Groves v. Darlington South Carolina, The City of , 346 F. App'x 965 ( 2009 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-1191
    NATHAN ANDREW GROVES; JOEL FLAKE STROUD,
    Plaintiffs - Appellants,
    v.
    DARLINGTON SOUTH CAROLINA, THE CITY OF,
    Defendant - Appellee.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (4:08-cv-00402-TLW-TER)
    Submitted:    September 25, 2009             Decided:   October 14, 2009
    Before NIEMEYER, KING, and SHEDD, Circuit Judges.
    Dismissed in part and affirmed in part by unpublished per curiam
    opinion.
    Joel F. Stroud, JOEL F. STROUD, ATTORNEY PLLC, Chesterfield,
    South Carolina, for Appellants. J. Scott Kozacki, WILLCOX, BUYCK
    & WILLIAMS, P.A., Florence, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Appellants,           Nathan     Andrew        Groves     and       Joel    Flake
    Stroud,      appeal     the        district          court’s    orders       accepting     the
    recommendation        of     the    magistrate          judge   and    dismissing        their
    complaint with leave to file an amended complaint, affirming the
    magistrate judge’s order of remand, and denying reconsideration
    of that order.        We dismiss in part and affirm in part.
    With respect to the district court’s order dismissing
    the   complaint       with    leave     to    amend,        this     court    may   exercise
    jurisdiction only over final orders, 
    28 U.S.C. § 1291
     (2006),
    and    certain      interlocutory          and       collateral      orders,      
    28 U.S.C. § 1292
     (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
    Loan Corp., 
    337 U.S. 541
    , 544-47 (1949).                              An order granting
    leave to amend is interlocutory as it leaves the case open for
    either amendment of the complaint or entry of final judgment.
    Jung v. K. & D. Mining Co., 
    356 U.S. 335
     (1958); see also Domino
    Sugar Corp. v. Sugar Workers Local Union 392, 
    10 F.3d 1064
    ,
    1066-67 (4th Cir. 1993) (a dismissal without prejudice is not
    generally appealable).               Accordingly, we lack jurisdiction over
    the    district     court’s        order     to       the   extent    it     dismissed    the
    complaint with leave to amend.
    With respect to the district court’s order of remand,
    we    find   that     the    order     is     not      reviewable.         See    
    28 U.S.C. § 1447
    (d) (2006); Thermtron Prods., Inc. v. Hermansdorfer, 423
    
    2 U.S. 336
    ,      342     (1976)       (holding          limited       on       other    grounds,
    Quackenbush v. Allstate Ins. Co., 
    517 U.S. 706
    , 711-15 (1996));
    Kolibash v. Comm. on Legal Ethics, 
    872 F.2d 571
    , 573 (4th Cir.
    1989).       The     Supreme         Court     has      specifically         recognized             that
    § 1447(d) “prohibits review of all remand orders issued pursuant
    to [28 U.S.C.] § 1447(c) [(2006)] whether erroneous or not.”
    Thermtron Prods., 423 U.S. at 342; see also In re Lowe, 
    102 F.3d 731
    , 734 (4th Cir. 1996) (holding that once an order of remand
    is entered, the federal courts no longer have jurisdiction over
    the case).         Here, the district court’s order of remand cites its
    lack    of   subject       matter          jurisdiction         as     the    reason          for    the
    remand,      and     therefore          the       order      was      entered       pursuant         to
    § 1447(c).
    With        respect      to    the    district          court’s      order       denying
    reconsideration of these orders, the Appellants have failed to
    challenge       that      order       on      appeal         and,     therefore,          forfeited
    appellate       review         of    that     order.           See    4th    Cir.        R.    34(b).
    Accordingly, we dismiss the appeal from the district court’s
    order    remanding         a    portion       of       the   case      to    state       court       and
    dismissing      the       complaint         with       leave    to     amend       for    lack       of
    jurisdiction,        and       affirm       the    district          court’s      order       denying
    reconsideration of that order.
    We dispense with oral argument because the facts and
    legal    contentions           are    adequately          presented         in    the     materials
    3
    before the court and argument would not aid in the decisional
    process.
    DISMISSED IN PART;
    AFFIRMED IN PART
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