Jostens Learning v. Rio Grande City Con

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

_________________

No. 99-41312

(Summary Calendar)
_________________

IN THE MATTER OF: ROGELIO D. CAMPOS; MARIA E.
CAMPOS,

Debtors

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JOSTENS LEARNING CORPORATION; J L C FINANCIAL;
MARUCA CAMPOS, Individually and as regional Marketing
Manager of Jostens Learning Corporation and J L C Financial; JESSE
G RODRIGUEZ, Individually and as Vice President of Jostens
Learning,

Appellants,

versus

RIO GRANDE CITY CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT,

Appellee.

Appeal from the United States District Court
For the Southern District of Texas
(B:99-CV-157)
 September 27, 2000

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

This appeal stems from a bankruptcy court order remanding this case to state court. For the

reasons below, we reverse the judgment of the district court and remand for consideration of this case

under the district court’s diversity jurisdiction.

I.

In 1994, the Rio Grande City Consolidated Independent School District (“the District”)

awarded Jostens Learning Corporation and JLC Financial (collectively “Jostens”)1 a contract to

provide computer hardware and software systems for the District’s schools. In response to alleged

problems with the provided equipment, the District filed suit in Texas state court, alleging several

causes of action under Texas state law: breach of contract, negligence, civil conspiracy, fraud, and

violations of the Texas Deceptive Trade Practices Act, TEX. BUS. & COM. CODE § 17.41 et seq. As

defendants, the District named Jostens and JLC as well as Acer America Corporation (“Acer”),2

which had supplied the hardware, and Maruca Campos and Jesse Rodriguez, employees of Jostens

who had been involved in the transaction. All but Rodriguez were served with the complaint.

On March 12, 1997, Campos filed a Chapter 13 petition for bankruptcy. As a result,

*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
Both Jostens and JLC are incorporated in Illinois and have their primary place of
business in California.
2
Acer is a California corporation both by site of incorporation and by its primary place
of business.

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defendants removed the entire suit to federal bankruptcy court, claiming federal jurisdiction because

the District’s computer case “ar[ose] in or [was] related to” the bankruptcy. See 28 U.S.C. § 1334(b).

The District contested federal jurisdiction in two ways. First, it filed a motion to remand,

assert ing that Campos’s role in the transaction was minimal and, accordingly, that the state court

lawsuit did not satisfy the “related to” prong of § 1334(b). Second, the District attempted to amend

its complaint, eliminating claims against Campos and Rodriguez in their individual capacities but

retaining the lawsuits against these Texas employees in their official capacities.3 The defendants, in

turn, filed a supplemental petition for removal, asserting that federal jurisdiction was proper on the

basis of diversity, see 28 U.S.C. § 1332,4 as well as bankruptcy. After defendants claimed diversity

jurisdiction, the District again attempted to amend its complaint, asserting that its removal of claims

against Rodriguez was done “inadvertently,” and attempting to reassert its claims against Rodriguez.

In a brief order, the bankruptcy court granted the District’s motion to remand to state court.

The court held that it had the power to enter a remand order under 28 U.S.C. § 1334 and § 1452, and

specifically noted that the case contained primarily state causes of action and involved “no unique

federal bankruptcy law.” The court did not address the defendant’s supplemental removal petition,

or diversity jurisdiction, in rendering its decision. Though the bankruptcy court temporarily granted

3
In its motion for leave to file a second amended complaint, the District argued that
“The basis for this motion is to remove any mention of claims against Defendant Maruca Campos and
Defendant Jessie Rodriguez, Individually, in order to conform to the facts of this case. As appear
[sic] on the face of the Plaintiff’s petition any reference to these two Defendants relate [sic] to their
roles as agents.”
4
Jostens and JLC posited that “Jurisdiction is proper in the Bankruptcy Court, pursuant
to 28 U.S.C. §1334, as the Defendants have alleged in their Application and Notice of Removal.
However, in the event that a finding is made that the Bankruptcy Court lacks jurisdiction for any
reason, jurisdiction is proper in the federal district court on the basis of diversity of the parties.”

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defendants’ motion for rehearing and listened to argument, including the argument that diversity

jurisdiction existed, the bankruptcy court failed to rule on the diversity issue, claiming that the grant

of rehearing was entered “inadvertently.”

The district court adopted the opinion of the bankruptcy court as its own. We granted a stay

pending appeal, reasoning that “[a] serious question is presented whether the district court overlooked

appellants’ supplemental removal petition based on diversity of citizenship.”

II.

We lack jurisdiction to consider the appeal of the district court’s remand order insofar as the

removal was accomplished under 28 U.S.C. § 1452(a). The district court remanded the case under

28 U.S.C. § 1452(b), which provides:

The court to which such claim or cause of action is removed may remand such claim
or cause of action on any equitable ground. An order entered under this subsection
remanding a claim or cause of action, or a decision to not remand, is not reviewable
by appeal or otherwise by the court of appeals under section 158(d), 1291 or 1292
of this title . . .

28 U.S.C. § 1452(b) (emphasis added). The bankruptcy court cited several equitable grounds in

support of its remand o rder, including: protection of the right to a jury trial, the fact that the case

involved primarily state contract law, and that the state court was familiar with the facts because the

case was pending in state courts for eight months before it was removed. The district court adopted

this opinion as its own, and we have previously held such decisions to remand unreviewable in cases

relating to bankruptcy. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 455 (5th Cir. 1996) (holding

decision not to remand unreviewable); Sykes v. Texas Air Corp., 834 F.2d 488, 489-92 (5th Cir. 1987)

(describing an “absolute bar against appeal from decisions to remand or not under § 1452(b)”); In the

Matter of Rayburn Enterprises, 781 F.2d 501, 502-03 (5th Cir. 1986) (“Because 1452(b) therefore

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bars a consideration of this case’s merits, the appeal is dismissed.”).

However, this does not dispose of the entire case. Jostens argues that the district court abused

its discretion in failing to exercise its diversity jurisdiction, and that even if the lower courts correctly

dismissed bankruptcy jurisdiction for equitable reasons, they had no authority to neglect to exercise

their diversity jurisdiction. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 455 n.3 (5th Cir. 1996) (noting

that once the bankruptcy remand power is employed, a federal court’s authority to retain jurisdiction

over a case “switches” to whatever other basis of federal jurisdiction may be appropriate).

Accordingly, because the district court could have retained jurisdiction over the case assuming it had

diversity, we have jurisdiction to review its failure to entertain the case on that ground.5 See id.

III.

It is well-settled that diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity.

See Strawbridge v. Curtiss, 3 Cranch 267, 2 L. Ed. 435 (1806). Accordingly, the removal statute

provides that diversity cases “shall be removable only if none of the parties in interest properly joined

and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. §

1441(b) (emphasis added).

The propriety of removal is evaluated at the time the removal petition is filed. See Texas Beef

Group v. Winfrey, 201 F.3d 680, 685 (5th Cir. 2000). At the time Jostens filed its supplemental

petition for removal based on diversity, the parties “properly joined and served as

5
The general statute forbidding appellate review of remand orders, 28 U.S.C. §
1447(d), does not deprive us of jurisdiction. That provision only deprives us of jurisdiction over
remand orders premised on a perceived lack of subject matter jurisdiction or a defect in removal
procedure. See Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 116 S. Ct. 1712, 135 L. Ed.
2d 1 (1996); Webb v. B.C. Rogers Poultry, Inc., 174 F.3d 697, 700 (5th Cir. 1999). Since this remand
order was premised on the bankrupt cy court’s “equitable” powers, § 1447(d) does not forbid
appellate review.

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defendants”—Jostens and JLC (both California and Illinois corporations) and Acer (a California

corporation)—were all completely diverse from plaintiff, a Texas entity.6 After Jostens filed this

petition, the District again attempted to amend its complaint, reinstating its claims against Rodriguez

(and, for the first time, serving him with a complaint) in an effort to defeat diversity. However, at the

time the removal petition based on diversity was filed, Rodriguez was not a defendant. Therefore,

even assuming the District’s attempt to reinstate Rodriguez into the case did not constitute fraudulent

joinder, the later amendment of the District’s complaint did not defeat diversity at the time the removal

petition was filed.

Accordingly, diversity jurisdiction existed at the time Jostens filed its petition for removal based

on diversity, and “federal courts have a strict duty to exercise the jurisdiction that is conferred upon

them by Congress.” Quackenbush, 517 U.S. at 716, 116 S. Ct. 1712. For this reason, we REVERSE

the judgment of the district court and remand to that court for consideration on the merits under the

court’s diversity jurisdiction.

6
Jostens’s efforts to employ diversity jurisdiction are not hampered by the lack of
diversity jurisdiction at the time the initial complaint was filed. As the Supreme Court has held, “[i]n
a case not originally removable [on diversity grounds], a defendant who receives a pleading or other
paper indicating the postcommencement satisfaction of federal jurisdictional requirements—for
example, by reason of the dismissal of the nondiverse party—may remove the case to federal court
within 30 days of receiving such information.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69, 117
S. Ct. 467, 136 L. Ed. 2d 437 (1996). Therefore, defendants’ supplemental petition properly noted
that the occurrence of specific events—the District’s renouncing its intention to seek recovery against
Campos and Rodriguez—had created complete diversity.

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