Bravenec v. Martin

• Court: Court of Appeals for the Federal Circuit
• Decided: February 28, 2023
• Docket: 22-2191
• Status: Unpublished

Opinion

Case: 22-2191 Document: 17 Page: 1 Filed: 02/28/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

EDWARD BRAVENEC, et al., Plaintiff-Appellee

v.

ROWLAND J. MARTIN, JR., Defendant-Appellant ______________________

2022-2191 ______________________

Appeal from the United States District Court for the Western District of Texas in No. 5:22-cv-00522-JKP, Judge Jason Kenneth Pulliam. ______________________

ON MOTION ______________________

PER CURIAM. ORDER Before the court are Rowland J. Martin, Jr.’s response to this court’s November 17, 2022, show cause order, ECF No. 14; “opposed motion for writ of mandamus and for emergency stay of the district court order dated September 29, 2022,” ECF No. 13; and amended notice of appeal, ECF No. 12. For the following reasons, we now dismiss. Case: 22-2191 Document: 17 Page: 2 Filed: 02/28/2023

Edward Bravenec and 1216 West Ave., Inc. brought suit against Mr. Martin in Texas state court asserting a claim for tortious interference with contractual relations in connection with the sale of a property in San Antonio. See Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL 2255139, at *2 (Tex. App. May 13, 2015). Mr. Martin re- moved the case to federal district court. On September 29, 2022, the district court issued an order remanding the case to state court for lack of jurisdiction, * explaining that the action sought to be removed was “not based on any federal claim within Plaintiff’s state petition or on the basis of di- versity jurisdiction,” ECF No. 6-2 at 14, and that Mr. Mar- tin’s attempts to assert various federal claims provided no basis for jurisdiction over the removed action, see id. Judicial review over the district court’s remand order is foreclosed by 28 U.S.C. § 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” The Supreme Court has made clear that if the district court “relied upon a ground that is colorably characterized as subject-matter jurisdiction,” then the remand order is sub- ject to § 1447(d)’s bar and therefore outside of the review authority of any appellate court. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 234 (2007). The district court here clearly premised its remand order on its view that it lacked jurisdiction over the removed case. Section 1447(d) therefore requires dismissal without need to fur- ther explore whether this appeal would otherwise come within our review authority under 28 U.S.C. § 1295(a) or be appropriately transferred under 28 U.S.C. § 1631.

* Although Mr. Martin filed his initial notice of ap- peal before the district court’s remand order, he attached the district court’s order to an amended notice of appeal he submitted to this court on October 6, 2022, ECF No. 6-2 at 12–15. Case: 22-2191 Document: 17 Page: 3 Filed: 02/28/2023

BRAVENEC v. MARTIN 3

Mandamus relief under 28 U.S.C. § 1651 is likewise un- available. By its terms, section 1447(d) bars appellate re- view of remand orders, based on lack of subject matter jurisdiction, by way of “appeal or otherwise” (emphasis added). Review through a writ of mandamus is one such alternative prohibited by § 1447(d). See Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723, 723–24 (1977) (“The District Court’s remand order was . . . unreviewable by the Court of Ap- peals, by mandamus or otherwise.”). Accordingly, IT IS ORDERED THAT: (1) The appeal is dismissed. (2) All motions are denied as moot. (3) Each side shall bear its own costs. FOR THE COURT

February 28, 2023 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court