Ferguson, et al v. Security Life of Den

*Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-10413
Summary Calendar
_____________________
WELDON D. FERGUSON; GLORIA J. FERGUSON;
THE WELDON D. FERGUSON AND GLORIA J.
FERGUSON 1990 TRUST, Plaintiffs-Appellees,
versus
SECURITY LIFE OF DENVER INSURANCE COMPANY, ET AL.,
Defendants,
SECURITY LIFE OF DENVER INSURANCE COMPANY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas, Dallas
USDC No. 3:97-CV-2106-R
_________________________________________________________________
November 5, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Gloria and Weldon Ferguson filed suit against Security Life of
Denver Insurance Company (“Security”) in the 192nd Judicial
District for Dallas County, Texas, alleging that Security defrauded
them. After filing suit, the Fergusons filed several amended
petitions. Essentially, their complaint was that they were induced

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to buy an insurance policy based on false representations regarding
the number of years that they would have to make interest payments.
In their third amended petition, the Fergusons listed Robertson,
Security’s sales agent who allegedly made the false statements, as
a defendant. Security removed the case to federal district court.
The district court held that because Robertson was a party to the
suit, the case should be remanded for lack of diversity. In the
state proceeding, Security elicited information in discovery that
called into doubt the veracity of claims made in the third amended
petition about Robertson. On the basis of this information, the
state court concluded that Robertson should not be a party and
permitted Security to remove a second time. In federal district
court, Security filed a motion for Fed.R.Civ.P. 11 sanctions based
on representations made in the third amended petition and the
Fergusons filed a motion to remand the case. The district court
denied Security’s motion and remanded the case to state court.
Security appeals the order denying a request for sanctions under
rule 11.
In Edwards v. General Motors Corporation, 153 F.3d 242 (5th
Cir. 1998), we recently revisited the issue of whether rule 11
sanctions can be assessed against conduct that takes place in a
state court. They cannot. We held that, “[t]o uphold sanctions
under rule 11, we must be able to point to some federal filing in
which the sanctioned attorney violated the rule.” Id. at 245. We
further stated that an attorney cannot be sanctioned for a “failure
to withdraw pleadings filed in state court that would have violated
rule 11 had they been filed in federal court.” Id.

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In this case, Security takes issue solely with representations
made by the Fergusons’ lawyer in the third amended petition.
Because that petition was filed in the 192nd Judicial District for
Dallas County and not in federal court, rule 11 sanctions are not
available. As Security has offered no evidence of conduct in the
federal district court that merits rule 11 sanctions, the district
court correctly concluded that Security’s motion should be denied.
The judgment of the district court is therefore
A F F I R M E D.

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