United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED July 25, 2024 No. 23-20337 Lyle W. Cayce ____________ Clerk Abraham Watkins Nichols Agosto Aziz & Stogner,

Plaintiff—Appellee,

versus Edward Festeryga,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CV-4249 ______________________________ Before Dennis, Willett, and Duncan, Circuit Judges. Don Willett, Circuit Judge: This is an appeal from a waiver-based remand order. Edward Festeryga, an attorney embroiled in a dispute with his former law firm, wants this case heard in federal court and contends we have appellate jurisdiction over the district court’s remand order because waiver is neither an issue of subject-matter jurisdiction nor a defect in removal procedure under 28 U.S.C. § 1447(c). We agree, but our 40-plus-year-old precedent provides otherwise, holding that a waiver-based remand order is jurisdictional under Case: 23-20337 Document: 106-1 Page: 2 Date Filed: 07/25/2024

No. 23-20337

§ 1447(c) and thus unappealable under § 1447(d). 1 Abiding by our rule of orderliness, we must dismiss for lack of appellate jurisdiction. I The underlying dispute in this case is between the law firm Abraham Watkins Nichols Agosto Aziz & Stogner and one of its former associates, Edward Festeryga. Abraham Watkins terminated Festeryga’s employment after learning that Festeryga attempted to take clients and firm files with him to a new firm. Festeryga mostly denies the allegations, but whatever their veracity, Abraham Watkins eventually sued Festeryga in Texas state court for conversion, breach of fiduciary duty, and tortious interference with contract. The ensuing state-court proceedings spanned 17 days. After Abraham Watkins obtained a temporary restraining order prohibiting Festeryga from spoliating evidence, representing firm clients, and disclosing client information, Festeryga moved to dismiss the suit under Texas’s anti-SLAPP statute, the Texas Citizens Participation Act (TCPA). 2 Festeryga’s TCPA motion had the effect of staying the expedited discovery that Abraham Watkins sought, 3 but the parties were able to agree on a protective order following an off-the-record hearing. In what Festeryga describes as an effort to “deescalate” the litigation, he specifically agreed to produce certain documents within several days after signing the protective order. The day before the documents were due, however, Festeryga filed a notice of removal in the United States District Court for the Southern

1 In re Weaver, 610 F.2d 335 (5th Cir. 1980). 2 Tex. Civ. Prac. & Rem. Code § 27.001 et seq. 3 Id. § 27.003(c) (“[O]n the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.”).

2 Case: 23-20337 Document: 106-1 Page: 3 Date Filed: 07/25/2024

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District of Texas, attesting that he was a citizen of Canada and that the district court cou