Commonwealth of VA v. Banks

Fourth Circuit

Commonwealth of VA v. Banks

120 F. App'x 973

CourtCourt of Appeals for the Fourth Circuit

DecidedFebruary 3, 2005

Docket04-7399

StatusUnpublished

This text of 120 F. App'x 973 (Commonwealth of VA v. Banks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth of VA v. Banks, 120 F. App'x 973 (4th Cir. 2005).

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Opinion

PER CURIAM:

Simon Banks appeals from the district court’s order dismissing his petition for removal of a state criminal prosecution against him and denying his motion for reconsideration. While the district court properly concluded it lacked jurisdiction over the case, see City of Greenwood, MS. v. Peacock, 384 U.S. 808, 827-28, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), the proper disposition upon a determination of the lack of subject matter jurisdiction is to remand the case to the state court, rather than dismiss the action. See 28 U.S.C. §§ 1446(c)(3), (4), 1447(c) (2000); see, e.g., Virginia v. Wallace, 357 F.2d 105, 106 (4th Cir.1966) (affirming district court order remanding criminal prosecution to state court).

Accordingly, we vacate the district court’s dismissal order and the order denying reconsideration and remand this case to the district court with instructions to remand the case to the state court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED

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PER CURIAM:

Simon Banks appeals from the district court’s order dismissing his petition for removal of a state criminal prosecution against him and denying his motion for reconsideration. While the district court properly concluded it lacked jurisdiction over the case, see City of Greenwood, MS. v. Peacock, 384 U.S. 808, 827-28, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), the proper disposition upon a determination of the lack of subject matter jurisdiction is to remand the case to the state court, rather than dismiss the action. See 28 U.S.C. §§ 1446(c)(3), (4), 1447(c) (2000); see, e.g., Virginia v. Wallace, 357 F.2d 105, 106 (4th Cir.1966) (affirming district court order remanding criminal prosecution to state court).

Accordingly, we vacate the district court’s dismissal order and the order denying reconsideration and remand this case to the district court with instructions to remand the case to the state court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED

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120 F. App'x 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-of-va-v-banks-ca4-2005.

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