USCA4 Appeal: 24-1237 Doc: 31 Filed: 05/04/2026 Pg: 1 of 14
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-1237
COLONIALWEBB CONTRACTORS COMPANY,
Plaintiff – Appellee,
v.
HILL PHOENIX, INC.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:23-cv-00722-HEH)
Argued: February 12, 2026 Decided: May 4, 2026
Before DIAZ, Chief Judge, and WILKINSON and HEYTENS, Circuit Judges.
Order reversed and matter remanded to the district court for further proceedings by published opinion. Judge Heytens wrote the opinion, which Chief Judge Diaz and Judge Wilkinson joined.
ARGUED: Robert William Loftin, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. Courtney Moates Paulk, HIRSCHLER FLEISCHER, P.C., Richmond, Virginia, for Appellee. ON BRIEF: Robert R. Redmond, Jr., Patrick F. Dillard, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. Eliza J. Unrein, HIRSCHLER FLEISCHER, P.C., Richmond, Virginia, for Appellee. USCA4 Appeal: 24-1237 Doc: 31 Filed: 05/04/2026 Pg: 2 of 14
TOBY HEYTENS, Circuit Judge:
One company filed two state court actions against another for breach of contract.
Mistakenly believing the two suits were one action (and that a single complaint had been
erroneously filed twice), the defendant filed a single notice of removal that also asked the
federal district court to consolidate the two cases into one. The district court’s clerk’s office
did so. Later—acting “on its own initiative”—the district court remanded the cases to state
court because it concluded the “consolidation of the state cases was improper.” JA 611,
614. We have appellate jurisdiction to review the remand order because it did not rest on a
lack of subject matter jurisdiction and relied on a basis for remand that no party raised via
a timely motion. On the merits, we reverse the district court’s order because it remanded
the case without statutory authority to do so and return the matter to the district court for
further proceedings.
I.
The underlying disputes involve contracts to buy industrial refrigeration equipment.
In October and December 2020, plaintiff ColonialWebb Contractors Company submitted
purchase orders to defendant Hill Phoenix, Inc. for projects in Colorado and Michigan,
respectively. Both times, ColonialWebb was dissatisfied with what it received.
ColonialWebb responded by filing two almost-identical complaints against Hill
Phoenix in the same Virginia state court. We do not exaggerate the complaints’ similarity
for dramatic effect. Besides the contracts themselves (which were attached as exhibits) and
minor variations in tense (past v. present v. future), the only differences between the
as-filed complaints were the amounts of damages sought and single references to the
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locations of the underlying projects and the dates of the purchase orders. The complaints
were stamped “received and filed” on the same day and assigned state court docket
numbers just one digit apart.
Despite having filed suit, ColonialWebb did not serve either complaint on Hill
Phoenix. Months later, the law firm that has represented ColonialWebb throughout this
litigation served Hill Phoenix with a state court order granting ColonialWebb’s motion to
amend its complaint in the Colorado case. ColonialWebb does not challenge Hill Phoenix’s
assertion that it only received “an order granting the motion to amend in one of the cases.”
Hill Phoenix Br. 4.
Still lacking either complaint, Hill Phoenix checked the state court’s docket and
discovered two pending cases against it. Because the state court’s docketing system did not
permit parties to retrieve copies on their own, Hill Phoenix asked the clerk’s office to
provide it with all filings from both state court actions.
But something went wrong. In Hill Phoenix’s later notice removing both cases to
federal court, it attached copies of everything it says it received from the state court. Aside
from having different docket numbers on the first page, the two versions of the initial
complaints that Hill Phoenix received from the state court clerk are identical: Both
reference only a December 2020 Michigan contract and request one million dollars in
damages. 1 In other words, the documents Hill Phoenix claims it received from the state
1 Although ColonialWebb later asserted that the documents attached to the notice of removal “do not accurately reflect the files of the” relevant state court, JA 435, it does not (Continued) 3 USCA4 Appeal: 24-1237 Doc: 31 Filed: 05/04/2026 Pg: 4 of 14
court clerk’s office appear to be two copies of the same complaint with two different (and
adjacent) docket numbers.
Based on its understanding that the two complaints were functionally identical, Hill
Phoenix filed a single notice of removal to federal court. The caption and body of the notice
of removal reference both state court docket numbers and assert that “[i]t appears that
identical cases were opened in error.” JA 5. Hill Phoenix thus “request[ed] that” the district
court “consolidate these two actions, which have a single operative complaint, into one
action.” Id.
Without awaiting direction from the court, the district court’s clerk’s office opened
a single civil action, thus effectively granting Hill Phoenix’s request for consolidation. Still
believing there was only one dispute and that it involved only the Michigan contract, Hill
Phoenix moved to dismiss the case for failure to state a claim.
ColonialWebb responded by moving “to remand this matter” (singular) back to state
court. JA 163. In both the motion and its supporting memorandum, ColonialWebb
explained it filed two lawsuits (one involving a Colorado contract; the other, the Michigan
one), that it had been granted leave to amend in the Colorado action, and that the state court
had not acted on its motion for leave to amend in the Michigan action. Although the motion
and memorandum both asserted that Hill Phoenix’s single notice of removal “improperly
consolidat[ed]” (JA 164), “purport[ed] to consolidate” (JA 218), or “attempt[ed] to
challenge Hill Phoenix’s assertions about what it received, and the district made no findings about that issue.
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consolidate” (JA 232 n.9) two separate state-court actions, that is not the basis on which
ColonialWebb sought remand. Instead, ColonialWebb argued removal was improper
because a forum-selection clause in the parties’ contracts gave the Virginia state court in
which they had been filed “exclusive jurisdiction” over the parties’ disputes. JA 232.
But cf. Atlantic Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49,
55–59 (2013) (holding that forum-selection clauses cannot render an otherwise-statutorily
proper venue “wrong” or “improper”). Hill Phoenix opposed the motion to remand,
asserting the forum-selection clause on which ColonialWebb relied was inapplicable and
did not, in any event, mandate a state court venue.
With both Hill Phoenix’s motion to dismiss and ColonialWebb’s motion to remand
still pending, the district court entered an order “on its own initiative.” JA 594. The order
stated that, “[u]pon review of the pleadings, the Court noticed potential issues surrounding
the state court filings, service of process, and the removal and consolidation of the state
cases.” Id. The court thus directed the parties “to meet and confer” and then “file their
statements with the Court” about several issues, including “[w]hether the consolidation of
the two state court cases upon removal was proper.” JA 594–95.
In its response, ColonialWebb made two relevant, albeit conflicting, assertions. On
one hand, ColonialWebb claimed Hill Phoenix had “unilaterally” and “improperly”
consolidated the two cases “upon removal,” JA 599, and this action had itself rendered “the
removal improper,” JA 600. At the same time, however, ColonialWebb asserted the cases
had not yet been consolidated and “cannot be consolidated until after the Court determines
the threshold issue of whether removal [was] proper.” JA 601.
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The district court remanded the matter to state court. The court’s order concluded
that, “[a]lthough [Hill Phoenix] has adequately pled diversity jurisdiction, the state cases
have been consolidated in error.” JA 613 (footnote removed). The order also stated that the
court was acting “on its own initiative” and that “in remanding the case, the Court does not
reach the merits of [ColonialWebb’s] Motion to Remand.” JA 611 (first quote); JA 614 n.2
(second quote).
Hill Phoenix appeals the remand order, arguing the district court erred by sua sponte
remanding the cases to state court. We conclude we have appellate jurisdiction to review
that order and that the district court lacked statutory authority to issue it. We thus reverse
the remand order and return this matter to the district court for further proceedings.
II.
The “general . . . rule” is that orders remanding a case to state court may not be
appealed. Hertz Corp. v. Friend, 559 U.S. 77, 83 (2010) (citing 28 U.S.C. § 1447(d)). At
the same time, the Supreme Court has long understood the relevant jurisdictional statute as
limiting district courts’ power to remand and allowing appellate courts to ensure those
limits are respected. See, e.g., Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336,
342–52 (1976).
The threshold question—both for our appellate jurisdiction and the propriety of the
underlying order—is whether a remand order “purport[s] to” be and “is colorably
characterized as” being based on lack of “subject-matter jurisdiction.” Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224, 233–34 (2007). A federal court cannot adjudicate
a suit’s merits without first ensuring it has subject matter jurisdiction and must do so even
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if “the parties are prepared to concede it.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 95 (1998) (quotation marks removed). So just as a district court must dismiss a case
originally filed in federal court if it “determines at any time that it lacks subject-matter
jurisdiction,” Fed. R. Civ. P. 12(h)(3), it also must remand whenever it reaches the same
conclusion about a case that was removed from state court, see 28 U.S.C. § 1447(c). And
if a district court’s remand order “relie[s] upon a ground that is colorably characterized as
subject-matter jurisdiction,” 28 U.S.C. § 1447(d) bars “appellate review” of that decision.
Powerex Corp., 551 U.S. at 234.
But here—as elsewhere—the rules are different for non-jurisdictional issues.
Federal courts normally “follow the principle of party presentation” under which “the
parties . . . frame the issues for decision and assign to courts the role of neutral arbiter of
matters the parties present.” United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)
(quotation marks removed). Reflecting that principle, 28 U.S.C. § 1447(c) states that “[a]
motion to remand the case on the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of the notice of removal.”
(emphasis added); see, e.g., § 1446 (establishing various procedural rules for removing
civil actions to federal court). Because “Section 1447(c) effectively assigns to the parties
the responsibility of policing non-jurisdictional questions regarding the propriety of
removal,” “a district court is prohibited from remanding a case sua sponte based on a
procedural defect absent a [timely] motion to do so from a party.” Ellenberg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 198 (4th Cir. 2008). And because such an improper
remand order is not “within the scope of 28 U.S.C. § 1447(c),” appellate courts remain
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“free to review it.” Id. at 196.
Our appellate jurisdiction and the propriety of the district court’s remand order thus
turn on two questions. (1) Was the district court’s remand order based on lack of subject
matter jurisdiction? If not, (2) were the grounds on which the court remanded raised by
ColonialWebb within 30 days of the removal? Because we conclude the answer to both
questions is no, we have appellate jurisdiction and hold that the district court exceeded its
statutory authority in remanding this matter to state court. See Doe v. Blair, 819 F.3d 64,
68 (4th Cir. 2016) (“[T]he fact that we can review the district court’s remand order because
it fell outside the scope of [28 U.S.C.] § 1447(c) leads to the conclusion that the order fell
outside the district court’s authority to order remand.”); see also Skyline Tower Painting,
Inc. v. Goldberg, 148 F.4th 209, 220 (4th Cir. 2025) (stating that we review a “district
court’s ultimate legal decision to grant a motion to remand to state court de novo”).
A.
“Nothing in the plain language or reasoning” of the district court’s remand order
“suggests that the district court believed it lacked subject matter jurisdiction to consider
the case.” Lisenby v. Lear, 674 F.3d 259, 262 (4th Cir. 2012). “Subject-matter jurisdiction
defines the court’s authority to hear a given type of case” or “category of claim.” United
States v. Morton, 467 U.S. 822, 828 (1984) (first quote); Sinochem Int’l Co. v. Malaysia
Int’l. Shipping Corp., 549 U.S. 422, 431 (2007) (second quote). The types of cases and
categories of claims federal courts may hear are listed in Article III § 2 of the United States
Constitution and various federal jurisdictional statutes. One such category is
“Controversies . . . between Citizens of different States.” U.S. Const. art. III § 2. Subject
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to limited exceptions and caveats (none of which apply here), such suits may be brought in
federal court in the first instance if no plaintiff shares a citizenship with any defendant and
the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1); Strawbridge v.
Curtiss, 7 U.S. 267, 267 (1806). Such cases also may (subject, again, to exceptions that do
not apply here) be removed from state to federal court so long as no properly named
defendant “is a citizen of the State in which such action is brought.” 28 U.S.C.
§ 1441(b)(2).
The district court’s remand order did not purport to rely on any of these limitations.
Quite the contrary. The order not only stated Hill Phoenix “ha[d] adequately pled diversity
jurisdiction,” JA 613, it walked through how Hill Phoenix had done so. As the district court
explained, ColonialWebb “is a Virginia corporation with its principal place of business in
Virginia,” Hill Phoenix “is a Delaware corporation with its principal place of business in
Georgia,” and “[t]he amount in controversy exceeds $75,000 because [ColonialWebb] is
seeking $1,000,000 in the Michigan case and $750,000 in the Colorado case.” JA 613 n.1.
The facts recited by the district court satisfy all relevant constitutional and statutory
requirements for a diversity-based removal and do not even hint at the possibility that some
other statutory limit on the court’s subject matter jurisdiction might apply.
ColonialWebb’s counterarguments are unpersuasive. First, it contends other
language in the district court’s remand order “indicates that the court relied on a lack of
subject matter jurisdiction as the legal ground for remand.” ColonialWebb Br. 11. In
support, ColonialWebb cites the district court’s statements that “[c]ourts must construe
removal jurisdiction strictly,” that “a remand is necessary” “[i]f federal jurisdiction is
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doubtful,” and that “[t]he removing party bears the burden of proving” jurisdiction.
JA 612–13 (quotation marks removed). But those statements merely establish the district
court understood its independent obligation to ensure it had subject matter jurisdiction—
not that it thought such jurisdiction was lacking here. This reading is confirmed by the
district court’s later reference to consolidation as “a clerical decision by the Clerk’s office”
(JA 614): No such action by a clerk’s office can create or destroy subject matter
jurisdiction. See Allen v. Atlas Box & Crating Co., 59 F.4th 145, 147–48 (4th Cir. 2023)
(describing a clerk’s role in accepting filings as “purely ministerial”).
Second, ColonialWebb suggests that—even if the district court did not believe its
consolidation-focused reasons for ordering remand were jurisdictional—our review is
foreclosed because such reasons could plausibly be described as jurisdictional. That
argument flips the statutory framework on its head. It is approaching cliché to call
jurisdiction “a word of many, too many, meanings,” Santos-Zacaria v. Garland, 598 U.S.
411, 421 (2023) (quotation marks removed), and subject matter jurisdiction is a notoriously
tricky area of law. As both the Supreme Court and this one have explained, the “colorably
characterized” test is designed to deal with situations in which a district court “purported
to remand for lack of subject-matter jurisdiction” but there is reason to suspect the court’s
“characterization” of the basis for its remand may have been wrong. Powerex Corp.,
551 U.S. at 233–34; accord In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 584
(4th Cir. 2006) (describing the key issue as “the district court’s perception that it lacked
subject matter jurisdiction” (emphasis added)). But when—as here—the district court
never said it was relying on lack of subject matter jurisdiction and “the substantive
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reasoning behind the [remand] order” does not sound in jurisdiction at all, In re Blackwater,
460 F.3d at 584, there is no reason to ponder how that order might plausibly have been
characterized.
B.
Having satisfied ourselves that the district court did not remand on jurisdictional
grounds, we also conclude the basis on which the court remanded was not raised by “[a]
motion” filed “within 30 days after the filing of the notice of removal.” 28 U.S.C.
§ 1447(c). For that reason, we have appellate jurisdiction to review the remand order and
hold the district court erred in issuing it. See Ellenberg, 519 F.3d at 196, 198.
It is “quite clear” to us that the district court “purport[ed] to remand” sua sponte.
Powerex Corp., 551 U.S. at 232. The remand order described “[t]his matter” as being
“before the Court on its own initiative” and went out of its way to say the district court was
“not reach[ing] the merits of [ColonialWebb]’s Motion to Remand.” JA 611, 614 n.2. Just
as “courts must presume that a legislature says in a statute what it means and means in a
statute what it says there,” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54
(1992), the same applies when appellate courts review the work of trial courts. Of course,
“the language of an opinion is not always to be parsed as though we were dealing with [the]
language of a statute.” Brown v. Davenport, 596 U.S. 118, 141 (2022) (quotation marks
removed). But here we see no reason to question the district court’s own descriptions of
the impetus for its decision or what issues it was and was not reaching.
ColonialWebb protests that it “raise[d] the issue of improper consolidation”
throughout “its court filings,” including in its timely remand motion. ColonialWebb Br.
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15–16. Fair enough. But neither ColonialWebb’s remand motion nor the supporting
memorandum asserted—not even once—that the district court should remand based on the
allegedly improper consolidation. To the contrary, ColonialWebb told the district court that
“the only question[s] that must be resolved” to rule on its remand motion were “whether
the forum selection clause contained in ColonialWebb’s Terms and Conditions applies,
and, if it does, whether it would be unreasonable to enforce it under the circumstances
present.” JA 227 (emphasis added). Thus, although ColonialWebb made a “motion to
remand the case . . . within 30 days after the filing of the notice of removal,” that motion
did not identify the “defect” that formed the basis for the district court’s ruling. 28 U.S.C.
§ 1447(c).
Our conclusion is not altered by a sentence fragment in ColonialWebb’s response
to the district court’s supplemental briefing order asserting that Hill Phoenix’s “improper[]
consolidat[ion]” of the two cases “render[ed] not only the consolidation but the removal
itself improper.” JA 600. Not only did the supplemental brief not argue for remand on any
basis, it was also filed almost two months after the end of the 30-day deadline for filing
non-subject-matter-jurisdiction-based remand motions, see 28 U.S.C. § 1447(c), and came
in response to an order stating that the district court was acting “on its own initiative,”
JA 594. Section 1447(c) gives “the parties”—i.e., not the district court—“the
responsibility of policing non-jurisdictional questions regarding the propriety of removal,”
Ellenburg, 519 F.3d at 198, and ColonialWebb cannot rely on the district court’s later
actions to excuse its own earlier default, see al-Suyid v. Hifter, 139 F.4th 368, 374 (4th Cir.
2025) (rejecting argument that a later-entered district court order could “resurrect an
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already waived defense”). 2
* * *
The circumstances giving rise to this appeal are unfortunate by any measure.
Jurisdictional fights “complicate a case, eating up time and money as the parties litigate,
not the merits of their claims, but which court is the right court to decide those claims,”
Hertz, 559 U.S. at 94, and there are many ways all this could have been avoided.
ColonialWebb could have served Hill Phoenix with both complaints instead of just a court
order applicable to only one of them. The state court clerk could have spotted the
(admittedly, minor) differences in the two complaints and sent Hill Phoenix the correct
documents. Hill Phoenix could have filed two notices of removal instead of one, or
ColonialWebb could have filed a timely remand motion based on Hill Phoenix’s failure to
do so. The district court’s clerk’s office could have sought directions from the court rather
than effectively granting Hill Phoenix’s consolidation request on its own. And the district
court could have refrained from raising sua sponte a non-subject-matter-jurisdictional
remand argument that had not been properly presented by any party.
2 The fact that ColonialWebb never moved to remand on such grounds makes it unnecessary to decide whether either Hill Phoenix’s decision to file a single notice of appeal or the allegedly improper consolidation of the two cases could have formed a valid basis for a remand motion. Whether prompted by a motion or not, district courts may remand only “on grounds . . . permitted by the controlling statute,” Thermtron Prods., 423 U.S. at 345, and the sole grounds allowed under 28 U.S.C. § 1447(c) are “lack of subject matter jurisdiction” or “a defect in removal” procedure, Ellenburg, 519 F.3d at 196 (quotation marks removed). We leave for another day whether the grounds relied on by the district court constitute a “defect” under Section 1447(c). Cf. Bartels v. Saber Healthcare Grp., LLC, 880 F.3d 668, 673 (4th Cir. 2018) (removing a case to federal court in violation of a forum-selection clause is not a “defect in the removal procedure”).
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But there is nothing we can do about any of that now. Instead, we follow the
“straightforward rules” the Supreme Court has laid out for us in this area. Hertz, 559 U.S.
at 94. Because the district court’s order was not based on a perceived lack of subject matter
jurisdiction and rested on grounds that were never raised via a timely remand motion, we
hold that we have appellate jurisdiction and that the district court erred in remanding to
state court.
The remand order is reversed and this matter is remanded to the district court for
further proceedings consistent with this opinion.
SO ORDERED