The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

The statute creating removal jurisdiction allows a "Defendant" to remove a claim to federal court. But what about an intervenor who later has claims asserted against it? Isn't that kind of like being a defendant?

Maybe, but that's not good enough. The Fifth Circuit released In re Crystal Power Company, Ltd. on Monday, granting mandamus relief to address the district court's refusal to grant a motion to remand such a case. Judge Higginbotham  wrote the court's opinion.

The court found the intervenor's status indistinguishable from that of a state court plaintiff who later tries to remove federal counterclaims -- a procedural posture that the Supreme Court refused to allow 70 years ago in Shamrock Oil & Gas Corp. v. Sheets. Judge Higginbotham wrote:

Although this case involves a cross-claim rather than a counter-claim, the answer is the same. The controlling legal principle from Shamrock is that “the plaintiff, having submitted himself to the jurisdiction of the state court, [is] not entitled to avail himself of a right of removal conferred only on a defendant who has not submitted himself to the jurisdiction.” If the [intervenor] wished for a federal forum, it was required to pursue a separate action in federal court. Having chosen to intervene as a plaintiff in state court, the firm forfeited its right to removal.

Congress meant what it said and said what it meant. "Defendant" means Defendant, one hundred percent.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The year 1999.  You're an appellate lawyer in a silk stocking firm in Houston, Texas.  You hear someone running toward your office door.  The door bursts open to reveal a trial lawyer, pupils dilated and sweat beading on his forehead. 

His client, Mega Co., just had a hearing on its 5000 page motion for summary judgment (that the trial lawyer insisted on drafting himself) and lost.  A fact question.  Who knew?

Now they are set for trial in a month but he vowed to Mega Co.'s CEO that they were going to stop the trial and appeal "all the way to the Supreme Court."

That's why he came to see you.  "I want you to handle the appeal."  He feels like he's offering you a plum piece of work that will keep you fully and lucratively employed for some time to come.

You invite him to sit down, perhaps offer him a beverage, before informing him that you will not be handling the appeal because there is nothing to appeal.

There is no appeal from an interlocutory order denying the garden variety summary judgment.  Everybody knows that.

"But this is truly extraordinary," he says.  "What about one of those mandamus things?"

After ascertaining that the only thing extraordinary about this proceeding is that this trial lawyer prefers not to lose, you answer, "No.  A denial of summary judgment is not reviewable by mandamus."  Everyone knows that, you add to yourself. 

Flash forward a decade, and the answer is not so clear.  But it is not nearly as murky as some folks complain.  You just have to understand the Chuck Norris exception to restrictions on mandamus review.

After the jump, my own take on why the Supreme Court of Texas is like Chuck Norris when determining whether mandamus should issue because appellate remedies are inadequate. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link