UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50243
Summary Calendar
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GASTON A. SHUMATE,
Plaintiff-Appellant,
versus
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., et al.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(No. 396-CV-0236-T)
_________________________________________________________________
December 13, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gaston A. Shumate appeals, pro se, from a district court order
denying his motions to reconsider a transfer of venue, and to
remand, for bankruptcy investigation, and for appointment of a
bankruptcy trustee. Because we lack appellate jurisdiction, we
DISMISS.
Shumate filed a voluntary petition for bankruptcy under
Chapter 11 in February 1991 in the United States Bankruptcy Court
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
of the Western District of Texas. The proceeding was subsequently
converted to a Chapter 7 proceeding, and a trustee of the estate
appointed. One of Shumate’s listed assets was a cash management
account (CMA) with Merrill Lynch, Pierce, Fenner & Smith, Inc., a
defendant in this action.
In December 1995, John A. Montez, also a defendant and counsel
to the trustee, attempted to liquidate the CMA pursuant to a July
29, 1992, bankruptcy court order. Because of the three-year time
gap, Merrill Lynch requested adequate documentation to insure that
the order was still operative. While Montez was obtaining that
information, Shumate filed this action in state court in Dallas
County. He sought a temporary injunction to restrain Merrill Lynch
and Montez from selling any assets of the bankruptcy estate, and
also claimed personal injuries and intentional infliction of
emotional distress as a result of their actions.
Montez removed this action to the United States District Court
for the Northern District of Texas, citing 28 U.S.C. § 157(b)(2) in
the removal notice and stating that this action involved a “core
proceeeding” under that section. Merrill Lynch joined in the
removal.
Montez subsequently moved to transfer venue to the Western
District of Texas, where the bankruptcy proceeding was pending or,
in the alternative, to dismiss. Again, Merrill Lynch joined in the
motion. Shumate did not file any opposition. The district court
granted the motion to transfer, citing 28 U.S.C. § 1452 and
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explaining that Shumate’s suit was related to the bankruptcy
proceedings pending in the Western District.
Shumate subsequently moved for rehearing on the transfer of
venue, as well as for remand, bankruptcy investigation, and
appointment of trustee. The district court denied his requests,
citing his failure to respond to the original transfer motion and
the fact that this action was no longer pending in the Northern
District. The court explained that it was not ruling on the merits
of the motions to remand, for bankruptcy investigation, and for
appointment of trustee; Shumate was free to seek such relief in the
Western District. Shumate filed a timely notice of appeal in the
Northern District.
In general, we have appellate jurisdiction only over final
decisions of district courts. 28 U.S.C. § 1291. It is well
settled in this circuit that granting a motion to transfer venue is
an interlocutory, unreviewable order. Enplanar, Inc. v. Marsh, 11
F.3d 1284, 1298 (5th Cir. 1994), cert. denied sub nom. Enplanar,
Inc. v. West, 115 S. Ct. 312 (1994). Consequently, we lack
jurisdiction to review the ruling on transferring this action.
We also lack appellate jurisdiction to review the remand
ruling. Removal from state court to the Northern District properly
was based on 28 U.S.C. § 1452(a), because the district court had
jurisdiction under 28 U.S.C. § 1334. See 28 U.S.C. § 1452(a). As
a “civil proceeding” related to a pending bankruptcy case,
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Shumate’s state court action satisfied the jurisdictional
prerequisites of § 1334. Under 28 U.S.C. § 1452(b), a district
court’s refusal to remand is not reviewable on appeal. 28 U.S.C.
§ 1452(b). Consequently, we also cannot review the remand denial.
Finally, the remaining rulings -- denying bankruptcy
investigation and appointment of trustee -- are clearly
interlocutory. Shumate, as the district court noted, is free to
seek such relief in the Western District. Once again, there being
no final decision, we lack appellate jurisdiction. 28 U.S.C. §
1291.
APPEAL DISMISSED
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