New Mexico Center on Law & Poverty v. Squier

131 F. Supp. 3d 1241, 90 Fed. R. Serv. 3d 292, 2014 U.S. Dist. LEXIS 160041, 2014 WL 6065718
District Court, D. New Mexico·Decided November 5, 2014·No. No. CIV 14-0983 JB/KK·Published·Cited by 5 cases

Opinion

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the. Court on the Expedited Motion to Alter or Amend Order, filed November 4, 2014 (Doc. 13)(“Motion”). In the Motion, the Plaintiffs request the Court to alter or amend the Order, filed October 31, 2014 (Doc. 12)(“Order”). Specifically, the Plaintiffs request the Court to alter or amend the sentence which states: “(iv) the Plaintiffs may refer to State Plan in state court, but only to argue, that, in the rule making process, the Defendant did not make the State Plan available to the public.” Motion ¶ 1, at 1-2. The Plaintiffs request that the Court alter or amend this sentence to state

the Plaintiffs may refer to State -Plan in state court, but only to argue that, in the rule making process, the Defendant did not make the State Plan available to the public, and the Defendant promulgated state regulations that are vague and confusing because .they contradict and/or conflict with the state plan.

Motion ¶ 5, at 2-3 (emphasis in original). Because the Court lacks jurisdiction to amend the Order, and because the language in the Order was not a clerical mistake or omission, the Court will deny the Order.

LAW REGARDING REVIEWABILITY OF REMAND ORDER

Section 1447(d) of Title 28 of the United States Code prohibits a court from reviewing a remand order “on appeal or otherwise:” 28 U.S.C. § 1447(d). This prohibition extends to the court reviewing its own remand orders, as well as to appellate courts reviewing the district court’s orders. The United States Court of Appeals for the Tenth Circuit has not yet ruled whether 28 U.S.C. § 1447 forecloses a district’court’s reconsideration of its own remand order, but numerous other courts have ruled that it does. F.or instance, the United States Court, of .Appeals for the Eleventh Circuit has held that § 1447(d)’s provision of “nonreviewability extends to the power of a district court to reconsider its own remand order.” First Union Nat’l Bank v. Hall, 123 F.3d 1374, 1377 (11th Cir.1997) (citations omitted). The United States Court of Appeals, .for the Fourth Circuit remarked that, “[i]ndisputably, ‘otherwise’ in § 1447(d) includes reconsideration by the district court.” In re Lowe, 102 F.3d 731, 734 (4th Cir.1996) (citations omitted). See Three J Farms v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir.1979)(“Unquestionably, the statute[, § 1447(d),] not only forecloses appellate review, but also bars reconsideration of such an order by the district court.”). Similarly, the United States Court of Appeals for the First Circuit has ruled:

[1244] [Tjhere is no more reason for a district court being able to review its own decision, and. revoke the remand, than for an appellate court requiring it to do so. Both are foreclosed; nothing could be more inclusive than the phrase “on appeal or otherwise.” The district court has one shot, right or wrong.

In re La Providencia Dev. Corp., 406 F.2d 251, 252-53 (1st Cir.1969), The First Circuit explained- the rationale behind this strict rule of nonreviewability:

Removal .. .■ tp the prejudice of state court jurisdiction, is a privilege to be strictly construed, and the state court proceedings are to be interfered with once, at most. This is not only in the interest of judicial economy, but out of respect for the state court and. in recognition of principles of comity. The action must not ricochet back and forth depending upon the most recent determination of a federal court.

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New Mexico Center on Law & Poverty v. Squier, 131 F. Supp. 3d 1241, 90 Fed. R. Serv. 3d 292, 2014 U.S. Dist. LEXIS 160041, 2014 WL 6065718 (D.N.M. 2014).

131 F. Supp. 3d 1241 (New Mexico Center on Law & Poverty v. Squier) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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