November 24, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1252
DATCOM, INC.,
Plaintiff, Appellee,
v.
INTEGRATED TECHNOLOGY, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
Kevin E. Sharkey and Kenna, Johnston, & Sharkey on brief for
appellant.
Lawrence R. Opert, Opert & Shandler on brief for appellee.
Per Curiam. The question before us is whether the
district court order granting defendant's motion to dismiss a
petition for removal is appealable. We conclude that it is
not.
In October 1992, plaintiff-appellee, Datcom, Inc., a
Massachusetts corporation, filed suit in Middlesex Superior
Court in Cambridge, Massachusetts, against defendant-
appellant, Integrated Technology, Inc., a Delaware
corporation, with its principal place of business in Salem,
New Hampshire. The suit sought in excess of $300,000 damages
for tortious interference with contractual relations and
unfair and deceptive business practices. On January 20,
1993, a default order was issued against Integrated
Technology pursuant to Mass. R. Civ. P. 55(a) because of its
failure to plead or otherwise defend itself as required by
Mass. R. Civ. P. 12(a). On January 22, Integrated Technology
filed a petition to remove the matter to the United States
District Court for the District of Massachusetts on the basis
of diversity jurisdiction. In response, Datcom, Inc. filed a
motion to dismiss contending that the petition for removal
had not been timely filed since a default had already entered
in state court prior to the filing of the remand petition.
On February 10, 1993, the district court allowed the motion
to dismiss, noting that the case was in default in state
court when the petition for removal was filed. Datcom
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appeals the district court's order dismissing its petition
for removal.
Discussion
Integrated Technology contends first that the order of
the district court dismissing its petition for removal was a
dismissal of its action and not a remand to the state court.
It notes that the word "remand" was never used in the order
and that no certified remand order appears to have been
mailed to the state court clerk as required by 28 U.S.C.
1447(c). Integrated Technology further asserts that the
order is thus directly appealable as a final order pursuant
to 28 U.S.C. 1291.
While not expressly called such, the order dismissing
the petition for removal was in effect a remand. The
district court docket sheet indicates an "intradistrict
transfer" of the case to state court on February 12, 1993.
Moreover, the docket sheet of the Middlesex Superior Court
indicates on June 3, 1993, a "[r]etransfer to Sup[erior]
C[ou]rt from U.S. District Court of Mass." The record also
shows that the case is now proceeding in state court.
Integrated Technology's contention that the district court
order was a dismissal rather than a remand is without merit.
Given that the district court order was a remand, the
next question is whether the order was issued pursuant to 28
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U.S.C. 1447(c). If it were, 28 U.S.C. 1447(d) precludes
appellate review of the order "whether erroneous or not and
whether review is sought by appeal or by extraordinary writ."
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343
(1976).
Section 1447(c) provides that a court may remand a case
to state court either "on the basis of any defect in removal
procedures" or if "it appears that the district court lacks
subject matter jurisdiction." The order in this case does
not refer to section 1447(c) nor does it indicate that there
was either a defect in removal procedure or a lack of
jurisdiction.1
While the district court did not make explicit the basis
for its remand order, it appears to have acted on the basis
of a perceived defect in removal procedure. Datcom's motion
to dismiss the petition for removal was predicated on its
claim that, because the petition was filed after the default
order had issued in state court, the "Petition for Removal
was not timely filed." "[A]n untimely notice of removal"
qualifies as a procedural defect under section 1447(c). FDIC
v. Cabral, 989 F.2d 525, 525 (1st Cir. 1992). As such, this
court is precluded from considering whether the district
court was correct in its remand decision. Id.
1. The order simply states that the "Motion to Dismiss is
allowed, as case was in default in State Court when Petition
for Removal was filed."
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Moreover, even if we were to find that the district
court remand was not on the basis of section 1447(c), we
still would not disturb the remand order.
An order remanding a removed case is not appealable as a
final judgment. Garcia v. Island Program Designers, No. 92-
1853, slip op. at 6-8 (1st Cir. Sept. 14, 1993); Doughty v.
Underwriters at Lloyds, London, et al, Nos. 93-1174, slip op.
at 7-11 (1st Cir. Oct. 18, 1993).
Nor does the remand order in this case qualify as
appealable under the collateral doctrine order. See Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949).
To qualify under the Cohen test, a remand order must, inter
alia, decide a "salient legal question that stands separate
and apart from the merits in th[e] case, that is, [a]
'collateral' issue." Doughty, slip op. at 12. In this case,
the "collateral" issue is which forum should resolve the
dispute. However, "[d]etermining whether a state or federal
court is to resolve an issue constitutes the definitive
resolution of a collateral matter only when special
circumstances exist." Id. at 13. No such special
circumstances exist in the present case.
Finally, this is not a proper case for the issuance of a
writ of mandamus requiring the district court to vacate the
remand order and to accept jurisdiction of the case. For one
thing, appellant has not asked us to issue a prerogative
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writ. For another thing, mandamus relief is discretionary
with this court, Kerr v. United States Dist. Court for
Northern Dist., 426 U.S. 394, 403 (1975), and will only be
granted when the challenged order is palpably erroneous and
when the petitioner has shown that he faces a special risk of
irreparable harm, In re Pearson, 990 F.2d 653, 656 & n.4 (1st
Cir. 1993) (collecting cases). "Interlocutory procedural
orders . . . rarely will satisfy th[e] preconditions for
mandamus relief." In re Recticel Foam Corp., 859 F.2d 1000,
1006 (1st Cir. 1988). The mere fact that petitioner may
prefer a federal forum is insufficient to establish a
likelihood that petitioner will suffer irreparable harm by
having its case litigated in the state system. Doughty, slip
op. at 22.
Appeal dismissed.
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