Exxon Mobil Corporation v. Starr Indem & Liab Ins ( 2018 )

Case: 16-20821 Document: 00514402479 Page: 1 Date Filed: 03/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20821 FILED
March 26, 2018
Lyle W. Cayce
EXXON MOBIL CORPORATION, Clerk
Plaintiff–Appellee,
v.
STARR INDEMNITY & LIABILITY INSURANCE COMPANY; NATIONAL
UNION INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA;
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,
Defendants–Appellants.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-1555
Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Two employees of an Exxon Mobil Corp. (Exxon) contractor were injured
while working at an Exxon refinery. After one of the employees filed suit in
Texas state court (Roberts), Exxon impleaded The Insurance Company of the
State of Pennsylvania (ICSOP), which insured Exxon’s contractor against
workers’ compensation claims, and sought a declaratory judgment that ICSOP
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-20821
had contractually waived its subrogation rights. ICSOP counterclaimed,
seeking declaratory and monetary relief for claims related to its subrogation
rights. While this suit was pending, Exxon filed another suit in Texas state
court (Starr), asserting the same claim against ICSOP as well as claims
against Starr Indemnity & Liability Insurance Company (Starr Indemnity),
and National Union Insurance Company of Pittsburgh, Pennsylvania
(National Union) (collectively, Insurers). The insurance companies attempted
to remove Starr to federal court, but because Exxon’s claim against ICSOP
arose under Texas workers’ compensation law, 28 U.S.C. § 1445(c) prohibited
removal and the federal district court remanded.
The Texas state trial court in Roberts then issued a judgment in favor of
Exxon on its impleader claim against ICSOP, after which ICSOP again sought
to remove Starr to federal district court. The district court denied Exxon’s
subsequent motion to remand, holding that the res judicata effect of the state
trial court judgment in Roberts “dissolved” Exxon’s non-removable claim
against ICSOP. Approximately one year after this second removal, however, a
Texas appellate court reversed the state court’s judgment in Roberts and
remanded for further proceedings. 1 The district court reasoned that the state
appellate judgment “revived” the non-removable claim and divested the
district court of subject matter jurisdiction, and therefore the district court
remanded the case to state court.
The Insurers now appeal that remand order. Exxon moves to dismiss for
lack of appellate jurisdiction. For the following reasons, we conclude that we
lack jurisdiction over the appeal and therefore grant Exxon’s motion to dismiss.
1 Ins. Co. of the State of Pa. v. Roberts, 506 S.W.3d 498, 508 (Tex. App.—Houston [1st
Dist.] 2016, pet. denied, reh’g of pet. for review filed).
2
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I
The Insurers have the burden of establishing this court’s jurisdiction
over this appeal. 2 Generally, under 28 U.S.C. § 1447(d), “[a]n order remanding
a case to the State court from which it was removed is not reviewable on appeal
or otherwise.” 3 Appellate review is available only if the district court “clearly
and affirmatively” invokes a ground for remand not specified in 28 U.S.C.
§ 1447(c). 4 Under § 1447(c), remand is required for lack of subject matter
jurisdiction and permitted if the plaintiff makes “[a] motion to remand the case
on the basis of any defect other than lack of subject matter
jurisdiction . . . within 30 days after the filing of the notice of removal.” 5
Section 1447(d)’s reviewability bar therefore does not apply to cases in which
the plaintiff moved for remand, based on a procedural defect in removal, more
than thirty days after the filing of the notice of removal. 6 Under 28 U.S.C.
§ 1445(c), claims arising under the forum state’s workers’ compensation laws
“may not be removed to any district court of the United States,” 7 but “[a]
statutory restriction against removal like the one in § 1445(c) is a defect in
removal procedure under § 1447(c),” not a jurisdictional defect. 8 This court
must constrain its threshold jurisdictional review to a determination of “what
2 See Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 370 (5th Cir. 2013).
3 28 U.S.C. § 1447(d).
4 Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 600 (5th Cir.
2009); accord Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568,
572 (5th Cir. 2006) (“Our inquiry is guided by a clear statement requirement: for a remand
order to be reviewable on appeal, the district court must ‘clearly and affirmatively’ state a
non-§ 1447(c) ground for remand.”).
5 28 U.S.C. § 1447(c).
6 FDIC v. Loyd, 955 F.2d 316, 320-21 (5th Cir. 1992).
7 28 U.S.C. § 1445(c).
8 Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 371 (5th Cir. 2013) (alteration
in original) (quoting Meeks v. Swift Transp., Inc., 398 F. App’x 980, 982 (5th Cir. 2010)
(unpublished) (per curiam)).
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the district court perceived it was doing, as ‘no matter how erroneous,’ a
remand order based on a § 1447(c) ground precludes review on appeal.” 9
II
The Insurers argue that the district court, despite stating that it “must
remand” for lack of subject matter jurisdiction, actually based its remand on
the revival of the claim asserted against ICSOP arising under Texas’s workers’
compensation laws. They assert, correctly, that the presence of the revived
claim is a procedural defect in removal outside the scope of § 1447(c) because
Exxon did not raise it in a remand motion within thirty days of the removal. 10
The Insurers, however, cannot evade the reviewability bar of § 1447(d) by
establishing this defect.
In its order, the district court repeatedly invoked its perceived lack of
subject matter jurisdiction as the basis for the remand. It is clear that the
district court believed the presence of a claim arising under Texas’s workers’
compensation laws deprived it of jurisdiction. Indeed, each passage from the
district court’s order to which the Insurers point as a clear and affirmative
statement of a non-§ 1447(c) ground in fact expressly invokes that court’s
perceived lack of subject matter jurisdiction. This belief, however erroneous,
“sufficiently cloaks the remand order in the § 1447(c) absolute immunity from
review” and ends the inquiry. 11
9 Warrantech, 461 F.3d at 573 (quoting Arnold v. State Farm Fire and Cas. Co., 277
F.3d 772, 775 (5th Cir. 2001)); accord In re Bissonnet Invs. LLC, 320 F.3d 520, 524 (5th Cir.
2003) (“[Section] 1447(d) precludes all review of decisions to remand when based on a
perceived lack of subject matter jurisdiction, even if the district court erroneously believes it
lacks jurisdiction.”).
10 See Ernewayn, 727 F.3d at 371.
11 Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1028 (5th Cir. 1991).
4
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* * *
For the foregoing reasons, the appeal is DISMISSED for want of
jurisdiction.
5