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
CourtDistrict Court, D. New Mexico
DecidedNovember 5, 2014
DocketNo. CIV 14-0983 JB/KK
StatusPublished
Cited by5 cases

This text of 131 F. Supp. 3d 1241 (New Mexico Center on Law & Poverty v. Squier) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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).

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]*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.

406 F.2d at 252. Finally, at least three district courts in' the Tenth Circuit — including this Court — have also found'that they cannot review their own remand orders. See Stark-Romero v. Nat’l R.R. Passenger Co., 763 F.Supp.2d 1231, 1261 (D.N.M.2011) (Browning, J.)(“Because the Court cannot reconsider Chief Judge Vázquez’ remand order, the Court will remand Stark-Romero’s claims.”); Maggio Enters. v. Hartford Cas. Ins. Co., 132 F.Supp.2d 930, 931 (D.Colo.2001) (Daniel, J.) (“Because a remand order deprives the district court of jurisdiction, the district court may not vacate or reconsider its order of remand.” (citations omitted)); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F.Supp.2d 1242, 1245 (D.Kan.1999) (Vratil, J.) (“The broad language of Section 1447(d) clearly prohibits review of remand orders under Section 1447(c), and a-motion for reconsideration is a form of review.” (citations omitted)). See also Consol. Doors, Inc. v. Mid-Am. Door Co., 120 F.Supp.2d 759, 764 (E.D.Wis.2000) (Callahan, M.J.) (noting the defendant’s inability to find cases wherein “a court has reconsidered its remand order pursuant to Rule 60(b) [is] not difficult to discern,” because “[t]here is a statute that deals explicitly with post-removal procedure^] Title 28 U.S.C. § 1447(d)”); Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 510 (E.D.Va.1992) (Smith, J.)(“Unquestionably, [§ 1447(d) ] not only forecloses appellate review, but also bars reconsideration of such an order by the district court. Both are foreclosed; nothing could be more inclusive than the phrase ‘on appeal or otherwise.’” (quoting Three J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d at 115)); City of Valparaiso v. Iron Workers Local Union 395, 118 F.R.D. 466, 468 (N.D.Ind.1987) (Moody, J.)(“[I]t is universally held that once a federal district court remands a case and mails a certified copy of its order to the state court, the district court loses all jurisdiction, even if it later changes its mind.” (citing New Orleans Pub. Serv., Inc. v. Majoue, 802 F.2d 166, 167 (5th Cir.1986)); Boone Coal & Timber Co. v. Polan, 787 F.2d 1056, 1059-61 (6th Cir.1986); Pelleport Investors, Inc. v. Budco Quality Theatres, 741 F.2d 273, 279 n. 3 (9th Cir.1984); Three J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d at 115; Fed. Deposit Ins. Corp. v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir.1979); 14A C. Wright & A. Miller, Federal Practice and Procedure § 3739 (1985 & Supp.1987); 1A J. Moore, J.. Lucas & K. Sinclair, Jr., Moore’s Federal Practice ¶ 0.169 [2.-1] (2d ed.1987)). But see Long v. Am. Red Cross, No. C2-92-566, 1992 WL 566292, at *4 (S.D.Ohio Oct. 8, 1992) (noting that it could review its own non-final remand ruling [1245]*1245•without running afoul- of § 1447(d), because “[t]hat prohibition against review ... is directed toward appellate review” (citing Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 351-52, 96 S.Ct.

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131 F. Supp. 3d 1241, 90 Fed. R. Serv. 3d 292, 2014 U.S. Dist. LEXIS 160041, 2014 WL 6065718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-mexico-center-on-law-poverty-v-squier-nmd-2014.