[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 29, 2003
THOMAS K. KAHN
No. 02-13535
CLERK
________________________
D. C. Docket No. 02-20039-CV-DLG
ARIE L S. V ELC HEZ ,
Plaintiff- Appe llee,
versus
CAR NIV AL C ORP ORA TION ,
a.k.a. Car nival Cr uise Lin es,
Defen dant-A ppellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 29, 2003)
Before BIRC H, CAR NES and BRUN ETTI*, Circuit Judg es.
____________________
*Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
CARNE S, Circuit Judge:
Ariel Velchez formerly worked as a seaman on board a vessel owned by
Carnival. He was employed under the terms of a standard Philippine Overseas
Employment Administration contract, which includes a clause requiring claims and
disputes to be resolved through an established “grievance machinery.” Velchez
served Carnival with a summons and complaint he had filed in state court. The
complaint asserted claims for negligence und er the Jones Act, unseawo rthiness,
failure to provide maintenance and cure, and failure to treat, and it sought damages
for injur ies Velch ez alleged ly sustaine d while employ ed on th e ship.
Some nineteen months after Velchez filed suit, Carnival filed a notice of
remov al in the U nited Sta tes Distric t Court f or the S outhern District o f Florid a.
The notice of removal took the position that because Velchez was working under
an arbitration agreement which fell under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, removal was proper under 9 U.S.C.
§ 205. Following removal, Velchez moved the district court to remand the action
to state court, arguing among other things that Carnival’s notice of removal was
proced urally flaw ed. The district cou rt agreed and gra nted V elchez’s m otion.
Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C.
2
§ 1447(d). 1 So if that section applies to this case, we are without jurisdiction and
have no choice but to dismiss the appeal. Carnival, of course, insists that the
section does not apply, while Velchez insists that it does.
In In re Ocean Marine M utual Protection & Indem nity Ass’n, 3 F.3d 353
(11th Cir. 1993), we applied § 1447(d) and held that any remand order based on a
timely § 1 447(c) motion to reman d for pr ocedur al defects in the remo val is
unrevie wable. Id. at 355. In his amended motion for remand, Velchez asserted
that Carn ival had f ailed to m eet the pro cedural r equirem ents of 2 8 U.S .C. § 14 46,
and more specifically, that it had failed to attach “a copy of all process, pleadings,
and ord ers serve d” as req uired by § 1446 (a). Because failure to comply with §
1446(a) constitutes a defect in removal procedure within the meaning of § 1447(c),
see Ocean Marine, 3 F.3d at 356, Velchez’s motion was a timely § 1447(c) motion
for remand based on procedural defects in removal. It follows that we lack
jurisdiction over this appeal. None of Carnival’s arguments to the contrary
persuade us.
One of those arguments is that 9 U.S.C. § 205, the provision under which
Carniv al had rem oved th e case, do es not inc orpora te the pro cedural r equirem ents
1
The statute expressly includes an exception for certain civil rights cases, 28 U.S.C.
§ 1447(d), which is not relevant here.
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of § 1446.2 We have never squarely addressed that issue in this circuit, and we
cannot to day beca use “the re mand o rder, ‘whether erroneous or not,’ is not subject
to review in this court . . . .” Ocean Marine, 3 F.3d at 356 (quoting Thermtron
Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S. Ct. 584, 589 (1976))
(emphasis added). Thus, even if we were convinced that Carnival is correct and
that the district court’s decision is wrong, we are precluded by § 1447(d) from
doing anything about it because the district court’s action, right or wrong, was
based on a timely § 1447(c) motion.3
Carnival’s response to that problem with its position is to contest the
proposition that the district court’s remand was based upon a § 1447(c) motion. If
the remand based upon procedural defects in the removal had been ordered sua
2
Section 205 says that:
Where the subject matter of an action or proceeding pending in a State court
relates to an arbitration agreement or award falling under the Convention, the
defendant or the defendants may, at any time before the trial thereof, remove such
action or proceeding to the district court of the United States for the district and
division embracing the place where the action or proceeding is pending. The
procedure for removal of causes otherwise provided by law shall apply . . . .
9 U.S.C. § 205 (emphasis added). Section 1446(b) requires a notice of removal to be filed
within thirty days after the defendant receives the pleading, 28 U.S.C. § 1446(b), and Carnival
waited much longer than that. The district court’s remand order was based on Carnival’s failure
to comply with that time limit.
3
As in our Ocean Marine decision, in this case “we state no opinion as to the correctness
of the district court’s conclusion that 9 U.S.C. § 205 retains the thirty-day time limit of
§ 1446(b).” Ocean Marine, 3 F.3d at 356.
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sponte, as Carn ival argu es, then w e wou ld not lack jurisdictio n. Who le Health
Chiropractic & Wellness, Inc. v. Humana Medical Plan, Inc., 254 F.3d 1317, 1319
(11th Cir. 2001). The law disfavors court meddling with removals based upon
proced ural – as d istinguish ed from jurisdictio nal – defects, becau se “[w]e . . .
recognize that a plaintiff may acquiesce to federal jurisdiction, and forgive any of
the defendant’s procedural errors in removing the case.” Id. at 1321. Allowing
district courts to remand cases on their own because of proc edural d efects w ould
remove a plaintiff’s ability to acquiesce in a procedural problem that may not be
bothers ome to th e plaintiff, th ereby de priving both sid es of their preferre d forum .
Id. at 1320 . As the S eventh C ircuit has o bserved , to avoid extendin g a dispu te, a
district court should wait for a motion for remand, because “the plaintiff may
forgive the procedural defect and accept the defendant’s preference for a federal
forum.” In re Continental Cas. Co., 29 F.3 d 292, 2 95 (7th Cir. 199 4).
Carniv al’s conten tion that th e district co urt essen tially acted o n its ow n to
send the case back to state cou rt becaus e of a pro cedural d efect in rem oval rests
entirely upon the fact that the district court granted Velchez’s remand motion on
the basis of a different procedural defect than the motion specified. The procedural
objection in Velchez’s motion was based on Carnival’s asserted failure to attach
certain do cumen ts to its rem oval no tice, as requ ired by § 1446( a). The district
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court granted the motion to remand on the different basis, never asserted by
Velchez, that Carnival had failed to comply with the requirement of § 1446(b) that
the removal notice be filed within thirty days of the defendant’s receipt of the
initial plead ing.
This is really the issue upon which this appeal turns: Does a remand order
based upon a procedural defect different from the one asserted in the remand
motion filed by a party amount to a sua spo nte order o ver wh ich we h ave app ellate
jurisdiction? Sua sp onte means “[w]ithout prompting or suggestion; on its own
motion.” Black’s Law Dictionary 1437 (7th ed. 1999). That dictionary definition
of sua spo nte does no t fit these circumstances, because the court was prompted by
Velchez to remand. The court stated in its order that “it is, ORDERED AND
ADJUD GED that Plaintiff’s Motion to Remand is GRANT ED.” Order at 3.
Of equal or greater importance is the purpose behind the distinction. When
a party m oves fo r reman d, as Ve lchez did , that party w ants to go back to s tate
court. T he motio n establish es that the m oving p arty does not wa nt to acqu iesce in
the feder al forum despite an y proced ural defe cts. The c oncern we exp ressed in
Who le Health Chirop ractic that a sua spo nte remand might “deprive both sides of
their pref erred fo rum” an d stand in the way of a non -movin g party w ho wa nted to
“acquiesce to federal jurisdiction, and forgive any of the defendant’s procedural
6
errors in remov ing the ca se,” 254 F .3d at 13 20, 132 1, is basele ss in this situ ation.
We decline to extend a rule to circumstances in which the basis for it does not
exist.
APP EAL DISM ISSE D FO R LA CK O F JUR ISDI CTIO N.
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