81 F. Supp. 3d 543
S.D. Tex.2015Background
- Bees Brothers, LLC removed a Texas state-court action brought by HHI for declaratory relief regarding indemnification and defense obligations under multiple P.O.s for foreign-origin honey.
- Subject matter includes federal questions (CISG, Lanham Act) and diversity considerations; HHI seeks remand.
- HHI alleges warranties/representations about origin and compliance, plus defense/indemnity and insurance obligations under the P.O.s.
- Bees Brothers contends removal is proper under federal question, CISG preemption, and diversity; argues venue clause and indemnity provisions are implicated.
- The court must assess removal propriety, unanimity of consent, possible improper joinder, and whether federal questions or diversity exist, before addressing merits.
- The court remands, finding procedural defects and lack of clear federal jurisdiction; venue and choice-of-law issues do not establish federal questions, and diversity is not shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper removal given unanimity rule | HHI argues not all served defendants consented timely. | Bees Brothers asserts last-served Defendants’ timely consents suffice under §1446(b)(2)(C). | Remand granted; removal defective due to untimely/absent consents. |
| Venue clause effect on removal | Bees Brothers’ Chambers County venue clause waived removal rights. | Venue clause is permissive or not a clear waiver. | Remand upheld; clause deemed to preclude removal rights as a mandatory exclusivity in a non-federal venue. |
| Federal question and CISG preemption | P.O. construction is state-law driven; no federal question; CISG not invoked for declaratory relief. | CISG and federal questions control indemnity claims and relief sought. | No federal question; CISG does not create federal jurisdiction for the declaratory action. |
| Diversity jurisdiction and improper joinder | HHI is a Texas citizen with multiple in-state defendants; alleges lack of complete diversity. | Bees Brothers asserts improper/ fraudulent joining of in-state defendants nullifies diversity. | Diversity not established; improper joinder not proven; remand required. |
Key Cases Cited
- Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278 (5th Cir.2007) (strictly construe removal; doubts favor remand)
- Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568 (5th Cir.2004) (improper joinder framework; 12(b)(6) style analysis)
- Gutierrez v. Flores, 543 F.3d 248 (5th Cir.2008) (removal statute strictly construed; doubts remanded)
- Wilton v. Seven Falls Co., 515 U.S. 277 (1995) (declaratory judgments; court discretion)
- City of New Orleans v. Municipal Admin. Servs., Inc., 376 F.3d 501 (5th Cir.2004) (forum/venue clauses; not always waivers of federal rights)
- BP Oil Int’l, Ltd. v. Empresa Estatal Petro. de Ecuador, 332 F.3d 333 (5th Cir.2003) (CISG preemption and private right of action; federal law effect)