Getty Oil v. Ins. Co of N America 841 F2d 1254 CA5 TX 1998

Getty Oil Corp., a Div. of Texaco, Inc. v. Insurance Co. of North Getty Oil Corp., a Div. of Texaco, Inc. v. Insurance Co. of North America 841 F.2d 1254 C.A.5 (Tex.),1988.

this case started from a wrongful death suit: a barrel of chemicals manufactured and supplied by NL exploded on one of Getty's oil wells, killing an employee named Carl Duncan. Duncan's survivors brought a wrongful death action in a Texas court against Getty and NL, and Getty filed a cross-claim therein against NL for contribution and contractual indemnification. After trial, the jury found that Getty alone was responsible for the accident. In accordance with this finding, the Texas trial court entered a $28,000,000 judgment against both Getty and its parent company, Texaco, Inc., and denied Getty's cross-action against NL. Getty settled with the plaintiffs and appealed the denial of its cross-claim.

Corporation and its successor brought action against supplier and supplier's insurers to recover for losses arising from accident involving chemicals supplied by supplier. After removal from state court, the United States District Court for the Southern District of Texas, Hugh Gibson, J., dismissed action on the merits, and corporation appealed. The Court of Appeals, Garwood, Circuit Judge, held that: (1) district court's failure to determine prior to deciding case on merits whether there was complete diversity between parties required vacation of judgment and remand for consideration of jurisdictional issues, and (2) all served defendants were required to join in petition no later than 30 days from day on which first defendant was served.
Vacated and remanded.

Also from the headnotes: If defendant in case involving multiple defendants fails to join in removal petition within 30 days from day on which first defendant was served, plaintiff can waive its right to object to untimely joinder by delaying and seeking remand or otherwise participating in proceedings in district court. 28 U.S.C.A. § 1446(b).

ed note by steve: far be it from me to question the integrity of a federal circuit judge, but I do believe that it's worth considering that Garwood is a federal judge born in Houston in the 1930s, remanding a lawsuit by a TEXAS oil company against a NEW YORK insurance company, back to TEXAS state court. Just so you don't think I have an axe to grind, he's very very pro-gun, which I support…

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