Flitsch v. Guardino ( 2023 )

Case: 22-20247 Document: 00516785814 Page: 1 Date Filed: 06/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 13, 2023
No. 22-20247 Lyle W. Cayce
____________ Clerk
James Flitsch; Carolyn S. Clark,
Plaintiffs—Appellees,
versus
Kristin Guardino, J.D.; Leonard Guardino,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-3628
______________________________
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam: *
Shortly before being disbarred, Kristin Guardino drafted an
irrevocable living trust for Carolyn Clark that named James Flitsch, Clark’s
grandson, as one of the trustees. But Kristin subsequently attempted to name
herself as a trustee and unilaterally remove Flitsch and replace him with her
husband, Leonard Guardino. Clark and Flitsch then sued the Guardinos in
Texas state court.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20247 Document: 00516785814 Page: 2 Date Filed: 06/13/2023
No. 22-20247
After the Texas court ruled against the Guardinos on several matters,
they tried to remove the case to federal district court for a third time. The
federal court found that it lacked jurisdiction, remanded the case, and
assessed costs and attorney’s fees against the Guardinos for removing
without a reasonable basis. The Guardinos now appeal the remand and the
assessment. We lack jurisdiction to review either ruling and therefore dismiss
the appeal.
I.
Although raised by neither party, we must ensure we have appellate
jurisdiction. Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999). A district
court’s decision to remand for lack of jurisdiction is generally unreviewable
on appeal. See 28 U.S.C. § 1447(d). 1 One exception allows review of removals
under 28 U.S.C. § 1443, which governs removal of certain cases involving
“any law providing for the equal civil rights of citizens of the United States.”
See 28 U.S.C. § 1443(1); Decatur Hosp. Auth. v. Aetna Health, Inc., 854 F.3d
292, 295 (5th Cir. 2017). Both sides take the position that this exception
applies here merely because the Guardinos cited § 1443 in their notice of
removal. 2
That is not enough, however. To invoke § 1443(1), the defendant
must show, inter alia, that “the right allegedly denied [him] arises under a
federal law providing for specific rights stated in terms of racial equality.”
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1
That subsection provides: “An order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise, except that an order
remanding a case to the State court from which it was removed pursuant to section 1442 or
1443 of this title shall be reviewable by appeal or otherwise.”
2
The notice states that the Guardinos removed under “28 U.S.C. §§ 1331, 1335,
1337(a), 1343(a), 1367, 1441, and 1443; 18 U.S.C. §1964© [sic]; and 42 U.S.C. §§ 1983 and
1985.”
2
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No. 22-20247
Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982) (emphasis
added); Johnson v. Mississippi, 421 U.S. 213, 219 (1975). Although the burden
rests on them, the Guardinos have not even tried to make that showing. See
Charter Sch. of Pine Grove, Inc. v. St. Helena Par. Sch. Bd., 417 F.3d 444, 448
(5th Cir. 2005) (“The defendant bears the burden of establishing its right to
removal under § 1443.”). Indeed, before the district court, they disclaimed
any connection between their race and the alleged violations of their rights.
They even argued, contrary to longstanding precedent, that Ҥ 1443 has no
racial component at all” and contended that their failure to rely on federal
rights stated in terms of racial equality was “immaterial.”
We have repeatedly held that when a defendant’s attempted removal
lacks even the barest connection with the requirements of § 1443, merely
invoking that provision does not supply jurisdiction to review a remand order.
Easley v. Easley, 62 F.3d 392, 1995 WL 449817 (5th Cir. June 28, 1995) (per
curiam) (unpublished) (dismissing appeal for lack of jurisdiction when
removing defendant “fail[ed] to mention racial equality at all”); 3
Unauthorized Prac. of L. Comm. v. Ratcliff, 229 F. App’x 348, 349 (5th Cir.
2007) (per curiam); ACL Co., LLC v. Espinoza, 32 F. App’x 128, 128 (5th
Cir. 2002) (per curiam); see also Agyin v. Razmzan, 986 F.3d 168, 174 (2d Cir.
2021) (holding that a “bare or frivolous invocation” of 28 U.S.C. § 1442—
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3
While Easley was unpublished, it is precedential because it issued before January
1, 1996. See 5th Cir. R. 47.5.3. The Guardinos argue that a recent Supreme Court case
endorses the view that merely citing § 1443 suffices for appellate jurisdiction. See BP P.L.C.
v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1538 (2021). Not so. That case addressed
the scope of appellate review of a case removed under §§ 1442 or 1443, not what was
needed to properly invoke either section in the first place. See id. at 1536 (“only question”
presented was whether a court of appeals may “review any issue in a district court order”
remanding a case whose removal was premised on §§ 1442 or 1443). Our rule of orderliness
compels us to follow existing circuit precedent unless the Supreme Court “unequivocally”
overrules it. United States v. Petras, 879 F.3d 155, 164 (5th Cir. 2018) (citation omitted).
Accordingly, Easley controls.
3
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No. 22-20247
an appealable counterpart to § 1443—does not create appellate jurisdiction).
Accordingly, we lack jurisdiction to review the district court’s remand order.
II.
The Guardinos also appeal the district court’s decision to assess costs
and attorney’s fees against them under 28 U.S.C. § 1447(c). Ordinarily, we
would be able to review such an award despite our lack of jurisdiction over
the underlying remand order. Hornbuckle v. State Farm Lloyds, 385 F.3d 538,
541 (5th Cir. 2004). However, the district court has not yet reduced its award
to a sum certain, so we lack jurisdiction to review its decision. S. Travel Club,
Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th Cir. 1993) (“[A]n order
awarding attorney’s fees or costs is not reviewable on appeal until the award
is reduced to a sum certain.”); Webb v. Morella, 522 F. App’x 238, 242 (5th
Cir. 2013).
APPEAL DISMISSED.
4