Midsouth Bank, N.A. v. Alfred McZeal Sr. , 463 F. App'x 308 ( 2012 )

Case: 11-30597 Document: 00511770004 Page: 1 Date Filed: 02/28/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 28, 2012
No. 11-30597 Lyle W. Cayce
Summary Calendar Clerk
MIDSOUTH BANK, N.A.,
Plaintiff–Appellee
v.
ALFRED MCZEAL, SR.,
Defendant/Third Party
Plaintiff–Appellant
JAY ANGELLE,
Third Party Defendant–Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:10-CV-1560
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellee MidSouth Bank (“MidSouth”) filed a petition for
executory process pursuant to Louisiana Revised Statutes § 9:5555 in the 14th
Judicial District Court, Calcasieu Parish, against Defendant–Appellant
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-30597 Document: 00511770004 Page: 2 Date Filed: 02/28/2012
No. 11-30597
AlfredMcZeal Sr., seeking to enforce a promissory note and mortgage executed
by McZeal. McZeal removed that suit to the United States District Court for the
Western District of Louisiana. MidSouth sought remand to state court and an
award of sanctions for improper removal. The district court granted MidSouth’s
motion to remand after finding that it lacked subject matter jurisdiction over the
suit. The district court also granted MidSouth’s request for removal sanctions
under 28 U.S.C. § 1447(c) after finding that McZeal lacked an objectively
reasonable basis for removal. McZeal appealed.
Under 28 U.S.C. § 1447(d), “Congress has severely circumscribed the
power of federal appellate courts to review remand orders.” Schexnayder v.
Entergy La., Inc., 394 F.3d 280, 283 (5th Cir. 2004). Section 1447(d) provides
that “[a]n order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). “Specifically,
this Court lacks jurisdiction under § 1447 if the district court based its remand
order on either a lack of subject matter jurisdiction or a defect in removal
procedure.” Schexnayder, 394 F.3d at 283 (citing Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 711–12 (1996) and 28 U.S.C. § 1447(c)). Here, the district
court specifically stated it was remanding due to its lack of subject-matter
jurisdiction and therefore, we do not have jurisdiction to entertain McZeal’s
appeal. Accordingly, McZeal’s appeal is DISMISSED.
2