Hopkins v. Dolphin Titan Intern., Inc. ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4047
FRANKIE DARYL HOPKINS, SR.,
Plaintiff-Appellee,
versus
DOLPHIN TITAN INTERNATIONAL, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(October 20, 1992)
Before POLITZ, Chief Judge, JOHNSON and JOLLY, Circuit Judges.
POLITZ, Chief Judge:
Dolphin Titan International appeals the district court's order
remanding this case to state court. Concluding that we are without
jurisdiction, we dismiss the appeal.
Background
Frankie Daryl Hopkins, Sr. filed a petition in the Sixteenth
Judicial District Court, Parish of St. Mary, State of Louisiana,
raising claims under the Jones Act and the general maritime law,
including claims for maintenance and cure. Dolphin Titan removed
the matter to federal court on the basis of diversity jurisdiction
and the claimed existence of admiralty claims separate and
independent from the Jones Act claim.1 Hopkins successfully moved
to remand; Dolphin Titan appealed.
Analysis
Our threshold consideration must be whether we have
jurisdiction to entertain this appeal. Generally, an order
remanding a case to the state court from which it was removed is
not reviewable on appeal or otherwise.2 In Thermtron Products,
Inc. v. Hermansdorfer,3 the Supreme Court limited the 28 U.S.C.
§ 1447(d) mandate against reviewing remand orders to remands based
upon section 1447(c).4 Accordingly, prior to the 1988 amendment to
section 1447(c), "improvident removal" and "lack of subject matter
jurisdiction" were not reviewable grounds for remand.5
1
See 28 U.S.C. §§ 1441(a), (c).
2
28 U.S.C. § 1447(d).
3
423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).
4
At that time, 28 U.S.C. § 1447(c) read in pertinent part:
If at any time before final judgment
it appears that the case was removed
improvidently and without juris-
diction, the district court shall
remand the case.
5
London v. United State Fire Ins. Co., 531 F.2d 257 (5th
Cir. 1976).
2
As amended, section 1447(c) now provides:
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.6
We recently applied Thermtron to section 1447(c) as amended and
held that we have no jurisdiction "to vacate an order of remand
based upon a timely section 1447(c) motion raising a defect in the
removal procedure."7
The issue before us today is whether a motion to remand based
upon lack of removal jurisdiction under section 1441(c)8 raises a
defect in removal procedure. Dolphin Titan contends that because
the district court had to determine whether the Jones Act claim was
separate and independent from the general maritime law claims, the
remand was based on a review of the merits, not upon a defect in
6
P.L. 100-702, Title X, § 1016(c), 102 Stat. 4670 (1988).
7
In re Medscope Marine Limited, 972 F.2d 107, 110 (5th
Cir. 1992).
8
Section 1441(c) provides:
Whenever a separate and independent claim or
cause of action within the jurisdiction
conferred by section 1331 of this title, is
joined with one or more otherwise non-
removable claims or causes of action, the
entire case may be removed and the district
court may determine all issues therein, or, in
its discretion, may remand all matters in
which state law predominates.
3
removal procedure. Although the existence of removal jurisdiction
may depend upon substantive matters,9 the absence of removal
jurisdiction is a procedural defect for purposes of
section 1447(c).10 "Thus, when section 1447(c) speaks of 'any
defect in removal procedure,' it includes within its reach the
bringing of an action not within the court's removal jurisdiction
but that could have been brought originally in that court."11
There is no dispute that Hopkins' claims are within the
original subject matter jurisdiction of the federal district court.
A Jones Act claim filed in state court, however, generally is not
removable despite an independent basis of federal jurisdiction
unless the Jones Act claim is joined with a separate and
independent claim that is within our federal question
jurisdiction.12 On the other hand, maritime claims may be removed
to federal court by non-forum defendants when there is complete
diversity of citizenship.13 Dolphin Titan removed on the basis that
9
"The word 'procedural' in section 1447(c) refers to any
defect that does not involve the inability of the federal district
court to entertain the suit as a matter of its original
jurisdiction." Baris v. Sulpicio Lines, Inc., 932 F.2d 1540,
1544-45 (5th Cir.), cert. denied, 112 S.Ct. 430 (1991).
10
In re Digicon Marine, Inc., 966 F.2d 158 (5th Cir. 1992).
11
Baris, 932 F.2d at 1545.
12
28 U.S.C. §§ 1441(c), 1445(a); Aquafaith Shipping, Ltd.
v. Jarillas, 963 F.2d 806 (5th Cir. 1992).
13
28 U.S.C. § 1441(b); In re Dutile, 935 F.2d 61 (5th Cir.
1991).
4
the Jones Act claim and the general maritime claims are separate
and distinct and therefore removal was proper pursuant to 28 U.S.C.
§ 1441(c).14 Finding that the claims were not sufficiently separate
and distinct, the district court concluded that removal
jurisdiction was lacking.15
Thermtron "prohibits review of all remand orders issued
pursuant to § 1447(c) whether erroneous or not and whether review
is sought by appeal or by extraordinary writ."16 A remand order
upon a timely motion for lack of removal jurisdiction was issued
pursuant to section 1447(c). We have no jurisdiction to consider
this appeal.
DISMISSED FOR LACK OF APPELLATE JURISDICTION.
14
In the past we have pretermitted consideration of the
potential conflict between sections 1445(a) and 1441(c), see In re
Dutile; being without jurisdiction, we do so again.
15
We need not address whether the district court's
conclusion is correct. Review is prohibited whether the district
court rules erroneously or not. Medscope.
16
423 U.S. at 343, 96 S.Ct. at 589, 46 L.Ed.2d at 549.
5