[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF
No. 03-12146 APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 26, 2004
D. C. Docket No. 03-00341-CV-ORL-22-DAB
VERA COGDELL,
GRANT COGDELL,
Plaintiffs-Appellees,
versus
WYETH, a Delaware corporation
f/k/a American Home Products Corporation,
WYETH PHARMACEUTICALS, a
Delaware corporation and
subsidiary of Wyeth
f/k/a Wyeth-Ayerst Laboratories Inc.,
A. H. ROBINS COMPANY, INC., a
Delaware corporation and
subsidiary of Wyeth,
Defendants-Appellants,
FISONS CORPORATION, a
Massachusetts corporation,
ECKERD CORPORATION OF FLORIDA, INC.
a Florida corporation,
JUDITH ALKIRE,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 26, 2004)
Before TJOFLAT, HULL and FAY, Circuit Judges.
TJOFLAT, Circuit Judge:
The case began on February 6, 2003, when Vera and Grant Cogdell filed a
complaint in the Circuit Court of Volusia County, Florida, against Wyeth.1 Wyeth
accepted service of process on February 17, 2003, and on March 10, 2003, moved
the circuit court alternatively to dismiss the complaint for failure to state a claim
for relief or for a more definite statement on the ground that the allegations of the
complaint were so vague and confusing that a responsive pleading should not be
required. On March 20, 2003, Wyeth, representing that diversity of citizenship
jurisdiction existed between the parties,2 removed the case to the United States
1
The complaint named as defendants Wyeth f/k/a American Home Products
Corporation, Wyeth Pharmaceuticals f/k/a Wyeth-Ayerst Laboratories, Inc., A.H. Robins
Company, Inc., Fisons Corporation, Eckerd Corporation of Florida, Inc., and Judith Alkire. Prior
to the filing of the complaint, A.H. Robins Company, Inc. was merged into American Home
Products Corporation, which changed its name to Wyeth. Wyeth Pharmaceuticals is a division of
Wyeth. We refer to these entities collectively as Wyeth, which is the only defendant before us.
2
Diversity of citizenship existed between the Cogdells, who were citizens of Florida, and
Wyeth, a Delaware corporation with its principal place of business in New Jersey. Wyeth’s
removal notice alleged that the remaining defendants had been fraudulently joined by the
Cogdells for the purpose of precluding removal of the case to federal district court.
2
District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1441(b).
Six days later, the district court, acting solely on its own initiative, remanded the
case to the Volusia County Circuit Court on the ground that Wyeth, by moving the
circuit court to dismiss the Cogdells’ complaint, had waived its § 1441(b) right to
remove the case to federal court.
Wyeth now appeals. The first question we must decide is whether we have
jurisdiction to entertain the appeal. We conclude that we have jurisdiction. We
then move to the question of whether Wyeth waived its right to remove the case by
filing a motion to dismiss in the state court. We conclude that it did not waive
such right and therefore vacate the district court order at issue and remand the case
for further proceedings in the district court.
I.
Section 1447(d) of Title 28 of the United States Code provides that “[a]n
order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.” 3 28 U.S.C. § 1447(d). While the statute’s
language is expansive, and seems to encompass every order remanding a case to
state court, § 1447(d) must be read in tandem with § 1447(c). Thermtron Prods.,
3
Section 1447(d) contains an exception. Cases removed to the district court pursuant to
28 U.S.C. § 1443, which applies to civil rights cases, are reviewable on appeal. The exception is
inapplicable here; this is not a civil rights case.
3
Inc. v. Hermansdorfer, 423 U.S. 336, 345, 96 S. Ct. 584, 590, 46 L. Ed. 2d 542
(1976). Only remand orders based on the grounds recited in § 1447(c) are immune
from review under § 1447(d). Id. at 346, 96 S. Ct. at 590. Subsection 1447(c)
provides, in relevant part:
A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.
28 U.S.C. § 1447(c). Thus, § 1447(d) bars review of remand orders that are based
on a lack of subject matter jurisdiction or a “defect other than lack of subject
matter jurisdiction.” As we said in In re: Bethesda Memorial Hospital, Inc., 123
F.3d 1407, 1409 (11th Cir. 1997):
[A] remand order is reviewable if and only if it is openly based on grounds
other than (1) lack of district court subject matter jurisdiction; or (2) a
motion to remand the case filed within 30 days of the notice of removal
which is based upon a defect in the removal procedure.4
4
Although our decision in In re: Bethesda Memorial Hospital was based on a prior
version of § 1447(c), which referred to defects “in the removal procedure,” we have since
clarified that in the current statute, “the term ‘defect’ refers to removal defects, and is not
synonymous with ‘any remandable ground.’” Snapper, Inc. v. Redan, 171 F.3d 1249, 1258 (11th
Cir. 1999). The second of the circumstances where we are prohibited from reviewing a remand
order is thus a remand order granting a motion to remand based on a removal defect other than
lack of subject matter jurisdiction. This circumstance is not present in the case at hand, however.
Even if we were to assume that the district court based its remand order on a such a defect, our
disposition of this appeal would still be the same. The district court entered the remand order sua
sponte, not in response to a motion seeking a remand. See Whole Health Chiropractic &
Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317, 1319 (11th Cir. 2001) (“[Section]
1447(c) does not authorize any sua sponte remand order not based on subject matter
4
The Cogdells contend that the district court’s remand order is not
reviewable because it is based on lack of subject matter jurisdiction. The district
court stated that by choosing to contest the case in state court, Wyeth had divested
it of “removal jurisdiction.” This begs the question as to whether “removal
jurisdiction” is the equivalent of “subject matter jurisdiction” so as to prohibit
appellate review. In this case, it is not.
To understand the difference between removal jurisdiction and subject
matter jurisdiction, we must first explain what we mean when we use the word,
“jurisdiction” in these two phrases. Jurisdiction is defined as “[a] court’s power to
decide a case or issue a decree.” Black’s Law Dictionary 855 (7th ed. 1999). A
court’s power, however, has many facets. The word “jurisdiction” is thus often
modified to describe more particularly what facet of a court’s power is under
discussion. So, for instance, the Supreme Court has distinguished the power of a
court to hear a given kind of case (subject matter jurisdiction) from the power the
court has over a particular litigant (personal jurisdiction). United States v.
Morton, 467 U.S. 822, 828, 104 S. Ct. 2769, 2773, 81 L. Ed. 2d 680 (1984).
While we have previously said that removal jurisdiction is “a species” of
jurisdiction”).
5
subject matter jurisdiction, Ariail Drug Co. v. Recomm Int’l Display, Inc., 122
F.3d 930, 933 (11th Cir. 1997), the two are not one and the same. Subject matter
jurisdiction is “[j]urisdiction over the nature of the case and the type of relief
sought; the extent to which a court can rule on the conduct of persons or the status
of things.” Black’s Law Dictionary 857 (7th ed. 1999). The nature of the cases
upon which the federal courts may rule is defined in Article III, Section 2 of the
Constitution,5 and the bases of subject matter jurisdiction in the United States
district courts are defined in 28 U.S.C. §§ 1330-1369. They include, inter alia,
federal question jurisdiction under 28 U.S.C. § 1331 and diversity of citizenship
under 28 U.S.C. § 1332.
Removal jurisdiction can be considered a “species” of subject matter
jurisdiction in that it defines a federal court’s power to hear a particular kind of
case – one that was originally brought in a state court. It requires more, however,
than subject matter jurisdiction in the federal courts as defined by the Constitution
5
Article III, section 2 states, in part:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority; – to all Cases affecting Ambassadors, other public Ministers and
Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to
which the United States shall be a Party; – to Controversies between two or more States;–
between a State and Citizens of another State; – between citizens of different States; –
between Citizens of the same State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
U.S. Const. Art. III, § 2, cl. 1.
6
and 28 U.S.C. §§ 1330-1369.6 According to the removal jurisdiction statute,
any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States for the district
and division embracing the place where such action is pending.
28 U.S.C. § 1441(a). Thus, one prerequisite for removal jurisdiction is that the
case originated in state court. Another is that the defendant remove the case to the
proper federal district court.7 A third is that the federal district court have original
jurisdiction to entertain the lawsuit.
If any one of these prerequisites is lacking, the district court can be said to
lack removal jurisdiction. That is, if the plaintiff originally brings the case in
federal court, the requirement that the case must originate in state court is lacking.
Although the district court may have subject matter jurisdiction over the case, it
cannot be said that it has removal jurisdiction. Similarly, if the defendant never
removes the case to federal court, the district court would obviously lack removal
jurisdiction. Finally, a district court could lack removal jurisdiction under § 1441
if the case is not one over which the court has original jurisdiction. Only in this
6
Black’s Law Dictionary does not define “removal jurisdiction.”
7
28 U.S.C. § 1441(a) designates the proper court as “the district court of the United
States for the district and division embracing the place where such action is pending.” This
“place” is the site of the state court in which the action is pending at the time the notice of
removal is filed.
7
final example would a lack of removal jurisdiction coincide with a lack of subject-
matter jurisdiction, triggering the bar to appellate review of § 1447(d).
The district court remanded the case at hand on the ground that it lacked
removal jurisdiction to entertain the matter. Because lack of removal jurisdiction
may or may not be based on lack of subject matter jurisdiction, we must look to
the district court’s dispositive order to determine why it concluded that it lacked
removal jurisdiction. See First Union Nat’l Bank of Fla. v. Hall, 123 F.3d 1374,
1377 (11th Cir. 1997) (“In order to decide whether a remand order is reviewable,
we look to the terms of the remand order itself . . . .”). If the court remanded the
case because it lacked subject matter jurisdiction, our review of the remand order
is prohibited by § 1447(d). Here, however, the district court said that removal
jurisdiction was lacking because Wyeth had waived its right to remove the case by
filing a motion to dismiss it in the state court. Waiver may be a proper basis upon
which to find lack of removal jurisdiction; however, waiver does not divest the
court of subject matter jurisdiction. Section 1447(d) does not preclude us from
reviewing the district court’s remand order. We therefore turn to the merits of
Wyeth’s appeal.
II.
A short time ago, in a case nearly indistinguishable from this one, we held
8
that the removing defendant did not waive its right of removal by filing a motion
to dismiss the plaintiff’s complaint while the case was still pending in state court.
Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, No. 03-15343, mem.
op. at 6 (11th Cir. Apr. 15, 2004) (quoting Hill v. State Farm Mut. Auto. Ins. Co.,
72 F. Supp. 2d 1353, 1354 (M.D. Fla. 1999)). As in Yusefzadeh, Wyeth moved
the state court to dismiss the case and (before the court could rule on the motion)
removed the case the case to the district court. Id. In neither case did the
defendant take any additional steps to have the state court rule on its motion prior
to its removal; in neither case did the state court act on the motion. Thus, as in
Yusefzadeh, we cannot say that the defendant took such “substantial offensive or
defensive actions in state court” that it waived its right to remove the lawsuit to
the district court. Id.
For the foregoing reasons, the district court’s remand order is vacated and
the case is remanded to the district court for further proceedings not inconsistent
with this opinion.
SO ORDERED.
9