United States Court of Appeals
Fifth Circuit
F I L E D
April 30, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
m 02-30716
_______________
ORSON HOOD,
Plaintiff-Appellee,
VERSUS
ALLSTATE INSURANCE COMPANY, ET AL.,
Defendants,
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CV-980-A
_________________________
Before SMITH and BARKSDALE, Circuit Louisiana insurance carriers were joined in
Judges, and DUPLANTIER,* District Judge. Hood’s action, nor did it rule whether joinder
of the nondiverse agent in this action was
PER CURIAM:** fraudulent.
Orson Hood sued Allstate Insurance Com- Allstate moved for reconsideration, arguing
pany (“Allstate”) and a nondiverse insurance that the district court had not considered the
agent in state court. Allstate removed to fed- unique facts of this action separately from
eral court, asserting diversity jurisdiction under those of the other consolidated class actions.
28 U.S.C. § 1441 and fraudulent joinder of the Hood opposed reconsideration, arguing that
nondiverse agent. The district court remanded the nondiverse agent defeated diversity. The
to state court pursuant to 28 U.S.C. district court reviewed its order, found that di-
§ 1447(c), declaring lack of subject matter jur- versity jurisdiction did exist, and issued a new
isdiction. Allstate appeals that order. Because order (the “second order”).
we lack jurisdiction, we dismiss the appeal.
The case was transferred to a second judge,
I. then to a third. Hood moved to vacate the
Hood, on behalf of himself and a putative second order under FED. R. CIV. P. 60(b)(4),1
class, alleged that Allstate had mishandled contending that the district court lacked
claims stemming from a hailstorm. The insur- jurisdiction to reconsider its remand order.
ance agent was the adjuster for Hood’s The court granted the motion and issued
individual claim. Five other class actions another order (the “third order”), vacated the
based on the same storm were also removed to second order, and reinstated the original
federal court. Unlike Hood, the plaintiffs in remand. The court found that the second
the other class actions named multiple order violated 28 U.S.C. § 1447(d), and the
insurance companies, including Louisiana court expressly remanded “pursuant to 28
insurance companies. All six actions were U.S.C. § 1447(c) due to lack of subject
assigned to the same judge, who consolidated matter jurisdiction.”
them under FED. R. CIV. P. 42.
II.
On plaintiffs’ motion, the district court is- Hood asserts that we lack jurisdiction be-
sued a single memorandum opinion remanding cause of the third order’s express remand for
all of the consolidated class actions to state want of jurisdiction. Allstate responds that the
court, concluding that the joining of the district court did not actually find a lack of
Louisiana insurance carriers was not subject matter jurisdiction, but instead only re-
fraudulent. The court did not mention that no instated the prior judge’s order. Allstate ar-
gues that because Hood did not move to
remand for lack of subject matter jurisdiction,
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
1
**
Pursuant to 5TH CIR. R. 47.5, the court has de- Rule 60(b)(4) allows that “[o]n motion and
termined that this opinion should not be published and upon such terms as are just, the court may relieve
is not precedent except under the limited a party or a party’s legal representative from a[n]
circumstances set forth in 5TH CIR. R. 47.5.4. . . . order [if] . . . the judgment is void.”
2
the court was not addressing jurisdiction di- We rejected that argument, stating that
rectly, but rather was announcing the result of
its vacatur of the second order. We disagree. there was “no ambiguity whatsoever in
Judge Barbier’s remand order. Al-
A. though brief, the order clearly and
Title 28 U.S.C. § 1447(d) provides: affirmatively stated a § 1447(c) reason
for remand, because Judge Barbier
An order remanding a case to the concluded that he lacked subject matter
State court from which it was removed jurisdiction. . . . [E]ven if Judge Barbi-
is not reviewable on appeal or er’s conclusion that he lacked subject
otherwise, except that an order matter jurisdiction was clearly
remanding a case to the State court from erroneous, he did not state a
which it was removed pursuant to non-§ 1447(c) ground for remand and
section 1443 of this title shall be we cannot review his order.
reviewable by appeal or otherwise.
Id. at 998.
This provision is interpreted in pari materia
with § 1447(c); “‘[T]his means that only re- Therefore, a remand that invokes subject
mand orders issued under § 1447(c) and in- matter jurisdiction as its basis is not review-
voking the grounds specified therein that re- able, even if circumstances indicate that the
moval was . . . without jurisdiction are immune remand was not taken for such a purpose.
from review under § 1447(d).’” Smith v. Tex. Without exception, where the district court
Children’s Hosp., 172 F.3d 923, 925 (5th Cir. states a jurisdictional basis for remand, that
1999) (quoting Thermtron Prods., Inc. v. court “is the final arbiter of whether it has
Hermansdorfer, 423 U.S. 336, 345-46 (1976), jurisdiction to hear the case.” Smith, 172 F.3d
abrogated on other grounds by Quackenbush at 925.
v. Allstate Ins. Co., 517 U.S. 706, 715
(1996)). The district court may not have
reconsidered whether removal jurisdiction was
In Heaton v. Monogram Credit Card Bank, originally present. Even so, there is no tenable
231 F.3d 994, 997 (5th Cir. 2000), the basis on which to distinguish the doctrine laid
appellant argued that the actions of the district down in Heaton and prior cases. As with the
court suggested “that despite the clear district court in Heaton, the district court here
language of the remand order, the true basis “clearly and affirmatively stated a § 1447(c)
for the order was 28 U.S.C. § 1367(c)(3),” reason for remand.” Heaton, 231 F.3d at 998.
which is a reviewable ground for removal.2
2
(...continued)
2
The district court purported first to dismiss onstrated that he thought he had subject matter
Heaton’s federal counterclaim before remanding jurisdiction over that claim,” meaning that the “the
what it considered to be remaining state law remand order was necessarily pursuant to
claims. The appellant asserted that the district § 1367(c)(3), and Judge Barbier simply mislabeled
court’s “dismissal of the claim with prejudice dem- the order as one pursuant to § 1447(c).” Heaton,
(continued...) 231 F.3d at 997.
3
Though Allstate argues that Hood had not matter jurisdiction . . . .” Id. at 160. In
moved to dismiss for want of jurisdiction,3 the the instant case, Judge Barbier did not
specter of jurisdiction was certainly before the discuss his reasons for remanding in any
court, and, in any event, subject matter juris- order outside the remand order itself.
diction may be raised sua sponte. H&D Tire Just as in Digicon Marine, in this case
& Automotive-Hardware, Inc. v. Pitney Bowes we need only look to the face of the
Inc., 227 F.3d 326, 328 (5th Cir. 2000). remand order to determine his reasons
for remanding. We cannot read the
B. remand order to say that the court
Allstate suggests that we may look past the “clearly and affirmatively” relied on a
district court’s description in the third order non-§ 1447(c) basis as required by
and may review the original remand that that Copling v. Container Store, Inc., 174
order purported to reinstate. Allstate cites In F.3d 590, 596 (5th Cir. 1999) and Giles
re Digicon Marine, Inc., 966 F.2d 158 (5th v. NYLCare Health Plans, Inc., 172
Cir. 1992), for support. In Heaton, we F.3d 332, 336 (5th Cir. 1999). The face
addressed a similar argument, stating: of the order clearly states a § 1447(c)
basis for remand.
However, Digicon Marine supports,
rather than contradicts, our holding to- Heaton, 231 F.3d at 999.
day. In that case, the trial court granted
a motion to remand based on the lack of Here, the third order did discuss previous
authority to remove a maritime case un- orders. In contrast to what occurred in Digi-
der 28 U.S.C. § 1441(b). [Digicon com Marine, however, the court did not mere-
Marine, 966 F.2d] at 159. Later, in an ly discuss and interpret a prior order before
order denying reconsideration, it stated denying reconsideration of it. Rather, it first
that the earlier ruling was based upon a purported to reinstate the original remand,
lack of subject matter jurisdiction. Id. then declared “that this case is REMANDED
We concluded that “despite the district . . . pursuant to 28 U.S.C. § 1447(c) due to
court’s description of the remand as one lack of subject matter jurisdiction.”
based on a lack of subject matter
jurisdiction in its order on Allstate would have us ignore this direct
reconsideration, the district court’s language and conclude that, in fact, the final
original remand order clearly indicates paragraph was merely a restatement of the ef-
on its face that the remand was not fect of reinstating the remand order. This par-
based upon lack of original subject agraph, however, appears to set forth separate
grounds for remand and does not refer to the
reinstated order. Such a direct statement con-
3
Hood disputes this contention, stating that he
stitutes “magic words” that “render[] the dis-
“has at all times contended that subject matter jur- trict court’s remand order unreviewable.” Bo-
isdiction does not exist.” This is accurate, though gle v. Phillips Petroleum Co., 24 F.3d 758,
the original basis of his argument was that diver- 762 (5th Cir. 1994). This language of the
sity was lacking, and he now argues only that the closing paragraph is unambiguous and
district court was divested of jurisdiction when the controlling; to the extent that it is inconsistent
original remand order was mailed.
4
with previous paragraphs, it supersedes them
and renders them void.4
The appeal is DISMISSED for want of
jurisdiction.
4
Heaton, 231 F.3d at 1000 (finding that a con-
current order purporting to dismiss the federal
claim was void because it was contrary to the
finding of no subject matter jurisdiction); Bogle, 24
F.3d at 762 (holding that grant of partial nonsuit
with prejudice was void and of no effect because of
a remand for lack of subject matter jurisdiction).
5