* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED MARCH 26, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20318

WUXI TAIHU TRACTOR COMPANY, LIMITED,

Plaintiff-Appellant

v.

THE YORK GROUP, INCORPORATED,

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:09-CV-00014

Before REAVLEY, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiff-AppellantWuxiTaihu Tractor Company, Ltd., filed this action for a bill

of review in Texas’s 157th judicial district, seeking relief from a July 2007 default

judgment rendered in a previous state-court action. The bill of review action was

removed to federal court, and Wuxi now appeals the district court’s judgment giving

effect to its denial of Wuxi’s motion to remand the action to state court, and denying

Wuxi relief from the 2007 state-court judgment. We vacate the judgment because the

federal court had no jurisdiction and we dismiss this case.

United States Court of Appeals

Fifth Circuit

F I L E D

February 9, 2012

Lyle W. Cayce

Clerk
No. 11-20318

1 Wuxi also asserted federal question jurisdiction. Though it contains a tangential

reference to the Lanham Act, 15 U.S.C. §§ 1051 et seq., York’s pleading in the enforcement

action did not assert any federal claim.

2 Wuxi Taihu Tractor Co., Ltd. v. York Group, Inc., 766 F. Supp. 2d 803, 812 (S.D. Tex.

2011).

3 63 F.3d 1326, 1336 (5th Cir. 1995).

2

This is one of three related lawsuits between Wuxi, a citizen of China, and

Defendant-Appellee The York Group, Inc., a citizen of Delaware and Pennsylvania.

The first suit was an action that York brought against Wuxi in Texas’s 165th judicial

district in 2006. York claimed unfair competition and tortious interference with

contract, alleging that Wuxi was copying and distributing York’s casket designs. Wuxi

appeared and filed an answer, which included an objection to York’s failure to properly

serve Wuxi. Wuxi subsequently failed to follow various orders of the state court, which

entered a default judgment against Wuxi on July 26, 2007. The judgment enjoined

Wuxi from copying York’s caskets or distributing copied caskets in the United States.

Wuxi did not appeal. At no point was the 2006 state-court action removed to federal

court.

York later concluded that Wuxi was violating the injunction. Seeking to enforce

the 2007 judgment, York brought a second suit against Wuxi in Texas’s 129th judicial

district on July 15, 2008. Wuxi removed the enforcement action to the United States

District Court for the Southern District of Texas on July 29, 2008. Wuxi asserted

diversity jurisdiction.1 The enforcement action is pending in the district court.

Wuxi filed the instant action for a bill of review in Texas’s 157th judicial district

on December 16, 2008. York removed the bill of review action to federal court on

January 5, 2009. Wuxi moved to remand the bill of review action to state court, and

York moved for summary judgment on the merits. The district court denied the motion

to remand and granted York’s summary judgment motion.2 Wuxi now appeals.

We review the denial of a motion to remand for lack of subject-matter

jurisdiction de novo. Allen v. R & H Oil & Gas Co.3
No. 11-20318

4 99 U.S. 80 (1878).

5

Id. at 82-83.

6

Id. at 83, 85.

7

Id. at 83.

8 868 F.2d 776, 781 (5th Cir. 1989) (emphasis removed), superceded by statute on other

grounds as stated in Tedford v. Warner-Lambert Co., 327 F.3d 423, 428 n.14 (5th Cir. 2003).

9 154 S.W.3d 93, 96 (Tex. 2004).

3

In Barrow v. Hunton,

4

the Supreme Courtheld that a supplemental, or ancillary

proceeding, though formally a separate action, may not be removed independently of

the original state-court lawsuit if the supplemental action is “so connected with the

original suit as to form an incident to it, and substantially a continuation of it.”5In

Barrow, the petitioner brought a petition in state court seeking a decree of nullity to

relieve him of an earlier state-court judgment that he asserted had been obtained

without service on him. The parties’ citizenship was diverse, and the defendant

removed petitioner’s action for a decree of nullity to federal court. The Supreme Court

acknowledged that a suit seeking relief from a previous state-court judgment could be

removed if the asserted grounds of relief presented a substantively separate lawsuit.6

But federal courts lack jurisdiction over an action that is “merely tantamount to the

common-law practice of moving to set aside a judgment for irregularity, or to a writ of

error, or to a bill of review or an appeal . . . .”7

Barrow’s holding applies “when an action in federal court seeks to nullify or to

enforce the judgment of a prior state court suit.” Beighley v. FDIC.

8 A bill of review is

a Texas-law equitable proceeding through which a party may seek relief from a

judgment no longer challengeable by appeal or a motion for new trial. Caldwell v.

Barnes.

9 Like Barrow, the instant suit is a supplementary action seeking to nullify a

state-court judgment rendered in a prior suit on the basis of procedural irregularities,

and Wuxi alleges no claim or defense that was not previously before the state court.

The district court reasoned that Barrow did not apply because removal of York’s

enforcement action made the 2007 state-court judgment the equivalent of a judgment
No. 11-20318

10 766 F. Supp. 2d at 808-09.

4

rendered by the district court.10 That confuses what happens when the state case is

properly removed to federal court.

Judgment VACATED; case DISMISSED.