[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ MAY 12, 2003
THOMAS K. KAHN
No. 02-12794 CLERK
________________________
D. C. Docket No. 01-00904-CV-CB-C
SAMMIE BONNER CONSTRUCTION CO., INC.,
Plaintiff-Appellee,
versus
WESTERN STAR TRUCKS SALES,
INC.,
Defendant-Appellant,
DONALDSON COMPANY, INC.,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 12, 2003)
Before ANDERSON and WILSON, Circuit Judges, and OWENS*, District Judge.
*Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of
Georgia, sitting by designation.
WILSON, Circuit Judge:
Western Star Trucks Sales, Inc. appealed the district court’s order of
remand, and Sammie Bonner Construction Co.,1 moved to dismiss the appeal,
asserting that we lacked jurisdiction because the order was unreviewable pursuant
to 28 U.S.C. § 1447(d). This Court, reviewing the motion to dismiss, concluded
that the order of remand was not reviewable, but that “to the extent that the order
determined that plaintiffs in the underlying products liability action were
precluded from recovering attorneys’ fees under ALA.Code § 8-20-8, this Court
has jurisdiction to review that decision.” Sammie Bonner Constr. Co. v. W. Star
Trucks Sales, Inc., 11th Cir. 2002, __ F.3d __ (No. 02-12794, Sept. 10, 2002).
Because we find that the district court’s ruling on attorney’s fees was a matter of
substantive law intrinsic to the order of remand, we vacate our prior order in this
case and dismiss this appeal for lack of jurisdiction.
BACKGROUND
Bonner originally filed suit against Western Star in state court, alleging that
it purchased two Western Star trucks equipped with air intake systems that later
proved to be defective. Bonner therefore asserted a common law breach of
1
Bonner filed this case as a putative class action in state court. For the sake of clarity,
however, we will refer to all of the plaintiffs as Bonner.
2
contract claim and various statutory claims for breach of warranty. It also
included an express ad damnum clause in the complaint, which provided that
compensatory damages would not exceed $74,500. Bonner did not assert claims
for punitive damages or attorney’s fees.
Western Star removed the action to the Southern District of Alabama on
diversity grounds, and Bonner subsequently filed a motion to remand the case to
state court, arguing that its claims did not satisfy the jurisdictional minimum
amount in controversy. The sole issue before the district court on the motion to
remand, therefore, was whether the amount in controversy exceeded $75,000.
Because Western Star sought removal to federal court, it bore the burden of
proving that Bonner’s claims satisfied the minimum amount in controversy
requirement. See Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309,
1314 (11th Cir. 2002). In support of its argument against remand, Western Star
thus argued that Bonner would be entitled to an award of attorney’s fees under
Alabama law if it prevailed at trial and that the amount of those fees, when added
to Bonner’s $74,500 claim, would raise the total amount of the claim above the
jurisdictional minimum. 2 Western Star acknowledged that Bonner did not include
2
Although Western Star argued before the district court that the claims of all of the class
members could be aggregated to satisfy the jurisdictional minimum amount in controversy, the
district court rejected that argument. Because Western Star has not addressed that argument on
3
a claim for attorney’s fees in its complaint, but nevertheless asserted that the
award of fees was mandated on a verdict for breach of warranty by section 8-20-8
of the Alabama Code, which provides, “If it is determined by a court of competent
jurisdiction that either the manufacturer or new motor vehicle dealer, or both, have
violated an express or implied warranty, the court shall add to any award or relief
granted an additional award for reasonable attorney’s fees.” Ala. Code § 8-20-8.
The district court examined both the statute and the relevant case law and
ultimately concluded that Western Star “failed to demonstrate that this statute
provides for attorneys’ fees on plaintiff’s warranty claim.” Because the court
concluded that Bonner was not entitled to attorney’s fees in the absence of a claim
requesting them, it ruled that Bonner’s claims did not exceed the $75,000
jurisdictional threshold and ordered that the case be remanded back to state court.
Western Star appealed the order of remand to this Court, and Bonner
subsequently filed a motion to dismiss the appeal for want of jurisdiction. After
reviewing the motion to dismiss, we concluded that we did not have jurisdiction to
review the order of remand, but that we have jurisdiction to review the district
court’s ruling on the matter of attorney’s fees.
appeal, it is deemed waived and we do not consider it. See Chavis v. Clayton County Sch. Dist.,
300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (“[I]ssues not argued on appeal are deemed waived,
and a passing reference in an appellate brief is insufficient to raise an issue.”).
4
DISCUSSION
Before reaching the merits of the parties’ arguments, we feel it is necessary
to reconsider our prior order determining that we have jurisdiction to review the
district court’s attorney’s fees ruling. See Fitzgerald v. Seaboard Sys. R.R., 760
F.2d 1249, 1251 (11th Cir. 1985) (per curiam) (“A federal court not only has the
power but also the obligation at any time to inquire into jurisdiction whenever the
possibility that jurisdiction does not exist arises.”). Although we addressed that
issue in our prior order, we are not bound by that decision. See Vann v. Citicorp
Sav. of Ill., 891 F.2d 1507, 1509 n.2 (11th Cir. 1990) (per curiam) (“A motions
panel’s order, however, does not bind the panel hearing the case on the merits.”).
As a general rule, an appellate court may not review a district court’s order
remanding a case back to state court. See 28 U.S.C. § 1447(d); New v. Sports &
Recreation, Inc., 114 F.3d 1092, 1096 (11th Cir. 1997) (“Cases remanded for lack
of jurisdiction are immune from review even if the district court’s decision is
clearly erroneous.”). There are, however, two widely recognized exceptions to
this rule. See Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d
1279, 1285 (11th Cir. 1999).
In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346 (1976),
abrogated on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706
5
(1996), the Supreme Court carved out an exception when it held “that only remand
orders issued under [§] 1447(c) and invoking the grounds specified therein . . . are
immune from review under [§] 1447(d).” 3 The Thermtron Products, Inc.
exception does not apply to this case, however, because the district court’s explicit
basis for the order of remand was lack of subject matter jurisdiction pursuant to §
1447(c). See Aquamar, S.A., 179 F.3d at 1285.
In addition to the Thermtron Products, Inc. exception, we have recognized a
second exception to the § 1447(d) bar against review of remand orders. The
“matter of substantive law” exception “permits appellate review of a district court
remand order only where that order is based solely on a matter of substantive law.”
Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539, 1540 (11th Cir.
1986) (per curiam). We have noted, however, that “[t]his exception . . . is a
narrow one . . . . It expressly does not permit review of a remand order based on
lack of jurisdiction.” Id. (footnote omitted). Thus, when a district court rules on a
3
At the time that Thermtron Products, Inc. was decided, § 1447(c) provided that “[i]f at
any time before final judgment it appears that the case was removed improvidently and without
jurisdiction, the district court shall remand the case.” 423 U.S. at 342 (internal quotation marks
omitted). That section has since been amended to allow remand “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).
Although § 1447(c) has been amended, the Thermtron Products, Inc. exception still applies and
allows review only of cases remanded for reasons other than that specified in § 1447(c). See In
re Shell Oil Co., 932 F.2d 1518, 1519–20 (5th Cir. 1991) (discussing Thermtron Products, Inc. in
light of the amendment to § 1447(c) and recognizing that “[t]his leaves remand orders for lack of
subject matter jurisdiction as the only clearly unreviewable remand orders”).
6
matter of substantive law that must be resolved to determine whether the court has
jurisdiction over the case, we may not review the court’s ruling on that issue even
if it is erroneous. See Calderon v. Aerovias Nacionales de Colom., 929 F.2d 599,
602 (11th Cir. 1991) (“In deciding whether subject matter jurisdiction exists, a
district court will reach legal conclusions concerning the presence of diversity or
federal question. [Appellant] merely disagrees with the legal conclusion that the
district court drew. . . . Assuming . . . that such a decision is erroneous, section
1447(d) precludes review of remand orders based on lack of subject matter
jurisdiction even when the decision is wrong” (alterations in original) (internal
quotation marks omitted).).
To determine whether Bonner’s claims satisfied the minimum amount in
controversy, the district court necessarily had to resolve a matter of substantive
law, specifically the question of whether Bonner was entitled to recover attorney’s
fees under section 8-20-8. The attorney’s fees issue therefore was intrinsic to the
jurisdictional question and is, consequently, unreviewable on appeal. See id.
(holding that the “matter of substantive law” exception is inapplicable when “the
substantive issue is intrinsic to the district court’s decision to remand for lack of
subject matter jurisdiction”). For that reason, we find that the “matter of
substantive law” exception does not apply in this case.
7
It thus is clear that neither the Thermtron Products, Inc. exception nor the
“matter of substantive law” exception to § 1447(d) permit us to review the order of
remand. Nevertheless, Western Star argues that we still may review the attorney’s
fees ruling under the doctrine set forth in City of Waco v. United States Fidelity
and Guaranty Co., 293 U.S. 140 (1934).
In Waco, a defendant in a state court action “vouched in” a nonresident
third-party defendant which, in turn, removed the case to federal court on the
ground that the action against it was a separable controversy. Id. at 141. The
district court found that the third-party defendant “was an unnecessary and
improper party” and dismissed it from the action. Id. at 142. Having dismissed
the nonresident third party, the court concluded that diversity no longer existed
and remanded the case back to state court. Id. The Fifth Circuit found that it
could not review the order of remand and dismissed the appeal. Id. The Supreme
Court ultimately held that the order of remand was not reviewable on appeal, but
that the order dismissing the third-party defendant was reviewable because “if not
reversed or set aside, [it would be] conclusive upon the petitioner.” Id. at 143.
In applying the Waco doctrine, we have recognized that a court of appeals
may “review district court orders that lead to, but are separate from, orders of
8
remand and have a conclusive effect upon the ensuing state court action.”
Aquamar, S.A., 179 F.3d at 1286. As we further explained,
When a district court enters an order to do something other
than remand (such as a dismissal of a claim or a party), and this order
changes the contours of the state court action after remand . . . it does
not matter whether the issue of law the court decided when it entered
the order was jurisdictional or substantive; either way, the parties’
rights have been altered in a manner that the state court cannot revisit.
Id. Thus, under the Waco doctrine and our decision in Aquamar, S.A., we may
review the underlying jurisdictional basis of a district court’s order of remand if
the court’s decision will, as a practical matter, affect the parties’ substantive rights
in the state court proceeding.
Western Star asserts that the district court’s attorney’s fees ruling affected
the parties’ substantive rights, because it was tantamount to the dismissal of a
claim and therefore had separate and independent significance from the order of
remand. We do not agree. The district court did not dismiss a claim for attorney’s
fees; indeed, it could not have done so, because Bonner never asserted such a
claim. This case, therefore, is distinguishable from Waco, in which the district
court remanded the case for lack of jurisdiction only after it first dismissed one of
the parties from the action. Id. at 1287. Because Bonner’s complaint never
included a claim for attorney’s fees, the district court’s ruling that it was not
9
entitled to fees did not “alter[] the contours of the remanded state court action” the
same way that the dismissal of the third party in Waco did. Id.
Western Star, however, contends that the district court’s attorney’s fees
ruling will be binding on the state court. We, however, do not agree. Because the
district court’s attorney’s fees ruling was intrinsic to, and merely part and parcel
of, the jurisdictional ruling, it cannot be said to have a preclusive effect on the
state court proceedings. See In re Loudermilch, 158 F.3d 1143, 1146 (11th Cir.
1998) (per curiam) (finding that a district court’s Employee Retirement Income
Security Act preemption ruling on a motion to remand “ha[d] no preclusive effect
on the state court’s resolution of respondents’ preemption defense in the same
case”). The district court’s order does not foreclose Bonner’s right to amend the
complaint to add a claim for attorney’s fees in state court, nor does it foreclose
Western Star’s right to challenge such an amendment if it is made. The state court
will not be bound by the district court’s analysis of the attorney’s fees issue and
will “decide for itself what it finds to be persuasive.” Id. at 1147.
CONCLUSION
Thus, we find that we have no jurisdiction to review the district court’s
determination that Bonner was not entitled to attorney’s fees under section 8-20-8,
because that issue was a matter of substantive law intrinsic to the jurisdictional
10
issue. Moreover, because the district court’s ruling did not alter the parties’
substantive rights upon remand to state court, it also is unreviewable under the
Waco doctrine. Accordingly, this appeal is DISMISSED for lack of jurisdiction.
11