*1 759 III. CONCLUSION reasons,
For the foregoing we DENY request
Dowthitt’s for COA on all of his
claims and stay VACATE the of execution. ADDO,
Alice Plaintiff-Appellant,
GLOBE LIFE AND ACCIDENT COMPANY,
INSURANCE
Defendant-Appellee.
No. 99-60277.
United Appeals, States Court of
Fifth Circuit.
Oсt. court's denial is reviewed for of discre- abuse tradicted the record or supported con- Johnson, tion.” Clark v. 227 clusory 284- F.3d incapable being factual assertions (5th Cir.2000). 85 When the district evidentiary tested in hearing hearing, no " 'sufficient facts before it required.”). make an Given that the court ana- district informed decision on the lyzed [the merits of habe- whether Dowthitt received "full and сlaim,’ petitioner's] courts, hearing” does not abuse its fair in the state found that failing discretion in evidentiary conduct an Judge proper, Alworth’s conduct was Barrientes, hearing.” 770; see thorough F.3d opinion taking wrote a into account Fishel, also United States v. evidence, 747 F.2d all jurists credible reasonable (5th 1984) ("Where, here, Cir. allegations disagree acted well petition contained in a habeas either are con- within its discretion. *2 JONES, Judge: Circuit H.
EDITH before us question The determinative timely re- company insurance whether court over from state a case moved it re- policy when $5,000 life insurance filed, the case was ceived seek dam- indicating federal exceeding the ages peti- that the Finding minimum. a sum- must vacate untimely, we tion was the insurer mary judgmеnt to state instructions mand with court. Addo Alice submitted
Plaintiff-appellant moth- under her beneficiary a claim as defendant-ap- policy to er’s life insurance Accident Insurance Life and pellee Globe (“Globe”). investigation, Upon Company mis- mother discovered that Globe on her condition pre-existing represented de- Accordingly, Globe policy aрplication. policy, and claim, rescinded nied that her premiums Addo refunded policy. paid for mother court, re- in state brought suit $5,000 damages in actual questing —the policy face amount —and $65,000.” A “not to exceed damages on later, a demand she served month Globe, the suit offering to settle $75,000.1 Several amount Deakle, Bryant Paul Caston M. John inter- Globe served passеd before Firm, Hattiesburg, Deakle Law (argued), confirm asking her to on Addo rogatories MS, Plaintiff-Appellant. controversy would that the amount Heidelberg, (argued), III W. Rowland to con- $75,000. she refused When exceed Heidel- (argued), Thornton James Garfus firm, removed Globe McKenzie, Hatties- Sutherland & berg, to remand. moved and Addo Defendant-Appellee. MS, for burg, motion court denied The distriсt for sum- motion granted and later appealed. mary judgment.
DISCUSSION diversity and'WIENER, basis removed JONES, DUHÉ Before in- complaint stated jurisdiction. Judges. Circuit refer- to settle above offered properly characterized the letter is 1. Whether offer with letter” We case. counter or "statement enced a “demand letter” Friday, Sep- to our until is irrelevant will stand may disputed, but offer This letter states: analysis. The tember Very truly yours, Globe]: [To August counsel] telephone conversation [Plaintiff’s In our understanding you my it is continuously, controversy erroneously, sufficient based her jurisdiction diversity arguments See 28 U.S.C. 1332 remand here and below on a original jurisdiction courts (giving pre-complaint demand letter. We read the diversity matters where over there differently. Despite record ambigui- some *3 citizenship and where “the matter in con- ty Addo’s trial court briefing, neither the sum or value of troversy exceeds the trial court nor court has 000”). However, under 28 U.S.C. misinformed as to the timing of Addo’s 1446(b): § letter or the consequences for remov- by pleading
If the case stated the initial al that followed it. from removable, a is not notice of removal Turning the merits of the re within may thirty bе filed after mand argument, issue this court re a receipt by copy the defendant ... of novo, Sabatino, Rodriguez views de v. 120 or pleading, amended motion order (5th 589, Cir.1997), F.3d 591 we have not paper may other from which it first previously a post- determined whether ascertained that the case is one which is complaint concerning or ... has become removable may terms an “other paper” constitute un added). (emphasis Id. us issue before § der Chapman See v. Power paper” is what “other first gave Globe matic, Inc., 160, 969 F.2d 164-65 & 164 n. controversy notice that the amount in ex- (5th Cir.1992) (declining 8 to reach this ceeded and whether Globe re- question, but concluding other reasons receiving thirty days moved within pre-complaint that a demand letter does paper. that that the demand argues However, not paper”). constitute “other paper” letter was an “other and that we have held that similar documents can untimely. Globe’s removal was Erectors, “other paper,” see S.W.S. Inc. any counters that re- Addo has “waived” (5th Inc., 489, Infax, v. 72 F.3d 494 Cir. letter, argument moval based on the 1996) (a deposition answer constituted an alternatively, timely it removed after paper”), “other and the of lower receiving interrogatory answers. We courts have considered this issue hold need not reach alternative Globe’s conten- that a post-complaint demand letter is tion. 1446(b), § paper” “other under see Stra matter, anAs initial argu v. Capital mel GE Small Business Fi ment that this properly issue is not (E.D.Tex. 65, Corp., F.Suрp. nance 955 67 First, us lacks merit. although Addo did 1997); Bank Accep Sunburst v. Summit ruling mention the remand in her no (S.D.Miss. Corp., F.Supp. tance 878 82 ruling tice of appeal, remand was en 1995); Rodgers v. Northwestern Mut. Life compassed within the final judgment she Co., (W.D.Va. F.Supp. Ins. 952 327 appealed may such that we consider it 1997); Wright, 14C Alan et Charles cf. Trust appeal. See Co. Louisiana al., Federal Practice and Procedure Inc., (5th N.N.P. 104 F.3d 1485 Cir. (1998) § (“[Cjorrespondence between 1997) (an appeal a final judgment from parties attorneys their between sufficiently preserves prior all in orders attorneys usually accepted [is] [an] judgment.). tertwined with the final paper’ souree[ ] ‘other new initiate[s] Second, has thirty-day period removability.”). not “waived” her ar- Addi gument pa- tionally, implicitly the letter was “оther N.W.S. per” commonly gave argument which Globe notice of the the most advanced in controversy. against treating Globe concedes a letter between counsel filing paper,” namely, that Addo the letter after .an that a docu issued “other complaint, but argues actually that she waived ment be filed the state must any paper.” argument post- proсeedings based on this to be an “other Erectors, complaint demand at 494. letter because she See S.W.S. 72 F.3d 1446(b)’s 30-day removal opening complies ease in this Moreover, the letter window, examine must must we “other rule our with circumstances act of a all voluntary framework from sult by notice it was the defendant gives at the time which existed now which circumstances changеd the defen- and received Holding that See id. jurisdiction. properly doing we Only by so dant. plainly is not which post-complaint lawsuit—which whether determine under sham,2 may be filed—“is when removable 1446(b) consistent removable”1 has become prompt encourage statute that letter. virtue defendant court when to federal resort *4 ex- demand plaintiffs that the learns less first filed pеtition, court state Addo’s Fur- limit. jurisdictional the federal ceeds letter was Addo before the a month disingenuous discourages ther, holding to eschew mailed, artfully crafted to in state plaintiffs by pleading demanding the to In movability: addition removal. avoid Addo policy, the Globe proceeds $5000 de- post-complaint Accordingly, Addo’s damages, attor- interest, punitive for asked under “other was letter mand $65,000, costs, to exceed and fees neys’ the notice 1446(b) gave Globe § which aggregate capping expressly thereby did Because was removable. weeks $70,000. Within at recovery thirty however, within not, remove it (and was apparently was filed suit subsequent Globe’s receiving that counsel), defense the hands placed Addo’s and improper, was rеmoval lawyer and phoned Addo’s agent Globe’s Thus, granted. have should motion paying Addo the case to settle proposed judgment court’s the district VACATE we her dismissal for in consideration $5000 to re- instructions REMAND and phone days after that A few lawsuit. the to court. state the case mand (repro- letter Addo call, 2-sentence the dissenting: WIENER, Judge, Circuit 1 of in footnote in full duced $5000 Globe’s context opinion) full to consider failing By from the 1997 letter August, which offer. letter”) (the was “Addo lawyer lawyer Addo’s rejected, With settlement failing and then agent, to Globe’s until, in state her case prosecuted really it what letter for recognize to later, defense six approximately wrong reaches is, majority opinion and once establish to endeavored In law. right result, undеr the albeit capped her genuinely Addo all whether encourages for both opinion process, carefully or, despite her $70,000 than discour- rather pleading claim disingenuous unwary. more. trap for the to seek sets intended pleadings, it and aging crafted and reluctant- respectfully why I of Globe’s form This took exercise This strenuously ly answers Addo’s interrogatories, —dissent. writtеn —but and noncommittal equivocal so were
I. for grounds they served court on the Context federal removing the case Mississippi’s diversity. Given basis if it to see letter the Addo testing In damages, punitive law open-ended purposes an “other qualifies recovery was punitive if a policy, and pay a to warranted, demand argued that Addo's Globe has exceeded well hаve could it Although the amount a sham. letter limit. jurisdictional federal high com- damages requested punitive amount, Mississippi law policy pared to 1446(b). 28 U.S.C. refusal damages for bad-faith permits Addo’s answers to Globe’s interrogatories To its contrary conclusions— were sufficient—at least in eyes that the Addo letter was “a demand letter” judge meet the juris- or that it constituted bona —tо fide offer to dictional amount for diversity purposes. settle the suit for more $75,000, Indeed, it was after this thereby 1998 removal making it an indicator of the plain- resurrected his tiffs intent August, to seek damages exceeding the proffered 1446(b) as a minimum—the ma- paper,” purportedly jority sufficient relies on its preliminary finding that opened have the 30-day window, letter is not a “sham.” Although after the closing I agree of which Globe’s removal wholeheartedly that the let- efforts would ter be forever is not a “sham” barred. These its obviously-in- are the tended circumstances that rejecting bracket Globe’s $5000 sending of the Addo hand, offer out provide am con- complete vinced beyond peradventure framework for testing it as the Addo that first letter is a established “sham” of a removability pur- settlement counter- poses And, §of offer. shams, unlike most
sham counteroffer was not intended to fool *5 or mislead anyone! II. Obviously irked by what he presumably
Proper Characterization Addo Letter perceived of to be an insultingly-low settle- ment Globe, offer from Addo’s lawyer re- The first sentence of the majority opin- sponded kind, not with a simple, bland ion describes the Addo letter as one “indi- rejection but with one couched in terms of cating plaintiff would seek damages an equally insulting, exaggerated “counter- exceeding the federal mini- offer.” Stated differently, the second sen- That, mum.” submit, I is not objective tence of the Addo letter is no counteroffer description letter; rather, of the it states all; it can only have been intended to the majority’s legal cоnclusion of this en- drive home the adamancy of rejection her tire appeal, the one with which I take issue by phrasing it as a sarcastic and grossly Next, today. in its second paragraph, the hyperbolized “sham” counteroffer: quar- a majority opinion labels the Addo a letter ter a million dollars to settle a suit on a of letter,” “demand again a legal conclusion life claim, $5000 insurance plus whatever with which I beg And, to differ. finally, in punitive damages Addo might obtain from sentence, same the Addo letter a state jury of neigh- friends and described as “offering to a settle suit for bors? Sure! an amount in $75,000.” If, but I acknowledge that jurists reasonable only if, we are willing to read the second differ, can I can but justification discern no and final sentence of thе two-sentence for characterizing the Addo letter any- as Addo letter “in vacuum,” a while wearing thing other than an blinders, rejection unconditional saywe it is an offer to settle. of Globe’s proposal settle, despite contend, I its however, that as a matter of law being dressed for dramatic effect in the the Addo letter can neither be read nor raiment of а faux settlement counteroffer. analyzed way. When read in pari A counterproposal to settle fifty times materia with all the facts and circum- the amount of the principal demand and stances of the case—as must be—the more than three-and-one-half times the Addo letter is absolutely nothing more capped amount —even including emphatic rejeсtion of Globe’s set- damages just not a demand or a settle- tlement offer. The —is first sentence of the proposal, ment much less a realistic one. letter offer; reiterates the second sentence of the rejects letter that offer. proof As of this pudding, one need only It’s simple as as that. imagine how vociferously Addo’s of assessment an honest was demand ment interpreta- very this on insisting vein, same In foot, damages.”6 on the other the shoe had tion Stores, v. Wal-Mart Standridge Addo court on the timely seized 1.e., had $75,000 settlement a Inc.,7 held removed and as letter filing weeks two admittedly sent the basis on to federal case this “nothing more complaint, I letter! in that $250,000 figure for settle counsel by plaintiffs offer, posturing a settlement rejectiоn aas peat, a considered and cannot purposes sham; ment certainly not Addo letter damages indicator non, reliable howev- vel counteroffer seeking.”8 any- [was] classify it reasonably er, I cannot crucial lies Therein a sham.
thing but appro- illustrates of cases That line me and between difference one, like for a analysis priate purрoses credit- and posturing puffery rejecting seriously are writings those only ing jurisprudence slight assess- plaintiffs realistic to be a meant every “other that not subject confirms repeat, To his case. the value ment parties, between exchanged intend- unquestionably oppo- counsel, or between between to serve author by its ed running start will party, site set- a low-ball emphatically reject only For 1446(b)’s clock. thirty-day —to submit, That, is the rea- offer. tlement Insurance v. Allstate example, Sfirakis aas response his phrased he why son demanding Co.,2 counteroffer, underscor- sham damages when $300,000 in *6 Under rejection. of that adamancy the ing was held pleadings in the sought had been time at the existed that circumstances the posturing “nothing more be tо mailed, confected, and re- the position aout seeking to stake counsel to all obvious ceived, had to have deter- The court purposes.”3 settlement Addo— especially “override could concerned' — that the letter mined sum of preposterous to the that reference that un- complaint verified unamended a serious $250,000 was neither damаges did states equivocally appraisal a realistic nor counteroffer read cannot $20,000.”4 I not exceed lawsuit. client’s of his value judgment posi- “staking] out even letter as my have insisted no one Again, purposes.” tion for more of the Addo characterization invita- genuine of a the antithesis letter is tried had its author zealously lawyer’s her less much negotiate, tiоn to removal. grounds it as use to po- maximum his client’s evaluation true obvi- court recovery. The district tential conclusion, one the same ously reached III. clearly erroneous. certainly Future Effects Dodge-Markham Golden Similarly, in disagree respectfully I must Finally, a true de Inc.,5 court Co., majori- today’s panel prediction to with insufficient nevertheless mand letter disin- discourage holding will its ty finding justify state those pleading by genuous court was because requirement On removal. avoid seek to who settle ... that Plaintiffs persuaded “not 1364. 6. Id. at (E.D.Pa.). WL 147482 2. 1991 *3. Id. 3. at (N.D.Ga.1996). F.Supp. 252 7. 945 4. Id. Id. 256. at (M.D.Fla.1998). F.Supp.2d 1360 5. 1 contrary, what could be more encour- IV. aging of such disingenuous pleading than Conclusion majority’s letting get away with artfully drafted state court petition I remain that, convinced for рurposes of filed a few weeks before her sham 1446(b)’s opening thirty-day removal and, later, her craftily evasive window, we must to harken the message of sponses to interrogatories, the cases like those cited above and re- sought only determine, way or the quire presence of a realistic figure in a other, whether or not Addo seeking bona fide writing that demonstrаtes,
recover or more. context, a true and functional nexus be- Besides providing a blueprint for the tween the dollars mentioned and the con- drafting of such duplicitous pleadings, to- tent, context, and circumstances under day’s majority opinion also trap sets a for which such “other paper” is transmitted on, unwary. From now every scrap of and received. If this wоuld cause our trial paper by plaintiff or his lawyer to courts to test “other papers” for objective defendant or his lawyer that, irrespective reasonableness and nexus, functional so be of content context, happens to mention it: They conduct such tests under other any dollar figure in $75,000, can circumstances on virtually a daily basis. likely shall be held by a fеderal court I certainly agree have started with 1446(b)’s panel running that removal thirty-day removal should be Henceforth, clock. sought ev- promptly when removability ery will reasonably free to amend his state as- certained. Removal complaint with impunity should not be either —and triggered only sky precluded, forever however, as the long limit—as as he by any every does so mоre than thirty after having hap- pens to mention a high transmitted some “other paper” figure; dollar hap- pens to those writings mention a figure can be read sensibly least as first indicating removability. respect- fully dissent. *7 yetAs another consequence of what we do today, ultra-cautious defense lawyers
will undoubtedly file notices of removal
virtually every time any writing even
obliquely referencing figure or
more received from plaintiff
plaintiffs counsel. This will create a veri- ping
table pong game' of removal and re-
mand between state and federal courts
until remand eventually “sticks.” Even
more troubling is the realization that less jittery lawyers plaintiffs or de- —whethеr LOVE; Justin al., Plaintiffs, et fendant’s—who are “merely” diligent prac- titioners, will awaken one day to find that Blue Cross and Blue Texas, Shield of (1) has inadvertently subjected Inc., Intervenor Plaintiff- (2) removal, himself to the defendant Appellant, (like Globe today) just as inadvertently lost any forever opportunity remove the case, because, solely more than thirty days earlier, the plaintiff sent the defendant NATIONAL MEDICAL
some seemingly innocuous letter or fax or ENTERPRISES, et e-mail. al., Defendants,