Victor v. Grand Casino-Coushatta

United States Court of Appeals
Fifth Circuit
F I L E D
February 19, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________

m 03-30703
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MAE LOUISE VICTOR,

Plaintiff-Appellee,

VERSUS

GRAND CASINO-COUSHATTA; COUSHATTA TRIBE OF LOUISIANA;
AND GRAND CASINOS OF LOUISIANA, INC.-COUSHATTA,

Defendant-Appellants.

_________________________

Appeal from the United States District Court
for the Western District of Louisiana
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Before HIGGINBOTHAM, SMITH, and no asserted that a malfunction in the slot ma-
WIENER, Circuit Judges. chine generated the jackpot, so it refused to
pay. Victor sued in state court for breach of
PER CURIAM: contract, naming as defendants the casino; the
Coushatta Indian Tribe; and Grand Casinos of
Defendants challenge the remand of this Louisiana, Inc. (“Grand Casinos”). Defen-
matter to state court. Because we lack appel- dants removed to federal court via 28 U.S.C.
late jurisdiction, we dismiss the appeal. § 1441(a) and based federal subject matter jur-

I.
Mae Victor claimed to have won a large
jackpot at Grand Casino-Coushatta. The casi-
isdiction on diversity of citizenship.1 See 28 the Tribal State Compact did not apply retro-
U.S.C. § 1332(a)(1). actively to bar Victor’s claim. Before con-
sidering such questions, however, we must de-
The district court, acting on the recommen- termine whether we have jurisdiction to hear
dation of a magistrate judge, determined that any element of this appeal.3
the parties were non-diverse and that federal
subject matter jurisdiction was lacking. Spe- Because the district court remanded based
cifically, the court held that the Coushatta In- on lack of subject matter jurisdiction, we lack
dian Tribe destroyed diversity both in its pres- the power to hear any element of the subse-
ence as a stateless person and in the effect of quent appeal. Title 28 U.S.C. § 1447 address-
its Louisiana origin on the ownership of the es the removal of matters to federal court.
Casino itself. Consequently, the court re- Section 1447(c) discusses remanding a case to
manded to state court. 2 a state court.4 Section 1447(d) directly limits
the scope of federal appellate review of re-
II. manded cases: “An order remanding a case to
Defendants challenge the remand on two the State court from which it was removed is
grounds related to the parties’ ability to main- not reviewable on appeal or otherwise” (with
tain diversity jurisdiction: (1) the determination the exception of cases removed to federal
that the Indian tribe waived its immunity; and courts under a civil rights statute).
(2) the determination that an amendment to
The Supreme Court and this court have in-
terpreted the two statutes to prohibit appellate
1
jurisdiction over matters remanded to state
Victor is a Louisiana citizen. The casino is a
court where a district court bases remand on a
business entity that consists of the Indian tribe and
lack of subject matter jurisdiction. The lan-
Grand Casinos. Defendants assert that the tribe “is
a Federally recognized Grand Indian Tribe, with its guage of § 1447(d) is unambiguous. See, e.g.,
reservation located in Allen Parish, Louisiana.” Angelides v. Baylor College of Med., 117 F.3d
Grand Casinos is a Minnesota corporation with its
principal place of business in Minnesota. The
district court ultimately decided that the tribe de- 3
Because this appealSSconcerning both appel-
stroyed diversity because it was a non-state entity late jurisdiction and the question of tribal immuni-
and because of its citizenship viewed in conjunction tySSconcerns matters of subject matter jurisdiction,
with its partial ownership in the casino. we use a de novo standard of review. See, e.g.,
Washington v. Linebarger, Goggan, Blair, Pena
2
As part of its remand, the court considered & Sampson, LLP, 338 F.3d 442, 444 (5th Cir.
whether the Indian tribe, by entering into a gaming 2003); Bissonnet Invs. LLC v. Quinlan (In re
compact with the state, had waived its sovereign Bissonnet Invs. LLC), 320 F.3d 520, 522 (5th Cir.
tribal immunity. If the tribe retained its immunity, 2003) (“We review questions of subject matter
Victor could recover no damages from it. jurisdiction de novo.”).
Defendants characterized Victor’s inclusion of the
tribeSSwhich inclusion frustrated diversitySSas 4
“If at any time before final judgment it ap-
fraudulent. The court, however, determined that pears that the district court lacks subject matter
the tribe waived its immunity in this kind of suit jurisdiction, the case shall be remanded . . . . The
and that Victor could, in the abstract, obtain dam- State court may thereupon proceed with such
ages from the tribe. case.”

2
833, 835 (5th Cir. 1997) (“Appellate courts to entertain an appeal of the remand order
are precluded from reviewing remand orders under § 1447(d).” Things Remembered, 516
issued pursuant to § 1447(c), by appeal, man- U.S. at 127-28. The district court’s entire
damus, or otherwise.”).5 Furthermore, “even reason for remanding Victor’s case centered
if the district court’s determination of subject on the lack of diversity jurisdiction.7
matter jurisdiction was erroneous, it remains
immune from review.” Rio de Janeiro of the III.
Federated Republic of Brazil v. Philip Morris, The district court ruled on an argument put
239 F.3d 714, 716 (5th Cir. 2001).6 before it that directly implicated the subject
matter jurisdiction of that court. The court ex-
The Supreme Court has created a narrow plicitly held “that the joinder of the tribe is not
group of remanded cases that fall outside fraudulent, and that the stateless status of the
§ 1447(d). “[W]here a case has been properly tribe therefore destroys complete diversity, and
removed and the remand order is issued on along with it, this Court’s diversity
grounds not authorized by § 1447(c),” an ap- jurisdiction.” The accompanying remand falls
pellate court may review the decision to re- directly within § 1447(c). Consequently,
mand. Thermtron Products, Inc. v. Hermans- pursuant to § 1447(d), we lack jurisdiction to
dorfer, 423 U.S. 336, 343 (1976). The district review the order of remand.
court in Thermtron expressly remanded be-
cause of its crowded docket and not because The appeal is DISMISSED for want of
of jurisdictional concerns. Id. at 340-41. jurisdiction.

The Supreme Court, however, has limited
the possible class of appealable remand orders.
“As long as a district court’s remand is based
on a timely raised defect in removal procedure
or on lack of subject-matter jurisdictionSSthe
grounds for remand recognized by §
1447(c)SSa court of appeals lacks jurisdiction
7
Defendants lamely attempt to characterize the
5
The limitation on appellate review extends district court’s consideration of the tribe’s sover-
only to matters remanded based on a lack of sub- eign immunity as something that “exceeded its au-
ject matter jurisdiction and pursuant to § 1447(c). thority [and was] unnecessary in light of the find-
Things Remembered, Inc. v. Petrarca, 516 U.S. ings of the Magistrate and the remaining conclu-
124, 127 (1995) (“§ 1447(d) must be read in pari sions reached by the District Court’s remand or-
materia with § 1447(c), so that only remands der.” The district court’s analysis, however, arose
based on grounds specified in § 1447(c) are im- out of a question involving diversity jurisdiction.
mune from review under § 1447(d).”). Although the court determined that the inclusion of
an Indian tribe destroyed diversity, it also con-
6
The statute and the construing courts have sidered whether Victor may have engaged in some
limited appellate review over such matters because kind of fraudulent joinder. If the tribe maintained
“federal appeal of remand orders would delay its immunity, Victor could not possibly recover
justice in state courts.” Angelides, 117 F.3d from it, and the district court could disregard its
at 836. presence for diversity purposes.

3