October 3, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Advanced Indicator & Manufacturing , Inc. v. Acadia Insurance Co., 21-20092, appeal from S.D. Tex.
    • per curiam (Jolly, Higginson, Engelhardt), Engelhardt, J., concurring; insurance, remand, diversity jurisdiction, removal
    • Affirming denial of motion for remand, but reversing summary judgment in favor of insurer on coverage dispute arising from insurer’s denial of plaintiff’s Hurricane Harvey-related property damage coverage claims on the basis of an exclusion for pre-existing wear and tear or property defects.
    • The Court held that, for purposes of the fraudulent joinder analysis in determining diversity-based removal jurisdiction, the possibility of recovery against a non-diverse defendant must be measured solely at the time of removal. Hence, where a Texas insurance statute allowed the out-of-state insurer to elect to accept liability for the in-state agent and that the claims against the in-state agent must then be dismissed with prejudice, and the insurer makes that election after the filing of suit but before the removal, then there is fraudulent joinder such that the continued presence of the agent in the suit at the time of removal does not defeat diversity jurisdiction. Accordingly, here the Court held that the district court did not err in denying the plaintiff’s motion to remand.
    • The Court then examined the summary judgment evidence and held that the plaintiff had put forth sufficient evidence to create a genuine dispute as to whether its property damage was caused by Hurricane Harvey or by pre-existing wear and tear and defects in the building. The Court therefore reversed the summary judgment in favor of the insurer.
    • Judge Engelhardt separately concurred from the per curiam decision. He opined that, while the Court’s ruling on jurisdiction was required by binding precedent, it “all but eviscerates the voluntary-involuntary rule.”

Unpublished

  • Washington v. UTMB, 20-20434, appeal from S.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), prisoner suit
    • Affirming dismissal of prisoner’s sec. 1983 suit.
  • Fields v. Brown, 21-40818, appeal from E.D. Tex.
    • per curiam (Clement, Duncan, Wilson), federal officer jurisdiction, removal
    • Vacating dismissal of case, and remanding to district court with instructions to assess federal question jurisdiction, while holding that the district court erred in finding that it had federal officer jurisdiction.
  • Ochoa v. Garland, 21-60220, petition for review of BIA order
    • per curiam (Davis, Duncan, Engelhardt), immigration
    • Dismissing Honduran citizen’s petition for review of BIA order dismissing appeal from IJ decision denying Temporary Protected Status, withholding of removal, and cancellation of removal.
  • Zuet v. Garland, 21-60922, petition for review of BIA order
    • per curiam (Smith, Dennis, Southwick), immigration
    • Denying Libyan citizen’s petition for review of BIA order denying motion to reopen.
  • Perez-Leiva v. Garland, 21-60935, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying Honduran citizens’ petition for review of BIA order dismissing appeal of IJ denial of application for asylum, withholding of removal, and protection under the CAT.
  • Wazelle v. Tyson Foods, Inc., 22-10061, appeal from N.D. Tex.
    • per curiam (Clement, Duncan, Wilson), federal officer jurisdiction, removal
    • Vacating dismissal of case, and remanding to district court with instructions to assess federal question jurisdiction, while holding that the district court erred in finding that it had federal officer jurisdiction.
  • U.S. v. Rayford, 22-10339, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal, sentencing
    • Affirming 11-month sentence on revocation of supervised release.
  • U.S. v. Gonzalez-Cortes, 22-20119, appeal from S.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Semien v. The Burlington Insurance Co., 22-20195, appeal from S.D. Tex.
    • per curiam (Davis, Duncan, Engelhardt), insurance
    • Affirming dismissal of plaintiff’s breach of contract claims against insurer.
  • Rodriguez-Cruz v. Garland, 22-60092, petition for review of BIA order
    • per curiam (Barksdale, Elrod, Haynes), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing appeal of IJ denial of application for asylum, withholding of removal, and protection under the CAT.