Williams v. AC Spark Plugs Div. of General Motors Corp.

• Decision Date: 11 March 1993
• Docket Number: No. 92-1567,92-1567
• Parties: 124 Lab.Cas. P 10,592 Gilda F. WILLIAMS, Plaintiff-Appellant, v. AC SPARK PLUGS DIVISION OF GENERAL MOTORS CORPORATION, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 783

985 F.2d 783

124 Lab.Cas. P 10,592

Gilda F. WILLIAMS, Plaintiff-Appellant, v. AC SPARK PLUGS DIVISION OF GENERAL MOTORS CORPORATION Defendant-Appellee.

No. 92-1567

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 11, 1993.

S. Lynn Blakeman, Dena M. Kashiwamura, Wilson, Williams & Molberg, Dallas, TX, for plaintiff-appellant.

H. Carter Burdette, Cantey & Hanger, Fort Worth, TX, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Gilda Williams appeals a judgment dismissing her claims against the AC Spark Plugs Division of General Motors Corporation ("GM"). She argues that the district court had no jurisdiction and that its findings are vague and incorrect. We affirm.

I.

Williams started to work at GM's Wichita Falls, Texas, plant in 1979. She is a citizen of Texas; GM is incorporated in Delaware and has its principal place of business in Michigan. In May 1986, Williams developed pain in her wrist and arm, which her family doctor diagnosed as work-related carpal tunnel syndrome. Her doctor restricted her to perform only light duty work. Apparently, rather than putting Williams on light duty work, her supervisor at GM told her to "float around."

On May 7, 1987, Williams began a medical leave of absence. From that time until May 1988, she received workers' compensation benefits. In May and July 1987, she underwent surgery on both arms. On April 25, 1988, she returned to her job but did not work a full day, because she experienced pain and swelling in her fingers. She returned to work the next day but was not able to complete either the loading or unloading positions to which she was assigned. After half a day, she left work and did not return.

Williams's doctor sent a letter on April 28, 1988, to inform GM that he was placing her on sick leave. On May 12, the doctor wrote a letter to GM stating that he was releasing Williams to return to light work. Williams did not return to work. She claims that she believed her doctor had put her back on medical leave.

On May 18, GM sent Williams a letter pursuant to the collective bargaining agreement between GM and her union, informing her that if she did not return to work, her seniority would be broken. GM sent another letter to the same effect on May 24. On June 6, GM sent a final letter to Williams advising her that her seniority was broken because she had not returned to work. Williams testified that she was terminated on June 5; GM maintains that she voluntarily quit her job as of June 6.

Williams's doctor wrote a letter, dated May 20, 1988, which stated that he considered Williams to be on medical leave pending further evaluation. The envelope containing this letter had a postmark of May 23 and a postage meter mark of June 23. Two GM employees testified that GM did not receive this letter until after June 6. The district court concluded that the June 23 postmark "was the one accurately mailed the date of posting."

On May 31, 1990, Williams filed suit against GM in Texas state court, alleging that GM had terminated her in violation of the Texas Workers' Compensation Act, TEX.REV.CIV.STAT.ANN. art. 8307c, and that GM had wrongfully discharged her with malice and without just cause in violation of state common law. On July 12, 1990, GM filed a notice of removal, contending that it was allowed to remove the case based upon diversity of citizenship under 28 U.S.C. § 1441(a) and the existence of a federal question under 28 U.S.C. § 1441(b). ¹ As the basis for federal question jurisdiction, Williams's pleadings contained a claim dependent upon an analysis of the terms of the collective bargaining agreement covering her employment, a contract within the ambit of 29 U.S.C. § 185(a). ² Williams took no action to remand the case within thirty days of its removal.

On December 11, 1991, more than a year after removal, the district court ordered the parties to address the question of whether it should remand. On February 27, 1992, the court refused to remand, deciding diversity jurisdiction existed, notwithstanding any initial pleading inadequacies, and that removal was proper because the parties' dispute was governed by the collective bargaining agreement, so that section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, preempted Williams's claims under article 8307c.

At a pretrial conference on June 1, Williams abandoned all of her state common law claims, leaving only her article 8307c claim. The next day, the district court filed an order dismissing with prejudice all of Williams's claims, except the article 8307c claim. On June 3, Williams reasserted her position that the district court ought to remand the case to state court.

A bench trial took place on June 8. The court refused to find that GM had discharged Williams because she filed a workers' compensation claim. It also refused to find that GM willfully or maliciously had discharged Williams in violation of the Texas Workers' Compensation Act. The court also noted that section 301 did not preempt Williams's article 8307c claim. The court entered final judgment on June 9, directing that Williams take nothing.

II.

We first examine the question of jurisdiction. Under 28 U.S.C. § 1445(c), a defendant may not remove a civil action arising under a state's workers' compensation laws. ³ This statute does not, however, resolve the issue.

We turn to 28 U.S.C. § 1447(c), which states,

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded....

This statute makes a distinction between procedural defects in removal and lack of subject matter jurisdiction. If a plaintiff finds fault with a procedural element in removal, he has only thirty days in which to make a motion to remand. On the other hand, if he asserts that the federal court lacks subject matter jurisdiction, he may move to remand at any time before final judgment.

The crucial issue in this case, then, is whether GM's removal was a procedural defect that required Williams to move for remand within thirty days. We conclude that the statutory restriction against removal is not a matter of substantive jurisdiction, but rather a procedural defect that Williams waived.

This court has never addressed the issue of a defect in removal under section 1445(c). We have, however, examined removals under section 1445(a), which bars removal of, among other actions, a Jones Act (46 U.S.C. § 688) claim filed in state court. ⁴

In Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc), a worker sued his employer in state court, alleging negligence under the Jones Act. The defendant removed to federal court, and the plaintiff made no motion to remand within thirty days. Id. We held that the section 1445(a) "bar to removal may be waived by a litigant's failure to object to such removal in district court." Id. We reasoned that when an action is initially removed improperly and the case is tried on its merits, the subsequent issue becomes " 'not whether the case was properly removed, but whether the federal district court would have had jurisdiction of the case had it been filed in that court.' " Id. (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972)).

In In re Shell Oil Co., 932 F.2d 1518, 1521 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 914, 116 L.Ed.2d 814 (1991), we considered whether removal in violation of 28 U.S.C. § 1441(b), ⁵ which prohibits removal if any defendant is a citizen of the state in which the action was brought, is a defect in removal procedure under section 1447(c). The plaintiffs sued several defendants, including two Texas citizens, in Texas state court, and all of the defendants joined in removal to federal court. 932 F.2d at 1518. Thirty-three days after removal, the plaintiffs moved to remand because of the presence of the two Texas defendants; the district court remanded. Id.

We confronted the question of what the language "any defect in removal procedure" in section 1447(c) means. Id. at 1521. We first acknowledged the distinction between defects in removal procedure and lack of subject matter jurisdiction, Id. at 1522, then noted that section 1447(c) " 'requires remand on any ground other than lack of subject matter jurisdiction to be sought within 30 days of the filing of a notice of removal.' " Id. (quoting 14A CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3739, at 95 (2d ed. Supp.1990)). We concluded that "any defect in removal procedure" includes any nonjurisdictional defect that existed at the time of removal. Id. We held that since the presence of Texas defendants--not allowed under section 1441(b)--was not a problem of subject matter jurisdiction, the plaintiffs had waived their objection to the improper removal by waiting more than thirty days to move for a remand. Id. at 1523. ⁶

In Baris v. Sulpicio Lines, 932 F.2d 1540, 1543 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991), we confronted the issue of whether a plaintiff waived his right to challenge a possibly improper removal of an action under the "saving to suitors" clause of 28 U.S.C. § 1333(1) ⁷ because he had failed to file a motion for remand within thirty days after removal as section 1447(c) requires. Alluding once more to the difference between a procedural defect and subject matter jurisdiction, we declared that a procedural defect "is any defect that does not go to the question of whether the case originally could have been brought in federal district court...." 932 F.2d at 1544. A plaintiff may waive an...