Pierpoint v. Barnes

94 F.3d 813, 1996 WL 501607
Court of Appeals for the Second Circuit·Decided September 5, 1996·No. No. 925, Docket 95-7736·Published·Cited by 44 cases

Opinions

PARKER, Circuit Judge:

Plaintiffs represent the estates and dependents of three individuals who were killed when the private airplane in which they were flying went down thirty-seven miles off the New Jersey shore. They filed suit in Connecticut state court. Defendant removed the case to federal court on the grounds that plaintiffs’ claim arose under a law of the United States, namely the Death on the High Seas Act (“DOHSA”), 46 U.S.C. §§ 761 et seq. Plaintiffs timely moved to remand the case to state court. This motion was granted by the district court on the ground that DOHSA cases are not removable. Pierpoint v. Barnes, 892 F.Supp. 60 (D.Conn.1995) (Peter C. Dorsey, Chief Judge). Defendant ap[815] peals this holding. We decline to entertain his appeal, since we have no jurisdiction to review the remand order under 28 U.S.C. § 1447(d).

I. BACKGROUND

On August 14,1994, David Pierpoint, Geoffrey Pierpoint, Lauren Pierpoint and Stacey Bjorkander were killed when the plane in which they were travelling crashed into the ocean 37 miles southeast of Sea Isle City, New Jersey. The airplane was owned and piloted by David Pierpoint. Representing the estates of Geoffrey Pierpoint, Lauren Pierpoint and Stacey Bjorkander, and their descendants, plaintiffs filed suit in Connecticut Superior Court seeking damages from the estate of David Pierpoint.

Defendant removed the case to federal court on March 31, 1995. Plaintiffs successfully moved to remand the ease claiming, inter alia, that DOHSA cases are not removable. The district court agreed with plaintiffs, holding:

Cases ... which arise under admiralty laws are not removable.... [Concurrent state jurisdiction over admiralty cases contradicts removability....
DOHSA cases arise exclusively in admiralty. ...
The present case arises under DOHSA and not, therefore, under the “Constitution, treaties or laws of the United States” for the purposes of 28 U.S.C. § 1441(b). Since there is no diversity of parties, the district court may not exercise jurisdiction under 1441(b) and remand is necessary.

Pierpoint, 892 F.Supp. at 61. The district court declined to certify this issue for interlocutory appeal. Nevertheless, defendant appeals the district court’s remand order, claiming that it was based on an “erroneous interpretation of federal substantive law.”

We find that we do not have jurisdiction to review this remand order under 28 U.S.C. § 1447(d). Thus, we dismiss the appeal for lack of appellate jurisdiction.

II. DISCUSSION

This ease presents at least one, and potentially two, extremely complicated issues of first impression in this Circuit. First, when are district court remand decisions appeal-able to the Court of Appeals? Second, if we have jurisdiction to review the remand order in this case, did the district court correctly conclude that DOHSA cases arise exclusively in admiralty and are therefore not removable from state to federal court? We find that we do not have jurisdiction to review this remand decision, thus, we do not reach the second question.

A. The Appealability of Remand Orders

To understand this question of appellate jurisdiction, one must be familiar with both the text of the remand statute, and the gloss the Supreme Court has put on it. The statute provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or oth-erwise_” 28 U.S.C. § 1447(d). Despite the broad language of the statute, it is “not dispositive of the reviewability of remand orders in and of itself.” Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976). In Thermtron, the Supreme Court held that § 1447(d) must be “construed together” with § 1447(e).

Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court. But we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.

Id. at 351, 96 S.Ct. at 593 (emphasis added).

When Thermtron was decided, § 1447(c) provided that a district court “shall” remand a case “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction....” Id. at 342, 96 S.Ct. at 589. The Court held that a district court’s order remanding a case due [816] to the overcrowding of its docket was not within the scope of § 1447(c), and was therefore reviewable in spite of the language of § 1447(d). Id. at 351, 96 S.Ct. at 593.

After the decision in Thermtron, in 1988, Congress amended the language of § 1447(c) to read in pertinent part:

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c). This court has recognized that the Thermtron holding should be read to encompass the 1988 amendment. LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., C.A., 31 F.3d 70, 71-72 (2d Cir.1994); Hamilton v. Aetna Life and Casualty Co., 5 F.3d 642, 644 (2d Cir.1993) (per curiam), cert. denied, 510 U.S. 1130, 114 S.Ct. 1100, 127 L.Ed.2d 413 (1994). Thus, appellate review is now prohibited if remand was granted pursuant to a timely motion based on any defect in the removal procedure, or because the district court determined that it lacked subject matter jurisdiction. See Hamilton, 5 F.3d at 644.

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