Kyle Atkins v. Ford Motor Co. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYLE ATKINS, No. 18-55809
Plaintiff-Appellee, D.C. No.
2:18-cv-04085-PA-PLA
v.
FORD MOTOR COMPANY, MEMORANDUM*
Defendant-Appellant,
and
DOES, 1-10, inclusive,
Defendant.
MARLENE MASON, No. 18-55842
Plaintiff-Appellee, D.C. No.
2:18-cv-04324-PA-AS
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
MARK MIODOVSKI, No. 18-55843
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiff-Appellee, D.C. No.
2:18-cv-04341-PA-MRW
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
ERNESTO PORRAS, No. 18-55844
Plaintiff-Appellee, D.C. No.
2:18-cv-04518-PA-AFM
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
EDWARD SNOW, No. 18-55858
Plaintiff-Appellee, D.C. No.
2:18-cv-04573-PA-AGR
v.
FORD MOTOR COMPANY,
Defendant-Appellant.
JAMES WEST; KRISTIN WEST, No. 18-55859
Plaintiffs-Appellees, D.C. No.
2:18-cv-04658-PA-GJS
v.
FORD MOTOR COMPANY,
2
Defendant-Appellant.
EUGENIO D. SORIANO ALVAREZ; No. 18-56356
CRISTABEL ALVAREZ DE GONZALEZ,
D.C. No.
Plaintiffs-Appellees, 2:18-cv-07882-PA-SK
v.
FORD MOTOR COMPANY, a Delaware
Corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 6, 2020**
Pasadena, California
Before: KLEINFELD and NGUYEN, Circuit Judges, and PAULEY,*** District
Judge.
In these seven consolidated appeals, Ford Motor Company challenges the
district court’s orders remanding the cases to state court for lack of diversity
jurisdiction, 28 U.S.C. § 1332. Because “[a]n order remanding a case to the State
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
3
court from which it was removed is not reviewable on appeal or otherwise,” 28
U.S.C. § 1447(d), we lack appellate jurisdiction and dismiss the appeals.
Notwithstanding § 1447(d)’s unqualified prohibition on review, we may
review a district court’s sua sponte decision to remand for any reason other than
lack of subject matter jurisdiction. See Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336, 345–46 (1976), abrogated in part on other grounds by Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 714–15 (1996); Kelton Arms Condo. Owners
Ass’n v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir. 2003). Ford argues
that the district court remanded the cases not because it actually lacked subject
matter jurisdiction but because Ford inadequately pled diversity of citizenship,
which Ford characterizes as a “defect in removal procedure.”
However, “review of the District Court’s characterization of its remand as
resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all,
[is] limited to confirming that that characterization was colorable.” Powerex Corp.
v. Reliant Energy Servs., Inc., 551 U.S. 224, 234 (2007). “In deciding whether
subject matter jurisdiction exists, a district court will reach legal conclusions
concerning the presence of diversity,” and appellate review of these conclusions is
barred by § 1447(d), “even when the decision is wrong.” Hansen v. Blue Cross of
Cal., 891 F.2d 1384, 1388 (9th Cir. 1989).
4
The district court’s characterization of the remands as being for lack of
subject matter jurisdiction was colorable. See Kanter v. Warner-Lambert Co., 265
F.3d 853, 857–58 (9th Cir. 2001) (holding that remand for defective diversity
allegations was unreviewable even though the removing defendant “could
potentially have cured its defective allegations regarding citizenship by amending
its notice of removal”);1 see also Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723, 723
(1977) (per curiam) (holding that § 1447(d) barred review of remand order finding
that the removing defendant was judicially estopped from alleging diversity of
citizenship, regardless of the parties’ true citizenship); cf. Corona-Contreras v.
Gruel, 857 F.3d 1025, 1029 (9th Cir. 2017) (rejecting district court’s remand
rationale that it was “without jurisdiction” over the case where “there was no
discussion or finding of any missing element of federal subject matter
jurisdiction”).
DISMISSED.
1
Kanter reviewed the propriety of the remand only “insofar as necessary to
review the [district court’s] fee award.” 265 F.3d at 857. Ford presents no such
issue here. Even if it did, “[b]ecause of the prohibition on appellate review of
remand orders, we cannot reverse or affirm the [remand] order itself.” Id.
5