Dahiya v. Talmidge International, Ltd.

371 F.3d 207, 2004 A.M.C. 1334, 2004 U.S. App. LEXIS 9680, 2004 WL 1098838

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 2004
• Docket: No. 02-31068
• Status: Published

Opinions

BENAVIDES, Circuit Judge:

Defendants-Appellants filed a motion for rehearing complaining of this court’s order of dismissal entered March 11, 2004. After considering this motion for rehearing, which we treat as a petition for reconsideration, the motion is GRANTED, the previous order of dismissal is withdrawn, and the following opinion is entered in lieu thereof.

Plaintiff-Appellee Vinod Kumar Dahiya filed this maritime personal injury action in Louisiana state court against several Defendants-Appellants: his employer, Neptune Shipmanagement Services; the owner of the ship on which he was injured, Talmidge International; co-owners of the fleet to which the ship belongs, American Eagle Tankers and American Eagle Tankers Agencies; and the ship’s insurer, Brit-tania Steam Ship Insurance Association. Appellants removed to federal court on the grounds that their dispute with Dahiya was subject to an arbitration agreement governed by the Convention on the Recognition and Enforcement of Foreign Arbi-tral Awards (the “Convention”), 9 U.S.C.A. §§ 201-208 (West 1999 & Supp.2003). The district court remanded the case to state court for lack of subject matter jurisdiction and denied Appellants’ motions to compel arbitration and to stay the proceedings. Because this remand deprives us of appellate jurisdiction to consider any part of the district court’s order, we dismiss this appeal.

I.

In 1999, Dahiya and Neptune signed two documents — a “deed” and a “bond” — in New Delhi, India. Together, the documents provided that Dahiya would receive two years of training, then work for Neptune for two years. The deed included an arbitration clause providing that any dispute arising out of the deed would be subject to arbitration in Singapore or India.¹

As part of his training, Dahiya worked on the M/T EAGLE AUSTIN, a vessel owned by Talmidge. Dahiya suffered burns while operating the vessel’s incinerator and was later evacuated to a Louisiana hospital, where he received treatment.

Dahiya returned to India, but he sued Neptune, Talmidge, and the three other Appellants in Louisiana state court. Dahi-ya’s suit, brought under the Savings to Suitors Clause, 28 U.S.C.A. § 1333(1) (West 1993), alleged that Appellants had breached obligations under the Jones Act, 46 U.S.C.A. app. § 688 (West 2003), general maritime law, and other applicable law.

Appellants invoked federal jurisdiction as a federal question, see 28 U.S.C.A. § 1441(b) (West 1994), and under § 205 of the Convention, 9 U.S.C.A. § 205 (West 1999),² and removed to federal court. Appellants filed their removal petition more than thirty days after receiving notice of Dahiya’s suit. Generally, such a delay would preclude removal. See 28 U.S.C.A. § 1446(b) (West 1994). Section 205, however, allows removal at any time prior to trial, and Dahiya does not dispute that Appellants filed their petition before trial.

Once in federal court, Appellants moved to compel arbitration and to stay the proceedings or, in the alternative, to dismiss Dahiya’s suit. Dahiya moved to remand. Dahiya argued that the deed’s terms did not qualify as an arbitration agreement under the Convention and therefore could not support removal under § 205.

The district court sided with Dahiya and, in a single order, remanded the case to state court and denied Appellants’ motions to stay proceedings and to compel arbitration. The court began its order by assessing the validity of what it called the “forum selection clause” — i.e., the arbitration clause in the deed between Dahiya and Neptune. The court held that this clause was invalid because forum selection clauses contravene Louisiana public policy. The court then turned directly to the question of its jurisdiction. The court began by noting that because Appellants failed to remove within thirty days, federal jurisdiction hinged entirely on § 205. With respect to jurisdiction under § 205, the court reasoned that because the deed contained no valid forum selection clause, the parties had not entered an agreement to arbitrate valid under the Convention. The court therefore concluded that it had no jurisdiction under § 205, remanded the case, and denied Appellants’ pending motions.

Appellants sought review of the district court’s order and moved for a stay of the the ongoing state court proceedings. Da-hiya moved to dismiss for lack of appellate jurisdiction. Both motions have been carried with the case.³

II.

Our analysis begins and ends with Dahi-ya’s motion to dismiss, for in the absence of appellate jurisdiction, we have no authority to review the district court’s order.

We cannot review the remand itself. After a district court remands a case to state court for lack of subject matter jurisdiction, 28 U.S.C. § 1447(d) bars a federal appellate court from reviewing the remand ruling “no matter how erroneous.” Arnold v. State Farm Fire & Cas. Co., 277 F.3d 772, 775 (5th Cir.2001); see 28 U.S.C.A. § 1447(c), (d) (West 1994). The district court appears to have concluded that it lacked subject matter jurisdiction and to have remanded on that basis. Thus, under § 1447(d), we cannot review the remand.

That Appellants removed under § 205 of the Convention does not vest us with jurisdiction despite § 1447(d). In cases removed under § 205, “[t]he procedure for removal of causes otherwise provided by law shall apply.” 9 U.S.C.A. § 205. This “procedure for removal” includes the strictures of § 1447(d). Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 624-625 (8th Cir.1997); LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., 31 F.3d 70, 71-72 (2d Cir.1994); In re Amoco Petroleum Additives Co., 964 F.2d 706, 712-13 (7th Cir.1992). Thus, when a case removed under § 205 is subsequently remanded for lack of subject matter jurisdiction, an appellate court cannot review the order of remand.

Appellants contend that, regardless of whether we can review the remand itself, we have jurisdiction to review the district court’s denial of arbitration and denial of stay under 9 U.S.C. § 16, which provides that appeals may be taken from orders refusing stays or denying motions to compel arbitration, see 9 U.S.C.A. § 16(a)(1)(A),(C) (West 1999).⁴ We lack jurisdiction under § 16 because the denials of Appellants’ motions to stay and to compel arbitration accompanied a remand for lack of subject matter jurisdiction. See Transit Cas., 119 F.3d at 623-625. Any order remanding for lack of subject matter jurisdiction necessarily denies all other pending motions, for “[ujnless a federal court possesses subject matter jurisdiction over a dispute, ... any order it makes (other than an order of dismissal or remand) is void.” John G. & Marie Stella Kenedy Mem’l Found, v. Mauro, 21 F.3d 667, 674 (5th Cir.1994) (quoting Shirley v. Maxicare Tex., Inc., 921 F.2d 565, 568 (5th Cir.1991)). Motions to stay proceedings and to compel arbitration will be common if not universal in cases removed under § 205. Thus, in the vast majority of cases removed under § 205, an order of remand will be the effective equivalent of a denial of motions to stay proceedings and to compel arbitration. Recognizing appellate review of such remand orders under § 16 would circumvent § 1447(d) by affording review of remand orders issued in nearly every case removed under § 205. Section 205, by expressly invoking “[t]he procedure for removal of causes otherwise provided by law,” forecloses such a result.

District court determinations accompanying an order of remand are reviewable in spite of § 1447(d) if they meet the requirements first outlined in City of Waco, Texas v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934). Under Waco, a federal appeals court can review a pre-remand decision made by a district court if that decision is “separable” from the remand order and independently reviewable through a mechanism such as the collateral order doctrine. Heaton v. Monogram Credit Card Bank, 297 F.3d 416, 421 (5th Cir.2002). To be separable, the decision must meet two criteria. First, the decision must have preceded the remand order “in logic and in fact” such that the decision was “made by the [district [cjourt while it had control of the cause.” Waco, 293 U.S. at 143, 55 S.Ct. 6. Second, the decision must be “conclusive,” i.e., “functionally unreviewable in state courts.” Arnold, 277 F.3d at 776.

The district court’s refusal to compel arbitration and to stay proceedings is not reviewable under Waco because that refusal was not conclusive. Our precedent “has defined conclusiveness, in terms of whether the order was ‘substantive’ or ‘jurisdictional’: if a decision is simply jurisdictional it is not conclusive.” Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 486 (5th Cir.2001). Thus, in Soley v. First National Bank of Commerce, 923 F.2d 406, 410 (5th Cir.1991), we considered whether we could review a pre-remand ruling on ERISA preemption and concluded that “because we interpreted] the remand order as jurisdictional, the state court [would] have an opportunity to consider the appellants’ preemption defense and the district court’s order [would] have no preclusive effect.” Likewise, in Linton v. Airbus Industrie, 30 F.3d 592, 597 (5th Cir.1994), we considered whether we could review a district court’s pre-remand rulings on foreign sovereign immunity and held that “[i]n light of the district court’s ultimate conclusion that the entire case had to be remanded for lack of subject matter jurisdiction, the district court’s [foreign sovereign immunity] determination [could] be deemed a jurisdictional finding under the facts of this case and, as such, [could] be- reviewed by the state court upon remand.” Most recently, in Angelides v. Baylor College of Medicine, 117 F.3d 833, 837 (5th Cir.1997), we explained that a district court’s pre-remand immunity and exhaustion determinations “were not ‘conclusive’ because, as jurisdictional decisions, they [could] be reviewed in the state court.” In sum, when a district court makes a determination in the process of remanding a case for lack of jurisdiction, that determination is jurisdictional and can be revisited by a state court upon remand.

In this case, the district court determined that the arbitration clause was invalid in the process of ascertaining whether it had subject matter jurisdiction. Under Soley, Linton, or Angelides, that determination is jurisdictional and therefore has no preclusive effect in state court. Thus, because the district court’s refusals to compel arbitration and to stay proceedings were not conclusive, those refusals are not reviewable under Waco.

In their efforts to circumvent § 1447(d), Appellants rely on Beiser v. Weyler, 284 F.3d 665 (5th Cir.2002). Beiser does not control this case. In Beiser, as in this case, defendants removed to federal court under § 205. Id. at 666-67. The district court in Beiser, however, determined that it had jurisdiction and denied the plaintiffs motion to remand. Id.' at 667. Thus, in Beiser we did not confront the bar to appellate jurisdiction established in § 1447(d), which inheres only after remand.⁵

Appellants insist, and we recognize, that the argument for remand advanced by Da-hiya and accepted in the district court closely resembles the argument for remand we disapproved in Beiser,⁶ If we could review that argument, we might reject it for many of the reasons outlined in Beiser. . Section 1447(d), however, forecloses appellate review even of egregiously mistaken district court remands. See Arnold, 277 F.3d at 775.

III.

Because we lack appellate jurisdiction to review any facet of the, district court’s order, we cannot address the district court’s discussion of international arbitration law. We therefore GRANT Dahiya’s motion to dismiss this appeal and DENY as moot Appellants’ motion to stay proceedings pending arbitration.

DISMISSED.

1 . The bond included a similar arbitration clause, but only the deed's arbitration clause is at issue in this case because the dispute arose during Dahiya’s training.

2 . Section 205 provides that "[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States for the district and division embracing the place where the action or proceeding is pending.”

3 . While this appeal was pending, Dahiya’s state court suit proceeded. Even before we heard oral arguments, a Louisiana trial court overruled Appellants' exceptions regarding arbitration and jurisdiction. Subsequently, Appellants unsuccessfully sought supervisory writs from the Louisiana Court of Appeals and the Louisiana Supreme Court.

Based on the denial of these writs, Dahiya filed in this Court a motion to dismiss for.res judicata. Dahiya claimed that the Louisiana trial court rulings’ and the denial of supervisory writs constituted final judgments and precluded Appellants from seeking a motion compelling arbitration from this Court. Appellants failed to respond in time, and we dismissed the appeal. Appellants promptly filed a motion for panel rehearing, which we treated as a motion for panel reconsideration. Because we have granted that motion, we now turn to the other issues in this case.

4 . Section 16 is not a part of the Convention, but its provisions are applicable to cases brought under the Convention. See 9 U.S.C.A. § 208 (West Supp.2003).

5 . In Beiser, we speculated in dicta about what would have happened had the district court remanded the case. Id. at 672-74. We recognized that § 1447(d) would have deprived us of appellate jurisdiction and led to the unappealing result of having state courts handle questions of federal arbitration law. Id.

6 . In Beiser, the plaintiff argued that the’ district court should have remanded because his case did not "relate to” the arbitration agreement on which defendants relied. Id. at 668. We rejected the plaintiff’s theory as inconsistent with the plain language of § 205 and the federal policy favoring arbitration. Id. at 668-74. In particular, we advised district courts against conflating a jurisdictional analysis with an evaluation of the merits of a defendant’s motion to compel arbitration. Id. at 670-72.