UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-41327 through 01-41335 No. 01-41366 (Consolidated) No. 01-11481 (Consolidated) No. 01-51209 (Consolidated) No. 01-51241 (Consolidated)

BILLY ARNOLD, JR., ET AL.,

Plaintiffs - Appellees,

VERSUS

GARLOCK, INC.,

Defendant - Appellant.

Appeals from the United States District Court for the Southern District of Texas, Corpus Christi December 28, 2001

Before DeMOSS, PARKER and DENNIS, Circuit Judges ROBERT M. PARKER, Circuit Judge:

Before us are 37 nearly identical motions by the Appellant,

Garlock, Inc. (“Garlock”), to stay the proceedings of various

district courts throughout the four federal districts in Texas

pending Garlock’s intended appeal. Having reviewed the various

motions, which we treat as a single motion, the appellees’

1 responses and the amici1 briefs filed in the case, we deny

Garlock’s motion.

I. Background.

The cases before us were all originally brought as personal

injury tort or wrongful death (“PITWD”) claims by various

plaintiffs against a group of co-defendants which is, by and large,

similar in each case. The plaintiffs’ claims arise from exposure

to asbestos in one manner or another. The result of this exposure

has allegedly led to a plaintiffs’, or a plaintiffs decedents’,

developing one or more forms of respiratory disease leading to

severe health problems or death.2 The defendants, including

1 Two amici briefs have been filed. The first was “Brief Amici Curiae of Baron & Budd, P.C. and Provost Umphrey in Opposition to Garlock’s Motion to Stay” purporting to represent the interests of “thousands of victims of asbestos-related disease with cases pending in the state courts of Texas and elsewhere” who could be adversely affected by a stay in Garlock’s case. The second was “Memorandum of Amicus Curiae the Official Committee of Asbestos Claimants of Federal-Mogul Global, Inc., in Response to Garlock Inc.’s Motions for a Stay Pending Appeal,” also arguing that a stay in asbestos litigation would adversely affect plaintiffs in other cases and is not warranted here as a matter of law. 2 As of December 13, 2001, appellees asserted that they collectively numbered 82 individual plaintiffs and that the diseases involved in their various lawsuits included: 7 Living plaintiffs with asbestos-related mesothelioma; 18 Plaintiffs’ decedents with asbestos-related mesothelioma; 17 Living plaintiffs with asbestos-related lung cancer; 26 Plaintiffs’ decedents with asbestos-related lung cancer; 4 Living plaintiffs with asbestos-related laryngeal or esophageal cancer; 3 Plaintiffs’ decedents with asbestos-related laryngeal or esophageal cancer; 6 Living plaintiffs with asbestosis; 1 Living plaintiff with asbestos-related pleural disease. See Appellees’ Additional Response to Appellant’s Motion for Stay

2 Garlock, number from about 40 to over 60 in the various individual

cases. Their commonality is to be, or to have been, in a business

either producing or making use of asbestos.3 In each of the

instant cases, both Garlock and Gasket Holdings, Inc. (“Gasket

Holdings”), a subsidiary of Federal-Mogul, Inc. (“Federal-Mogul”),

were named as co-defendants, among the many others. All of the

cases were originally filed under Texas state law in Texas state

court without implicating federal jurisdiction.

In October 2001, Federal-Mogul filed for protection pursuant

to reorganization under Chapter 11 of Title 11 of the United States

Code, in bankruptcy. Federal-Mogul included each of its 156

affiliates and subsidiaries, including Gasket Holdings, in the

Chapter 11 filing. All of the bankruptcy cases were filed in the

United States Bankruptcy Court for the District of Delaware.

Pending Appeal (hereinafter, “Appellees’ Additional Response”) at 2. Motions in additional cases have been filed since these figures were compiled. 3 The specifics of the claims in these cases are not in the record before us because we are considering only whether to place a stay on the various proceedings to permit a formal appeal and review of the individual records on appeal. There have been hundreds of thousands of asbestos-related lawsuits brought in Texas and throughout the country in the last three decades, however. A typical claim asserts that the numerous “named defendants either made, sold, marketed, brokered, imported, specified or used asbestos-containing products in Texas which were defective and unreasonably dangerous as designed, manufactured and marketed.” See, e.g., Broyles v. U.S. Gypsum Co.,

(E.D. Tex. 2001). The claims then generally assert causes of action for “negligence, gross negligence, fraud, deceit, misrepresentation, battery and defective products theories under Texas state law.”

.

3 In mid October, Garlock began systematically removing asbestos

cases in which Garlock and Gasket Holdings appeared as co-

defendants. Garlock asserted that because the Federal-Mogul group,

including Gasket Holdings, was in bankruptcy and because Garlock

had made a claim for contribution under Texas state law4 against

Gasket Holdings, invoking federal jurisdiction was appropriate

because the contribution claim was “related to” a claim under Title

11 in accordance with

(b). Garlock therefore

proceeded with removal actions in several federal district courts

throughout Texas. Besides the 37 cases now before us, Garlock

removed about 40 similar cases in the federal districts of Texas.

In each of the 37 instant cases,5 Garlock moved in the

respective district court for the entire case to be transferred to

the United States District Court for the District of Delaware under

(b)(5). Such a transfer would permit that district

court to determine the appropriate venue, either itself or the

federal district court in which the respective action arose

originally, in which to adjudicate the PITWD claims against the

debtor and against Garlock as a non-debtor co-defendant who asserts

4 See TEX. CIV. PRAC. & REM. CODE §§ 32.001-003, 33.001-004, 011-017. 5 In Garlock’s haste to remove cases to federal district court, it removed a case in which Garlock and the plaintiffs had already reached a settlement. That erroneously removed case, filed as Smith v. Able Supply Co., Civil Action number G-01-673 in the United States District Court for the Southern District of Texas, Galveston Division, was included in Garlock’s flurry of motions to stay under Fifth Circuit Case No. 01-41370. Garlock has since filed a notice of withdrawal of appeal in this one case.

4 a claim for contribution against the debtor.

The plaintiffs in every such removed case uniformly responded

with a motion to dismiss debtor Federal-Mogul/Gasket Holdings

(hereinafter, “debtor”) as a defendant, a motion to sever any

remaining claims against the debtor and a motion for the district

court to exercise mandatory or discretionary abstention or to

remand for lack of subject matter jurisdiction or for equitable

reasons. The district judge in each case ruled for the plaintiffs

and either dismissed the debtor as a defendant or remanded the

remainder of the case to Texas state court or both. The 37 cases

now under emergency motion for stay to this court originated in the

Corpus Christi Division and Galveston Divisions of the Southern

District, the Beaumont and Paris Divisions of the Eastern District,

the Dallas Division of the Northern District, and the San Antonio

and Austin Divisions of the Western District.

The district court in Corpus Christi dismissed the debtor with

prejudice, severed all remaining claims against the debtor and

transferred them under

(b)(5) to the United States

District Court for the District of Delaware, and remanded all

remaining claims to Texas state court for lack of subject matter

jurisdiction under

(c) and/or for equitable reasons

under

(b). The district court made no ruling

regarding either mandatory or discretionary abstention.

The district court in Dallas referred to the Corpus Christi

5 court’s reasoning as “unassailable” and entered an order with

identical results.

The district court in Galveston determined that bankruptcy

subject matter jurisdiction under

(a) and (b) did

not exist and that the case had been improperly removed under

(a). The court therefore remanded the entire case and

all parties to Texas state court for lack of subject matter

jurisdiction.

The district court which ruled in the Beaumont and Paris

Division cases held that Garlock’s claim for contribution was

“scantily asserted” and unsupported, and even if real, was so

tenuously related to the debtor’s bankruptcy case as to be

virtually immaterial. The court remanded for lack of subject

matter jurisdiction under § 1447(c) and alternatively for equitable

reasons under § 1452(b).

The district court in San Antonio cited the decisions of

several other federal district courts, including the Corpus Christi

district court, and determined that subject matter jurisdiction did

not exist, remanded its cases on that basis alone and dismissed the

plaintiffs’ motions to sever as moot.

The district court in Austin severed all claims against the

debtor and transferred them to the District of Delaware under §

157(b)(5) and remanded all other claims to the Texas state court.

Following each of the district courts’ rulings, which occurred

between November 9 and December 5, Garlock filed a notice of appeal

6 and moved in the respective district court for a stay of the

court’s order pending appeal. Some of the district courts issued

a denial and some had not yet ruled on Garlock’s stay motion;

regardless, Garlock filed emergency motions to stay the respective

district courts’ orders under FED. R. APP. P. 8 before this court.6

Garlock asserts that it is not attempting to appeal an

unappealable order of remand. Instead, Garlock states that it is

appealing the “appealable” orders of the various district courts,

including the inherent denials of Garlock’s transfer motion under

§ 157(b)(5), any decision to abstain and any dismissal of the

debtor. In so doing, Garlock claims that the “automatic stay”

feature of

, relating to cases in bankruptcy, not

only stayed all actions against the debtor when it filed for

bankruptcy, but that it stayed all related actions before the

various district courts as well. Garlock further contends that the

10-day automatic stay of judgment under FED. R. CIV. P. 62 should

have prevented the clerks of the district courts from certifying

the remands back to state courts before Garlock could perfect its

appeal. Some of the district clerks’ offices mailed certified

copies of the remand orders either before or after Garlock’s notice

6 Initially, Garlock filed documents titled “Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas [Corpus Christi Division] and Petitioner’s Emergency Motion for Stay Pursuant to Federal Rule of Appellate procedure 8(a)(1) Pending Appeal.” In later actions, Garlock has simply filed an “Emergency Motion for Stay Pending Appeal” from one or another federal district court. We treat all of Garlock’s motions as motions for stay.

7 of appeal; some have not yet certified the remand.

What Garlock seeks, essentially, is a procedural path that

would invalidate the clerks’ certification of remand and freeze

further action in the district courts while permitting Garlock to

perfect its appeal on the § 157(b)(5) transfer issue, without

frontally challenging an unappealable remand order. On the basis

of such a transfer, Garlock contends, it seeks a fair and

consolidated proceeding for all parties.

The appellees bring a different view to this court. They

contend that Garlock’s true intent is simply to delay any

proceeding against it for as long as possible. Such a dilatory

intent, appellees contend, will have a devastating effect on them,

some of whom are dying.

Appellees further contend that Garlock’s dilatory intent is

focused solely against these appellees because they have refused to

enter into any standardized settlement plan or agreement such as

those allegedly arranged between Garlock and other law firms

engaged in asbestos litigation. It is true that Garlock has

brought no other, similar case to this court on motions to stay or

transfer except those in which the appellees’ counsel appears for

the plaintiffs. On that basis, counsel characterizes Garlock’s

interest not as an attempt to legitimately pursue a coordinated

remedy under the bankruptcy law but as a cynical attempt to

minimize its exposure with a law firm which “treats each case

individually and attempts to achieve maximum value for its

8 clients.” See Appellees’ Additional Response at 3.

Because of the “emergency” nature of Garlock’s motions, we

implemented a temporary stay in each case to provide sufficient

time to fairly consider whether a formal stay pending appeal should

issue. We have determined that no such stay should issue and, by

this order, dissolve the temporary stays.

Our decision in this case is predicated on two primary bases.

First, that Garlock does not have a valid claim for contribution

against Federal-Mogul or its associated business, Gasket Holdings,

upon which to assert “related to” jurisdiction under the bankruptcy

laws. Second, we find that Garlock has not otherwise met the

elements necessary to obtain a discretionary stay pending appeal by

this court. We will address each point raised in this complex

matter.

II. Jurisdiction, Stays, Transfer of Claims, and Effect of Remand.

We will examine the basis for federal bankruptcy jurisdiction

and the framework of Garlock’s contentions therein.

A. Removal Authority and “Related To” Jurisdiction.

Authority to remove a case relating to a case under title 11

resides in

(a):

A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim under section 1334 of this title.

9 Title

(a) provides that “the district courts

shall have original and exclusive jurisdiction of all cases under

title 11.”

Certain matters related to the debtor’s bankruptcy may be

included within the ambit of federal bankruptcy jurisdiction under

, et seq. Specifically, “[n]otwithstanding any Act

of Congress that confers exclusive jurisdiction on a court or

courts other than the district courts, the district courts shall

have original but not exclusive jurisdiction of all civil

proceedings arising under title 11, or arising in or related to

cases under title 11.” See

§ 1334(b).

As the United States Supreme Court has noted, “related to”

bankruptcy proceedings include (1) causes of action owned by the

debtor which become property of the estate pursuant to

, and (2) suits between third parties which have an effect on

the bankruptcy estate. Celotex Corp. v. Edwards,

, 308

n.5 (1995). Garlock’s asserted claim for contribution against the

debtor falls into the second category.

Most of the federal circuits, including the Fifth Circuit,

derive their “related to” jurisprudence from Pacor, Inc. v.

Higgins,

(3rd Cir. 1984). See Celotex,

n.6. In Pacor, the Third Circuit determined that a third-party

controversy not directly involving a debtor in bankruptcy was not

related to the bankruptcy, but was, at best, a precursor to a claim

10 against the debtor. See Pacor,

. The Third Circuit

so ruled on the basis that any judgment between the two third

parties could not have any preclusive effect by either res judicata

or collateral estoppel against the debtor, who would be free to

relitigate any claim brought against it.

Thus, “related to”

jurisdiction would not come into play until a litigant brought a

direct claim under bankruptcy jurisdiction based on the result of

the prior judgment.

Within the Fifth Circuit, the test for whether a proceeding

properly invokes federal bankruptcy jurisdiction is the same as the

Third Circuit’s Pacor test, namely, whether “the outcome of that

proceeding could conceivably have any effect on the estate being

administered in bankruptcy.” In re Canion,

(5th

Cir. 1999). Certainty, or even likelihood of such an effect is not

a requirement.

at 587 n.30 (citing Copelin v. Sprico, Inc.,

(3rd Cir. 1999)).

In In re Canion, a judgment creditor of the debtor, Canion,

brought a direct action against several family members, employees,

friends and associates of the debtor, asserting claims of fraud and

tortious interference with the judgment creditor’s recovery of the

judgment. In re Canion,

. Our determination was

that this circumstance fell within the “related to” bankruptcy

jurisdiction at the time the case was referred to the bankruptcy

court (which is the time at which jurisdiction is tested) because

11 the outcome of the proceedings against the defendants conceivably

could have increased the debtor’s estate.

. Appellees

argue that Garlock presents no such direct claim and that its claim

for contribution, not based on a contractual relationship, is too

tenuous to connect the underlying asbestos PITWD claims to the

debtor.

1. “Contribution” as a basis for “related to” jurisdiction

and the automatic stay provision in bankruptcy.

The Sixth Circuit has held that a claim for contribution is a

sufficient basis for finding “related to” jurisdiction in

bankruptcy and, in fact, is a sufficient ground upon which to

direct a transfer of venue for related tort claims under

(b)(5), the same relief sought by Garlock here. In In re Dow

Corning,

(6th Cir. 1996), where a relatively small

number of non-debtor co-defendants were closely related to the

pending breast implant litigation against debtor Dow Corning, a

claim of contribution by the co-defendants against Dow Corning,

even if only intended and not yet asserted, was sufficient to

invoke “related to” bankruptcy jurisdiction.

In In re Walker,

(5th Cir. 1995), a party held

liable to a debtor for a violation of the automatic stay provided

in

sought to invoke “related to” jurisdiction

against a third party by asserting a claim of contribution under §

362. Id. at 565-66. We found no federal contribution right to be

12 invoked in § 362 and denied the appellant’s claim. Id. at 567-68.

Here, Garlock has asserted its contribution rights entirely under

Texas state law. As we discuss in Part III, Garlock’s contribution

claim is invalid and therefore no “related to” jurisdiction could

exist in this case.

B. Transfer of Personal Injury Tort and Wrongful Death Claims

under

(B)(5).

Garlock seeks to transfer all of the PITWD claims in each of

the lawsuits against it in accordance with

, which

empowers the district court where a bankruptcy is proceeding to

determine the venue for certain PITWD claims related to the

bankruptcy. Specifically,

The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claims arose, as determined by the district court in which the bankruptcy case is pending.

See

(b)(5). Use of this transfer provision in the

mass tort context is not strictly novel, but is to date uncommon.7

In the cases before us, the various district courts either

explicitly or implicitly denied Garlock’s motions to transfer all

underlying PITWD claims from the districts in Texas to the District

of Delaware.

The Sixth Circuit has held that the denial of a motion to

7 Section 157(b)(5) was the basis for transferring the PITWD claims in A.H. Robins v. Piccinin,

(4th Cir. 1986) and In re Dow Corning,

(6th Cir. 1996).

13 transfer under § 157(b)(5) is immediately appealable on different

grounds including a less rigid view of the “finality” requirement

for bankruptcy judgments and under the collateral order doctrine of

Cohen v. Beneficial Indus. Loan Corp.,

(1949). See In

re Dow Corning,

(6th Cir. 1996). Because of our

ultimate holding herein, we need not determine the same issue for

this circuit. Regardless, Garlock claims it should benefit from a

stay of the district courts’ orders to present an appeal.

C. Stays Applicable to Bankruptcy Proceedings.

1. Title

.

Once a party files in bankruptcy, under Chapter 11, for

example,

, et seq., stays further actions against

the debtor. Virtually any act attempting to enforce a judgment

against or obtain property from the estate of the debtor is stayed

once the title 11 proceedings are commenced. See

§ 362(a)(1)-

(8). In the instant cases, Garlock contends that § 362 should stay

any further actions against the non-debtor co-defendants and should

stay the various district courts from dismissing debtor Federal-

Mogul companies or remanding the related cases to state court.8

Section 362 is rarely, however, a valid basis on which to stay

actions against non-debtors. See Wedgeworth v. Fibreboard Corp.,

8 Such a stay would enable Garlock to perfect an appeal of the district courts’ explicit or inherent denials of Garlock’s § 157(b)(5) transfer motion without having to contend with an order of remand.

14

(5th Cir. 1983)(“[w]e join [the cited courts] in

concluding that the protections of § 362 neither apply to co-

defendants nor preclude severance”).

By exception, a bankruptcy court may invoke § 362 to stay

proceedings against nonbankrupt co-defendants where such identity

between the debtor and the third-party defendant exists that the

debtor may be said to be the real party defendant and that a

judgment against the third-party defendant will in effect be a

judgment or finding against the debtor. A.H. Robins Co.,

, 999 (4th Cir. 1986). In that case, however, the non-debtor

co-defendants were indemnified associates, employees or insureds of

the debtor sole manufacturer of the Dalkon Shield intrauterine

device. Here, Garlock is one of scores of different asbestos

makers, users, importers, etc., with no interest to establish such

an identity with debtor Federal-Mogul/Gasket Holdings. There is no

claim of a formal tie or contractual indemnification to create such

an identity of interests.

2. Federal Rule of Civil Procedure 62.

Garlock has also asserted that FED. R. CIV. P. 62(a) should have

operated to effect a ten-day stay of the various district courts’

orders before they were executed. In pertinent part, Rule 62(a)

establishes that “no execution shall issue upon a judgment nor

shall proceedings be taken for its enforcement until the expiration

of 10 days after its entry.” Garlock’s concern is that, lacking

15 the protection of the ten-day stay, the district clerks’ offices

were free to certify the various remand orders at any time and by

doing so, potentially destroy federal jurisdiction without

possibility of appellate review.9 Garlock contends that it is not

seeking appellate review of an order to remand, but seeks a stay of

the remand order in the district court under FED. R. CIV. P. 62(d)

upon appeal of the § 157(b)(5) issue.

Rule 62(d) relates to Rule 62(a) in that Rule 62(a) provides

a respite from the immediate execution of a judgment, except for an

interlocutory or final judgment in an action for an injunction or

in a receivership action, or for an accounting in an action for

infringement of letters patent. Rule 62(d) then provides for a

stay pending appeal, subject to the exceptions in Rule 62(a).

The stay provisions of Rule 62 pertain to judgments for money.

Hebert v. Exxon Corp,

(5th Cir. 1992). That does

not preclude diverse forms of judgment pertaining to monetary

responsibility from a stay under Rule 62(d) pending appeal nor Rule

62(a) for ten-day automatic stay of judgment. See

(overturning a district court’s denial of a stay of declaratory

9 Garlock’s references to FED. R. CIV. P. 62, et seq., in the Petitioner’s Motions for Stay are primarily aimed at an argument to establish an appeal as a matter of right. Once Garlock discovered, however, that the federal district court in Corpus Christi had already mailed certified copies of the court’s remand orders without waiting the ten-day period specified in Rule 62(a), it filed a series of “Emergency Motion[s] for Supplemental Relief” asking this court to direct the district clerk’s office to, in effect, “de-certify” its certification.

16 judgment where the declaratory judgment was, in effect, a money

judgment suitable for a Rule 62(d) stay subject to the requirements

of Rule 62(a)).

In the instant cases, however, the subject matter of Garlock’s

motion is not for a stay of judgment, declaratory or otherwise. It

is for a stay of remand under Rule 62. A remand of an ongoing case

is not a final judgment following a full adjudication of a claim,

the result of which may be appealed. Even if the subject matter of

the underlying litigation is solely money damages, there is no

“money judgment” inherent in its remand. Accordingly, there is no

basis in Rule 62 for such a stay. See City of New Orleans v. Nat’l

Serv. Cleaning Corp., No. 96-1601,

, at *1 (E.D. La.

Jan. 6, 1997).

Further, Rule 62 itself provides no authority to revoke a

remand once it has become effective. See, e.g., Rivera-Perez v.

Mass. Gen. Hosp.,

(D.P.R. 2000).

On that basis, Garlock is not entitled to the Rule 62

automatic stay.

D. Effect of Remand.

We have consolidated many of these cases according to date or

by court, but as indicated in Part I, the orders are not entirely

uniform. All of them include a remand for lack of subject matter

jurisdiction, citing

(c). However, two of the

courts did not make such a finding until after the debtor had been

17 dismissed with prejudice from the plaintiffs’ cases and the

remaining cross-claims for contribution severed and transferred to

the District of Delaware. Two others remanded for lack of subject

matter jurisdiction without dismissing the debtor, without detailed

explanation. One court did not dismiss the debtor but found

Garlock’s claims for contribution to be scanty and, if real, too

tenuous and remanded. Some courts remanded on equitable grounds.

1. Remand for lack of subject matter jurisdiction.

A remand for lack of subject matter jurisdiction under

(c) is ordinarily barred from appellate review by

(d). See State of Rio de Janeiro v. Philip Morris,

Inc.,

(5th Cir. 2001)(noting that as long as a

district court’s remand order is based on lack of subject matter

jurisdiction, a court of appeals lacks authority to review a remand

under § 1447(d); also referring to “the black hole force of a

remand for want of jurisdiction”). There are few exceptions.

Notably, remand under a district court’s citation of § 1447(c) for

a reason not embraced within that statute is subject to appellate

review. Id. at 715 (citing Thermtron Products, Inc. v.

Hermansdorfer,

(1976)). That exception is

inapplicable here.

Rather than fruitlessly attempting an appellate review of a

district court’s remand order, we instead examine the steps leading

from a district judge’s decision to remand to execution of the

18 remand order.

A § 1447(c) order of remand is not self-executing. Section

1447(c) provides, in pertinent part, that upon determination that

a case should be remanded, “[a] certified copy of the order of

remand shall be mailed by the clerk to the clerk of the State

court. The State court may thereupon proceed with such case.” See

McClelland v. Gronwaldt,

, 514 n.5 (5th Cir. 1998).

This provision creates legal significance in the mailing of a

certified copy of the remand order in terms of determining the time

at which the district court is divested of jurisdiction.

(citing the discussion and references in Browning v. Navarro,

(5th Cir. 1984)). On that basis, the federal

court is not divested of jurisdiction until the remand order,

citing the proper basis under § 1443(c), is certified and mailed by

the clerk of the district court.

Once the remand order is certified and mailed, however, the

matter remanded is removed from federal jurisdiction. Of all the

cases brought before us under Garlock’s motions, most have already

been certified and mailed by the respective district clerks.

2. Equitable remand.

Of greater import in this particular case is the effect of an

equitable remand.

The court to which [claim or cause of action related to bankruptcy cases] is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause

19 of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title or by the Supreme Court of the United States under section 1254 of this title.

See

(b). This remand statute, unlike § 1447(c),

carries no certification and mailing requirement, nor have we found

authority to require such, as much as that would promote procedural

consistency with § 1447(c). Whether such an equitable remand is

self-executing is less important than the stricture that, once a

matter related to a bankruptcy case is equitably remanded, it is

not subject to federal appellate review on any basis. See Hawking

v. Ford Motor Credit Co.,

, 550 (5th Cir. 2000); Sykes

v. Texas Air Corp.,

(5th Cir. 1987)(even an

equitable remand based on a substantive law issue such as lack of

subject matter jurisdiction is unreviewable, in part because of the

likelihood of throwing matters into confusion months or years later

after other proceedings, e.g., in state courts).

Garlock’s emergency petition seeks to halt the progress of a

remand before it leaves the district court for an immediate appeal

of a collateral order. The determination of venue for PITWD cases

such as these under

(b)(5) would seem to be the type

of matter which could be readily decided without creating the type

of confusion following an order of remand with which we were

concerned in Sykes. The equitable remand of bankruptcy-related

matters harbors no such opportunity.

20 Because some of the various subject-matter jurisdiction

remands have not yet been certified and mailed, and because some

have not been remanded equitably, we will proceed with an analysis

of whether Garlock should otherwise be granted a stay pending

appeal under our authority in FED. R. APP. P. 8 in those matters not

barred from further review.

III. Merits of the Motion for Stay.

When presented with a motion for a discretionary stay pending

appeal, we employ a four-part test. See In re First S. Sav.

Assoc.,

(5th Cir. 1987)(citing Ruiz v. Estelle,

(5th Cir. 1982)(“Ruiz II”)). While each part

must be met, the appellant “need not always show a ‘probability’ of

success on the merits; instead, the movant need only present a

substantial case on the merits when a serious legal question is

involved and show that the balance of the equities weighs heavily

in favor of granting the stay.”

(quoting Ruiz v. Estelle,

(5th Cir. Unit A June 1981)(“Ruiz I”)).

A. Whether the movant has made a showing of likelihood of success

on the merits.

Despite the possible availability of a discretionary stay

pending appeal, even if Garlock had avoided remand, it could not

show a probability of success on appeal.

First, there was no

automatic stay of actions

available to the non-debtor co-defendants of the debtor, Federal-

21 Mogul/Gasket Holdings. Therefore, while § 362 acted to stay any

claims against the Federal-Mogul entities, including Garlock’s

putative claim of contribution, it carried no force to stay actions

as between the remaining co-defendants, the debtor and the various

plaintiffs. On that basis, the plaintiffs were free to dismiss

Federal-Mogul and its associated entities under FED. R. CIV. P.

41(a)(1). Even if Garlock had filed a counterclaim against the

plaintiffs in each such case, which Garlock does not assert, the

district court would have been within its discretion to dismiss by

order of the court under Rule 41(a)(2).

For those cases in which the debtor was formally dismissed,10

such dismissal was with prejudice and, under Texas law, eliminated

Garlock’s contribution claim against the debtor. It is well

established under Texas case law that neither contribution nor

indemnification can be recovered from a party against whom the

injured party has no cause of action. See Safway Scaffold Co. of

Houston, Inc. v. Safway Steel Products, Inc.,

, 228-

29 (Tex. App.--Houston [1st Dist.] 1978, writ ref’d n.r.e.). In

modern Texas code, a “responsible third party” from whom

contribution is sought must “be liable to the plaintiff for all or

a part of the damages claimed against the named defendant or

defendants.” See TEX. CIV. PRAC. & REM. CODE ANN. §

10 By our reckoning, this includes all of the cases ruled on by the district courts in Corpus Christi and Dallas.

22 33.011(6)(A)(iii)(Vernon 2001). Thus, no claim for contribution

may lie in those cases wherein the district court dismissed the

debtor with prejudice.

Second, the Texas code eliminates a debtor in bankruptcy as a

“responsible third party” from whom contribution may be sought,

except to the extent that liability insurance or other source of

third party funding may be available to pay the claims asserted

against that debtor. Id. § 33.011(6)(B)(ii). Garlock has

addressed the issue of the debtor’s insurance peripherally, but has

not clearly represented whether the insured debtor is Federal-Mogul

itself, Federal-Mogul’s subsidiary Gasket Holdings (successor to

Flexitallic, another gasket-producing company), or whether either

or both of them have liability insurance available to pay any

claims.

Third, Garlock has relied in part on two past decisions

transferring PITWD claims under § 157(b)(5) to the district in

which a debtor was proceeding in bankruptcy.

In A.H. Robins, the Fourth Circuit upheld an order of the

United States District Court for the Eastern District of Virginia

transferring, under § 157(b)(5), thousands of PITWD claims against

a small number of non-debtor co-defendants to itself for

coordinated review while the debtor, A.H. Robins Co., Inc.,

proceeded in bankruptcy in that district. A.H. Robins, 788 F.2d at

23 1016.11 Robins was the manufacturer of the Dalkon Shield

intrauterine device, a unique product. Its co-defendants were

employees or other close associates who were contractually

indemnified by Robins. Here, the various co-defendants

manufacture, use, specify, or handle many different asbestos

products without such close relationship. Additionally, Garlock

makes no claim of indemnification here whatsoever.

In In re Dow Corning, the Sixth Circuit reversed and ordered

the United States District Court for the Eastern District of

Michigan to transfer under § 157(b)(5) a relatively small number of

non-debtor co-defendants who had asserted claims for contribution,

or announced the intent of doing so, against the debtor

manufacturer of silicone breast implants. In re Dow Corning,

. In that case, each of the co-defendants was closely

involved in using the same material, originating with the debtor,

to make the same, singular product, sold to the same market and

incurring substantially similar injuries. This circumstance

created a unity of identity between the debtor and the co-

defendants not present here, where the co-defendants variously use

asbestos for brake friction products, insulation, gaskets, and

other uses.

Therefore, while we do not disagree that certain mass tort

11 The circuit court’s ruling remanded for clarification and to provide notice for claimants’ objections, but otherwise affirmed.

24 claims in some circumstances might be consolidated with bankruptcy

proceedings in a single district in accordance with § 157(b)(5),12

the relationship of the co-defendants in A.H. Robins and In re Dow

Corning is distinguishable from Garlock’s asserted relationship,

through a claim for contribution, to the debtor here.

Fourth, Garlock’s contribution claim against the debtor is

based on universally-pled claims against all defendants in all

asbestos lawsuits in which Garlock appears as a co-defendant.

Garlock has never litigated a contribution claim to collection in

any of approximately 250,000 previous asbestos lawsuits in which

Garlock was a co-defendant. In the face of this criticism, Garlock

has made a late attempt to color its failure to pursue an actual

payment of contribution.13 Garlock now asserts that in past

lawsuits, the “larger” or “major” defendants, now in bankruptcy,

had been present to pay their fair share of claims and that it was

12 Some writers and commentators would bar mass tort parties from being transferred for consolidated review under § 157(b)(5). See, e.g., Lori J. Forlano, Why Bankruptcy “Related To” Jurisdiction Should Not Reach Mass Tort Nondebtor Codefendants,

(1998)(arguing, generally, against consolidation on grounds of comity and federalism). We would not go so far as to bar such consolidation in the face of a coordinated federal bankruptcy scheme. Instead, we would balance each case individually, as we have herein, for the relationship or unity of identity of the co-defendants and the debtor(s), the uniformity of source of the injury or wrongful death, and the general status of pending cases in the state courts and the effect a consolidation would have on them. 13 See Reply of Garlock, Inc., to Plaintiffs’ Response, filed December 19, 2001, at 7-8.

25 not cost-effective for Garlock to litigate the relatively small

amounts left in controversy. It is only since the Federal-Mogul

entities proceeded to Chapter 11 protection that, Garlock contends,

it must seriously proceed with its claims for contribution.

Garlock has not, however, commenced discovery in any of these

cases, but has spent its time seeking the § 157(b)(5) transfer

addressed herein. The appellees characterize that as a dilatory

intent and, if such, Garlock’s actions are tantamount to being

frivolous.

Additionally, the district judges ruling in the various cases

before us found, on the facts before them, no merit in Garlock’s

claims. One district judge, for example, noted that in his court,

Garlock’s claims were “scantily asserted” and presented no facts to

support them. As such, the contribution claims were “so tenuously

related to the bankruptcy case” as to be “virtually immaterial.”

All of the district judges ultimately found no verifiable basis in

Garlock’s claims so as to justify a mass transfer to the District

of Delaware.

We are not prepared to say that Garlock’s motives were purely

dilatory and its motions frivolous. We need not, however, decide

the issue of motivation when determining the potential for success

on the merits of Garlock’s “related to” jurisdiction assertion and

associated motion to transfer under § 157(b)(5). Given the

preliminary analysis herein, Garlock would not succeed on the

merits if granted a stay to appeal the § 157(b)(5) transfer issue.

26 Our determination in this element is sufficient to deny the

stay pending appeal; however, we will briefly address the remaining

points of analysis.

B. Whether the movant has made a showing of irreparable injury if

the stay is not granted.

We have determined that Garlock has no valid claim for

contribution against the debtor. Therefore, no irreparable harm

will ensue if a stay is not granted.

C. Whether the granting of the stay would substantially harm the

other parties.

There may be a danger of inconsistent results in the various

state and federal courts in which Garlock and the other parties

appear if these cases are not consolidated in the District of

Delaware. That is, however, the circumstance under which asbestos

litigation has proceeded for nearly 30 years.

What is certain is that delay where plaintiffs have

mesothelioma, asbestosis, or pleural disease, or where decedents’

survivors await compensation for support substantially harms those

parties.

Additionally, delay in or lengthy interruption of state court

proceedings already in progress for months or years may

substantially harm the ability of the state courts to resolve the

cases.

We therefore hold that, in this circumstance, the harm to the

27 plaintiffs in delay substantially outweighs the harm to Garlock if

not delayed.

D. Whether the granting of the stay would serve the public

interest.

Consolidation of PITWD cases related to a bankruptcy would

facilitate management of an estate in bankruptcy and potentially

provide an even-handed and fair apportionment of the bankrupt’s

estate to its creditors, including those claiming contribution in

the mass tort scenario.

Such consolidation would also deprive states and state courts

of their right to conduct proceedings brought under state law. In

a mass tort case of the scope of asbestos litigation, transferring

cases related to a bankruptcy could well result in depriving the

states of cognizance over thousands of cases. Many of these cases

are founded on well-developed state law and years of precedent and

represent a significant amount of time in individual litigation.

The negative effect on comity between the federal and state court

systems must be given some account.

Armstrong Work Industries, U.S. Gypsum, W.R. Grace and Owens

Corning are all proceeding through Chapter 11 in Delaware in

addition to Federal-Mogul. The burden of these five asbestos-

related bankruptcies and the direct claims against them alone has

resulted in the Third Circuit appointing a district judge full-time

to stewarding those cases in coordination with a bankruptcy judge.

28 The transfer of all of the PITWD claims against asbestos co-

defendants to that court has the potential to overload the court

with thousands of individual claims to resolve. It is difficult to

see how the public interest is served in that manner.

At the bottom, there is justification for aggregation, but the

tenuous relationship between Garlock and the debtor and the

insubstantial claims of contribution reflected herein do not

justify ignoring comity and loading thousands of cases on a single

district in this case.

IV. Issue Preclusion.

Garlock contends that a transfer of venue to the District of

Delaware would obtain “a ‘centralized,’ ‘efficient,’ cost-effective

application of a uniform, fair system for assessing and

compensating asbestos-related claimants” under

(b)(5) and the automatic stay feature of

, “to

avoid unnecessary repetition, confusion, inconsistent results in

multiple trials of common issues, cost or delay where these many

cases do not have to be multiplied.”14 In addition to seeking a

14 See Petitioner’s Emergency Motion for Stay at 3 (for cases consolidated under Fifth Circuit Case No. 01-41327). In cases filed at later dates and consolidated under other case numbers, Garlock’s intent is stated in a different location. For example, “[a] stay in this action will promote the stated congressional public policy reflected in § 157(b)(5) of having all matters ‘related to’ bankruptcy reviewed toward implementing centralized, efficient and expeditious proceedings conserving the debtor’s resources and distributing the debtor’s assets for the benefit of all creditors alike.” See Petitioner’s Emergency Motion for Stay at 14 (for cases consolidated under Fifth Circuit Case No. 01-

29 centralized forum under federal bankruptcy laws, which, we note,

Garlock may desire as much for perceived protection from judgments

in the state courts, Garlock appears to be contemplating the

availability of coordinated federal court judgments for their

preclusive effect in future actions.

To the extent that Garlock’s contention can be read to embrace

one made more explicitly by the “Big Three” automobile

manufacturers15--that transfer to the District of Delaware

bankruptcy court would facilitate a ruling on the ability of

friction products to be a producing cause of asbestos-related

diseases, a ruling that would be used for purposes of issue

preclusion in other cases--Garlock faces formidable obstacles. As

an initial matter, we note that Garlock has not attempted to

certify as a class these and other asbestos cases--the only widely-

51209). Regardless, all of the motions reflect the same underlying general facts, legal theory and intent. 15 The “Big Three” automobile manufacturers, who are co-defendants in many of these same cases, are being sued as users of asbestos friction products, such as brakes in automobiles. They moved in the District of Delaware to transfer all such claims against them under § 157(b)(5) for the specifically stated intent of conducting Daubert hearings for the admission of scientific evidence and a ruling that brake/friction products are conclusively not a possible source of disease-producing asbestos. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(1993). Such a ruling would then be used for issue preclusion in future cases. Garlock and amici have briefed the auto manufacturers’ effort from their opposing perspectives and counsel for Ford Motor Co., DaimlerChrysler Corp. and General Motors Corp. has further informed us by letter dated December 12, 2001, that the District of Delaware has provisionally transferred only those claims to that court for further determinations.

30 credited medium for disposing of multiple claims while barring

relitigation of resolved issues. Less well-accepted is

consolidation under Rule 42, but this approach is complicated by

the cases involved having been filed in multiple courts in diffuse

districts and by the absence of complete uniformity among parties

and interests. Even more tenuous would be resort to judicial

notice under FED. R. EVID. 201. For a party to tee up an issue for

decision in a selected court with the expectation that any rulings

would not only be referenced by subsequent courts but also applied

as binding--and in the face of inconsistent decisions previously

rendered elsewhere--is to hope for a most novel application of that

rule indeed.

But no matter how creative the procedural avenue, and in spite

of the fact that this litigation would benefit from a uniform

approach, at almost every turn this circuit has rejected attempts

at aggregation and issue preclusion in asbestos cases. Our

adversity toward group resolution sounds in our concern that no one

be deprived the right to a full and fair opportunity to litigate

their claims. In C.A. Hardy v. Johns-Manville Sales Corp.,

(5th Cir. 1982), we turned aside a district court’s order

that nonparty asbestos companies were estopped from relitigating

issues of dangerousness and causation as violative of the

fundamental right to trial by jury. We reached this conclusion

based on the manufacturers’ each having an interest in the

31 plaintiffs proving the same set of facts. Indeed, in Hardy we went

so far as to conclude that the presence of inconsistent findings in

other cases on the same questions at issue in Hardy made the

application of collateral estoppel highly problematic even as to

the parties themselves. Of course Garlock need not be reminded of

Hardy’s place in this circuit’s jurisprudence for it was one of the

defendants that opposed any attempt to bar the relitigation of key

dispositive issues.

The passage of time has not weakened the teachings of Hardy.

In re Fibreboard,

(5th Cir. 1990), saw this court

issue a writ of mandamus against the trial of a representative

group of plaintiffs on the issues of duty and damages. There, we

said that adherence to state substantive law and to the Seventh

Amendment right to trial by jury would not tolerate making the

resolution of a handful of claims binding as to defendant asbestos

manufacturers’ liability with respect to all plaintiffs. In Cimino

v. Raymark Industries, Inc.,

(5th Cir. 1998), we again

revisited the same district court’s revised effort at mass

resolution. There, we emphasized that federal rules providing for

aggregation of claims--specifically, FED. R. CIV. P. 23 and 42--

cannot override the necessity of proving causation as to each

defendant, a requirement of the state law providing the cause of

action and of the right to trial by jury. As we did in Fibreboard,

we refused to tolerate deviation from fundamental principles of due

32 process simply because asbestos cases threatened to swamp the

resources of the federal courts.

The closest this circuit has come to utilization of issue

preclusion in the asbestos context is Jenkins v. Raymark,

(5th Cir. 1987). In that case, a certified class of 753

claimants were permitted to try common issues in a single trial,

the result of which was applicable to the class. The procedure

approved in Jenkins, however, still required individual jury

determinations of causation and damages.

The efficiencies to be obtained from issue preclusion,

therefore, cannot in this circuit serve as a basis for the transfer

of cases under

(b)(5).

V. Abstention.

A § 157(b)(5) motion ordinarily requires an abstention

analysis. In re Dow Corning,

(6th Cir. 1996).

provides for two types of abstention: discretionary

abstention under § 1334(c)(1) and mandatory abstention under §

1334(c)(2). See, e.g., Broyles v. U.S. Gypsum Co.,

(E.D. Tex. 2001) (finding both doctrines apply, as well as

equitable remand, in circumstances not involving a transfer under

(b)(5)).

We agree with the district judge in Corpus Christi. Any

abstention issues remaining in these cases regarding claims now

before the bankruptcy court in the District of Delaware may be

33 decided by that district court.

VI. Conclusion.

We do not disagree that the transfer provisions of

(b)(5) may be applicable to multiple, non-debtor co-defendants

in a mass tort case. Our holding today is that Garlock, in these

cases and under these circumstances, has not shown that such a

transfer is appropriate.

It is hereby ORDERED that,

The Petitioner’s Motions for Stay under FED. R. APP. P. 8 are

DENIED. It is further ORDERED that,

The temporary stays issued in our consolidated Orders are

hereby dissolved.

34