurisdiction.
Section 1445(b) proscribes the removal of suits brought against a common carrier or its receivers or trustees in a state court under the Interstate Commerce Act for damages for delay, loss, or injury of shipments, unless the amount in controversy exceeds $10,000. The restriction applies to cases falling within Section 1337 of Title 28, which grants the federal courts original jurisdiction over all actions arising under any federal statute regulating commerce, regardless of the amount in controversy. Section 1445(b) operates to control the large number of small damage cases that would be removable in its absence and that were removable prior to the adoption of the predecessor of Section 1445(b).
14C Charles Alan Wright, et al., Federal Practice and Procedure § 3729 (3d ed. 1998) (emphasis added) (footnotes omitted). Ervin does not plead a claim for relief under 49 U.S.C. § 11706 or § 14706, or otherwise within 28 U.S.C. § 1337.
Defendants' reliance on the Carmack Amendment is also erroneous. In Fanous v. United Parcel Service, Inc., Civil Action No. 3:94-CV-1981-D (N.D. Tex. Jan. 23, 1995) (Fitzwater, J), this court followed the Fifth Circuit's earlier decision in Beers v. North American Van Lines Inc., 836 F.2d 910 (5th Cir. 1988), holding as follows:
In Beers the Fifth Circuit held that assertion of a Carmack Amendment defense did not confer federal question jurisdiction. The panel determined that the plaintiffs claims were all based on state law, and that because the plaintiff did not engage in artful pleading (which is not at issue in the present motion) federal question jurisdiction was not conferred. Accordingly, although UPS may urge a Carmack Amendment defense in state court, it may not use the defense to remove this action to federal court.Id., slip op. at 5 (emphasis added) (citations omitted). In their opposition to Ervin's remand motion, defendants contend that Beers is no longer the opinion of the Fifth Circuit on this question. The court disagrees.
First, no Fifth Circuit decision has explicitly overruled Beers or called it into question. Second, even if a subsequent panel decision, such as Moffit v. Bekins Van Lines Co., 6 F.3d 305 (5th Cir. 1993), can be interpreted as inconsistent with Beers, it must yield to Beers as the prior panel decision "absent en banc reconsideration or a superseding contrary decision of the Supreme Court." In re Dyke, 943 F.2d 1435, 1442 (5th Cir. 1991). Third, decisions that discuss preemption under the Carmack Amendment as a defense to a state-law claim do not support the conclusion that the state-law claim is itself transformed into a federal-law cause of action that makes the case removable under this court's federal question jurisdiction.
Moffit does not squarely conflict with Beers because, unlike Beers, it does not address the question of removability. In Moffit the plaintiffs moved to remand but the district court declared the motion to be "moot" after it granted summary judgment in favor of the carrier. There is no indication that the removal issue was presented to the Fifth Circuit on appeal (the sole issue on appeal was whether the district court properly granted summary judgment based on preemption). Moffit can be seen as inconsistent with Beers, however, in the sense that the Fifth Circuit panel was itself required — as it did in Beers — to raise the absence of federal question jurisdiction even if the parties and the district court did not.
Accordingly, the court holds that it lacks subject matter jurisdiction and, pursuant to 28 U.S.C. § 1447(c), remands this case to the 382nd Judicial District Court of Rockwall County, Texas. Ervin shall recover from defendants her just costs, and any actual expenses, including reasonable attorney's fees, pursuant to § 1447(c), limited to the "fees and costs incurred in federal court that would not have been incurred had the case remained in state court," Avitts v. Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir. 1997). If the parties cannot agree concerning the amount that Ervin is entitled to recover, she may apply to the court for such an award no later than 30 days from the date this order is filed.
* * *
Ervin's June 25, 2001 motion to remand is granted. The clerk shall effect the remand in accordance with the usual procedure.
SO ORDERED.