Kyle Atkins v. Ford Motor Co.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2020
• Docket: 18-55809
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KYLE ATKINS, No. 18-55809

Plaintiff-Appellee, D.C. No. 2:18-cv-04085-PA-PLA v.

FORD MOTOR COMPANY, MEMORANDUM*

Defendant-Appellant,

and

DOES, 1-10, inclusive,

Defendant.

MARLENE MASON, No. 18-55842

Plaintiff-Appellee, D.C. No. 2:18-cv-04324-PA-AS v.

FORD MOTOR COMPANY,

Defendant-Appellant.

MARK MIODOVSKI, No. 18-55843

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff-Appellee, D.C. No. 2:18-cv-04341-PA-MRW v.

ERNESTO PORRAS, No. 18-55844

Plaintiff-Appellee, D.C. No. 2:18-cv-04518-PA-AFM v.

EDWARD SNOW, No. 18-55858

Plaintiff-Appellee, D.C. No. 2:18-cv-04573-PA-AGR v.

JAMES WEST; KRISTIN WEST, No. 18-55859

Plaintiffs-Appellees, D.C. No. 2:18-cv-04658-PA-GJS v.

2 Defendant-Appellant.

EUGENIO D. SORIANO ALVAREZ; No. 18-56356 CRISTABEL ALVAREZ DE GONZALEZ, D.C. No. Plaintiffs-Appellees, 2:18-cv-07882-PA-SK

v.

FORD MOTOR COMPANY, a Delaware Corporation,

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted March 6, 2020** Pasadena, California

Before: KLEINFELD and NGUYEN, Circuit Judges, and PAULEY,*** District Judge.

In these seven consolidated appeals, Ford Motor Company challenges the

district court’s orders remanding the cases to state court for lack of diversity

jurisdiction, 28 U.S.C. § 1332. Because “[a]n order remanding a case to the State

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William H. Pauley III, United States District Judge for the Southern District of New York, sitting by designation.

3 court from which it was removed is not reviewable on appeal or otherwise,” 28

U.S.C. § 1447(d), we lack appellate jurisdiction and dismiss the appeals.

Notwithstanding § 1447(d)’s unqualified prohibition on review, we may

review a district court’s sua sponte decision to remand for any reason other than

lack of subject matter jurisdiction. See Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336, 345–46 (1976), abrogated in part on other grounds by Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 714–15 (1996); Kelton Arms Condo. Owners

Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir. 2003). Ford argues

that the district court remanded the cases not because it actually lacked subject

matter jurisdiction but because Ford inadequately pled diversity of citizenship,

which Ford characterizes as a “defect in removal procedure.”

However, “review of the District Court’s characterization of its remand as

resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all,

[is] limited to confirming that that characterization was colorable.” Powerex Corp.

v. Reliant Energy Servs., Inc., 551 U.S. 224, 234 (2007). “In deciding whether

subject matter jurisdiction exists, a district court will reach legal conclusions

concerning the presence of diversity,” and appellate review of these conclusions is

barred by § 1447(d), “even when the decision is wrong.” Hansen v. Blue Cross of

Cal., 891 F.2d 1384, 1388 (9th Cir. 1989).

4 The district court’s characterization of the remands as being for lack of

subject matter jurisdiction was colorable. See Kanter v. Warner-Lambert Co., 265

F.3d 853, 857–58 (9th Cir. 2001) (holding that remand for defective diversity

allegations was unreviewable even though the removing defendant “could

potentially have cured its defective allegations regarding citizenship by amending

its notice of removal”);1 see also Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723, 723

(1977) (per curiam) (holding that § 1447(d) barred review of remand order finding

that the removing defendant was judicially estopped from alleging diversity of

citizenship, regardless of the parties’ true citizenship); cf. Corona-Contreras v.

Gruel, 857 F.3d 1025, 1029 (9th Cir. 2017) (rejecting district court’s remand

rationale that it was “without jurisdiction” over the case where “there was no

discussion or finding of any missing element of federal subject matter

jurisdiction”).

DISMISSED.

1 Kanter reviewed the propriety of the remand only “insofar as necessary to review the [district court’s] fee award.” 265 F.3d at 857. Ford presents no such issue here. Even if it did, “[b]ecause of the prohibition on appellate review of remand orders, we cannot reverse or affirm the [remand] order itself.” Id.