Auto Transportes Gacela S.A. De C v. v. Border Freight Distributing & Warehouse, Inc.

S.D. Texas

Auto Transportes Gacela S.A. De C v. v. Border Freight Distributing & Warehouse, Inc.

792 F. Supp. 1471, 1992 U.S. Dist. LEXIS 14210, 1992 WL 150767

CourtDistrict Court, S.D. Texas

DecidedJune 23, 1992

DocketCiv. A. L-92-64

StatusPublished

Cited by14 cases

This text of 792 F. Supp. 1471 (Auto Transportes Gacela S.A. De C v. v. Border Freight Distributing & Warehouse, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Auto Transportes Gacela S.A. De C v. v. Border Freight Distributing & Warehouse, Inc., 792 F. Supp. 1471, 1992 U.S. Dist. LEXIS 14210, 1992 WL 150767 (S.D. Tex. 1992).

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Opinion

MEMORANDUM AND ORDER

KAZEN, District Judge.

Pending is Plaintiffs motion to remand this case to state court. This case was not removed by the original Defendants but rather by the Third-party Defendant, Mattel, Inc. The original Defendants, who did not join in the removal notice, have been in the case since 1990. Although there appears to be diversity of citizenship between them and the Plaintiff, they could not have removed because the Donovan Defendants are Texas citizens. 28 U.S.C. § 1441(b).

Mattel contends that removal is justified under the authority of Carl Heck Engineers v. Lafourche Parish Police, 622 F.2d 183 (5th Cir.1980). That decision allowed removal by a third-party defendant under the “separate and independent claim” provision of 28 U.S.C. § 1441(c). That provision, however, has been recently amended, and the amendment removes the underpinnings of the Lafourche decision. Under the current version of § 1441(c), a “separate and independent claim” can justify removal only if that claim is within the jurisdiction conferred by 28 U.S.C. § 1331, i.e., federal question jurisdiction. The Court finds nothing in the pleadings of this case raising federal question jurisdiction nor does Mattel claim such jurisdiction. Instead, Mattel relies solely upon § 1332, diversity of citizenship. Therefore, removal under § 1441(c) would no longer be available.

There is a second reason why this case is not removable. The same recent amendments to the removal statutes also provide that a case may no longer be removed on the basis of § 1332 jurisdiction “more than 1 year' after commencement of the action.” Section 1446(b). The file reflects that this case was originally filed in state court on March 14, 1990. The original Defendants were served in April, 1990. The removal by Mattel occurred on May 13, 1992, more than 1 year after the commencement of the state court action.

For both of the foregoing reasons, the motion to remand is GRANTED.

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MEMORANDUM AND ORDER

KAZEN, District Judge.

Pending is Plaintiffs motion to remand this case to state court. This case was not removed by the original Defendants but rather by the Third-party Defendant, Mattel, Inc. The original Defendants, who did not join in the removal notice, have been in the case since 1990. Although there appears to be diversity of citizenship between them and the Plaintiff, they could not have removed because the Donovan Defendants are Texas citizens. 28 U.S.C. § 1441(b).

Mattel contends that removal is justified under the authority of Carl Heck Engineers v. Lafourche Parish Police, 622 F.2d 183 (5th Cir.1980). That decision allowed removal by a third-party defendant under the “separate and independent claim” provision of 28 U.S.C. § 1441(c). That provision, however, has been recently amended, and the amendment removes the underpinnings of the Lafourche decision. Under the current version of § 1441(c), a “separate and independent claim” can justify removal only if that claim is within the jurisdiction conferred by 28 U.S.C. § 1331, i.e., federal question jurisdiction. The Court finds nothing in the pleadings of this case raising federal question jurisdiction nor does Mattel claim such jurisdiction. Instead, Mattel relies solely upon § 1332, diversity of citizenship. Therefore, removal under § 1441(c) would no longer be available.

There is a second reason why this case is not removable. The same recent amendments to the removal statutes also provide that a case may no longer be removed on the basis of § 1332 jurisdiction “more than 1 year' after commencement of the action.” Section 1446(b). The file reflects that this case was originally filed in state court on March 14, 1990. The original Defendants were served in April, 1990. The removal by Mattel occurred on May 13, 1992, more than 1 year after the commencement of the state court action.

For both of the foregoing reasons, the motion to remand is GRANTED.

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Bluebook (online)

792 F. Supp. 1471, 1992 U.S. Dist. LEXIS 14210, 1992 WL 150767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-transportes-gacela-sa-de-c-v-v-border-freight-distributing-txsd-1992.

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