Wilson Industries, Inc., In re, No. 89-2807

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before POLITZ, JONES, and DUHE; EDITH H. JONES
• Citation: 886 F.2d 93
• Parties: In re WILSON INDUSTRIES, INC., Petitioner.
• Docket Number: No. 89-2807
• Decision Date: 03 October 1989

Page 93

886 F.2d 93 1990 A.M.C. 1520 In re WILSON INDUSTRIES, INC., Petitioner. No. 89-2807. United States Court of Appeals,
Fifth Circuit. Oct. 3, 1989.

Page 94

Kenneth C. Engerrand, Brown, Sims, Wise & White, Houston, Tex., for petitioner.

Lynn N. Hughes, Houston, Tex., for respondents.

David W. Holman, Richard LaGarde, Fisher, Gallagher, Perrin & Lewis, Houston, Tex., for David A. Hippler.

Jeffrey H. Marsh, Mattingly & Marsh, Houston, Tex., for Services Equipment and Engineering, Inc.

Robert J. Rose, Sr., Hubert Oxford, III, Benckenstein, Oxford, Radford & Johnson, Beaumont, Tex., for Insurance Co. of North America.

Raymond T. Matthews, Michael Ross Thompson, Tekell, Book, Matthews & Limmer, Houston, Tex., and Robert L. Klawetter, Eastham, Watson, Dale & Forney, Houston, Tex., for Union Oil Co. of California.

Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before POLITZ, JONES, and DUHE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

We decline to grant a writ of mandamus, and therefore sanction the remand of a case that had progressed for over 18 months in state court before a newly-joined third-party defendant removed it to federal court. This is not, however, a simple task. The district court's reasoning in ordering remand was deficient. Moreover, in attempting to remove the case, the third-party defendant has undoubtedly ordained further delay and significantly increased costs in the litigation. No other party to the action sought removal. The tail should not wag the dog in this fashion, and it is lamentable that the nuances of federal removal jurisdiction should have needlessly preoccupied the parties.

In the originally filed action, plaintiff Hippler sought damages for injuries from an accident he suffered when he fell to the deck of the floor of a drilling rig located on the Outer Continental Shelf. He joined three defendants, and pled among other things a cause of action for breach of a federal statutory duty pursuant to 43 U.S.C. Sec. 1348. Long after the case commenced, one defendant, Union Oil Company of California, filed a third-party petition against Wilson Industries, Inc. seeking contribution and/or indemnity from Wilson.

Wilson promptly filed a petition for removal. Wilson alleged that the third-party petition stated a separate and independent claim or cause of action over which the federal court had original jurisdiction under 28 U.S.C. Sec. 1331 and the Outer Continental Shelf Lands Act, 43 U.S.C. Sec. 1349(b)(1). Removal was allegedly based upon 28 U.S.C. Sec. 1441(c), ¹ inasmuch as our

Page 95

Court had previously held that a third-party defendant joined on a contractual indemnity claim may effect removal of the entire action to federal court. Carl Heck Engineers v. LaFourche Parish Police, 622 F.2d 133 (5th Cir.1980). ²

The plaintiff and Union Oil sought remand. Shortly before the court's scheduled hearing on the motion to remand, Union Oil elected to drop its claim for indemnity against Wilson in an attempt to eliminate the "separate and independent claim" which justified removal pursuant to Sec. 1441(c). See Carl Heck Engineers, supra. The district court liked Union Oil's suggestion, and the transcript of the hearing on the remand motion demonstrates that the district court felt that elimination of this claim provided an adequate basis for remand. Later, in a written order denying reconsideration of the motion to remand, the district court elaborated upon its reasoning and further sought to justify remand according to the Supreme Court's recent decision in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). The court read Cohill to stand for the proposition that:

Once the predicate for removal has been eliminated, the removal statute does not prohibit the court from remanding a case that was properly removed for resolution of the pendent claims [citing Cohill ]. Similarly, the court has discretion to remand a case where the removal was based upon a claim later abandoned, despite the pendency of federal claims in the principal action. In exercising this discretion, the court considers principles informing the pendent jurisdiction doctrine: economy, convenience, fairness, and comity.

Although mandamus is an extraordinary remedy, it may be granted to vacate a remand order which is based on reasons not authorized by statute. 28 U.S.C. Sec. 1447(d); See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). The...