Bald Head Association v. Curnin , 429 F. App'x 360 ( 2011 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-1655
    BALD HEAD ASSOCIATION,
    Plaintiff - Appellee,
    v.
    PETER C. CURNIN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. James C. Fox, Senior
    District Judge. (7:09-cv-00173-F)
    Submitted:   March 29, 2011                 Decided:   May 20, 2011
    Before KING, SHEDD, and DAVIS, Circuit Judges.
    Dismissed in part; affirmed in part by unpublished per curiam
    opinion.
    Francis X. Moore, FRANK X. MOORE & ASSOCIATES, Atlanta, Georgia,
    for Appellant. Theresa M. Sprain, WOMBLE CARLYLE SANDRIDGE &
    RICE, PLLC, Raleigh, North Carolina; Andrew Kent McVey,
    MURCHISON, TAYLOR & GIBSON, Wilmington, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Peter    C.   Curnin      appeals    the    district    court’s    order
    remanding to state court the civil action filed against him by
    Bald Head Association (“BHA”) in the General Court of Justice,
    Superior Court Division, Brunswick County, North Carolina.                           The
    district court granted the BHA’s motion to remand the petition
    after finding no basis for removal under 28 U.S.C. §§ 1441,
    1442, or 1443 (2006).
    Pursuant to 28 U.S.C. § 1447(d) (2006), “[a]n order
    remanding a case to the State court from which it was removed is
    not reviewable on appeal or otherwise,” with the exception of an
    order of remand pursuant to section 1443.                     The Supreme Court has
    interpreted § 1447(d) to insulate from appellate review only
    those remand orders based on the grounds specified in 28 U.S.C.
    § 1447(c) (2006): a defect in the removal procedure and a lack
    of subject matter jurisdiction.                   Quackenbush v. Allstate Ins.
    Co., 
    517 U.S. 706
    , 711-12 (1996) (instructing that § 1447(c) and
    (d)    must   be   read     in    conjunction      with    one   another).       Thus,
    because the district court concluded it lacked subject matter
    jurisdiction under §§ 1441 and 1442, that portion of the remand
    order is not subject to appellate review.                     Ellenburg v. Spartan
    Motors    Chassis,      
    519 F.3d 192
    ,     196   (4th    Cir.   2008);    In    re
    Blackwater Security Consulting, LLC, 
    460 F.3d 576
    , 582-83 (4th
    Cir.   2006).         Accordingly,      we   dismiss      Curnin’s    appeal    to   the
    2
    extent     it     challenges    the     district      court’s        jurisdictional
    determination under §§ 1441 and 1442.                  We decline to exercise
    mandamus jurisdiction over these rulings.
    The     district    court’s      conclusion       that    removal     was
    improper pursuant to 28 U.S.C. § 1443 is reviewable, however.
    28 U.S.C. § 1447(d).          After a thorough review of the record and
    the     district    court’s    order,     we   find     no    reversible      error;
    accordingly, we affirm this portion of the remand order on the
    reasoning of the district court.               See Bald Head Association v.
    Curnin, No. 7:09-cv-00173-F (E.D.N.C. May 10, 2010).
    We dispense with oral argument because the facts and
    legal    contentions    are    adequately      presented      in     the    materials
    before    the   court   and    argument      would    not    aid   the     decisional
    process.
    DISMISSED IN PART;
    AFFIRMED IN PART
    3
    

Document Info

Docket Number: 10-1655

Citation Numbers: 429 F. App'x 360

Judges: Davis, King, Per Curiam, Shedd

Filed Date: 5/20/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023