United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED May 16, 2025 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 Elrod, Chief Judge, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas and Ramirez, Circuit Judges. Don R. Willett, Circuit Judge: This case asks whether we have appellate jurisdiction to review a remand order based solely on a defendant’s alleged waiver of the right to remove. By statute, Congress has sharply limited our power to review district court orders remanding cases to state court. Specifically, we lack jurisdiction to review remand orders grounded in either (1) a lack of subject-matter jurisdiction or (2) a defect in the removal procedure. But a remand based on Case: 23-20337 Document: 171-1 Page: 2 Date Filed: 05/16/2025

No. 23-20337

a defendant’s alleged waiver—say, by participating in state-court proceedings before removal—fits neither category. Nonetheless, 45 years ago in In re Weaver, our circuit inexplicably held otherwise. Fast forward to today. In this case, a Texas law firm sued one of its former attorneys, Edward Festeryga, in state court, alleging that he took firm files and clients to his new practice. Seventeen days later—well within the 30-day statutory removal window—Festeryga removed the case to federal court. The district court, however, remanded the case, concluding that Festeryga had waived his removal right by filing a motion to dismiss in state court. Bound by Weaver—and acknowledging its “erroneous premises”—a panel of this court “reluctantly” dismissed Festeryga’s appeal for lack of appellate jurisdiction.1 Today, we do what only this court sitting en banc can: we correct course and “unweave Weaver.”2

I This case arises from a dispute between a Texas law firm—Abraham Watkins Nichols Agosto Aziz & Stogner—and one of its former associates, Edward Festeryga. After learning that Festeryga had attempted to take clients and firm files to his new firm, Abraham Watkins terminated his employment and sued him in Texas state court for various state-law torts. What followed was a brisk, 17-day flurry of state-court activity. Abraham Watkins first secured a temporary restraining order barring Festeryga from spoliating evidence, contacting or representing firm clients,

_____________________ 1 Abraham Watkins v. Festeryga, 109 F.4th 810, 814–15 (5th Cir. 2024), reh’g en banc granted, opinion vacated, 113 F.4th 1019 (5th Cir. 2024). 2 Id. at 817 (5th Cir. 2024) (Duncan, J., concurring).

2 Case: 23-20337 Document: 171-1 Page: 3 Date Filed: 05/16/2025

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or disclosing confidential client information. Next, the firm moved for expedited discovery to obtain communications and doc