United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40029
JIM R. WINGATE,
Plaintiff - Appellant,
versus
AIR PRODUCTS INC; ET AL,
Defendants,
AIR PRODUCTS INC.,
Defendant-Appellee,
__________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:04-CV-124
__________________________________________
Before BENAVIDES, STEWART, and OWEN, Circuit Judges.
CARL E. STEWART, Circuit Judge:*
Plaintiff-Appellant Jim Wingate appeals the district court’s denial of his motion to remand to
state court and its dismissal of the non-diverse defendant Duane Johnson, as well as the district
court’s denial of his motion for summary judgment and grant of summary judgment in favor of
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Defendant-Appellee Air Products, Inc. For the following reasons, we AFFIRM the judgment of the
district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jim Wingate owns certain pieces of land in Jefferson County, Texas, that are burdened by
express pipeline easements. The easements allow for the “transportation of oil, petroleum, gas, the
products of each of the same, water, other liquids and gases, and mixtures of any of the foregoing .
. . .” Air Products, L.P. (“Air Products”)1 is the current owner and operator of the pipelines, which
it now uses to transport hydrogen.
In February 2004, Wingate filed suit in Texas state court against Air Products,2 claiming that
the easements do not allow for the transportation of hydrogen through the pipelines. Wingate also
joined as a defendant Duane Johnson, doing business as MMI Right of Way Services. Johnson is an
individual resident of Texas. In his state court petition, Wingate sought an injunction prohibiting Air
Products and Johnson from entering any of his lands upon which they have no valid easement.
Stating that Air Products does not have an easement for a hydrogen gas pipeline, Wingate sought to
enjoin the defendants from replacing the “old pipeline” with a hydrogen pipeline or from placing
hydrogen in the old pipeline. Alternatively, Wingate requested that, in the event the defendants had
1
On October 1, 1999, Air Products, Inc. was dissolved and converted to Air Products,
L.P. All assets of Air Products, Inc. were transferred to Air Products, L.P. The Appellant is
herein referred to simply as “Air Products” except where greater specification is necessary for
clarity.
2
Wingate filed suit against Air Products, Inc., which had ceased to exist by the time of
filing. Air Products defended the case under the name Air Products, L.P. Neither party moved to
amend the style of the case to include and/or substitute Air Products, L.P. As the district court
noted, however, Air Products, L.P. has consented to being sued under this heading, so a proper
analysis of the claims is warranted.
2
already replaced the old pipeline with a hydrogen pipeline or had begun to pump hydrogen through
the old pipeline, the court order the defendants to remove the new pipeline from his land or to remove
any hydrogen from the old pipeline.
The defendants subsequently removed the case to the United States District Court for the
Eastern District of Texas alleging that the non-diverse defendant, Johnson, had been improperly
joined solely to defeat diversity jurisdiction. Wingate moved to remand the case to state court, but
the district court denied his motion and dismissed Johnson as improperly joined. Wingate filed an
interlocutory appeal of this ruling, which we dismissed. Both Wingate and Air Products then filed
motions for summary judgment. The district court denied Wingate’s motion and granted summary
judgment in favor of Air Products. Wingate now appeals from that judgment.
II. DISCUSSION
A. Motion to Remand
Wingate argues that the district court erred by concluding that Johnson was improperly joined,
denying his motion to remand, and dismissing Johnson from the lawsuit. We review a denial of
remand to state court de novo. Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd.,
99 F.3d 746, 751 (5th Cir. 1996). Diversity jurisdiction requires complete diversity between the
parties; however, such diversity cannot be destroyed by a plaintiff improperly joining a non-diverse
defendant. McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004). The party invoking
the removal jurisdiction on the grounds of improper joinder bears a heavy burden. See Sid
Richardson, 99 F.3d at 751. The removing party may satisfy its burden by showing either: (1) actual
fraud in the pleading of jurisdictional facts; or (2) the plaintiff’s inability to establish a cause of action
against the non-diverse party in state court. Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). Only
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the latter method is relevant here because Air Products did not allege actual fraud. Thus, the relevant
question is whether Air Products has shown that there is no reasonable possibility of recovery against
the non-diverse defendant, Johnson, in state court. Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573
(5th Cir. 2004) (en banc). A mere theoretical possibility of recovery is insufficient. Travis, 326 F.3d
at 648.
Looking at the state court petition at the time of removal, we agree with the district court’s
conclusion that there was no reasonable basis to predict that Wingate might prevail against Johnson
in state court. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)
(stating that removal jurisdiction is determined by looking to the claims in the state court complaint
as they existed at the time of removal). Wingate failed to allege that Johnson had any interest in the
easements and pipeline or that Johnson repeatedly or continuously trespassed on his land. See, e.g.,
Beathard Joint Venture v. West Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. Ct. App. 2002)
(stating that an injunction is an appropriate remedy when the trespass is repeated or continuous); Bass
v. Champion Int’l Corp., 787 S.W.2d 208, 211 (Tex. Ct. App. 1990). Therefore, we find that the
district court was correct; Johnson’s petition did not state a cause of action that could result in an
injunction against Johnson.
Wingate contends that the district court should have remanded this case under Smallwood v.
Illinois Central Railroad, 385 F3d 586 (5th Cir. 2004) (en banc). In that case, we held:
When a defendant removes a case to federal court on a claim of improper joinder, the
district court’s first inquiry is whether the removing party has carried its heavy burden
of proving that the joinder was improper. Indeed, until the removing party does so, the
court does not have the authority to do more; it lacks the jurisdiction to dismiss the case
on its merits. It must remand to the state court.
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Id. at 576. Thus, Wingate alleges that the district court should not have dismissed his case against
Johnson; rather, under Smallwood, Wingate argues that the district court should have remanded the
case to state court because the removing party did not meet its burden of proving that joinder was
improper.
Wingate’s rationale, however, is misplaced. First, the district court determined that Johnson
did meet the burden of showing that Wingate, based on his petition at the time of removal, would
not succeed in his cause of action against Johnson in state court. Second, the Smallwood decision
is a limited holding that does not apply to this case. We limited our holding in Smallwood by stating:
But our holding today is narrow. It applies only in that limited range of cases where the
allegation of improper joinder rests only on a showing that there is no reasonable basis
for predicting that state law would allow recovery against the in-state defendant and
that showing is equally dispositive of all defendants.
Id. at 576 (emphasis added). In the present case, Johnson’s defenses do not apply equally to Air
Products and, even if they did, the defenses would not equally dispose of all of Wingate’s claims
against Air Products (e.g., transportation of hydrogen through the pipeline). See Rainwater v. Lamar
Life Ins. Co., 391 F.3d 636, 638-39 (5th Cir. 2004); Smallwood, 385 F.3d at 575. The allegation of
improper joinder is not equally dispositive of all defendants. Because “the principle in Smallwood is
triggered only when all defendants are reached,” Smallwood is therefore not instructive on these facts.
Rainwater, 391 F.3d at 638.
During oral argument, counsel for Wingate attempted to clarify his Smallwood argument,
explaining that if we found there was no reasonable basis to predict that Wingate might prevail against
Johnson in state court, then we also must find that there is no reasonable basis to predict that Wingate
might prevail against Air Products in state court, because all pleaded allegations against Johnson
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apply equally to Air Products and vice versa. Therefore, he argued, the defense does equally dispose
of all of Wingate’s claims, Smallwood does apply, and the case should be remanded to state court.
This argument fails for the same reason the district court determined that Johnson was an improperly
joined defendant. Unlike his allegations against Air Products, Wingate did not plead sufficient facts
to explain Johnson’s role in this trespass dispute. The pleadings contain specific references to Air
Products; they do not contain specific references to Johnson. Therefore, we agree with the district
court holding that Johnson is an improperly joined defendant.
B. Motions for Summary Judgment
Wingate next claims that the district court erred by denying his motion for summary judgment
and granting summary judgment in favor of Air Products. We review a district court’s grant of
summary judgment de novo, applying the same standard as the district court. Fierros v. Tex. Dep’t
of Health, 274 F.3d 187, 190 (5th Cir. 2001). Summary judgment is proper when the record, viewed
in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material
fact exists and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
see also Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). “The moving party is
entitled to a judgment as a matter of law [if] the nonmoving party has failed t o make a sufficient
showing on an essential element of her case with respect to which she has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
Wingate argues that the district court erred in denying his motion for summary judgment
because Air Pro ducts did not establish that it owns an easement of any kind through the relevant
properties. We disagree. Assuming arguendo that Air Products has the burden under Texas law to
establish the existence and ownership of the express easements at issue here, the district court did not
6
err in concluding that Air Products met that burden. Wingate’s expert witness stated that he found
no complete chain of title to Air Products, L.P. in the Jefferson County records. The expert conceded
that the chain of title shows that Air Products, Inc. is the purported record owner of the relevant
easements. However, he stated that the records show that Air Products, Inc. filed a Certificate of
Termination on September 23, 1999. As the district court concluded, Air Products produced
evidence showing that all assets of Air Products, Inc. were transferred to Air Products, L.P. Wingate
argues that the district court should not have considered this evidence because it was not properly
disclosed, but his claim is unsubstantiated. The district court correctly determined that this evidence
sufficed to show that Air Products, L.P. owned an easement through the relevant lands and that
Wingate did not raise a genuine issue of material fact with regard to ownership.
Wingate also argues that, for a variety of reasons, the easements, which allow for the
“transportation of oil, petroleum, gas, the products of each of the same, water, other liquids and
gases, and mixtures of any of the foregoing,” do not authorize the transportation of hydrogen through
the pipeline. We resolved precisely this question in C&E Land Co. v. Air Products, LP,401 F.3d 602,
603 (5th Cir. 2005) (per curiam), in which we found that an express easement with language identical
to the present easement allows for the transportation of hydrogen. See also P. Bordages-Account
B, LP v. Air Prods., LP, No. 04-41197, 2005 WL 900231, at *1 (5th Cir. Apr. 15, 2005) (per
curiam) (unpublished) (applying C&E Land to interpret another easement with identical language as
allowing the transportation of hydrogen).
Wingate urges us to revisit our definition and apply the doctrine of ejusdem generis to
determine the appropriate meaning of “gas.” In C&E Land we refused to answer the ejusdem generis
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question proffered because the easement language was unambiguous. More importantly, we did not
look beyond the plain meaning of the easement language:
We agree with the district court’s determination that the language of the easement in
question unambiguously allows Air Products to transport hydrogen. The easement
grants a pipeline right of way “for the transportation of oil, petroleum, gas, the products
of each of the same, water, other liquids and gases, and mixtures of any of the foregoing
. . .” The plain meaning of this language includes hydrogen.
C&E Land, 401 F.3d at 603. This easement language at issue before us today is identical to the
language in the C&E Land easement. Thus, as in C&E Land, the easement at issue here
“unambiguously allows for the transportation of hydrogen.” Id. Accordingly, we do not apply the
doctrine of ejusdem generis to determine the meaning of “gas” and we need not address Wingate’s
arguments based on extrinsic evidence.
Finally, Wingate argues that his motion for summary judgment should have been granted
because he owns the surface fee title to the pipeline strips. Likewise, in P. Bordages-Account B, LP
v. Air Products, LP, No. 04-41197, 2005 WL 900231 (5th Cir. Apr. 15, 2005) (per curiam)
(unpublished), the appellants argued that because they claimed to hold fee title to the surface and the
pipeline strips, the district court should have granted their motion for summary judgment. Id. at *1.
In response, we held:
Appellants cite Davidson v. Gelling, 153 Tex. 56, 263 S.W.3d 940 (1954), and, without
more, state that “judgment should be entered in accordance with Davidson.” It is not
clear how Davidson supports Appellants’ case, however, nor have Appellants provided
us with any explanation. In short, Appellants’ briefing of this issue is insufficient.
Therefore, they have waived this argument.
Bordages, 2005 WL 900231, *1. Wingate also relies on Davidson. Similarly, it is not clear,
however, how Davidson supports Wingate’s case, nor has he provided us with any explanation. In
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short, Wingate’s briefing of this issue is insufficient. Therefore, he has waived this argument. See
Fed. R. App. P. 28(a)(9)(A); Bordages, 2005 WL 900231, at *1.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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