### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 10737

AUTOBAHN IMPORTS , L.P. , Doing Business as Land Rover of Fort Worth,
Plaintiff

–

Appellee ,

versus JAGUAR LAND ROVER NORTH AMERICA, L.L.C. , Defendant

– Appellant

.

Appeal from the United States District Court for the Northern District of Texas

Before HIGGINBOTHAM , SMITH, and CLEMENT , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
This i s a dispute between a U.S. car distributor, Jaguar Land Rover North America ( “ J aguar ” ) , and a franchised dealership, Autobahn Imports (“Autobahn”) , concerning chargeback s of around $300,000 in incentive pay

ments th e distributor had made to the dealer

. T he Board of the Texas Depart

ment of Motor Vehicles (the “Board”) declared the chargebacks invalid, and United States Court of Appeals Fifth Circuit 

### FILED July 13, 2018 Lyle W. Cayce Clerk Case: 17-10737 Document: 00514553404 Page: 1 Date Filed: 07/13/2018No. 17

- 10737

2 J aguar exercised its statutory right of review in the state appellate court

. While that appeal was pending, Autobahn sued for damages based on the Board’s findings , claim ing violations of the Texas Deceptive Trade Practices Act (“DTPA”) and breach of contract. Before the state c ourt of a ppeals had completed its review, the federal dis trict court granted summary judgment to Autobahn on its various claims

. Because Auto bahn’s antecedent failure to exhaust divested the district court of power to decide the claim when it did,

s ummary judgment is vacated and remanded.

I. J aguar o ffers an incentive known as the “Business Builder Program,” which provides dealers a percentage of the retail pric e of every vehicle sold if certain conditi ons are met. The relevant terms are set out in the Business Builder Program Manual (“Manual”) and the Operations Bulle tin (“Rules”), collectively referred to as the Business Builder Contracts. 1 Accord ing to J aguar , d ealerships are entitled to incentive payments if they (1) deliver each new vehicle to the “end

- user”; (2) submit the end

- user’s name and address to J aguar ; and (3) maintain the necessary documen tation to sup port that address. The Rules define an “end user” as “a purchaser/lessee pur chasing or leasing a vehicle from an authorized Dealership for retail, commer cial or business use, with no intent to resell. An approved leasing company purchasing to lease is considered an end user.” T he Rules offer no definition of an “approved leasi ng company.” In 2010, a dispute arose regarding the procedures and policies governing the 2011 Business Builder Program, and Autobahn filed a complaint with the

1 See also Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C. , No. 17

- 10349, 2018 WL 1612252 , at *1 (5th Cir. Apr. 3, 2018) (per curiam) (unpublished). Case: 17-10737 Document: 00514553404 Page: 2 Date Filed: 07/13/2018No. 17

- 10737

3 Texas Department of Motor Vehicles. Before the Board acted, J aguar and Autobahn entered into the 2011 Settlement Agreement, which outlined certain “Handover Policies” that Autobahn would follow. Th at a greement required Autobahn to extend to “[e]very retail purchaser . . . an invitation to visit Auto

bahn’s dealership personally” to receive the ve hicle, or to conduct the handover “at the residence/office of the purchaser or end

- user.” The a greement stated that “[a]ll deliveries . . . will be conducted by trained Autobahn personnel.” The parties dispute the reach of th e a greement. J aguar asserts that the Hand over Policies apply to all “end users,” while Autobahn insists that it applies only to “individual retail purchasers, not leasing companies.”
A new dispute regarding the 2013 Business Builder P rogram forms the princip a l basis for the curren t action. J aguar conducted an audit of Autobahn’s sales from February 2013 through January 2014. The auditor looked at 134 sales files, “all of which invo lved sales to leasing companies, ” and claimed that in 90 cases , Auto bahn was not entitled to an incentive payment because “[d]elivery was not made to the vehicle’s end

- user by an authorized Land Rover retailer repre sen tative.” Instead, the leasing agency delivered the vehicle to the lessee. The auditor initiated 91 chargebacks for incentive pay m ents. 2 Auto bahn appealed, and J aguar affirmed all but 5 , resulting in $317,204.80 in chargebacks. In May 2014, Autobahn filed a complaint with the Board, alleging that the chargeback violated Section 2301.467(a)(1) of the Texas Occupations Code, which prohibits a manufacturer, distributor, or representative from

2 “A manufacturer or distributor may make charge

- backs to a dealer if, after an audit, the manufacturer or distributor has reasonable grounds to conclude that the dealer commit

ted fraud with respect to the incentive program.” T EX

. O CC

. C ODE § 2301.475(b). Case: 17-10737 Document: 00514553404 Page: 3 Date Filed: 07/13/2018No. 17

- 10737

4 “requir[ing] adherence to unreasonable sales or service standards.” 3 Autobahn sought “a declaration from the Board that [ J aguar’s] interpretation of ‘end

user’ to exclude a leasing company pur chas ing a vehicle from Autobahn” vio

lated that prohibition. The Board referred Autobahn’s complaint to an administrative law judge (“ALJ”) at the State Office of Admin istrative Hearings. In August 2015, the ALJ issued a Proposal for Decision, conclud ing that the charge backs violated Section 2301.467(a)(1). The ALJ noted that the dispute ulti mately turned on the question “whether a leasing company is an end

- user under the terms of the Business Builder docu ments.” The ALJ thought yes. While noting that neither the Manual nor the Rules define “an approved leasing company,” she still found that “[s]ales to leasing companies are qualified sales under Business Builder according to the Pro gram documents.” She concluded that Jaguar’s “ charge

backs to A uto bahn for sales to leasing companies

. . . [were] invalid under

. . . § 2301.467(a)(1) for requiring adherence to unreasonable sales or service standards.” 4 The Board adopted the ALJ’s findings of fact and conclusions of law and issued a f inal o rder stating that J aguar “improperly charged back against [Auto bahn] certain incentive payments for sales to leasing companies and that those chargebacks are invalid and rescinded.”
I n November 2016, J aguar appealed the Board’s o rder to the state c ourt

3 T EX

. O CC

. C ODE § 2301.467(a)(1). Autobahn also alleged that the action violated Sec tion 2301.468, which prohibits a manufacturer or distributor from “treat[ing] franchised dealers of the same line

- make differently,” see id. at § 2301.468, but the parties agree that Autobahn has since conceded th at claim.

4 The ALJ also concluded that J aguar’ s chargebacks violated § 2301.468 “for treating Autobahn unfairly or inequitably in its sale of [ J aguar’s] vehicles,” but Autobahn has since abandoned th at claim. Case: 17-10737 Document: 00514553404 Page: 4 Date Filed: 07/13/2018No. 17

- 10737

5 of a pp eals. 5 During the pendency of that appeal, Autobahn sued in state court , 6 claiming breach of contract and violations of the DTPA , the latter of which would entitle it to treble damages

. 7
J aguar re moved, and Autobahn sought summary judgment. It claimed (1) J aguar ’s “violation[] of Section 2301, as found by the Board, establish[es] Autobahn’s claim under the [DTPA] as a matter of law” and (2) that “the Board expressly found that the underlying agreements

. . . collectively con stitute valid and enforceab le contracts that [Jaguar] breached by virtue of wrong ful charge

backs.” J aguar replied that (a ) the action was premature because Autobahn had not yet exhausted its administrative remedies and that (b ) even if the action were properly before the court, A utobahn was not entitled to treble dam

ages on summary judgment because it had not established that J aguar acted “knowingly” as required by the DTPA.
The federal district court rejected J aguar ’s exhaustion argument , rea son ing that “the Board’s final ord er is final and enforceable.” The court then granted summary judgment on Autobahn ’s D TP A and breach

- of

- contract

5 The Texas Court of Appeals’ s review of Board decisions is fairly deferential. The court will “reverse or remand a case for further proceedings if substantial rights of the appel

lant have been prejudiced because the administrative findings, inferences, conclusions, or deci sions are (A) in violation of a constitutional or statutory provisi on; (B) in excess of the agency’ s statutory authority; (C) made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwa rranted exercise of discretion. ” Jaguar Land Rover N. Am. v. Bd. of the Tex. Dep’t of Motor Vehicles , No. 3

- 16

- 00770

- cv, 2017 WL 6756997, at *5 (Tex. App.

― Austin Dec. 21, 2017 , no pet. ) ( internal quotations omitted ).

6 Separate suit was necessary because the Texas Occupations Code does not grant th e Board authority to award damages for the relevant claims.

7 While these proceedings were underway, J aguar credited the $317,204.80 charge

back to Autobahn’s customer account, “subject to a full reservation of rights, without waiver of its claims or defen ses . . . , and subject to the right to insist upon the return of [the] sum in the event J aguar ultimately prevails in its appeal or otherwise obtains relief.” Case: 17-10737 Document: 00514553404 Page: 5 Date Filed: 07/13/2018No. 17

- 10737

6 claims but denied “ double recovery” as to the latter

. J aguar appealed, and, in the interim, the Texas Court of Appeals affirmed the Board’s order. 8

II. A. The parties dispute the point at which the Board’s o rder became final for purposes of administrative exhaustion. We agree with J aguar that Autobahn filed too soon

. Sitting in diversity , we apply Texas substantive law on the exhaustion question, 9 “look [ ing ] first [and foremost] to the final decisions of the Texas Supreme Court.” 10 Where that court has yet to speak directly to the question , “we must make our best Erie guess ,” 11 with the recognition that “non

- binding language from the [Texa s] [S]upreme [C] ourt is the second

- or third

- best pre

dic tive indicium of how [it] might decide.” 12
Our analysis begins and ends with Subaru of America v. David McDavid Nissan , 84 S.W.3d 212, 221 (Tex. 2002 ), which offers the court’s most thorough explication of exhaustion and the Board’s jurisdiction

. A car dealership had sued a manufacturer for several Code violations without first having sought administrative relief . The court began its analysis by explaining that Texas

8 Jaguar , 2017 WL 6756997 , at *9 (“We cannot conclude that there is no reasonable basis in the r ecord for the determination that the chargebacks violated section 2301.467(a)(1) or that the determination was arbitrary, capricious or affected by legal error.”).

9 Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 166 (5th Cir. 2014) (“T exas law mu st apply in this appeal; which leads us to the question of whether the exhaustion of administrative remedies under Texas law is jurisdictional or merely a condition precedent that may be forgiven.” ).

10 Austin v. Kroger Tex. LP , 746 F.3d 191, 196 (5th Cir. 2014).

11 Howe ex rel. Howe v. Scottsdale Ins. Co. , 204 F.3d 624, 628 (5th Cir. 2000).

12 In re DePuy Orthopaedics, Inc ., Pinnacle Hip Implant Prod

. Liab

. Litig

. , 888 F.3d 753, 774

– 75 (5th Cir. 2018). Case: 17-10737 Document: 00514553404 Page: 6 Date Filed: 07/13/2018No. 17

- 10737

7 agencies enjoy two forms of jurisd iction: “primary” and “exclusive.” Id. at 220

. T he former is “ prudential , ” the latter “ jurisdictional.” Id. Hence , w here the agency possesses exclusive jurisdiction, “a party must first exhaust adminis

tra tive remedies before a trial court has subject matter jurisdiction over a dis

pute.” Id. at 222

. As f or Code

- based claims, the Texas Motor Vehicle Com mis

sion Code “creates a hybrid claims

- resolution process” whereby “the Board has exclusive jurisdiction . . . over claims and issues the Code governs, [and] a party must exhaust administrative remedies to obtain a Board decision about Code violations, if any, to support a DTPA or bad

- faith claim based on Code viola

tions.” Id. at 2 24 ( emphasis added )

. Aft er identifying exhaustion as jurisdictional, the court opined on when it first occurs : The Board’s decision becomes “final” (and thus a party has ex

hausted administrative remedies) for purposes of a party’s purs u ing damages in a trial court for Code

- based claims: (1) after the time to seek substantial

- evidence review of the Board decision ex

pires, if no affected person seeks such review

. . . ; or (2) after an affected person who seeks judicial review exhausts the substantial

- evi dence review av enues
. . . . Id. I t is undisputed that Autobahn filed for damages , and the district court grante d summary judgment in its favor , before completion of substantial

evid ence review. Subaru thus suggest s the district court lacked subject

- matter jurisdiction to enter summary judgment.
The federal district court dismissed the above

- cited language as “nothing more than dicta” unsupported by the very statutory authorities upon which the Subaru court purportedly had relied

. The court concluded that the Board order was clearly a “final board order”

— noting that the order itself was titled “Final Order”

— and pointed to statutory provision s stating that an appeal of a final Case: 17-10737 Document: 00514553404 Page: 7 Date Filed: 07/13/2018No. 17

- 10737

8 board order should not affect its enforcement. 13 The district court thus con

clude d Autobahn need not wait for the Texas Court of Appeals.
We cannot agree

. I t is “error” for a “federal district court [to] dismiss [] [the Texas Supreme Court’s] language as [mere] dictum.” De P uy , 888 F.3d
at 774. Though the district court’s position finds some support in the relevant
statutes , its decision pays insufficient homage to the body charged with final interpretive authority over the statutes at issue.
As an initial matter, the dictum from Subaru likely is n’t “mere dicta ,” but rather bindin g “judicial dictum

. ” Texas courts recognize two types of dicta :

o biter dictum , which “is a statement not necessary to the determination of the case and that is neither binding nor precedential,” and judicial dictum , which “is a statement made deliberately after careful consideration and for future guidance in the conduct of litigation

. ” Lund v. Giauque , 416 S.W.3d 122, 129 (Tex. App.

— F or t Worth 2013 , no pet. ). 14 The latter “should be followed unless found to be erroneous.” Id.
Subaru ’s language bears a ll the hallmarks of judicial dictum

. Its intro

ductory sections carefully trace the nature of the Board’s jurisdiction, the con

tours of exhaustion for Code

- based claims , and their combined effect on a “[t]rial court’s adjudicat[ ive] ” role in the hybrid

- claims process. Subaru , 84 S.W.3d at 223

– 24. T he court was careful to delineate exactly how a party exhaus ts its claims in the hybrid

- claims process, emphasizing that “the Board’s decision becomes ‘final’ ( and thus a party has exhaust ed administrative reme

dies ) for purposes of a party’s pursuing damages in a trial court

. . . after . . . substantial

- evidence review” is completed. Id. at 224 (emphasis added). And

13 See T EX

. G OV

. C ODE §§ 2 001.176 , 2001.144(a)(2)(A); T EX

. O CC

. C ODE § 2301.755

. 14 S ee also Seger v. Yorkshire Ins. Co

. , 503 S.W.3d 388, 399 (Tex. 2016); Palestine Contractors, Inc. v. Perkins , 386 S.W.2d 764, 773 (Tex. 1964). Case: 17-10737 Document: 00514553404 Page: 8 Date Filed: 07/13/2018No. 17

- 10737

9 the court ratif ied i ts view of finality , stating that “ a ny further refe rence to final board findings means ‘final’ as we define this term here .” I d. at 224 n.2 (empha

sis added )

. Language as to when exhaustion occurs was plainly intended to guide future courts and litigants on the appropriate time to file for damages based on Code violations

. And th ough the Texas high court is certainly free to revisit that binding dictum , we lack the authority to do so. 15
Autobahn resists on two accounts . F irst, the language from Subaru “was not necessary to the resolution of the case,” and second , it is “impossible” that the statement was made “deliberat ely after careful consideration , ” because there was no briefing on the issue

. Both rebuttals fai l badly. T he first zeros in on the w rong distinction : E ven if necessity to the outcome might separate some holding s from dicta , 16 it certainly can not discriminate among gradations of the latter

. And a s for the second reply , it assumes too much of counsel and far too little of our state

- court colleagues

. Subaru itself proves as much. In the alternative, Autobahn avers more forcefully that the language from Subaru “lacks even ‘persuasive ’ force because it is erroneous. ” This asser

tion requires that we train our attention carefully on the two relevant statutory provision s with which Subaru purportedly conflicts : Texas Occupations Code

15 Cf. Terminiello v. City of Chi

. , 337 U.S. 1, 5 (1949) (explaining , in the First Amend

ment context, that “the gloss which [a state court] placed on the ordinance gives it a meaning and application which are conclusive on” federal courts); accord Gooding v. Wilson , 405 U.S. 518, 520 (1972) (“Only the [s tate] courts can supply the requisite construction, since of course ‘we lack jurisdiction authoritatively to construe state legislation.’” (quoting United States v. Thirty

- seven (37) Photographs , 402 U.S. 363, 369 (1971)) )

. 16 We state this only provisionally because the language of a decision may carry bind

ing w eight even when unnecessary to the particular result. C f. Saucier v. Katz , 533 U.S. 194, 207 (2001) (explaining that courts can decide whether an underlying constitut ional viola tion took place even if qualified immunity bars the suit and renders the antecedent constitu tional judgm ent unnecessary to the result), rev’d on other grounds in Pearson v. Callahan , 555 U.S. 223, 24 2 (2009)

. Case: 17-10737 Document: 00514553404 Page: 9 Date Filed: 07/13/2018No. 17

- 10737

10 § 2301.755 and Texas Government Code § 2001.176(b)(3). The first reads as follows: An appeal under this subchapter does not affect the enforce ment of a final board order unless: (1) the enforcement of the order is enjoinable under Chapter 65, Civil Practice and Remedies Code, and under principles of primary jurisdiction; or (2) the board, in the interest of justice, suspends the enforcement of the order pending final determination of the appeal. T EX

. O CC

. C ODE

. § 2301.755 (emphasis added). Similarly, Te xas Government Code § 2001.176 states that “[u]nless otherwise provided by statute,” the filing of a petition for review “ does not affect the enforcement of an agency decision ”

— such as the Board decision at issue here

— for which substantial

- evidence review is authorized. T EX

. G OV

. C ODE § 2001.176(b)(3) (emphasis added)

. Autobahn contends that S ection 2301.755 “plainly means that if one party appeals an adverse final board order, and if neither of the two exceptions applies, then the other party may file, prosecute, and obtain judgment in an action to enforce the final board order.” Autobahn cla ims that Section 2001.176(b)(3) points in the same direction and that both provisions apply to
anyone

— court or administrative agency

— with the authority to enforce a Board order.
J aguar ’s counter is plain enough

. It reads the statutes’ references to “enforcement” to cover only the Board’s own enforcement of its orders and not the initiation of a damages action in a trial court. As proof, Jaguar cites S ection 2301.805( b ) , which clarifies that the trial court in a damages ac tion is not tech

nically enforcing the Board’s order but instead “ giv [ ing ] deference to the [ Board’s ] findings of fact and conclusions of law ” “ in the interest of judicial

econ omy and efficiency.” T EX

. O CC

. C ODE § 2301.805 (b)

. Case: 17-10737 Document: 00514553404 Page: 10 Date Filed: 07/13/2018No. 17

- 10737

11 These dueling interpretations turn on a recurring source of uncertainty in statutory interpretation : T o whom is the statute addressed ? Subaru t acitly embraces J aguar’s narrowing construction , and Autobahn offers no thing on appeal to show t hat that interpretive choice was an unreasonable one
. In the absence of error, that judicial dictum should control.
But e ven if Subaru ’s language were not binding, the district court should have granted it heavy weight in wagering its Erie guess. See De P uy , 888 F.3d
at 774. Subaru ’s language is at least arguably consistent with the statutory scheme , and it provides the clearest signal of the position of Texas’s high est civil court. Given that f ar “weak [er] ” dictum is generally “ relevant to the [ Erie ] inquiry, ” id. at 775, Subaru ’s unmistakable clarity ought to have controlled. In short, Autobahn failed to exhaust before the federal district court entered judgment in its favor . B ecause that failure was jurisdictional , the district court lacked the power to decide the c ase when it did

. See Subaru , 84 S.W.3d at 218

. B. Autobahn asserts , by way of a supplemental letter , that even if it failed to exhaust before entry of summary judgment, the issue is “moot” because the
state court of appeals has since rejected J aguar’ s challenge to the Board’s deter minations . But Autobahn offers no support for that conclus ional propo sition. And w hen pressed at oral argument to explain how we could affirm a jur isdictionally defective judgment , Autobahn ’s only answer was to resist the premise , insisting that it had successfully exhausted with the Board’s deter

mination . But h av ing just crossed that bridge , we see no permissible way to reach Autobahn’s preferred result.
N othing in the post

- judgment developments changes things

. In G rupo Case: 17-10737 Document: 00514553404 Page: 11 Date Filed: 07/13/2018No. 17

- 10737

12 Dataflux v. Atlas Global Group, L.P. , 541 U.S. 567, 571 (2004), the Court explained, albeit in the context of diversity jurisdiction , that “ the jurisdiction of the court depends upon the state of things at the time of the action brought. ” ( i nternal quotation omitted ). 17 Here, the jurisdictional defect not only was pres ent at the time of filing but persisted through summary judgment

. 18 Given that the court lacked the authority to decide the case when it did , we cannot

now “hypothesize [its] subject

- matter jurisdiction for the purpose ” of pass ing
upon , and potentially affirming, its merits determination

. See Ruhr gas AG v. Marathon Oil Co. , 526 U.S. 574, 577 (1999)

. T he Texas Supreme Court has described just one potentially relevant escape h atch fro m the failure to exhaust in this context : “ [ I]f the impediment to jurisdiction could be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisd ictional problem to be cured.” 19 But nothing in Texas law suggests this “opportunity” per sists after judgment ; the caselaw and common sense prove the opposite. 20 And though some courts have

17 This court and other s have cited Grupo Dataflux in the context of exhaustion with

out second

- guessing its applicability. See, e.g., Nat ’ l Football League Players Ass ’ n v. Nat ’ l Football League , 874 F.3d 222, 225 (5th Cir. 2017); accord Doctors Nursing & Rehab

. Ctr

. v. Sebelius , 613 F.3d 672, 677 (7th Cir. 2010) (noting that although the time

- of

- filing rule “is pri marily encountered when determining the prerequisites of diversity jurisdiction,” it “is not so limited”).

18 A lthough the possibility for abatement would seem to cut against a strict time

- of

filing rule , s ee Subaru , 84 S.W.3d at 228 , we need not square that circle , as the court lacked jurisdiction not merely at the time of filing but also when it entered summary judgment.

19 Am. Motor ists Ins. Co. v. Fodge , 63 S.W.3d 801, 805 (Tex. 2001); see also Subaru , 84 S.W.3d at 228.

20 For federal

- exhaustion examples, see N ational Football League , 874 F.3d at 227 n.5 (hold ing the failure to exhaust in arbitration before a court filing could not be “cured by the sub s equent issuance of an arbitral award ”); a ccord Macon v. Youngstown Sheet & Tube Co. , 698 F.2d 858, 861 & n.2 (7th Cir. 1983) ( same); Galvan v. SBC Pension Ben efit Plan , 20 4 F. App’x 335, 339 (5th Cir. 2006) (rejecting the argument that a plaintiff ’s “administrative rem e dies were exhausted after s he filed her original complaint ” ); accord Whitley v. Dr. Pepper Snapple Grp

. , Inc. , 4:17

- CV

- 0047, 20 17 WL 4155257, at *4 (E.D. Tex. Sept. 19, 2017) (citing Gal van to reject the argument that the “ [d]efendant s’ exhaustion argument [was] moot since Case: 17-10737 Document: 00514553404 Page: 12 Date Filed: 07/13/2018No. 17

- 10737

13 appeared to excuse post

- filing jurisdictional defects when cured before judg

ment , 21 here the defect remained through the early stages of this appeal

. Auto

bahn cites no authority to s uggest a jurisdictional defect like this can be “mooted” through exhaustion after the fact

. 22 Accordingly, the summary judgment is VACATED and REMANDED

. 23

adminis tr ative remedies [were] exhausted ” after filing but before the court ruled ). For a Texas

- exhaustion example , see Gorman , 753 F.3d at 169 ( where a plaintiff filed suit , and only afterward received her right

- to

- sue letter from the Texas Commission on Human Rights , we deemed the defect cured , but emphasized the issue turned on whether the requirement of
a right

- to

- sue - letter was a “ jurisdictional defect , which cannot be excused , or a condition precedent, which may ” (emphasis added))

. 21 See, e.g. , Mathews v. Diaz , 426 U.S. 67, 75 (1976) ; see also Positive Black Talk Inc

. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004) (excusing failure to register a copyri ght

— which the court believed was a “jurisdictional prerequisite” to an infringement suit

— where the requirement was “ satisf [ied] . . . before final judgment ” (emphasis added)), abrogated on other grounds by Reed Elsevier, Inc. v. Munchnick , 559 U.S. 154, 160 n.2 (2010) ; H & D Tire & Auto.

- Hardware, Inc. v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000) ( “E ven if a c ourt lacks jurisdiction at the time of removal and regardless of whether there was an objection to the removal, the judgment will stand i f the court had jurisdiction at the time it entered judgment

. ”); Ellison Steel, Inc. v. Greystar Const r . LP , 199 F. App’x 324, 327 ( 5th Cir. 2006) (“ [I]n some cases this Court will not disturb a judgment even though a jurisdictional defect existed at some point prior to entry of judgment if jurisdiction existed at the time judgment was entered.”). But see Bowles v. Russell, 551 U.S. 205, 214 (2007) (“Court[s] ha[ve] no authority to create equitable exceptions to jurisdictional requirements

. . . . ”).
22 An exception concerns a federal court’s ability to cure imperfect diversity by dis

mis s ing a “dispensable nondiverse party . . . even after judgment has been rendered .” Grupo Dataflux , 541 U.S. at 573 (emphasis added) (citing Newman

– Green, Inc. v. Alfonzo

– Larrain , 490 U.S. 826, 832 (1989)); id. (explaining that even “courts of appeals . . . have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party” even after judg

ment has been entered ). But in reversing this c ircuit, the Court made clear this was the exception , not the rule

. See i d. at 574 (cautioning against “manufactur[ing] brand

- new excep tion[s]” to the time

- of

- filing rule ).
23 Under ordinary circumstances, our analysis would end here, without comment on th e merits of the summary judgment decision. But in light of the Texas court’s post

- judgment ratification of the Board’s findings and the possibility that the district court may retain jurisdiction on remand, we write briefly to note that summary judgment on the D TP A claim was likely unwarranted. Autobahn is entitled to treble damages if J ag uar ’s conduct was “committed knowingly,” T EX

. B US

. & C OMM

. C ODE § 17.50(b)(1), that is, with “actual awareness, at the Case: 17-10737 Document: 00514553404 Page: 13 Date Filed: 07/13/2018No. 17

- 10737

14 We place no limitation on the matters that the district court can address on remand.

time of the act or pract ice complained of, of the falsity, decep tion, or unfairness of the act or practice givi ng rise to the [dealer’s] claim,” id. § 1 7.45(9). A ctual awareness requires that “a person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to him, but I’m going to do it anyway.’” St. Paul Surplus Lines Ins. Co. v. Dal

- Worth Tank Co. , 974 S.W.2d 51, 53

− 54 (Tex. 1998). Th at is a high bar indeed, and the summary judgment record appears insufficient to surmount it. The mere fact that the Board adopted Autobahn’s interpretation of the contract terms does not show that J aguar acted knowingly. At a minimum, there appears to be a genuine dispute of mate rial fact as to whether J aguar acted based on a good

- faith interpretation of the relevant contract provision when it initiated the chargebacks and when it continued to withhol d the funds during the appeal , particularly because the contract does not define the term “approved leasing company.” “[ A ] party’s state of mind is inherently a question of fact which turns on credibility , ” and “[c]redibility determinations . . . are within the province of the fact

- finder.” Int’l Shortstop, Inc. v. Rally’s, Inc. , 939 F.2d 1257, 1265 (5th Cir. 1991). Though “[t]his is not to say that the court ca n never enter summary judgment when intent or state of mind is at issue . . . , the court must be vigilant to draw every reasonable inference from the record in a light most flattering to the nonmoving party.” Id. at 1266. T hat posture suggests summary judg ment on the D TP A claim was premature

. Case: 17-10737 Document: 00514553404 Page: 14 Date Filed: 07/13/2018