Vasquez v. Alto Bonito Gravel Plant Corp., No. 92-7678

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: E. GRADY JOLLY
• Citation: 56 F.3d 689
• Parties: Carolina VASQUEZ, et al., Plaintiffs-Appellants, v. ALTO BONITO GRAVEL PLANT CORPORATION and Caterpillar, Inc., Defendants-Appellees.
• Docket Number: No. 92-7678
• Decision Date: 03 July 1995

Page 689

56 F.3d 689 Carolina VASQUEZ, et al., Plaintiffs-Appellants,
v.
ALTO BONITO GRAVEL PLANT CORPORATION and Caterpillar, Inc.,
Defendants-Appellees. No. 92-7678. United States Court of Appeals,
Fifth Circuit. July 3, 1995.

Page 690

Luther T. Munford, Angela M. McLain, Phelps, Dunbar, Jackson, MS, Tony Martinez, Brownsville, TX, Kathryn Snapka, Corpus Christi, TX, A.A. Munoz, II, David Hockemen, Munoz, Hockeman & Reed, McAllen, TX, for Vasquez and Aida Mae Vasquez.

JoAnn Storey, Maxine Haney, Legal Asst. Womble & Spain, Houston, TX, for Caterpillar, Inc.

William L. Hubbard, Roy S. Dale, Katie Pearson Klein, McAllen, TX, for Alto Bonito.

Appeals from the United States District Court for the Southern District of Texas.

Before VAN GRAAFEILAND, ^* JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This wrongful death case requires us to determine whether a case becomes removable from a Texas state court under our diversity jurisdiction once the plaintiffs and the nondiverse defendant negotiate a settlement. Applying Texas law, we hold that it does not become removable and that the district court should have remanded this case to state court because, although the nondiverse defendant and the plaintiffs may have negotiated an agreement to settle, the settlement had not become irrevocable under Texas law. Absent such an irrevocable settlement, the nondiverse defendant remained a party to the case. As a consequence, complete diversity of citizenship was lacking at the time of removal and the district court was without subject matter jurisdiction. Accordingly, we vacate the judgment of the district court and remand with instructions to remand this case to the state court.

I

This case arises from the death of Efren Vasquez. Vasquez, a truck driver, was killed on March 26, 1986, on the premises of Alto Bonito Gravel Plant Corporation ("Alto Bonito"); he had been using their front-end loader to load his truck with gravel and sand when the loader ran over him, crushing his chest. The loader was manufactured by Caterpillar, Inc. ("Caterpillar"). Invoking Texas's wrongful death statute, Vasquez's estate, widow, adult children, minor child, and parents (collectively, the "Vasquezes") sued Alto Bonito and Caterpillar in Texas state court. By leave of court, Alto Bonito filed a third-party indemnity complaint against Caterpillar.

On April 15, 1988, exactly a year from the date the suit was filed, and ten days before trial, Caterpillar filed a notice of removal pursuant to 28 U.S.C. Sec. 1446(b). This statute permits a diverse defendant to file a notice of removal "within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable." Pointing to responses it had received twenty-five days earlier to interrogatories propounded to fellow defendant Alto Bonito, Caterpillar stated in its notice of removal that all of the Vasquezes' claims against Alto Bonito "had been settled." ¹ As

Page 691

a result of the settlement, Caterpillar asserted, it was the sole remaining defendant, and, furthermore, because it is diverse from the Vasquezes and the amount in controversy exceeds the jurisdictional threshold, it was entitled under Sec. 1446(b) to remove the case to federal court under our diversity jurisdiction.

The Vasquezes moved to remand the case to state court, asserting that the district court was without jurisdiction because both they and Alto Bonito are citizens of Texas. They stated that "there is still a bona fide dispute with" Alto Bonito "despite a partial settlement agreement between the defendants and the plaintiffs." In a supplemental motion, the Vasquezes stated that "there has been no settlement of any claims between the plaintiffs and defendant Alto Bonito."

After a hearing on the Vasquezes' motion to remand, the district court authorized thirty days of discovery to determine whether

Page 692

there was a settlement. Then, after discovery was complete, the court denied the motion to remand and entered an order stating that "[s]everal facts, in combination, lead the Court to believe that Plaintiffs had settled with Alto Bonito." In support of that determination, the court referred specifically to statements by Alto Bonito's counsel that he believed there was a settlement, and that he had discontinued activity in this case without objection or comment by the Vasquezes. In addition, the court referred to Alto Bonito's earlier answers to the interrogatories "stat[ing] that Plaintiffs had settled their lawsuit with Alto Bonito"; and the Vasquezes' failure to "contest or object to th[ese] answer[s] until after Caterpillar filed its petition for removal and Plaintiffs apparently realized the effect of the settlement agreement on this court's jurisdiction." (Emphasis by the district court). Finally, the court stated, "Plaintiffs have been inconsistent in first alleging there was a partial settlement and later alleging that there was no settlement," and that "[t]his inconsistency impeaches Plaintiffs' evidence and argument." As a consequence, the district court found, "Plaintiffs finally and voluntarily settled their lawsuit with Alto Bonito."

Alto Bonito later obtained stipulated dismissals from all of the Vasquezes except Vasquez's widow and minor child. The district court then granted Alto Bonito's motion that was captioned "Motion for Summary Judgment, Motion to enforce Settlement Agreement or in the Alternative, Motion for Equitable Relief" as to all the Vasquezes, including the widow and minor child. The court never ruled on Alto Bonito's cross-claim against Caterpillar, however, or formally dismissed it from the suit. The remainder of the suit was tried to a jury in August 1992, which returned a take-nothing verdict. ² This appeal followed.

II

The issue in this case is whether the district court erred when it ruled that this case was properly removable under diversity jurisdiction. The question is simply whether, at the time of removal, the plaintiffs effectively "ha[d] taken the resident defendant out of the case, so as to leave a controversy wholly between the plaintiff[s] and the nonresident defendant." American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 316, 35 S.Ct. 355, 356, 59 L.Ed. 594 (1915). ³

A

As an initial matter, Caterpillar differs with both Alto Bonito and the Vasquezes over the applicable standard of review. Caterpillar urges that, because the district court's denial of the Vasquezes' motion to remand rested upon certain findings of fact, we are bound to affirm the district court's decision absent clear error. Our cases flatly reject Caterpillar's position, however: "Because removal is an issue of statutory construction, we review a district court's determination of the propriety of removal de novo." Leffall v. Dallas Ind. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994). We impose upon the removing defendant--here, Caterpillar--the burden of establishing the existence of subject matter jurisdiction. Jernigan v. Ashland Oil Co., 989 F.2d 812, 815 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993). Accordingly, unless Caterpillar can show that at the...