### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-41220.

In re EXCEL CORPORATION, Cargill, Incorporated; Freddie

Franklin; Steve Steffe, Petitioners.

Feb. 19, 1997.

Petition for Writ of Mandamus to the United States District Court

for the Southern District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

BY THE COURT:

Petitioners Excel Corporation (Excel), Cargill, Inc.

(Cargill), Fr eddie Franklin, and Steve Steffe (collectively "the

defendants") filed this petition for writ of mandamus pursuant to

29 U.S.C. § 1651 and F ED .R.A PP .P. 21(a). The defendants ask this

court to issue a writ of mandamus directing the district court to

vacate its order that consolidated for purposes of remand the

claims and parties of the eight underlying cases at issue. Because

we hold that the district court erred in consolidating these cases

and remanding the cases on the basis of that consolidation order,

we grant the writ of mandamus, vacate the consolidation order and

the remand order, and direct the district court to reconsider the

motions to remand on a case by case basis.

BACKGROUND

Eight civil actions were originally filed against the

defendants in various state distr ict courts in the southern-most

county in Texas, Cameron Count y, between June 1994 and August1 The eight cases at issue are styled as follows:

1. Rendon v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-313;

2. Trevizo v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-321 ( Trevizo I );

3. Trevizo v. Excel Corporation, Cargill, Inc., and

Freddie Franklin, No. B-94-322 ( Trevizo II );

4. Moreno v. Excel Corporation, Cargill, Inc., and

Steve Steffe, No. B-94-323;

5. Quezada, et al. v. Excel Corporation, Cargill, Inc.,

No. B-95-26;

6. Rhoads, et al. v. Excel Corporation, Cargill, Inc.,

No. B-95-37;

7. Arpero, et al. v. Excel Corporation, Cargill, Inc.,

No. B-95-115; and

8. Morales v. Excel Corporation, Cargill, Inc., No. B95-169. 1995. 1 The plaintiffs' claims arise out of their employment at two

Excel meat packing plants located in the Texas Panhandle towns of

P lainview, Hale County, Texas, and Friona, Parmer County, Texas.

The defendants timely removed these cases to the United States

District Court for the Southern District of Texas, Brownsville

Division.

Plaintiffs are employees of Excel, a wholly owned subsidiary

of Cargill, and brought these suits alleging various claims of

personal injury due to negligence and a single claim of wrongful

discharge based on an attempt to pursue a compensation claim for a

work related injury. Plaintiffs are all citizens of either New

Mexico or Texas. Excel is a Delaware corporation with its

principal place of business in Kansas. Cargill is a Delaware

corporation with its principal place of business in Minnesota. The2 We also note that some of these plaintiffs may have failed

to timely file motions to remand. For example, the defendants

timely removed the Rendon case on November 21, 1994. The individual defendants, Freddie Franklin and Steve Steffe, are

citizens of either Texas or New Mexico.

In the first four cases, Rendon, Trevizo I, Trevizo II, and

Moreno, an individual plaintiff sued Excel, Cargill, and one of the

individual defendants. In three of these cases, the plaintiffs

alleged that they suffered personal injuries due to the defendants'

failure to provide a safe workplace. In T revizo II, the plaintiff

alleged th at he was wrongfully discharged after he attempted to

pursue a claim for compensation for a wor k-related injury.

Defendants invoked diversity jurisdiction in Rendon, Trevizo I, and

Moreno, based on the alleged fraudulent joinder of the non-diverse

defendant. In T revizo II

, the defendants assert that federal

question jurisdiction exists and re moval is proper because the

plaintiff's wrongful discharge claim falls under the purview of the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§ 1001 et seq. (1994), du e to Excel's decision not to become a

subscriber under the Texas workers' compensation statute.

In the second set of four cases, the plaintiffs sued Excel and

Cargill alone. Q uesada involves 64 plaintiffs, Rhoads involves 12

plaintiffs, A

pero had 11 plaintiffs, and M orales is a single

plaintiff case. These plaintiffs allege that they suffered

personal injuries in the course of their employment due to the

defendants' negligent failure to provide a safe workplace. The 88

plaintiffs involved in these four cases did not name a non-diverse

defendant. As such, defendants invoked diversity jurisdiction. 2plaintiff filed a motion to remand on January 3, 1995, 43 days

after the defendants removed the case. Additionally, the

plaintiffs in Rhoads waited 41 days to file their motion to

remand.

3 In its findings and conclusions, the magistrate

consolidated the eight cases for purposes of considering the

plaintiffs' motions to remand. The magistrate expressly found

the remand motions to be timely. Although we do not reach this

issue, it appears from the face of the record that at least two

of the motions to remand were not timely filed. After the

consolidation, the magistrate found that "each Plaintiff is a

resident of Texas or New Mexico and has joined a non-diverse

individual defendant." As explained herein, a consolidation

order cannot serve to merge the suits into a single cause. As

such, four of the eight cases do not have non-diverse defendants. On September 27, 1996, Plaintiffs filed a "Motion to

Consolidate, Motion to Remand and for Ruling on Pending Motions to

R emand." The case had been assigned to a magistrate judge. The

magistrate judge entered an order consolidating these eight cases

and adopted verbatim the proposed findings and conclusions

submitted by the plaintiffs. 3 The defendants filed timely

objections to the magistrate's or der. On November 21, 1996,

approximately two weeks after the magistrate's consol idation and

remand order, the district court issued an order approving the

c onsolidation of these cases for purposes of remand and reman ded

these cases based on its determination that the claims raised in

the consolidated case arise under the Texas Worker's Compensation

Act, which rendered them non-removable under 28 U.S.C. § 1445(c).

ANALYSIS

We must first as certain whether we have jurisdiction to

review the district court's order of consolidation and remand. 28

U.S.C. § 1447(d) severely restricts our authority to review remand

orders. "An order remanding a case to the State court from whichit was removed is not reviewable on appeal or otherwise...." 28

U.S.C. § 1447 (d). The Supreme Court has thrice held that "§

1447(d) must be read in pari materia with § 1447(c), so that only

remands based on grounds specified in § 1447(c) are immune from

review under § 1447(d)." Q uackenbush v. Allstate Ins. Co.,

---

U.S. ----, ----, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996); see

also Things Remembered, Inc. v. Petrarca, 516 U.S. ----, ----, 116

S.Ct. 494, 495, 133 L.Ed.2d 461 (1995); Thermtron Products, Inc.

v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 590, 46

L.Ed.2d 542 (1976). As such, only remand orders based on lack of

subject matter jurisdiction or on defects in removal procedure are

affirmatively barred from appellate review. See Quackenbush,

---

U.S. at ----, 116 S.Ct. at 1718; L inton v. Airbus Industry, 30

F.3d 592, 600 (5th Cir.1994).

The district cou rt determined that this case involves a

worker's compensation remand order based on 28 U.S.C. § 1445(c) ("A

civil action in any State court arising under the workmen's

compensation laws of such State may not be removed to any district

court of the United States."). Because we are reviewing a remand

order which is not grounded on s ubject matter jurisdiction or

defects in removal procedure under 28 U.S.C. § 1447(c) we have

jurisdiction to consider the propriety of such order.

The Supreme Court has recognized that mandamus may be an

appropriate remedy where the district court has remanded the case

on grounds not authorized by removal statutes. S ee Quackenbush,

--

- U.S. at ----, 116 S.Ct. at 1718; T hermtron, 423 U.S. at 353, 96

S.Ct. at 594. This Circuit has recognized this exception andconcluded that "[w]e may review a remand order on a petition for

writ of mandamus

... provided that it was entered on grounds not

authorized by § 1447(c)." I n re Allstate Ins. Co., 8 F.3d 219, 221

(5th Cir.1993); s ee also In re Shell Oil Co., 932 F.2d 1518, 1521

(5th Cir.1991).

In the non-§ 1447(c) context, the Supreme Court in CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 623, 98

L.Ed.2d 720 (1988), held that a district court has discretion to

remand a case involving p endent claims upon a determination that

retaining jurisdictio n over such a case would be inappropriate.

S ee also Bogle v. Phillips Petroleum Co., 24 F.3d 758, 761 (5th

Cir.1 994) ("a remand order is reviewable if it is based upon the

Carnegie-Mellon rationale, but is immune from review if it is based

upon the grounds enumerated in Section 1447(c).").

Relying on Cohill, this Court has held that courts of appeals

may review remand ord ers that are issued on grounds other than §

1447(c). S ee Bogle, 24 F.3d at 761. Because the Supreme Court has

pe rmitted our review of remand orders based on provisions other

than § 1447(c), Quackenbush, --- U.S. at ----, 116 S.Ct. at 1718,

and because we are bound by prior panel opinions, Trizec Prop.,

Inc. v. United States Mineral Prod. Co., 974 F.2d 602, 604 n. 9

(5th Cir.1992) (recognizing that we are "bound to prior panel

opinions absent en banc reconsideration or a superseding contrary

Supreme Court case"), Bogle permits our review of the district

court's order remanding this case on § 1445(c) grounds. B ogle, 24

F.3d at 761.

In the instant case, the district court iss ued an order4 Section 1445(c) is not jurisdictional. If a defendant

removes a civil action arising under a state's workers'

compensation laws, we have held that the wrongful removal is a

procedural defect is waived under 28 U.S.C. § 1447(c), if not

raised in 30 days. Williams v. AC Spark Plugs, 985 F.2d 783 (5th

Cir.1993).

On remand from this decision, the district court should

first ascertain whether each individual case does, in fact,

arise under the workers' compensation laws of Texas. See

Patin v. Allied Signal, Inc., 77 F.3d 782, 786 (5th

Cir.1996) (analyzing when a cause of action arises under the

administrative procedures applicable to a state workers'

compensation claim). If the individual cases do arise under

the workers' compensation laws of Texas, the district court

should determine whether the plaintiffs properly and timely

objected to the removal under § 1447(c). con solidating these eight cases, and then based its decision to

remand the eight cases by considering them as a single cause. The

district court then applied 28 U.S.C. § 1445(c), the provision

which forbids removal of civil actions arising under state worker's

compensation laws, to the consolidated case and remanded the cause

to state court. 4 The district court found that both the personal

injury claims and the wrongful discharge claim arose under the

worker's compensation laws of the State of Texas and ruled that the

magistrate's order consolidating these cases for purposes of remand

was, therefore, proper. Accordingly, the district court's remand

order in this case was based solely on § 1445(c) not § 1447(c) and,

therefore, we may review the propriety of that order. See Bogle,

24 F.3d at 761.

Having established our jurisdiction to consi der this case,

this Court will issue a wri t of mandamus "to remedy a clear

usurpation of power o r abuse of discretion." I n re F.D.I.C., 58

F.3d 1055, 1060 (5th Cir.1995) (citations and quotations omitted).

Here, the district cour t adopted the magistrate's orderconsolidating these eight cases for purposes of remand. By

consolidating these cases and then remanding them on § 1445(c)

grounds, the district court erred by merging these suits into a

single cause which altered the rights of some of the parties

involved. S ee Johnson v. Manhattan Railway Co., 289 U.S. 479, 496-

97, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933); L angley v. Jackson

State Univ., 14 F.3d 1070, 1072 n. 5 (5th Cir.1994); Kuehne &

Nagel (AG & Co.) v. Geosource, Inc.

, 874 F.2d 283, 287 (5th

Cir.1989). Before Rule 42(a) was adopted, the Supreme Court in

Johnson v. Manhattan Railway Co., 289 U.S. at 496-97, 53 S.Ct. at

727-28, held that consolidation "does not merge suits into a single

cause, or change the rights of the parties, or make those who are

parties in one suit parties in another." We have adhered to this

instruction after the adoption of Rule 42(a). S ee Langley, 14 F.3d

at 1073; K uehne, 874 F.2d at 287; M cKenzie v. United States, 678

F.2d 571, 574 (5th Cir.19 82); 9 Charles A. Wright & Arthur R.

Miller, F EDERAL P RACTICE AND P RO CEDURE : C IVIL 2d § 2382 at 430 (1995).

Consequently, the district court abused its discretio n by

consolidating these suits for purposes of determining the propriety

of remand.

In four of these cases, the plaintiffs did not sue a

non-diverse defendant. Further, it appears that the plaintiffs in

the Rendon case filed their motion to remand on January 3, 1995, 43

days after the defendants removed the case. Additionally, the

plaintiffs in Rhoads waited 41 days to file their motion to remand.

By considering these eight cases as one single cause after the

consolida tion order, the district court adversely affected the5 While we express no opinion as to the resolution of this

issue, the recently decided Supreme Court of Texas case Leitch v.

Hornsby, 935 S.W.2d 114, 120 (Tex.1996) may be pertinent to a

determination of the defendants' fraudulent joinder claims. In

Leitch, the court held that a company's employees have no duty to

furnish a safe work place and, as such, may not be held liable in

their individual capacities for the company's negligent failure

to provide a safe place to work. Leitch, 935 S.W.2d at 120. rig hts of the defendants by failing to separately determine the

jurisdictional premise upon which each stands and the propriety of

removal or remand resulting therefrom.

CONCLUSION

Finding that the order of consolidation and the ensuing remand

order on the basis of that consolidation adversely affected the

parties in this case, we grant the defendants' writ of mandamus,

vacate the consolidation and remand order, and instruct the

district court to consider each plaintiffs' motion to remand on a

case by case basis, determining in each case as appropriate the

issues of diversity of citizenshi p, federal question, fraudulent

joinder, 5 timeliness of r emand motion and non-removability of

workers' compensation claims.