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.

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Procedure geeks were all a-twitter (again) when the Supreme Court released it's recent Krupski opinion.  And who can blame them?  The Supreme Court construed FRCP 15(c)(1)(C) on when correcting the misnomer of a party will relate back to the filing of an original complaint.

Essentially Krupski sued the marketing affiliate (Costa Cruise) when it was clear she had intended to sue the affiliate that actually operated the boat that tripped her (Costa Crociere).  By the time she got it all sorted out, limitations had run.  The Supreme Court saved her.

Eccitante!  No?

Kevin Russell of the SCOTUS Blog wrote a good summary and I won't repeat it.  But I was wondering about something else. 

I was wondering how a case that is essentially a slip and fall on a cruise ship made it to the Supreme Court of the United States.  I wish I could peer inside the black box of the Supreme Court "cert. pool" to know what made this case rise above other worthy cases that the Court rejected, if only for lack of time.

Justice Sotomayor's opinion says the court "granted certiorari to resolve tension among the Circuits over the breadth of Rule 15(c)(1)(C)(ii) . . . ."  She sets out a footnote of cases far less profound than a magnificent, circuit split.  Then she explicitly disavows any warranty of the extent to which they conflict, saying "We express no view on whether these decisions may be reconciled with each other in light of their specific facts and the interpretation of Rule 15(c)(1)(C)(ii) we adopt today."

So . . . "tension?"  That's enough?  Or is this different because it is a rule of procedure?  Absolute uniformity is more important with procedure and tension will suffice?  You SCOTUS wonks out there who have any thoughts feel free to weigh in.  I'm genuinely curious if this fits in any pattern or is just an outlier that the court reached out to grab. 

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An unusual case from the Fifth Circuit yesterday in which the Court gave the victory to a party who chose not to show up on the merits. 

In Texas Midstream Gas Services LLC v. City of Grand Prairie, the City believed that the appeal was moot, and chose only to brief the jurisdictional issue, not the merits.  The Fifth Circuit found that the case was a live controversy, leaving the City with no briefing on the merits.  Judge DeMoss, writing for the Court, exercised mercy, choosing to consider the merits rather than kicking the City to the curb:

Perhaps convinced that its mootness argument was a winner, Grand Prairie did not brief the merits of this case. At argument, counsel offered no explanation for this omission. In some instances, this would lead us to conclude that a party had forfeited its opportunity to prevail on the merits.. . . However, we retain discretion to consider matters not briefed, especially when they implicate substantial public interests. . . . Additionally, when the derelict party is the appellee, who may rely on a favorable ruling by the trial court, it makes sense to construe the “rule” of forfeiture more leniently. . . . We can also preserve judicial resources and avoid piecemeal litigation by addressing issues sooner rather than later. . . . In this case, it makes sense to proceed to the merits of the dispute. . . .

The Court then even went on to give the City a victory.  But lest you be tempted to go with the "no briefing" approach to appellate practice, the Court condemned the city's tactical choice in no uncertain terms:

We will exercise our discretion to proceed to the merits of this appeal. However, we emphasize that counsel’s amateurish tactical decision to address only Grand Prairie’s mootnes argument is an egregious lapse in counsel’s duty to brief all pertinent issues.

The case involves the substantive law of municipal ordinances, eminent domain, and preemption under the PSA, and I commend it to your reading. But I would not advocate leaving your success to the mercy of Judge DeMoss, or any other busy appellate judge.  As nice a man as he is, it's better still to do your own research and have a brief on file.

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The Fightin' Fifth Circuit had not yet begun to fight as of this morning's post.  Several more published opinions this evening, one of which might be of interest to civil practitioners.  And even better, an order for en banc review.

• Jurisdiction and procedure nerds will want to read Martin v. Halliburton (pdf) in which the Court dismissed for lack of appellate jurisdiction.  The defendants, contractors in the Iraq War, asserted various immunity defenses, but the district court denied their motion to dismiss for lack of subject matter jurisdiction.  The Fifth Circuit dismissed the interlocutory appeal, most significantly because it found the immunity defenses were not the type that would be subject to the collateral order doctrine. Judge King wrote the opinion.

And finally, the Court ordered rehearing en banc in Castellanos-Contrera v. Decatur Hotels LLC (pdf), which involves FLSA rights of guest workers providing services in the wake of Hurricane Katrina.

The Panel Opinion (pdf), by Judge Jolly, characterized the issues as:

three issues of first impression for this court: whether, under the FLSA, an employer must reimburse guest workers for (1) recruitment expenses, (2) transportation expenses, or (3) visa expenses, which the guest workers incurred before relocating to the employer’s location.

The panel concluded that the FLSA did not require an employer to reimburse any of these expenses, but now the whole court will get to share the fun.

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Hat tip to Adam Schlossman over at the SCOTUSblog, to which I am daily drawn like moth to flame, for his concise post summarizing revisions to the Supreme Court Rules.  You can also read the Court's own memorandum (pdf) concerning the new rule changes.

Here, in the sidebar of the Appellate Record, you can also find:

• Links to the current Supreme Court Rules;
• Links to other federal resources including rules, court websites, statutes and regulations;
• Links to other Texas resources including state court rules, websites, statutes and regulations; and
• Online legal research tools

More fun than a lawyer ought to be allowed to have.

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