Searcy v. Orchard National Title ( 2023 )

Case: 22-10122 Document: 00516595722 Page: 1 Date Filed: 01/03/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10122
Summary Calendar FILED
January 3, 2023
Lyle W. Cayce
Candace Searcy, Clerk
Plaintiff—Appellant,
versus
Orchard National Title,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-1910
Before Davis, Smith, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant, Candace Searcy, appeals the district court’s order
remanding this matter to state court as improperly removed. She also
requests this Court to consider her motions for default judgment filed in state
and federal court. Because the district court’s remand order is not reviewable
as set forth in 28 U.S.C. § 1447(d), we DISMISS the appeal.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10122 Document: 00516595722 Page: 2 Date Filed: 01/03/2023
No. 22-10122
Searcy filed suit in Dallas County District Court against Orchard
National Title and Courtney Anthony, a real estate broker. She asserted
claims for breach of contract, fraudulent price gouging, and malpractice in
connection with a residential real estate contract. Searcy subsequently
removed her action to federal court on the grounds that she would be unable
to receive justice in state court. The district court adopted the magistrate
judge’s recommendation that the case be remanded as “improperly
removed.” 1
In her appellate brief, Searcy raises no legal arguments challenging the
basis for the district court’s remand order, nor does she cite to any legal
authority indicating that the district court’s decision to remand was
erroneous. Instead, Searcy argues that she is entitled to a default judgment
under Texas Rule of Civil Procedure 21 because the defendants never
answered her lawsuit.
Notwithstanding Searcy’s failure to identify any error by the district
court, this Court must first examine the basis of its jurisdiction to review the
district court’s remand order. See Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987) (“This Court must examine the basis of its jurisdiction, on its own
motion, if necessary.”). “Congress has severely circumscribed the power of
federal appellate courts to review remand orders.” See Schexnayder v. Entergy
La., Inc., 394 F.3d 280, 283 (5th Cir. 2004). Specifically, 28 U.S.C.
§ 1447(d), prohibits our review of a remand order that is based “on either a
lack of subject matter jurisdiction or a defect in removal procedure.”
1
As noted by the magistrate judge, 28 U.S.C. § 1441(a) provides that “any civil
action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the
United States for the district and division embracing the place where such action is
pending.” (emphasis added).
2
Case: 22-10122 Document: 00516595722 Page: 3 Date Filed: 01/03/2023
No. 22-10122
Schexnayder, 394 F.3d at 283; see § 1447(d). “This bar to review applies even
if the order might otherwise be deemed erroneous.” Price v. Johnson, 600
F.3d 460, 462 (5th Cir. 2010) (citation omitted).
The remand order was based on a defect in the removal procedure and
lack of subject matter jurisdiction. Specifically, under § 1441(a), a plaintiff is
not authorized to remove an action to federal court. Moreover, although
Searcy asserted federal question jurisdiction, she included only state law
causes of action in her complaint; and she pleaded no facts supporting
diversity jurisdiction. Consequently, under § 1447(d), we lack jurisdiction to
review the district court’s remand order.
Based on the foregoing, this appeal is DISMISSED.
3