IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50694
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ZOLTAN DAVID, II; PATTI DAVID
Plaintiffs - Appellees
v.
BANKERS INSURANCE COMPANY; ET AL
Defendants
BANKERS INSURANCE COMPANY
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-99-CV-118)
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March 24, 2000
Before KING, Chief Judge, and GARWOOD and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Bankers Insurance Company appeals from a
district court order that remanded this case to the Texas state
court from which it was removed and denied Bankers’s motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). We are a
court of limited jurisdiction. See Murphy v. Uncle Ben’s, Inc.,
168 F.3d 734, 741 (5th Cir. 1999). One of the limits on our
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
jurisdiction can be found in 28 U.S.C. § 1447(d), which precludes
us from reviewing a district court’s remand order entered
pursuant to 28 U.S.C. § 1447(c), “even if the remand order is
clearly erroneous.” Soley v. First Nat’l Bank, 923 F.2d 406, 408
(5th Cir. 1991). The remand order in this case having been
entered pursuant to § 1447(c), we are without appellate
jurisdiction to entertain an appeal from it.
We may, however, review any other decisions contained in the
order if they are “separable” from it. See Angelides v. Baylor
College of Med., 117 F.3d 833, 837 (5th Cir. 1997). An order is
separable from a remand order if it precedes the remand in logic
and fact and is conclusive, meaning “it will have the preclusive
effect of being functionally unreviewable in the state court.”
Id. If a case is remanded for lack of subject matter
jurisdiction, the rulings contained in the order are considered
jurisdictional and are not binding on the state court. See id.
Here, the case was remanded for lack of subject matter
jurisdiction, so the district court’s denial of Bankers’s Rule
12(b)(6) motion has no preclusive effect on the state court. It
is therefore not separable from the order of remand and is
unreviewable.
The appeal is DISMISSED for want of appellate jurisdiction.
2