Opinion
CIVIL ACTION NO. SA-01-CA-0209-FB (NN)
March 29, 2002
ORDER GRANTING MOTION TO REMAND
A. Introduction
The matters before the court are plaintiffs' motion to remand, and the responses and replies of the parties thereto. Also before the court are numerous discovery related motions, which are rendered moot by this Order on the remand question. Finally, plaintiffs voluntarily request dismissal of defendant John Deere Insurance Company.
Docket Entry 5.
Docket Entries 44, 47, 67, 69 and 71.
Docket Entry 72.
Docket Entries 26, 29, 34 and 48.
Docket Entry 27.
B. Statement of the Case
This case arises out of a crash of a small aircraft during take-off from San Antonio, Texas on January 22, 2000. The only passengers in the plane, Sidhartha Maitra and Gerald Babb, died in the accident. On January 19, 2001, the widow and survivors of Maitra filed this case in state court, in the 225th Judicial District of Bexar County, Texas, against a number of corporate entities, including inter alia aircraft manufacturers, re-manufacturers, testers, and training providers, as well as Babb's Estate, the Personal Representative of the Estate, and John Deere Insurance. Prior to being served, Babb's Estate, the personal representative and John Deere filed their answers (February 5, 2001) to the state court's original petition. On March 12, 2001, defendant Honeywell International Inc. ("Honeywell"), who had not yet been served, filed a Notice of Removal with this court, premised on diversity and federal question jurisdiction. Predictably, plaintiffs filed a motion to remand on April 6, 2001.On motion, the court permitted limited discovery by defendants for the purpose establishing their claim of fraudulent joinder of non-diverse defendants. Responses to the motion to remand were stayed for several months. The Magistrate Judge upon lifting that stay, set dates for responses and replies: February 11 and 19, 2002, respectively.
Docket Entry 38.
Docket Entry 43.
Docket Entry 66.
Having reviewed the submissions of the parties, the court finds that while the removal was not procedurally defective, defendant Honeywell has nevertheless failed in its burden to establish the subject matter jurisdiction of this court. Specifically, Honeywell, as well as the other defendants who joined in the removal and filed responses in opposition to plaintiffs' motion for remand, have failed to demonstrate that the Babb defendants were fraudulently joined to defeat diversity, or that the concept of "field preemption" applies to plaintiffs' common law tort claims so as to create federal question jurisdiction. Finally, defendants have failed to show that by filing a jury demand with this court, plaintiffs altogether waived their right to seek remand.
C. Jurisdiction
The case is not within the removal jurisdiction conferred to district courts under 28 U.S.C. § 1441. For the reasons set forth below, the court finds that it lacks diversity jurisdiction, 28 U.S.C. § 1332, as well as federal question jurisdiction, 28 U.S.C. § 1331.
D. Analysis
1. Removal Standard
The overriding principle in matters of removal and remand is that federal courts have no inherent subject matter jurisdiction. Federal Courts are courts of limited jurisdiction by origin and design. As a result, there is an initial presumption that federal courts lack subject matter jurisdiction to resolve a particular suit. It is well established that the party removing the case has the burden to present facts showing that federal subject matter jurisdiction exists. Whether a case may be removed is a question of federal law to be decided by federal courts with the removal statute strictly construed, and doubts concerning the propriety of removal construed against removal. The removal jurisdiction of the court is determined by examining the record as it stands at the time the notice of removal is filed without consideration of subsequent pleadings.
See Marathon Oil Company v. Ruhrgas, 145 F.3d 211, 215 ("Federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress") (Emphasis added), cert. granted, 525 U.S. 1039 (1998), rev'd on other grounds, 526 U.S. 574 (1999); and Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986).
Kokkonen v. Guardian Life Ins. Co., 114 S.Ct. 1673, 1675 (1994);In re Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995); Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994).
Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
See Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988); and Kansas Pub. Employees Retirement Sys. v. Reimer Koger Assoc. Inc., 4 F.3d 614, 618 (8th Cir. 1993), cert. denied, 511 U.S. 1126 (1994).
Shamrock Oil Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941); Healy v. Ratta, 292 U.S. 263, 270 (1934).
Owens Equip. Erection Co. v. Kroger, 437 U.S. 365, 377 (1978);Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996), cert denied, 520 U.S. 1162 (1997).
See FSLIC v. Griffin, 935 F.2d 691, 695-96 (5th Cir. 1991) ("The power to remove an action is evaluated at the time of removal"), cert. denied, 502 U.S. 1092 (1992).
2. Were There Procedural Defects In Defendant Honeywell's Removal?
A creature of statute, the right to removal is easily lost by a defendant failing to comply with the many intricacies of the removal procedures. The burden to establish the propriety of the attempted removal remains with the defendant, and all questions of fact must be resolved in favor of the plaintiff.
With these advantages, plaintiffs attack the removal from several fronts. The removal statute permits removal only when none of the properly joined and served defendants are a citizen of the forum state. But what if none of the defendants have been served when the removal notice is filed? Plaintiffs rely on the reasoning of the District Court in the Northern District of Texas in its unpublished decision in Recognition Communications, Inc. v. American Automobile Association, Inc., one of the few cases to address this precise issue. In citing Recognition, plaintiffs argue that because none of the defendants had been served at the time of the removal, the citizenship of all of the defendants must be considered. If this interpretation of section 1441(b) were adopted here, the presence of the unserved Texas defendants ( i.e., Mitsubishi Heavy Industries America Inc. ("Mitsubishi"), Turbine Aircraft Marketing Inc., Turbine Aircraft Services Inc., and Flight Safety International, Inc. (Flight Safety")) would defeat what is known as the "no local defendant" rule and require remand.
Docket Entry 5.
No. Civ.A. 3:97-CV-0945-P, 1998 WL 119528 (N.D. Tex. Mar. 5, 1998).
Id. at *2-3.
Because the facts in Recognition are distinguishable, this court declines to follow the Recognition holding and consider the citizenship of all of the unserved defendants. In another district court case, Windac Corporation v. Clarke, a case with facts more akin to those presented here than those in Recognition, the court held that where a defendant answered without service it was nevertheless properly joined, and was a defendant whose citizenship must be considered for purposes of meeting the requirements of 28 U.S.C. § 1441(b). Windac focuses attention on the citizenship of the defendants who had answered at the time of the removal, and counsels this court to consider the Babb defendants, all residents of California, when applying section 1441(b), not the citizenship of the non-served, non-answering Texas defendants. This court adopts this reasoning. Because there were no Texas defendants served and properly joined at the time of the removal, section 1441(b) does not require remand in this case.
530 F. Supp. 812 (D. Neb. 1982).
Id. at 813.
Plaintiffs also argue that the removal was defective in that the Babb group of defendants did not join in the removal or file a timely concurrence. Defendants respond that the court need not require the agreement of defendants who have been fraudulently joined when applying the "rule of unanimity." This rule, as interpreted by the Fifth Circuit, provides that an otherwise valid removal is not destroyed when defendants who have been fraudulently joined oppose removal. Nevertheless, for the reasons stated below, the court finds that defendants have not demonstrated that the Babb defendants were fraudulently joined so as to escape the rule of unanimity. Failing to obtain the consent or concurrence of all defendants who were before the court at the time of the removal, the removal fails.
See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.),cert denied, 510 U.S. 868 (1993).
3. Does This Court Have Subject Matter Jurisdiction?
Defendants removed this case alleging that diversity jurisdiction existed when considering the citizenship of all defendants who were not fraudulently joined. They argue that the Babb group of defendants have been fraudulently joined to rob the federal court of subject matter jurisdiction. Unless the defendants prevail with this argument, the Babb group, being citizens of California as are the plaintiffs, destroy diversity.
See Docket Entry 1, at 3-6 and Docket Entry 71, at 5-14.
As the party wishing to invoke the jurisdiction of this court by alleging fraudulent joinder by the plaintiffs in framing their pleadings, defendant Honeywell bears what the Fifth Circuit has called "the heavy burden" of establishing a plaintiff's fraudulent joinder for purposes of avoiding federal jurisdiction. In Madison v. Vintage Petroleum, Inc., the Fifth Circuit set out the requirements incumbent on a party which removes based on fraudulent joinder. Defendant Honeywell must prove: (1) that there has been outright fraud in the plaintiffs' pleadings of jurisdictional facts; or (2) that there is no possibility that the plaintiffs would be able to establish a cause of action against the in-state defendant(s) in the previously filed state court proceeding.
See Madison v. Vintage Petroleum, Inc., 114 F.3d 514, 515 (5th Cir. 1997); Willy v. Coastal Corporation, 855 F.2d 1160, 1164 (5th Cir. 1988), aff'd, 503 U.S. 131 (1992).
Madison, 114 F.3d at 516.
Id.
Because the burden is on the removing party, the Fifth Circuit instructs that the removal statutes are to be construed narrowly, with all doubts resolved in favor of remand to the state court. In other words, if there is any doubt as to defendant Honeywell's right of removal to federal court, then all ambiguities are to be construed against removal and in favor of the plaintiffs' motion to remand the case back to state court.
See Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1341 (S.D. Tex. 1995), aff'd, 231 F.3d 165 (5th Cir. 2000), cert denied, 532 U.S. 972 (2001).
Id.
With respect to the relevant evidence, defendant Honeywell bears the burden of production and proof in its motion for removal. "A claim of fraudulent joinder must be pleaded with particularity, and supported by clear and convincing evidence" to avoid undue prejudice to an unsuspecting plaintiff who suddenly finds itself removed to federal court.
See Allen, 63 F.3d at 1335.
Parks v. The New York Times Company, 308 F.2d 474, 478 (5th Cir. 1962), cert denied, 376 U.S. 949 (1964).
Fifth Circuit precedent is clear on the boundaries the federal courts must maintain when deciding a claim of fraudulent joinder. In B., Inc. v. Miller Brewing Co., an out of state defendant removed the case to federal court claiming the plaintiff had fraudulently joined an in-state defendant. The Court began its analysis by stating: "[t]his is hardly a matter of first impression. Nevertheless, we shall take this opportunity to reaffirm what the cases already hold: district courts must not `pretry' substantive factual issues in order to answer the discrete threshold question of whether the joinder of an in-state defendant is fraudulent." In order for a district court to make a preliminary determination as to the existence of jurisdiction, the question of whether the plaintiff has set forth a valid claim against an in-state defendant can be determined by summary determination consisting of the pleadings on file and any discovery taken up to that point.
663 F.2d 545 (5th Cir. 1981).
Id. at 546.
Id. at 551. See also Green v. Amerada Hess Corp., 707 F.2d 201, 204 (5th Cir. 1983).
Defendant Honeywell, and the other two defendants who have filed briefing on the issue (Mitsubishi and Flight Safety) base their fraudulent joinder argument on several grounds. They argue that plaintiffs' claims against the Babb defendants are frivolous because the claim is limited to the insurance coverage, and because, they argue, there is no coverage under this John Deere insurance policy. This argument, however, is unavailable as it requires the court to resolve factual disputes in defendants' favor. Whether plaintiffs' decedent was the pilot, whether Maitra and Babb were employees of the policy holder and therefore subject to policy exclusions, whether Maitra and/or Babb met necessary flight training requirements of the policy — these coverage questions involve resolution of factual issues, which the court cannot do in the context of a remand determination.
Docket Entries 67, 69 and 71.
The Fifth Circuit has made clear that district courts "should not consider a full scale evidentiary hearing on questions of fact affecting the ultimate issues of substantive liability in a case" in order to decide the preliminary issue of jurisdiction based on diversity. Instead, the Fifth Circuit directs that district courts should resolve all doubts in favor of the plaintiff.
Miller Brewing Co., 663 F.2d at 551.
Id.
The only instance in which an evidentiary hearing is required for determining fraudulent joinder is when allegations of jurisdictional facts are made ( i.e., the removing party alleges that the in-state defendant named by plaintiff in the state court action does not even exist). Otherwise, "where the disputed factual issues relate to matters of substance rather than jurisdiction — e.g., did the tort occur? was there a privilege? was there a contract? etc. — all doubts are to be resolved in favor of the plaintiff." Factual issues relating to the insurance coverage at issue in this case are precisely what defendant Honeywell is asking this court to determine.
Id. at 551 and n. 14.
Further, defendants argue that plaintiffs' claim against some or all of the Babb defendants is frivolous because plaintiffs failed to file a claim against the Babb estate with the probate court in California within the required time period. While this may be true, it is clear that plaintiffs filed this case against the Estate within the time allowed and limited their recovery to the insurance proceeds. California Probate Code Section 550 specifically allows such a claim, independent of a claim that is presented to the probate court for amounts exceeding the insurance limits.
Docket Entry 71, at 5-10 (citing to CAL. PROB. CODE §§ 9150 and 9002 and CAL. CODE Civ. P. § 366.2).
CAL. PROB. CODE § 550. This statute provides as follows:
§ 550. Commencement or continuation of action against estate; cumulative remedy
(a) Subject to the provisions of this chapter, an action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate without the need to join as a party the decedent's personal representative or successor in interest.
(b) The remedy provided in this chapter is cumulative and may be pursued concurrently with other remedies.Cf. CAL. PROB. CODE § 9390(b) which requires the timely filing of a creditor's claim for "excess recovery."
Defendants further argue that the Babb Estate is not a legal entity subject to suit, citing various Texas authorities. California Probate Code Section 550, however, appears to specifically allow such a claim. Of course, whether California or Texas law controls is a matter yet to be decided. Resolving disputed matters in favor of the plaintiffs at this juncture of the case, as this court must do in the context of a remand determination, requires rejection of this argument.
Docket Entry 71, at 5-10; Docket Entry 69, at 2-4 and Docket Entry 67, at 4-6.
Finally, defendants argue that the Babb Estate and Personal Representative of the Estate are "nominal parties" and that the real party in interest is John Deere Insurance which plaintiffs now seek to voluntarily dismiss from the case. Once again, defendants rely on various Texas cases to support their position without discussion of California law, and specifically section 550 of the Probate Code, which authorizes suits against the estate up to the limits of the applicable insurance coverage. In light of the plain language of the California statute, the Babb Estate is the proper defendant and real party in interest.
Docket Entry 71, at 10-11.
The only inquiry relevant to a determination of whether diversity jurisdiction is present based on fraudulent joinder of the nondiverse defendants is whether there is even a possibility that a valid cause of action can be brought against the Babb defendants in state court based on the facts alleged by the plaintiffs. Unless defendant Honeywell, and the other two defendants who joined it in seeking removal, prove by clear and convincing evidence that plaintiffs have absolutely no chance of recovery under any of the claims set forth in the Original Petition, then this court should remand the case. The Fifth Circuit has framed the issue as follows; "there can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause[s[ alleged." To establish their entitlement to removal, the defendants must demonstrate that there can be no recovery on the claim for the insurance policy limits which plaintiffs have asserted against the Babb defendants. Based on the foregoing analysis, the defendants have failed to meet their burden for removal on the theory of fraudulent joinder.
Miller Brewing Co., 663 F.2d at 550 (citing The New York Times Company, 308 F.2d at 478). Based on the Original Petition, the plaintiffs assert three legal causes of action: negligence, breach of warranty and strict liability. Docket Entry 1, Exhibit A. See also Plaintiffs' First Amended Complaint, Docket Entry 33.
Before leaving the discussion of the fraudulent joinder argument, the court must address defendants' "extrinsic" evidence of collusion. Specifically, defendants argue that the following unusual aspects of the procedural history of this case demonstrate that the presence of the Babb defendants is a mere sham designed to defeat diversity: (1) the Babb defendants answered before they were served, (2) they answered within just a few days after the lawsuit was filed, (3) the Personal Representative, Wendy Babb, had not met or talked to counsel before an answer was filed on her behalf and, in fact, they did not talk until a few weeks before her June 1, 2001 deposition, (4) the attorney representing the Babb defendants also represented the plaintiff, Anuradha Maitra, at her deposition, and (5) counsel for the Babb defendants agreed to share liability experts and costs with plaintiffs' counsel. While these allegations are curious, it is even more curious that plaintiffs failed to address either the factual assertions or legal implications of these allegations in their most recent reply brief. Although these allegations may be troubling from an ethical standpoint, courts have focused on the validity of the claim ( i.e., possible fraud in the pleading of jurisdictional facts, or improper joining of claims among diverse and non-diverse defendants), and not on the conduct of attorneys in litigating and defending otherwise valid claims, in assessing a claim of fraudulent joinder. Without supportive authority, defendants' aspersions provide an insufficient basis for a fraudulent joinder claim.
See Docket Entry 71, at 3-5.
The case was filed in state court on January 19, 2001 and the Babb defendants answered on February 5, 2001. Docket Entry 1, Exhibits A and B.
Docket Entry 72.
See Court's Discussion on pages 7-9, and cited case authority,supra.
4. Does This Court Have Federal Question Jurisdiction?
Alternatively, defendants argue that this court has federal questions jurisdiction premised on the theory known as "field preemption." In other words, defendants contend that because the field of aviation is heavily or "pervasively" regulated by the federal government, the plaintiffs' negligence, breach of warranty and strict liability actions pleaded against the defendants involve a federal question. As indicated by defendant Honeywell in its Notice of Removal: "This pervasive regulatory scheme displaces state law and necessarily converts plaintiffs' claims into federal claims governed by federal law." While recognizing that this is not an area of clear consensus among the circuits, as demonstrated by the cases cited by the defendants in this case, Honeywell's position is contrary to Fifth Circuit authority and must be rejected. Specifically, this court finds controlling the Fifth Circuit's decision in Hodges v. Delta Airlines, where the Court, in an en banc decision, held that amendments to the Federal Aviation Act did not completely preempt state tort laws in personal injury cases. As discussed below, the district courts within the Fifth Circuit that have recently addressed the instant issue have consistently followed theHodges decision.
See Docket Entry 1, at 6-7 (citing Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999); and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989)). See also Docket Entry 69, at 7-9.
Docket Entry 1, at 7.
See note 50, supra.
44 F.3d 334 (5th Cir. 1995).
Id. at 336.
The presence or absence of a federal question is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's complaint. Federal courts consider only what " necessarily appears in plaintiff's statement of his claim, unaided by anything alleged in anticipation or avoidance of defenses that defendant may interpose." As a general rule, the plaintiff is considered the master of its complaint, and may avoid federal jurisdiction by relying exclusively on state law.
Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987);Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983) ("The well-pleaded complaint rule confines the search for federal question jurisdiction to the face of the complaint").
Franchise Tax, 463 U.S. at 10 (emphasis added); see also Chuska Energy Co. v. Mobil Exploration Producing No. America, Inc., 854 F.2d 727 (5th Cir. 1988).
Caterpillar, 482 U.S. at 392-93; Beers v. North American Van Lines, Inc., 836 F.2d 910, 913 (5th Cir. 1988).
An exception to the well-pleaded complaint rule exists where there is complete preemption of the state claim by federal law. When a plaintiff's complaint does not raise a federal question on its face, federal preemption authorizes removal to federal court only when the area of law has been completely preempted by Congress. Complete preemption requires a showing of three factors: (1) the federal statute must provide a civil enforcement provision that creates a federal cause of action that both replaces and protects the same interests as the preempted state law cause of action; (2) the federal statute must provide a specific jurisdictional grant to the federal courts to enforce the cause of action created by that federal statute; and (3) there must exist clear Congressional intent to make the preempted state claims removable to federal court. "Complete preemption applies in extraordinary circumstances when Congress intends not only to preempt certain state law, but to replace it with federal law." In other words, complete preemption requires a clearly manifested Congressional intent to make causes of action removable to federal court. In applying these legal principles to the case at hand, the court finds that Honeywell's arguments fail to meet its burden of establishing complete federal preemption of plaintiffs' state law claims. A number of district courts within the Fifth Circuit that have addressed the instant issue have explicitly held that federal aviation regulations do not completely preempt similar state law causes of actions as the ones pleaded in this case.
Caterpillar, 482 U.S. at 393.
The jurisdictional question concerning "complete preemption" centers on whether it was the intent of Congress to make the cause of action a federal cause of action and removable despite the fact that the plaintiffs' complaint identifies only state claims. The inquiry concerning a "preemption defense," however, is a substantive inquiry as to whether a legal defense exists. This would be a matter by a court having jurisdiction. See Soley v. First National Bank of Commerce, 923 F.2d 406, 408-409 (5th Cir. 1991) and Willy, 855 F.2d at 1165 ("[A] case may not be removed to the federal court on the basis of a federal defense, including the defense of preemption, 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,"); and Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66 (1987) (examples of complete preemption by Congress are: Employee Retirement and Income Security Act, the Labor Management and Relations Act and the Railway Labor Act).
Coleman, 888 F. Supp. at 1396-97 (citation omitted).
Metropolitan Life Ins. Co., 481 U.S. at 66.
See Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1163 (5th Cir. 1989), cert. denied, 493 U.S. 1074 (1990); and Willy, 855 F.2d at 1166.
For instance, in Hernandez Navarro v. Bell Helicopter Services, Inc., the plaintiffs filed a motion to remand a case that had been removed from state court. As in this case, the defendants in Hernandez Navarro contended that federal laws regulating aviation completely preempted plaintiffs' claims; and therefore, these claims involved a federal question and were properly removed. In rejecting the defendants' arguments, the court noted that "Fifth Circuit case law, however, `refutes the idea that aviation is generally a field of complete preemption.'"
No. Civ.A 3:00-CV-2005-D, 2001 WL 454558 (N.D. Tex. Jan. 25, 2001).
Id. at *9 (quoting Johnson v. Baylor University, 214 F.3d 630, 634 (5th Cir. 2000) (where the court held that aircraft pilot's claim against former employer for tortious interference with a contract was not preempted by federal law), cert. denied, 531 U.S. 1012 (2000); andHodges, 44 F.3d at 336).
Also, the court in Skidmore v. Delta Air Lines, Inc., discussed the extent of federal preemption by the Federal Aviation Act ("FAA"), 49 U.S.C. § 40101 et seq., in personal injury cases. The court noted that the FAA does not preempt state regulation of "aircraft operation." The Skidmore court further stated: "[The] language from Hodges makes plain that the claims in the present case arise from the `operation' of the aircraft, and thus are not preempted." Furthermore, in reaching its holding, the Skidmore court criticized and rejected Abdullah v. American Airlines, Inc., the decision relied upon by the defendant in support of its motion: "[w]hatever the merits of the Third Circuit Court's novel suggestion that the federal standard of care should be applied in state personal injury actions brought by airline passengers, the defendant in the present case has not cited — nor has the court independently discovered — any cases from Texas or the Fifth Circuit in which courts have so held."
No. Civ.A.399CV2958G, 2000 WL 1844675 (N.D. Tex. Dec. 15, 2000).
Id. at *3 (citing Hodges, 44 F.3d at 340).
Id.
Id. (Emphasis in original).
Consistent with the above principles, in City of Fort Worth, Texas v. City of Dallas, Texas, the court indicated that federal aviation regulations do not support subject-matter jurisdiction for removal. The court then held that state law is not completely preempted by the FAA and it remanded the case. Significantly, the court noted that the defendant had failed to point to "any statutory language or legislative history manifesting a clear intent by Congress to completely supplant state law with federal law in this situation. [And], there is nothing to suggest a Congressional intent to make causes of action of the kind plaintiff alleges removable to federal court."
No. 4:97-CV-939-A, 1998 WL 50457 (N.D. Tex. Jan. 20, 1998).
Id. at *3.
Id. at *2.
Likewise, defendants in this case have failed to demonstrate the clear Congressional intent "to completely supplant state law," and more particularly, those causes of action alleged by plaintiffs (i.e., negligence, breach of warranty and strict liability) with federal law. Based on the foregoing, this court finds that federal question jurisdiction is lacking.
5. Did Plaintiffs Waive Their Right to Seek Remand?
As noted earlier, after defendants filed their notice of removal on March 12, 2001, plaintiffs filed their demand for jury trial (on March 19, 2001). Later, on April 9, 2001, they filed the motion to remand that is before the court. Defendants argue that plaintiffs waived their right to challenge the removal by submitting the jury demand and thereby voluntarily appearing in this action, in reliance on Intercoastal Refining Company, Inc. v. Jalil .
487 F. Supp. 606, 608 (S.D. Tex. 1980).
In Intercoastal plaintiff premised its remand request on alleged procedural irregularities in the removal process. Here, plaintiffs' motion to remand is based on both procedural defects in effectuating the removal, as well as the lack of subject matter jurisdiction of this court. While challenges to removal procedures may be easily waived, as can the right to remove itself, lack of subject matter jurisdiction can never be. In fact, subject matter jurisdiction can be questioned at any time in a case, even sua sponte without motion. Accordingly, their filing of their jury demand did not preclude the plaintiffs from attacking the removal, at least insofar as they challenge the subject matter jurisdiction of this court.
See e.g., Louisville Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (Supreme Court may raise objection to federal court jurisdiction on appeal).
6. Plaintiffs' Request for Attorneys' Fees
As part of their motion to remand, plaintiffs request an award of costs, expenses, and attorneys' fees incurred as a result of defendant Honeywell's "improper notice of removal." While recognizing that the federal statutory removal scheme does allow for the discretionary award of "just costs and any actual expenses, including attorney fees, incurred as a result of the removal," 28 U.S.C. § 1447(c), the court DENIES plaintiffs' request to make such an award in this case. Because of the conflicting choice of state law issues present in this case, which may prove dispositive on the ultimate question whether the plaintiffs can recover on their cause of action against the Babb group of defendants, the court finds that defendant removal premised on fraudulent joinder was not unreasonable or "improper." Additionally, because the Fifth Circuit has not expressly rejected the Abdullah holding concerning field preemption, the court concludes that the discretionary exercise of authority to award fees would not be appropriate. Thus, although this court concludes that removal was improper, this conclusion does not require an award of just costs and attorneys' fees under § 1447(c) on plaintiffs' behalf.
Docket Entry 5, at 13.
See Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 294 (5th Cir. 2000) (affirming the district court's decision to deny an award of attorneys' fees on plaintiff's behalf).
E. Conclusion
Based on the foregoing, it is hereby ORDERED that plaintiffs' motion to remand (Docket Entry 5) is GRANTED, and that the above-captioned action is REMANDED to the 225th Judicial District of Bexar County, Texas, from which it was removed. The District Clerk is directed to send a certified copy of this order of remand to the Clerk of the State Court from which this case was removed.
In light of this ruling, the pending discovery related motions (Docket Entries 26, 29, 34 and 48) are DENIED AS MOOT in their entirety. Further, without subject matter jurisdiction, the court does not have the authority to rule on plaintiffs' contested motion to dismiss John Deere (Docket Entry 27), and as such it is DENIED for lack of jurisdiction. This matter is DISMISSED WITH PREJUDICE.
It is so ORDERED.