Case: 22-30288 Document: 184-1 Page: 1 Date Filed: 03/19/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
_____________ FILED
March 19, 2024
No. 22-30288 Lyle W. Cayce
consolidated with Clerk
Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-
30191, 22-30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-
30209, 22-30207, 22-30212
_____________
Michael Ashford,
Plaintiff—Appellant—Appellee,
versus
Aeroframe Services, L.L.C.,
Defendant—Appellant,
versus
Aviation Technical Services, Incorporated,
Defendant—Third Party Plaintiff—Appellee,
versus
Roger Allen Porter, II,
Third Party Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Louisiana
Case: 22-30288 Document: 184-1 Page: 2 Date Filed: 03/19/2024
USDC Nos. 2:19-CV-610,
2:14-CV-984, 2:14-CV-986, 2:14-CV- 985, 2:14-CV-987,
2:14-CV-2323, 2:16-CV-1512, 2:14-CV-990, 2:14-CV-989,
2:14-CV-2538, 2:14-CV-983, 2:14-CV-988, 2:14-CV-2324,
2:14-CV-2325, 2:16- CV-1397, 2:14-CV-991, 2:16-CV-1378
______________________________
Before Barksdale, Southwick, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
This appeal follows more than a decade of litigation, including one
earlier appeal to this court. Ashford v. Aeroframe Servs., L.L.C., 907 F.3d 385
(5th Cir. 2018). In that 2018 decision, we held we did not have jurisdiction
to hear the merits because some parties were not diverse when the suit was
filed in state court. Id. at 387. Since then, new evidence reveals that diversity
has existed since the inception of the litigation. We AFFIRM the district
court’s dismissal of all claims against the defendant.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2013, Michael Ashford was terminated by his employer,
Aeroframe. Aeroframe is a Limited Liability Company whose sole principal
was Roger Allen Porter. The company was a maintenance, repair, and
overhaul (“MRO”) facility based at the Chennault International Airport
located in Lake Charles, Louisiana.
Following his termination, Ashford, a Louisiana resident, sued to
recover unpaid wages. Ashford’s attorney is Somer Brown with the law firm
of Cox, Cox, Filo, Camel & Wilson in Lake Charles. Brown filed ten separate
lawsuits on behalf of several former Aeroframe employees, including
Ashford, in four different Louisiana parishes. The allegations in each
complaint were the same. The first suit filed was Cooley v. Aeroframe, on
September 24, 2013, in Calcasieu Parish. Ashford’s suit — the lead case in
this appeal — was filed in Evangeline Parish, on October 8, 2013.
2
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
Ashford’s state court petition sought recovery from two defendants.
First, he sued his former employer, Aeroframe, under the Louisiana Last
Paycheck Law. La. R.S. 23:631. Roger Porter, the sole principal of
Aeroframe, was a Louisiana citizen, making Aeroframe a Louisiana citizen.1
Ashford also sued Aviation Technical Services, Incorporated
(“ATS”), a Washington corporation. Prior to Ashford’s termination, Porter
had been negotiating an agreement with ATS that might have alleviated
Aeroframe’s financial difficulties. Ashford’s petition alleged that Aeroframe
and ATS negotiated for a partnership, merger, or buy-out, but did not reach
an agreement. Thereafter, Aeroframe allegedly began negotiating with an
ATS competitor, AAR Corporation.
The petition alleged that negotiations with AAR would have resulted
in a “smooth continuation of the MRO business in Lake Charles” but for the
that fact ATS purchased an outstanding loan on Aeroframe’s assets,
Aeroframe defaulted, and ATS foreclosed on the loan. Ashford’s petition
asserted that ATS “attempted to [seize] Aeroframe’s assets to cause
Aeroframe to go out of business.” Ashford contended that ATS misused
confidential information about Aeroframe, abandoned its plan to acquire
Aeroframe, and caused Aeroframe’s inability to pay its former employees
(including himself). Ashford alleged violations of Louisiana Civil Code
article 2315, tortious interference with contractual relations, and the
Louisiana Unfair Trade Practices Act.
_____________________
1
ATS also submitted a “Motion to Amend Jurisdictional Facts and Request for
Judicial Notice.” In that motion, ATS argues that Porter was in fact a citizen of Tennessee,
not Louisiana, rendering the parties diverse. Because we hold that the parties were aligned
from the inception of the litigation and dismiss the counts against ATS, we DENY the
motion.
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
On March 10, 2014, ATS cross-claimed against Aeroframe and filed a
third-party demand against Aeroframe’s sole principal, Porter. In its claims
against Aeroframe and Porter, ATS alleged it suffered financial loss from its
failed attempt to acquire Aeroframe.
On April 7, 2014, Porter cross-claimed against ATS, asserting tortious
interference and unfair trade practices. Porter’s pleading was supposedly
filed pro se. It was later revealed that attorney Thomas Filo drafted the
demand for Porter. Both Filo and Ashford’s counsel, Brown, worked at the
Cox law firm. On May 9, 2014, Filo was granted leave by the state court to
appear officially as counsel for Porter. At that time, Aeroframe was
represented by the Williams Family Law Firm. Thus, the representation
roster consisted of the Cox law firm acting for both plaintiff Ashford and
third-party defendant Porter, while defendants Aeroframe and ATS had
individual counsel. We will discuss later the evidence regarding whether the
Williams law firm was acting independently from the Cox law firm.
On May 14, 2014, ATS filed its first notice of removal to federal court
based on diversity of citizenship. ATS alleged there had been “improper
and/or fraudulent joinder” of Aeroframe, thus allowing removal. In the
alternative, ATS argued the parties should be realigned “in accordance with
their interests.” ATS argued the employees’ claims against Aeroframe were
a pretense because Aeroframe was out of business and insolvent as of the
filing date. ATS further contended that employees’ counsel Brown was
colluding with Porter to shield him from liability by not naming him in the
suit. ATS argued Aeroframe was only added to the suit to defeat diversity
jurisdiction and to remain in a friendly state-court forum to target ATS as a
deep-pocket corporation.
4
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
ATS’s notice of removal relied on the statutory provision allowing
removal to federal court within thirty days of “receipt by the defendant . . . 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.” 28 U.S.C. § 1446(b)(3) (emphasis added). ATS argued this
“other paper” was a copy of an email it obtained on April 17, 2014. Brown
sent the email on April 15, 2014, to her clients, including Ashford.
According to ATS, the email revealed that Brown had been colluding
with Aeroframe and Porter — her clients’ supposed adversaries in the suits
— from the inception of the lawsuits. ATS argued the email revealed the
plaintiffs-employees did not “intend to pursue Aeroframe as a defendant in
this matter but are rather working closely with Aeroframe and Roger A.
Porter in their efforts to oppose ATS in this litigation.”
The email read:
For those of you who missed the Aeroframe client meeting on
Friday, please allow this to serve as an update and a request for
you to execute and return the attached waiver.
In March we traveled to Seattle and took the deposition of
ATS’s corporate representatives. Those individuals
confirmed that, as Roger Porter had previously told us, ATS
came in after knowing that AAR was doing a deal with
Aeroframe. It is our belief, now confirmed by undisputed
testimony from ATS and Roger Porter, that ATS was the cause
of Aeroframe’s closure and the loss of your employment and
benefits.
[Porter] has filed a cross-claim against ATS for his own losses
and those of Aeroframe. Aeroframe has retained counsel from
Natchitoches [the Williams law firm] who is working
cooperatively with us and will not defend against your wage
5
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
claims. In fact, your entitlement to wages, penalties, and
attorney’s fees will be stipulated to by Aeroframe.
[Porter] has approached my partner, Tom Filo, and requested
that he[] pursue [Porter]’s individual claim against ATS.
[Porter] has agreed to stipulate in writing that if we represent
him, his clients will be paid first out of any monies that he
collects. He understands that we will not represent him absent
this written agreement.
However, in order for our firm to get involved on behalf of
[Porter], we need each of our employee-clients to sign the
attached conflict waiver. Without this signed document from
each of you, we cannot assist [Porter] in collecting money FOR
YOU.
If you have any questions, please feel free to call or email me.
We need these documents back as soon as possible. If you are
not willing to enter into this arrangement with us, please
contact me so that I can get you in touch with other counsel,
but please also be advised that [Porter]’s written stipulation of
first payments will only apply to the employees who are
represented by this law firm.
The ATS notice of removal stated that the district court should
realign the parties according to their interests such that Aeroframe would be
considered a plaintiff, along with the Plaintiffs-Employees and Porter, in a
suit against ATS.2
_____________________
2
All suits filed by Brown were removed to federal court on May 14, 2014.
Seventeen of those suits are consolidated here. ATS argues removal to federal court was
proper in 14 of the 17 appeals. ATS agrees that this court lacks jurisdiction in three of the
cases. The first is Day v. Aeroframe (No. 22-30190), because Plaintiff-Employee Day’s
claims against Aeroframe remain pending. Day’s counsel did not file a motion for summary
judgment against Aeroframe and the judgment in Day was not certified as final. The others
are Barreda v. Aeroframe (No. 22-30193) and Cooley v. Aeroframe (No. 22-30188). In those,
unlike in the other cases, ATS’s claims against Porter and Aeroframe have not been
6
Case: 22-30288 Document: 184-1 Page: 7 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
Ashford, Aeroframe, and Porter moved to remand to state court. The
magistrate judge recommended denying the motions to remand, and the
district court affirmed. Although the magistrate judge recommended finding
that the email was not sufficient evidence to show “the parties were aligned
from the inception of the litigation,” she agreed with ATS’s alternative
argument that the email demonstrated “complete diversity of citizenship now
exists” because the parties had voluntarily entered into an agreement that
aligned all of their interests against ATS. The court mentioned that
Aeroframe had “stipulated to Ashford’s claim[;] Porter is claiming the same
loss as Aeroframe against ATS[;] there exists no claim between Porter and
Aeroframe[;] and Porter agrees to pay Ashford’s claim first from the
proceeds of his recovery.” The magistrate judge found that those facts
meant there had been a compromise between adverse litigants supporting
removal. The district court affirmed the magistrate judge’s recommendation
that there was federal subject matter jurisdiction after realigning the parties
according to their interests. All claims against ATS by the non-ATS litigants
were later dismissed by the district court on summary judgment.
The non-ATS parties appealed. A prior panel of this court
determined that, even if Ashford’s and Aeroframe’s interests were aligned
by the time Brown sent the email to her employee-clients, their interests were
adverse at the time suit was filed, and “federal diversity-of-citizenship
jurisdiction ‘depends upon the state of things at the time of the action
brought.’” Ashford, 907 F.3d at 386 (quoting Grupo Dataflux v. Atlas Glob.
Grp., L.P., 541 U.S. 567, 570–71 (2004)). Because the magistrate judge
“found that Ashford and Aeroframe were (at least initially) adverse,” the
_____________________
dismissed. No party disputes ATS’s assertion regarding these three suits, and we therefore
DISMISS them from this appeal.
7
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
panel concluded that “it cannot be said that diversity of citizenship existed
at the time of filing in state court.” Id. at 388 (quotation marks and citation
omitted). The panel vacated and remanded. Id.
Judge Davis concurred in the judgment only. He explained that this
court’s precedent “provides that a case can become removable under federal
diversity jurisdiction if the plaintiff and the nondiverse defendant enter into
an irrevocable settlement.” Id. (Davis, J., concurring in the judgment). He
agreed that the email from Ashford’s counsel to Aeroframe alone was
insufficient to realign Aeroframe as a plaintiff in the matter. Id. at 388–89.
Judge Davis, though, would have held that there was sufficient evidence of a
settlement if there were a writing from Aeroframe “confirming a promise to
pay and/or to stipulate to Ashford’s requested relief,” but that “no such
agreement was ever produced in this case.” Id. at 388–89.
Judge Jones dissented. She would have found jurisdiction because she
argued a case may become removable if there is a “realignment of interests”
that occurs even after inception of the litigation. Id. at 395 (Jones, J.,
dissenting) (citing 28 U.S.C. § 1446(b)(3)). Judge Jones would have held that
Aeroframe’s promise to pay Ashford demonstrated they had the same
“ultimate interests in the outcome of the action” such that it was proper to
consider “events after this lawsuit was filed in state court to determine
whether the parties had realigned their interests and the suit had become
removable.” Id. at 396 (quoting Griffin v. Lee, 621 F.3d 380, 388 (5th Cir.
2010)).
The prior panel remanded to district court. Id. at 388. Before that
court carried out our order to remand to state court, ATS filed a motion for
sanctions. In its motion, ATS explained how it recently learned that in
December 2018, while the appeal was pending in this court, Porter testified
8
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
in a separate lawsuit against AAR.3 In that testimony, Porter revealed he did
not “oppose the employees[’] claim[s] for unpaid wages” and admitted that,
as principal of Aeroframe, he signed an agreement with the Plaintiffs-
Employees wherein he would “subordinate[] anything that I would get to the
employees first.” As evidence of the agreement, Porter offered a June 4,
2014, retainer agreement with the Cox law firm (“Cox-Porter retention
agreement”), which contained a “waiver of conflict.” The waiver read:
WAIVER OF CONFLICT: [Porter] understands that [the Cox
firm] is currently representing a number of former employees
of Aeroframe to collect unpaid wages. Client expressly waives
any conflict regarding the law firm’s representation of those
former employees and, in addition, agrees that the claims of all
former employees of Aeroframe represented by [the Cox law
firm] shall take priority over the individual claim of . . . Porter
and/or [Aeroframe] against ATS. . . . Porter expressly agrees
to fund those unpaid wage claims from proceeds received by
Aeroframe or . . . Porter in the event either Aeroframe or . . .
Porter receives a recovery before such former employees
receives recovery.
_____________________
3
As a reminder, AAR was a separate competitor that allegedly was planning to buy
Aeroframe. The negotiations with AAR would have resulted, according to Ashford’s
petition, in a “smooth continuation of the MRO business in Lake Charles,” but for the fact
that ATS already purchased an outstanding loan on Aeroframe’s assets and Aeroframe had
already defaulted on that loan. Porter separately sued AAR in Tennessee, alleging that
AAR violated a contract it had with Porter wherein it offered Porter employment and
monetary benefits. See Porter v. AAR Aircraft Servs., Inc., 790 F. App’x 708, 710 (6th Cir.
2019). A jury awarded Porter $250,000, which was one year of employment under the
relevant contract. This award was affirmed. Id. at 715. ATS argued in its motion for
sanctions that if ATS interfered with Porter’s contract with AAR, Porter would not have
been able to sue AAR for breach of that same contract.
9
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
ATS argued this supported the need for sanctions because the non-
ATS parties repeatedly denied the existence of any writing regarding a
“stipulation” or “settlement” between the non-ATS parties.
The magistrate judge recommended the district court consider the
new evidence and retain the case. The district court declined to adopt the
recommendation and remanded the case to state court “in accordance with
the judgment of the Fifth Circuit, except for the pending sanctions issues.”
Ashford v. Aeroframe Servs., L.L.C., No. 2:14-CV-0992, 2019 WL 1716198, at
*1 (W.D. La. Apr. 17, 2019).4
After remand, ATS again removed to federal court. By the time this
second notice of removal was filed, ATS had engaged in discovery relating to
the motion for sanctions. In addition to the June 4, 2014, Cox-Porter
retention agreement we quoted, ATS argued new evidence attached to the
second notice of removal (discussed in detail later) revealed Porter had been
working with the Cox law firm from the inception of the litigation to protect
himself from suit.
ATS argues this new evidence was the requisite “other paper” under
28 U.S.C. § 1446(b)(3) permitting the suit to be removable. According to
ATS, the original email from Brown, combined with the Cox-Porter
retention agreement, demonstrates there was a functional compromise
between Ashford and Aeroframe (through Porter, the sole principal of the
company), such that the parties were no longer adverse to one another. ATS
contends there is now conclusive proof that Aeroframe was a merely nominal
_____________________
4
The district court stated “[t]he Fifth Circuit has recognized [that] ‘a district
court must possess the authority to impose sanctions irrespective of the existence of subject
matter jurisdiction.’” Id. at *1 n.2 (quoting Willy v. Coastal Corp., 915 F.2d 965, 967 (5th
Cir. 1990)).
10
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
defendant added to defeat diversity jurisdiction and we should retain
jurisdiction and reinstate the judgment dismissing all claims against ATS.
Porter, Ashford, and Aeroframe moved to remand to state court.
Aeroframe “adopt[ed] by reference the arguments posited or briefed by
other counsel in this litigation,” including “counsel for Michael
Ashford” — the party to whom it is supposedly adverse.
The magistrate judge agreed with ATS’s argument that there was a
functional settlement between the parties such that they were no longer
adverse. The magistrate judge recommended holding the agreement to be
sufficient to remove the case because the “plaintiff and the nondiverse
defendant enter[ed] into an irrevocable settlement agreement.” Relevantly,
Judge Davis, in his concurrence, had concluded that, if the nondiverse parties
enter into an irrevocable settlement, a case becomes removable at that time.
Ashford, 907 F.3d at 388 (Davis, J., concurring in the judgment). As noted,
he concurred in the remand, though, because “no such agreement was ever
produced in this case.” Id. The magistrate judge also referred to the
“multiple representations made by counsel about the lack of ‘settlement’
between the parties,” and that the retainer agreement was unknown even to
the Williams law firm, which was representing Aeroframe.
The magistrate judge further recommended finding there was now
sufficient evidence the non-ATS parties were aligned from the inception of
the litigation. This would also support remand under our statement in
Ashford that “federal diversity-of-citizenship jurisdiction depends upon the
state of things at the time of the action brought.” Id. at 386 (opinion of the
court, joined in the judgment only) (quotation marks and citation omitted).
The district court adopted the magistrate judge’s recommendation to
deny remand to state court.
11
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
In September 2020, the district court granted ATS’s motion to
consolidate 16 of the 17 separate lawsuits. The suit brought by Ashford
became the lead case.
In October 2020, ATS filed a motion for summary judgment denying
it had liability to any of the plaintiffs. It also sought dismissal of all the
individual employees’ claims against Aeroframe, arguing that the Cox-Porter
retention agreement provided that these employees’ only recovery would be
a money judgment against ATS. Judgment in favor of ATS would therefore
end the possibility of recovery on the employees’ claims.
In April 2021, the magistrate judge recommended all claims against
ATS by the employees, Aeroframe, and Porter be dismissed with prejudice.
The magistrate judge, though, recommended rejecting ATS’s suggestion
that the employees’ claims against Aeroframe be dismissed. The district
court adopted this report and recommendation. The court entered summary
judgment in favor of ATS, dismissing all claims. The court also entered
monetary judgments in favor of the individual employees against Aeroframe.
The non-ATS parties timely appealed. They urge a vacatur of the
judgment on the basis of lack of diversity jurisdiction. The appeal specifically
seeks to have the monetary awards to the individual employee-appellants set
aside for the same reason.
DISCUSSION
Denial of a motion to remand is reviewed de novo. Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000). “Jurisdictional findings of
fact are reviewed for clear error.” New Orleans & Gulf Coast Ry. Co. v. Bar-
rois, 533 F.3d 321, 327 (5th Cir. 2008). What is required factually results from
the rule that “diversity jurisdiction requires complete diversity — all of the
12
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No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
plaintiffs must be citizens of different states than all of the defendants.” Wil-
liams v. Homeland Ins. Co. of N.Y., 18 F.4th 806, 812 (5th Cir. 2021).
As we already discussed, the district court accepted the magistrate
judge’s recommendation to deny the motions to remand on two separate
grounds. The first ground was that there was now sufficient evidence the
non-ATS parties’ interests had been aligned from the inception of the litiga-
tion. The second ground was that an irrevocable settlement agreement that
eliminated adversity between the parties permitted removal under Vasquez v.
Alto Bonito Gravel Plant Corp., 56 F.3d 689, 693 (5th Cir. 1995).5 We begin
with the question of whether the parties were aligned from inception.
The non-ATS parties argue the district court erred in even consider-
ing whether Porter, Aeroframe, and the employees’ interests were aligned
from the inception of the litigation. They contend that ATS’s second notice
of removal did not make this argument. Instead, ATS’s sole basis for removal
was the alleged post-inception settlement between Aeroframe and the em-
ployees. Therefore, the magistrate judge’s “sua sponte reconsideration” of
this argument was improper. They further contend that this holding violates
28 U.S.C. § 1447(d), which states, “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or otherwise.”
ATS maintains that alignment from inception has always been the basis for
ATS’s removals.
We find no error in the district court’s reconsideration of its prior
holding that the non-ATS parties’ interests were not aligned from the incep-
tion of the litigation. ATS’s second notice of removal argues that Porter was
_____________________
5
The existence of a settlement was supported by the April 15, 2014, email from
Brown to her plaintiff-employee clients and the June 4, 2014, Cox-Porter retention
agreement.
13
Case: 22-30288 Document: 184-1 Page: 14 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
“orchestrating Aeroframe employees to sue his defunct company” through
lawyers at the Cox law firm. In the first paragraph of the notice of removal,
ATS cited Exhibit 1 thereto, which is an email from Porter to Brown on Oc-
tober 1, 2013. Porter wrote: “I have three [suits] so far but I anticipate more
as I am instructing previous employees to contact you to be added to the
suit[].” ATS’s notice of removal further relied on Porter’s statement that
he “has been meeting with Tom Filo for the past month.” This reveals that
Porter was working with Brown and Filo of the Cox law firm before Brown
filed Ashford’s suit on October 8, 2013.6 Moreover, the same day ATS filed
its second notice of removal on May 13, 2019, ATS filed in each of the non-
Ashford cases a “Supplemental Notice of Additional Jurisdictional Facts
Supporting Diversity Jurisdiction.” Section II of the supplemental notice is
entitled “[a]dditional facts regarding collusion among the parties and proper
alignment,” with numerous exhibits supporting those additional facts.
Further, during the May 14–15, 2019, hearing on ATS’s motion for
sanctions (i.e., the day after the second notice of removal and supplemental
notices were filed), ATS introduced several new pieces of evidence docu-
menting the parties’ collusion from inception. During the hearing, the mag-
istrate judge stated that “we’ve seen a lot more information now that could
result in there being a different finding” on whether there was alignment
from inception. At the close of the December 10, 2019, hearing on the non-
ATS parties’ motions to remand, the magistrate judge granted ATS’s unop-
posed oral motion to have all evidence adduced in connection with the sanc-
tions hearing considered as evidence for purposes of the motions to remand.
Additionally, the court invited the parties to file supplemental briefing
_____________________
6
This also shows that Porter had been working with Brown and Filo before Brown
filed the first suit, Cooley v. Aeroframe, on September 24, 2013.
14
Case: 22-30288 Document: 184-1 Page: 15 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
addressing issues discussed at the hearing. The non-ATS parties neither ob-
jected nor filed supplemental briefing.
“We have held that issues raised for the first time in objections to the
report of a magistrate judge are not properly before the district judge.” Finley
v. Johnson, 243 F.3d 215, 219 n.3 (5th Cir. 2001). If the non-ATS parties be-
lieved the magistrate judge had no right to reconsider the issue of proper
alignment, they had ample opportunity to present their arguments to the
magistrate judge. Having failed to do so, they cannot now argue such an im-
propriety.
We turn to the non-ATS parties’ remaining argument that the district
court’s holding violates 28 U.S.C. § 1447(d). Although it is true that Section
1447(d) prohibits review or reconsideration of a remand order, 7 the district
court here was not reconsidering a remand order. It was considering ATS’s
second removal and making a separate factual determination based on new
evidence.
We have held that a defendant has a “right to seek subsequent remov-
als after remand.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th
Cir. 1996). If the defendant fails to remove on its initial pleadings, it may file
a second removal petition “when subsequent pleadings or events reveal a
new and different ground for removal.” Id. at 493 (emphasis omitted). In
S.W.S. Erectors, we held that the party could seek a second removal “using
newly acquired facts from [a] deposition transcript” because that “consti-
tute[d] a new paper or event that changed the facts regarding the removable-
ness of the case.” Id. at 494.
_____________________
7
“An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d).
15
Case: 22-30288 Document: 184-1 Page: 16 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
The same is true here. The district court’s original ruling was that
there was insufficient evidence to hold the interests of Ashford, Aeroframe,
and Porter were aligned from the inception of the litigation. Ashford, 907
F.3d at 387. That finding was not appealed to this court. Id. At that point,
the sole evidence of the parties’ aligned interests was the April 15, 2014,
email from Brown to her clients. See Ashford v. Aeroframe Servs., L.L.C., No.
2:14-CV-992, 2015 WL 13650549, at *8–9 (W.D. La. Jan. 30, 2015). In the
record now are several new pieces of evidence, including deposition tran-
scripts, admitted during the hearings on May 14–15, 2019, and December 10,
2019. Given these new factual bases supporting collusion from inception, we
agree with ATS that the district court was free to revisit the issue of when
the collusion began to properly align the parties.
The next question is whether the magistrate judge was correct to rec-
ommend, and the district court was correct to find, that the additional evi-
dence was sufficient to hold that the non-ATS parties were aligned from the
inception of the litigation.
Diversity jurisdiction requires “an actual, substantial controversy be-
tween citizens of different states.” Zurn Indus., Inc. v. Acton Constr. Co., 847
F.2d 234, 236 (5th Cir. 1988). The pleadings do not control, and the court
must “arrange the parties according to their sides in the dispute.” Id. (cita-
tion omitted). We determine proper alignment by asking “whether the par-
ties with the same ‘ultimate interests’ in the outcome of the action are on the
same side.” Griffin, 621 F.3d at 388 (quoting Lowe v. Ingalls Shipbuilding, A
Div. of Litton Sys., Inc., 723 F.2d 1173, 1178 (5th Cir. 1984)). “[T]he burden
of establishing jurisdiction rests upon the party seeking to invoke it.” Gaitor
v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253 (5th Cir. 1961).
16
Case: 22-30288 Document: 184-1 Page: 17 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
The non-ATS parties argue that realignment is improper because the
employees’ “primary purpose was to recover unpaid wages against Aero-
frame and ATS.” They contend that the employees had a viable claim
against Aeroframe at the inception of the case, and so, inferring any motiva-
tion of Porter to avoid being sued personally, or any reluctance of Plaintiffs’
counsel to bring the suit before she knew there was a deep pocket to pursue,
is irrelevant. Further, they argue the new evidence cited by ATS in its second
notice of removal is insufficient to show that either Aeroframe or Porter was
adverse to ATS at inception.
In considering the propriety of removal, we now know that before fil-
ing any suit, Brown of the Cox law firm was uninterested in representing the
employees because she knew Aeroframe was insolvent. We also now know
that Porter, as sole principal of Aeroframe, then spoke with Filo, who previ-
ously represented Porter/Aeroframe, and was Brown’s partner at the same
Cox law firm. In that conversation, Porter confirmed Aeroframe was being
pursued by numerous creditors, including former employees, who had not
been paid several of their final paychecks. We now know Porter also in-
formed Filo that he wanted to pursue a suit against ATS, which Porter
blamed for the closure of Aeroframe. Filo informed Brown of these facts, and
Brown included ATS in the lawsuits she was now willing to file.
We have also learned from an October 1, 2013, email to Brown that
Porter was discussing the Aeroframe/ATS lawsuits with Filo before Brown
filed the first suit on September 24, 2013. We know from that email that Por-
ter was explicitly “instructing previous employees to contact” Brown to be
“added to the suit[].” Finally, Porter asked Brown for “confirmation” that
Aeroframe would be granted an extension to answer the complaints she was
filing on behalf of the plaintiffs-employees. We agree with the magistrate
judge that this exchange is telling because it reveals that “Porter speaks for
17
Case: 22-30288 Document: 184-1 Page: 18 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
Aeroframe and Brown knows it,” and that “Brown had no intention of nam-
ing Porter personally in the litigation.” Moreover, where former employees
did not retain counsel with the Cox law firm and filed suit to retrieve their
paychecks, those suits named Porter personally, alleging he diverted funds
from Aeroframe.
We have further learned that the Williams law firm, which repre-
sented Aeroframe, was not necessarily “separate counsel” to Porter’s own
counsel as previously believed. Ashford, 907 F.3d at 388 n.2 (Davis, J., con-
curring in the judgment). In fact, Porter and Filo met with the Williams law
firm in January 2014 to discuss its representation of Aeroframe. Around Jan-
uary 30, 2014, Porter employed the Williams law firm to represent Aeroframe
in a “[b]reach of contract claim against [ATS] and for all damages arising out
of that breach of contract.” The contingency fee employment contract of
employment does not mention defending against the claims of the Aeroframe
employees, further supporting ATS’s argument that Porter and Filo agreed
to target ATS via Aeroframe. Furthermore, the Williams law firm had an
“extensive history” with the Cox law firm, which included “vested mutual
financial interest[s] in numerous cases together,” such that Porter, acting for
Aeroframe, signed a conflict waiver. Finally, we learned that Porter’s origi-
nal answer and incidental demand on April 7, 2014, — which was supposedly
pro se — was actually drafted by Filo of the Cox law firm.
This court’s original holding in this case acknowledged that “federal
courts are not bound by the labels the parties give themselves in the plead-
ings.” Id. at 387 (citing Zurn, 847 F.2d at 236). It concluded Zurn stands for
the premise that the “parties’ alignment for jurisdictional purposes is to be
determined by the plaintiff’s principal purpose for filing suit.” Id. (emphasis
in original) (quotation marks and citation omitted). It emphasized that
“[b]ecause the magistrate judge found that Ashford’s ‘principal purpose’ for
18
Case: 22-30288 Document: 184-1 Page: 19 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
suing Aeroframe was legitimate (a finding that no one appeals), fidelity to
Zurn requires relinquishing the case.” Id.
Using that same legal standard, the new evidence that became availa-
ble after our remand allowed the district court to re-evaluate the plaintiff’s
principal purpose for filing suit. We now know the employees, represented
by Brown, were not interested in pursuing a claim against Aeroframe, which
she understood had no assets. We now know that, instead, Brown and Filo
of the Cox law firm were, from the inception of litigation, attempting to pur-
sue deep-pocketed ATS in a friendly state court forum on behalf of Aero-
frame’s principal and Filo’s client, Porter.
Given this new information, we hold the non-ATS parties’ interests
were aligned from the inception of litigation.8 Because of this holding, we
_____________________
8
The employees also suggest on appeal that the amount in controversy does not
exceed the requisite $75,000. We agree with ATS that the amount in controversy is facially
apparent. The magistrate judge found in 2015 that Ashford’s pleading facially met the
jurisdictional amount, Ashford, 2015 WL 13650549, at *11, as did Judge Jones in dissent (the
court did not reach the issue), Ashford, 907 F.3d at 397 (Jones, J., dissenting). The
employees did not object to the magistrate judge’s report and recommendations finding
that the amount in controversy was met when she denied remand to state court, or to the
district court’s adoption of the recommendation.
In any event, Ashford’s complaint alleged he was entitled to recover “all wages
due for services already performed, including all accrued and unused or purchased vacation
and other paid benefits not received; actual damages including lost future wages; statutory
penalties; statutory attorneys’ fees; costs of these proceedings; and interest thereon.”
Louisiana law forbids plaintiffs in state courts from pleading a specific numerical value of
damages. Gebbia, 233 F.3d at 882 (citing LA. CODE CIV. PROC. art. 893). Therefore,
when a case originally filed in a Louisiana state court is removed to federal court on the
basis of diversity, the removing defendant must prove by a preponderance of the evidence
that the amount in controversy exceeds $75,000. Id. (citing Luckett v. Delta Airlines, Inc.,
171 F.3d 295, 298 (5th Cir. 1999)). A defendant may meet this burden by either: (1) showing
it is facially apparent that the amount in controversy exceeds $75,000; or (2) setting forth
facts in its removal petition supporting such a finding. Luckett, 171 F.3d at 298. As the
magistrate judge wrote in 2015, “[a]lthough past wages due may be negligible, future lost
19
Case: 22-30288 Document: 184-1 Page: 20 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
need not address the magistrate judge’s alternative recommendation that the
Cox-Porter retention agreement reveals the parties had a post-inception set-
tlement, rendering the cases removable.
After finding we have jurisdiction, we need turn only briefly to the
merits. The non-ATS parties do not appeal or address in their briefs any
challenge regarding the merits of the grant of summary judgment in favor of
ATS and dismissal of all claims against ATS with prejudice. They have
therefore waived any such arguments. See Rollins v. Home Depot USA, 8
F.4th 393, 397 (5th Cir. 2021).
Finally, Aeroframe argues that three cases, Day, Neathammer, and
Jackson, should be remanded because, as a third-party defendant in those
cases, ATS had no procedural right to remove them. See Home Depot U.S.A.,
Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019). ATS agrees that Day is not
properly before this court because the judgment appealed by Aeroframe is
not final. Regarding Neathammer and Jackson, those cases were dismissed
with prejudice on February 1, 2021. Aeroframe has not appealed the dismis-
sal of those cases. Aeroframe appeals only the post-dismissal denial of its
motions for a hearing on its motion to remand. Such motions are treated like
a Federal Rule of Civil Procedure 59(e) or 60(b) motion, and the district
court’s denials of them are reviewed for abuse of discretion. Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 181 (5th Cir. 2012). We agree with ATS
that there was no abuse of discretion in the district court’s denial of Aero-
frame’s post-dismissal motions for hearing.
_____________________
wages, future benefits lost, and attorney fees for the prosecution of this matter place the
amount in controversy well above the minimum threshold.” Ashford, 2015 WL 13650549,
at *11. We agree.
20
Case: 22-30288 Document: 184-1 Page: 21 Date Filed: 03/19/2024
No. 22-30288
c/w Nos. 22-30185, 22-30186, 22-30187, 22-30188, 22-30189, 22-30190, 22-30191, 22-
30192, 22-30193, 22-30194, 22-30196, 22-30198, 22-30201, 22-30207, 22-30209, 22-
30212
We AFFIRM the district court’s dismissal of all claims against ATS
in the relevant cases. We DISMISS the appeals in Day, 22-30190, Barreda,
22-30193, and Cooley, 22-30188. As only jurisdictional arguments are made
here, none on the merits, we AFFIRM the individual judgments against
Aeroframe in favor of the employees whose appeals we have not dismissed.
21