December 16, 2021, opinions

Posted on by tadbartlett

Designated for publication

  • Ticer v. Imperium Insurance Co., 21-10108, appeal from N.D. Tex.
    • Higginbotham, J. (Higginbotham, Stewart, Wilson), insurance, diversity jurisdiction
    • Vacating district court’s dismissal of improperly joined non-diverse defendant with prejudice, and remanding to district court to dismiss non-diverse defendant without prejudice.
    • Plaintiff brought suit in Texas state court against two insurance companies arising from malpractice claims that had been made against him, one a diverse defendant insurer and the other a non-diverse defendant insurer. The diverse defendant removed to federal court, arguing that the non-diverse defendant had been improperly joined under Texas procedural law because the claims against the two defendants did not arise from the same transaction or occurrence. On plaintiff’s motion to remand, the district court initially denied the motion on the basis of the improper joinder argument, severed the claims against the non-diverse defendant, and remanded that severed claim to state court while keeping the claim against the diverse defendant in the federal court. Plaintiff successfully moved for reconsideration, whereupon the district court conducted a summary review of the merits of the plaintiff’s claim against the non-diverse defendant, held that he would be unsuccessful in pursuing his claim against the non-diverse defendant due to an exclusion in his policy issued by the non-diverse defendant, and dismissed the non-diverse defendant with prejudice and denied remand.
    • “This case concerns two potential types of misjoinder: procedural misjoinder and improper joinder. Procedural misjoinder is the joining of two or more defendants or plaintiffs or claims in a lawsuit where there is no common transaction, occurrence, or series of transactions or occurrences and no question of law or fact common to all of them that will arise in the lawsuit which was removed. Improper joinder can be established in two ways: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Only the latter is at issue here.” (Internal quotation marks and citations omitted).
    • The Court first held that only substantive viability of the claims should be reviewed in the joinder of non-diverse defendants, not procedural joinder questions. Nevertheless, the Court held that the diverse defendant here gave adequate notice to the plaintiff of both the procedural misjoinder argument (which is insufficient to ground a removal) and the improper joinder argument. “Although it was unusual for the district court to first rule on procedural misjoinder then substitute that finding with one based on improper joinder, the district court did not err in doing so.”
    • The Court held that, under Smallwood, there is a small class of cases where the plaintiff has stated a claim, but misstated or omitted facts determinative of the propriety of joinder, and that such cases permit a summary inquiry “only to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery against the in-state defendant.” The Court held that the district court did not err here in thus considering the non-diverse defendant’s insurance policy in such a summary inquiry.
    • The Court then held that the district court did not err in holding, under Texas’s eight corners rule, that the non-diverse defendant’s policy’s Incident Exclusion would preclude coverage for the underlying claim.
    • However, the Court held that the district court erred in dismissing the claims against the non-diverse defendant with prejudice; Smallwood only permits a without-prejudice dismissal.

Unpublished

  • U.S. v. Wells, 20-11078, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Canales-Osorto v. Garland, 20-60248, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order affirming the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Al-Omar v. EXCO Services, Inc., 21-20078, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), bankruptcy, breach of contract
    • Affirming district court’s and bankruptcy court’s ruling as to the amount of interest and back-payments under oil and gas lease were allowed under creditors’ claims, and denying award of attorneys’ fees to creditors’ non-attorney son who had represented the creditors at the bankruptcy court until the debtor had objected to his not being an attorney.
  • U.S. v. Baimbridge, 21-20299, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gracin, 21-30323, appeal from E.D. La.
    • per curiam (Stewart, Haynes, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of successive motion for compassionate release.
  • Vazquez v. Blinken, 21-40062, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Graves), immigration, Administrative Procedure Act
    • Affirming dismissal of plaintiff’s APA claim arising from the denial of his passport application due to insufficient evidence of citizenship, on basis that Immigration and Nationality Act supplies an adequate remedy.
  • U.S. v. Jesus-Flores, 21-40353, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Moore, 21-50109, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, compassionate release
    • Vacating denial of motion for compassionate release, and remanding for reconsideration.
  • U.S. v. Cadena-Rodriguez, 21-50509, c/w 21-50545, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of conviction and sentences for illegal reentry and revocation of supervised release.