LINDSEY HOYT, Individually, and Independently as Administrator of the Estate of Jeffery Hoyt and as Next Friend of Joel Hoyt, Evan Hoyt, and Katie Hoyt; PATRICK HOYT, Plaintiffs-Appellants,
THE LANE CONSTRUCTION CORPORATION, Defendant-Appellee.
Appeals from the United States District Court for the
Northern District of Texas
JONES, HAYNES, and OLDHAM, Circuit Judges.
S. OLDHAM, CIRCUIT JUDGE
decide whether the district court erred by refusing to remand
this case to state court. It did not. Next, we must decide
whether the district court erred by granting summary judgment
to the defendant. It did.
December 29, 2015, Jeffery Hoyt hit a patch of ice while
driving on FM 2264 in Wise County, Texas. Jeffery slid off
the road. His car landed upside down in an adjacent body of
water. Tragically, Jeffery drowned. Less than an hour later,
a second driver hit the same patch of ice. The second driver
likewise slid off the road. And the second driver landed
directly on top of Jeffery's submerged vehicle. That
apparently saved the second driver from drowning. First
responders rescued him and, in the process, discovered
Jeffery's vehicle and body.
September 20, 2016, members of Jeffery's family
("the Hoyts") filed suit in Texas state court. They
sued C.E.N. Concrete Construction Co., Storm Water
Management, Inc., and the Lane Construction Corporation. The
Hoyts, C.E.N., and Storm are citizens of Texas. Lane is not.
The Hoyts contended all three companies had performed
construction work on FM 2264 and caused ice to form at the
crash site. The defendants moved for summary judgment. The
state district court granted C.E.N.'s motion and entered
a "take nothing" judgment in its favor.
Hoyts and Storm engaged in settlement discussions. They never
reached agreement. Yet on September 22, 2017-one year and two
days after the suit began-the Hoyts voluntarily dismissed
their claims against Storm. The Hoyts received no
compensation from Storm.
days later, Lane removed the case to federal court on the
theory that it now fit within federal diversity jurisdiction.
See 28 U.S.C. § 1332(a)(1); Lincoln Prop.
Co. v. Roche, 546 U.S. 81, 89 (2005) (requiring
"complete diversity"). The next day, the Hoyts
filed an emergency motion to remand. They argued Lane's
notice of removal was untimely. The federal district court
denied that motion. In a second motion to remand filed about
a month later, the Hoyts argued the voluntary-involuntary
rule prohibited removal because C.E.N. had been dismissed
against their wishes. The district court denied that motion
moved for summary judgment on the Hoyts' claims for
premises liability and gross negligence. The federal district
court granted the motion.
dismissed the claims against Lane with prejudice. The Hoyts
Hoyts argue we must remand the case to state court. We
disagree. The district court properly rejected both remand
Hoyts' first motion for remand turns on timeliness. Under
28 U.S.C. § 1446(c), the defendant in a diversity case
has one year following the commencement of an action to
remove it. But Congress created an exception to this time bar
where "the district court finds that the plaintiff has
acted in bad faith in order to prevent a defendant from
removing the action." Id. § 1446(c)(1).
Here, the district court found the Hoyts acted in bad faith
by improperly joining Storm (which prevented complete
diversity and hence precluded removal). The district
court therefore denied the Hoyts' motion to remand under
§ 1446(c)'s time bar.
we review the denial of a motion to remand de novo,
we review the underlying finding of bad faith for clear
error. Spear Mktg., Inc. v. BancorpSouth Bank, 791
F.3d 586, 591 (5th Cir. 2015). We hold (1) the district
court's bad-faith finding was not clearly erroneous, and
(2) the Hoyts cannot avoid that result by relying on cases
that predate Congress's enactment of the bad-faith
exception to § 1446(c)(1)'s time bar.
its role as factfinder, the district court found the Hoyts
"knew months beforehand that the evidence would not
support the claims against Storm." That was not clear
error. The Hoyts dismissed Storm a mere two days after the
one-year deadline expired. They did so without receiving any
consideration from Storm. Before that dismissal, the Hoyts
seem to have pursued their claim against Storm only
half-heartedly. Their witness list for trial did not include
any fact witnesses from Storm. And the Hoyts' expert
witnesses made no serious efforts to establish Storm's
liability. All of this suggests the Hoyts kept Storm in the
case for one purpose and one purpose only-to prevent removal
during § 1446(c)'s one-year removal period. Two days
after accomplishing that purpose, the Hoyts dismissed Storm
Hoyts' response is unpersuasive. In the district court,
the Hoyts submitted an affidavit from their attorney to
describe allegedly strategic reasons for their decision to
dismiss Storm. But these explanations relate to why the Hoyts
were reluctant to go to trial against Storm or accept
Storm's (apparently low) settlement offer. They do not
explain why the Hoyts waited until just two days after the
one-year deadline to dismiss Storm. And while the Hoyts claim
they dismissed Storm after their settlement discussions came
to naught, the district court found it
"suspicious" the Hoyts did not clarify when
"the alleged discussions with Storm" took place. We
the Hoyts win a remand by raising "fact issues"
regarding their good faith. True, "we resolve all
contested factual issues . . . in favor of the
plaintiff" when determining whether it improperly joined
a non-diverse defendant. Gasch v. Hartford Accident &
Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). That
makes sense because, when considering whether "the
plaintiff [is able] to establish a cause of action against
the non-diverse party in state court," the question is
what the plaintiff might prove in the future.
Ibid.; see Guillory v. PPG Indus., Inc.,
434 F.3d 303, 308 (5th Cir. 2005); Smallwood v. Ill.
Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en
banc). When it comes to bad faith, by contrast, the question
is what motivated the plaintiff in the
past-that is, whether the plaintiff's litigation
conduct meant "to prevent a defendant from removing the
action." 28 U.S.C. § 1446(c)(1). The district court
found as a matter of fact the Hoyts acted in bad faith. The
Hoyts failed to carry their burden to prove that finding was
Hoyts also argue we must reverse because their litigation
conduct does not satisfy the exception we created in
Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th
Cir. 2003). But Tedford pre-dates Congress's
enactment of the bad-faith exception in § 1446(c)(1),
and it therefore does not control.
2011, § 1446 prohibited defendants like Lane from
removing a case "more than 1 year after commencement of
the action"-full stop. 28 U.S.C. § 1446(b) (2006).
The statutory text contained no exceptions. Believing this
old version of § 1446(b) was "not inflexible,"
however, Tedford ruled "the conduct of the
parties may affect whether it is equitable to strictly apply
the one-year limit." 327 F.3d at 426. In light of the
plaintiff's "efforts to manipulate statutory
rules," the Tedford Court concluded,
"[e]quity demands [the plaintiff] be estopped from
seeking to remand the case on the basis of the one-year limit
in § 1446(b)." Id. at 428 & n.13.
courts disagreed. They held that § 1446 did not allow
for equitable tolling or estoppel. See, e.g.,
Brock v. Syntex Labs., Inc., No. 92-5740, 1993 WL
389946, at *1 (6th Cir. Oct. 1, 1993); Kinabrew v.
Emco-Wheaton, Inc., 936 F.Supp. 351, 352 n.1 (M.D. La.
1996) (collecting cases). This split persisted until 2011,
when Congress amended § 1446. See Federal
Courts Jurisdiction and Venue Clarification Act of 2011, Pub.
L. No. 112-63, § 103(b), 125 Stat. 758, 760 (2011). By
adding the bad-faith exception to the one-year deadline,
Congress resolved the conflict.
Congress wanted to resolve the conflict by adopting the
Tedford standard, it could have done so.
Cf. 42 U.S.C. § 2000bb(b)(1) (listing the
restoration of "the compelling interest test as set
forth in Sherbert v. Verner, 374 U.S. 398 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972)" as a
purpose of the Religious Freedom Restoration Act). But it did
not. Congress instead chose to replace Tedford's
equitable-estoppel principle with a "bad faith"
standard. See 28 U.S.C. § 1446(c)(1). And we
presume that choice of different text carries with it a
choice of different meaning. Cf. Henson v. Santander
Consumer USA Inc., 137 S.Ct. 1718, 1723 (2017)
("[W]hen we're engaged in the business of
interpreting statutes we presume differences in language . .
. convey differences in meaning."). We therefore no
longer apply the old § 1446 and the Tedford
exception we created. We now apply the new § 1446 and
the bad-faith exception Congress created. See Thompson v.
Deutsche Bank Nat'l Tr. Co., 775 F.3d 298, 303 (5th
holding is consistent with the principle that "Congress
is vested with the power to prescribe the basic procedural
scheme under which claims may be heard in federal
courts." Patsy v. Bd. of Regents, 457 U.S. 496,
501 (1982). Once Congress has prescribed those procedures, we
cannot add to them. See, e.g., Ross v.
Blake, 136 S.Ct. 1850, 1857 (2016) (holding the Prison
Litigation Reform Act does not admit of judge-made
exceptions). We do not exalt judge-made doctrines over valid
laws. See Am. Express Co. v. Italian Colors Rest.,
570 U.S. 228, 235-39 (2013) (refusing to apply "a
judge-made exception to the FAA" broadly because
"[t]he FAA does not sanction such a judicially created
superstructure"); CLS Bank Int'l v. Alice Corp.
Pty., 717 F.3d 1269, 1303 (Fed. Cir. 2013) (en banc)
(Rader, C.J., concurring in part and dissenting in part)
("[J]udge-made exceptions to properly enacted statutes
are to be narrowly construed.").
not matter the House Report accompanying the 2011 statute
cites Tedford. That's for two reasons. First,
when "a statute's text is clear, courts should not
resort to legislative history." Adkins v.
Silverman, 899 F.3d 395, 403 (5th Cir. 2018). And we
think the new § 1446(c)(1) is clear. But second, in all
events, the report cites Tedford only once, and only
then to explain the conflict the amendment would resolve.
See H.R. Rep. 112-10, at 15 (2011), as reprinted
in 2011 U.S.C.C.A.N. 576, 580. The report does not say
the bill would adopt the Tedford standard. Instead,
it refers to the statutory bad-faith exception as a "new
standard." Ibid. Relying on a single reference
to Tedford- without accounting for the author's
description of the bad-faith standard as
"new"-would be "akin to 'looking over a
crowd and picking out your friends.'" Patricia M.
Wald, Some Observations on the Use of Legislative History
in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214
(1983) (quoting Harold Leventhal's description of
problems with citing legislative history).
even if the Hoyts' litigation conduct would not satisfy
the old Tedford standard (an issue we need not
decide), that is no reason to reverse the district
court's finding ...