IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-21006
_____________________
ALBERT GREEN; YOLANDA GREEN; SHIRLEY GREEN;
HOWARD CHARLES GREEN; DONNIE GREEN;
RONNIE GREEN; FANNIE MAE GREEN;
CHARLENE THOMAS; PRISCILLA BROWN;
JOYCE ROBINSON; CONNIE GREEN; CAROLYN GREEN;
CLARK GREEN, Individually, and as Heirs of the Estate of
Howard Green, Deceased,
Plaintiffs - Appellants,
versus
R. J. REYNOLDS TOBACCO COMPANY, Etc.; ET AL.
Defendants,
R. J. REYNOLDS TOBACCO COMPANY, a New Jersey Corporation;
PHILIP MORRIS INC., a Virginia Corporation;
BROWN & WILLIAMSON TOBACCO CORPORATION,
a Delaware Corporation; B&W (JAPAN) INC., a Corporation;
HEB BUTT GROCERY CO., a Texas Corporation,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 6, 2001
Before JOLLY, SMITH and WIENER, Circuit Judges.
PER CURIAM:
The heirs of Howard Green sued several tobacco manufacturers
and H.E.B. Butt Grocery Company (“H.E.B.”) in Texas state court for
Green’s wrongful death. The defendants removed the case to federal
court, which remanded. The defendants removed a second time,
citing new evidence and a decision in an unrelated case, and the
Greens sought remand. The district court denied the motion to re-
mand, granted judgment on the pleadings for the defendants, and
dismissed the suit. The Greens now appeal the refusal to remand,
contending that the second removal was procedurally improper.
Finding no error, we affirm.
I
After smoking a variety of cigarettes for nearly forty-nine
years, Green died in 1997 of cardiac arrest and chronic obstructive
pulmonary disease. A year later, his heirs (the “Greens”) filed
suit in state court against Philip Morris, Inc., R.J. Reynolds
Tobacco Company, Brown & Williamson Tobacco Corporation, and
H.E.B., asserting various state law theories of recovery related to
the dangerous and addictive nature of cigarettes and the cigarette
manufacturers’ failure to warn of that danger.1 The complaint
asserted only one specific allegation against H.E.B., that
“Plaintiff [Green] purchased cigarettes from an HEB Grocery near
his residence.”
The first removal asserted diversity jurisdiction under 28
U.S.C. § 1332. The Greens’ motion to remand was based on the
1
The plaintiffs alleged strict liability, breach of implied
warranty of fitness and merchantability, negligence, gross
negligence, res ipsa loquitur, fraud, fraudulent concealment, and
negligent misrepresentation.
2
contention that the joinder of H.E.B., a corporation with Texas
citizenship, destroyed complete diversity. In response, the
defendants argued that the plaintiffs fraudulently had joined
H.E.B. to defeat diversity jurisdiction, for there were no claims
plaintiffs could raise against H.E.B. in state court. The
defendants contended that the Texas Products Liability Act, Tex.
Civ. Prac. & Rem. Code § 82.004 (1997), precludes all claims raised
against H.E.B.; alternatively, defendants reasoned that the Federal
Cigarette Labeling and Advertising Act, as amended by the Public
Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-1334 (the
“Labeling Act”), preempts all state law claims against H.E.B.
The district court granted the motion to remand and, relying
on American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997),
held that § 82.004 does not bar all of the Greens’ state law claims
against H.E.B. The court also found that the defendants had failed
to prove that Green did not buy any cigarettes at H.E.B. before
1969, the point at which the Labeling Act first could have
preempted state law.
Shortly after the remand, this court decided Sanchez v.
Liggett & Myers, Inc., in which R.J. Reynolds, Philip Morris, and
Brown & Williamson were also defendants. 187 F.3d 486 (5th Cir.
1999). This court held that § 82.004 abrogated American Tobacco
and that the Labeling Act does preempt almost all claims against
tobacco manufacturers. Id. at 490-91. In addition, the defendants
3
produced a report from the Texas Department of Public Safety
(“DPS”) stating that Green lived in Houston until his death in
1997, and they proffered an affidavit from an H.E.B. employee
testifying that H.E.B. had no Houston locations until 1988.
Defendants argued that, at most, H.E.B. could be liable for the
last nine years of Green’s smoking, and, standing alone, this nine
year period was not sufficient to cause his death. The defendants
removed the case a second time, citing the new evidence and the
Sanchez opinion.
The Greens again moved for remand, this time arguing that the
second removal was improper under 28 U.S.C. § 1447(d), which, for
the most part, prohibits appeals of remand orders. The defendants
responded that both Fifth Circuit precedent and 28 U.S.C. § 1446(b)
permitted the court to entertain the second removal petition, so
§ 1447(d) was not a bar. The plaintiffs argued for the first time
in their reply brief, filed more than thirty days after the notice
of removal was filed, that the second removal was procedurally
improper under 28 U.S.C. § 1446(b), which allows removal petitions
to “be filed within thirty days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading,
motion, order, or other paper from which it may first be ascer-
tained that the case is one which is or has become removable . . .
.” We have construed § 1446(b) to permit second removal petitions.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.
4
1996).
The district court referred the case to a magistrate judge
(“MJ”), who found that either the Sanchez opinion or the combina-
tion of the H.E.B. affidavit and the DPS report provided sufficient
ground for removal under § 1446(b). The MJ also found that under
Sanchez, § 82.004 bars each of the Greens’ state law claims against
H.E.B. (and the other defendants), that the new evidence estab-
lishes that any state law claim for misrepresentation or fraudulent
concealment the Greens may have had against H.E.B. arose after 1969
and therefore was precluded by the Labeling Act, and that even
under American Tobacco, the Greens had failed to state a viable
claim against H.E.B.
On those alternative bases, the MJ recommended the district
court deny the motion to remand and grant judgment on the pleadings
to the defendants. The district court adopted the MJ’s recommenda-
tion. The Greens appeal the denial of the motion to remand.
II
A
The Greens argue that the second removal was improper because
the defendants did not satisfy § 1446(b)’s requirements for the
filing of second removal petitions. We review the denial of a
motion to remand de novo. S.W.S. Erectors, 72 F.3d at 492.
Section 1446(b) states,
If the case stated by the initial pleading
is not removable, a notice of removal may be
5
filed within thirty days after receipt by
the defendant, through service or otherwise,
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 . . . .
The district court held that our ruling in Sanchez permitted the
second removal petition. The question whether a decision in an
unrelated case can serve as the basis for removal under § 1446(b)
is res nova in this circuit.
Most other courts to address the issue have found court
decisions in unrelated cases not to constitute “orders” or “other
papers” under § 1446(b) and not to be grounds for removal. See,
e.g., Morsani v. Major League Baseball, 79 F. Supp. 2d 1331, 1333-
34 (M.D. Fl. 1999) (decision in an unrelated case is not an “order
or other paper” under § 1446(b); “plain language of the statute .
. . implies the occurrence of an event within the proceeding
itself”); Metropolitan Dade County v. TCI TKR of South Florida, 936
F. Supp. 958, 959 (S.D. Fl. 1996) (Federal Communications Commis-
sion opinion not “other paper” under § 1446(b)); Lozano v. GPE
Controls, 859 F. Supp. 1036, 1038 (S.D. Tex. 1994) (judicial
opinion in an unrelated case is not “other paper” under § 1446(b));
Kocaj v. Chrysler Corp., 794 F. Supp 234, 236 (E.D. Mich. 1992)
(opinion in unrelated case is not “other paper” under § 1446(b);
“[statutory] language plainly refers to items served or otherwise
given to a defendant in a state court case”); Holiday v. Travelers
Ins. Co., 666 F. Supp. 1286, 1289 (W.D. Ark. 1987) (recent Supreme
6
Court decisions not “other paper” under § 1446(b)); Hollenbeck v.
Burroughs Corp., 664 F. Supp. 280, 281 (E.D. Mich. 1987) (decision
in unrelated case is not other paper under § 1446(b), as the “other
paper” language focuses on voluntary actions of the plaintiff, not
factors beyond the plaintiff’s control); Johansen v. Employee
Benefit Claims, Inc., 668 F. Supp. 1294, 1296-97 (D. Minn. 1987)
(based on the statutory language, “other paper” should be inter-
preted to refer to documents generated within the state court
litigation, and not an extraneous decision in another case); Gruner
v. Blakeman, 517 F. Supp. 357, 360-61 (D. Conn. 1981) (subsequent
decision in a related case did not constitute “order or other
paper”); Wright, Miller and Cooper, 14C Federal Practice and
Procedure § 3732, p. 310 (West 1998) (“the publication of opinions
by other courts dealing with subjects that potentially could affect
a state court suit’s removability or documents not generated as a
result of state court litigation are not recognized as ‘other
paper’ sources for purposes of starting a new thirty-day period
under Section 1446(b)”). Only two district courts appear to have
stated otherwise. See Davis v. Time Insurance Co., 698 F. Supp.
1317, 1321 (S.D. Miss. 1988) (suggesting that where a new Supreme
Court decision indicates that a case is subject to federal
preemption, this changes the character of the litigation so as to
make it a new suit which is removable to federal court); Smith v.
Burroughs Corp., 670 F. Supp. 740, 741 (E.D. Mich. 1987) (a
7
defendant can remove a case under § 1446(b) based on a decision in
an unrelated case; however, a subsequent Eastern District of
Michigan opinion has found that an unrelated court decision is not
within the ambit of § 1446(b), see Kocaj, supra).
The Third Circuit, however, has held that in very limited
circumstances, similar to those here--a decision by a court in an
unrelated case, but which involves the same defendant, a similar
factual situation, and the question of removal--can constitute an
“order” under § 1446(b). Doe v. American Red Cross, 14 F.3d 196
(3d Cir. 1993). In Doe, a number of state court suits were filed
against the American Red Cross. The Red Cross removed the cases to
federal court on the ground that its charter conferred federal
jurisdiction over suits against it; however, the district court
disagreed and remanded the cases to state court. While these cases
were pending, the Supreme Court decided another case involving the
Red Cross, American National Red Cross v. S.G., 505 U.S. 247
(1992). In S.G. the Supreme Court held that the “sue and be sued”
provision of the Red Cross’s charter did in fact confer original
federal jurisdiction over suits against it. Id. at 257. Within
thirty days of the S.G. decision, the Red Cross again removed the
cases in Doe under § 1446(b). The Third Circuit held “that because
the [Red Cross] was the critical party in American National Red
Cross v. S.G. and ‘filed a notice of removal within thirty days’
after receiving an order of the Court implementing its decision, it
8
was authorized under the statute to file for re-removal, even
though its first removal had been previously remanded in proceed-
ings that antedated the Court’s decision in S.G.” Doe, 14 F.3d at
198. The court held that the S.G. opinion qualified as an “order”
under § 1446(b). However, the court explicitly limited its holding
to the situation where the same party was a defendant in both
cases, involving similar factual situations, and the order
expressly authorized removal. Further, the court explicitly
declined to decide whether the S.G. opinion constituted “other
paper” under § 1446(b). Id. at 202-03.
Similarly, here the defendants R.J. Reynolds, Brown and
Williamson, and Philip Morris were all defendants in the Sanchez
case, which involved a similar factual situation and legal
conclusion (that Tex. Civ. Prac. & Rem. Code § 82.004 bars most
products liability actions against manufacturers or sellers of
cigarettes). Although Sanchez did not explicitly discuss removal,
the effect of the decision in Sanchez has a similar effect on our
case as the S.G. decision had on American Red Cross, i.e. that
these defendants cannot be sued under Texas law. The similarities
between this case and Sanchez bring this case within the limited
parameters of American Red Cross. We therefore hold that the
Sanchez opinion, under these very narrow circumstances, was an
“order” for purposes of § 1446(b) removal in this case involving
the same defendants, and a similar factual situation and legal
9
issue. Accordingly, the district court did not err in entertaining
the second removal petition.2
B
The Greens additionally argue that the district court erred
when it concluded that the Greens’ petition failed to state a
claim.3 The district court noted that in Sanchez, we held that §
82.004 precludes all state law claims against tobacco manufacturers
excepting manufacturing defect and express warranty claims. De-
ciding that the Greens had failed to state a claim for either
manufacturing defect or breach of express warranty, the court
denied the motion to remand and dismissed.
The Greens contend, to the contrary, that their original
petition does allege three manufacturing defect claims, specifi-
cally that “the cigarettes were in a defective condition un-
reasonably dangerous to a user or consumer . . . (c) in containing
additives that were carcinogenic; (d) in containing additives that
2
The district court also held that the defendants’ new
evidence, the DPS report and H.E.B. employee affidavit, constituted
“other paper” supporting the second removal petition under
§ 1446(b). Because Sanchez constitutes sufficient grounds for
affirming, we need not decide whether these documents satisfy §
1446(b). Additionally, the defendants argue that because the
Greens failed to raise their § 1446(b) objection within thirty days
of removal, they have waived the objection under 28 U.S.C. §
1447(c). However, because we decide that removal was proper, we
need not address this issue.
3
In this case, the jurisdictional question is inseparable from
the merits. The federal courts have jurisdiction if H.E.B. is not
a proper defendant. If the Greens failed to state a claim against
H.E.B., removal was appropriate. If the Greens stated a claim
against H.E.B., removal was improper.
10
were addictive,” and in containing “pesticide residue.” The
Greens’ contention is without merit.
Texas law characterizes claims related to the addictive or
carcinogenic nature of cigarettes as design defect claims, not
manufacturing defect claims. In Ford Motor Co. v. Pool, 688 S.W.2d
879, 881 (Tex. App.SSTexarkana 1985), rev’d in part on other
grounds, 715 S.W.2d 629 (Tex. 1986), the court distinguished the
two theories of recovery:
Manufacturing defect cases involve products
which are flawed, i.e., which do not conform
to the manufacturer’s own specifications,
and are not identical to their mass-produced
siblings. The flaw theory is based upon a
fundamental consumer expectancy: that a
mass-produced product will not differ from
its siblings in a manner that makes it
more dangerous than the others. Defective
design cases, however, are not based
on consumer expectancy, but on the manufacturer's
design of a product which makes it unreasonably
dangerous, even though not flawed in its manufacture.
The plaintiffs argue that cigarettes are, in general,
addictive and carcinogenic, not that the particular cigarettes
Green purchased were more dangerous, or more carcinogenic and ad-
dictive, than are typical cigarettes. Accordingly, the district
court was correct in characterizing these claims as design defect
claims preempted by § 82.004.
The Greens fail to express essential elements of their claim
that the presence of pesticide residue in defendants’ cigarettes
constitutes a manufacturing defect. The Greens’ brief states only
11
that “Plaintiff alleges at least the following claims in her
original petition . . . Manufacturing defect in containing
impurities, including pesticide residue.” The Greens have not
stated, either in their brief or in their second amended complaint
(the first document in which they even pleaded the pesticide
residue claim), that defendants’ cigarettes differed from other
brands or that the particular cigarettes Green smoked deviated from
the defendants’ design specifications.
Plaintiffs have asserted only that the defendants’ cigarettes
contain pesticide residue and that such residue is harmful. These
allegations are, at most, design defect claims, which are preempted
by § 82.004.4
III
Based on the foregoing, we AFFIRM the district court’s finding
that removal was proper, and we AFFIRM the district court’s
dismissal of the Greens’ claims.
AFFIRMED.
4
Because we conclude that Tex. Civ. Prac. & Rem. Code § 82.004
preempts all of the Greens’ claims against H.E.B., we do not
address the issue of federal preemption under the Labeling Act.
12