Spindletop Films, L.L.C. v. Cesare Wright

Case: 11-20560 Document: 00511961838 Page: 1 Date Filed: 08/20/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 20, 2012

No. 11-20560 Lyle W. Cayce
Summary Calendar Clerk

SPINDLETOP FILMS, L.L.C.; STF #1001, L.P.,

Plaintiffs - Appellees
v.

CESARE WRIGHT,

Defendants - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-4551

Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.

PER CURIAM:*

Appellant/defendant, Cesare Wright, appeals the district court’s order
remanding his case to state court and the court’s imposition of a $25,000 Rule
11 sanction. We DISMISS the appeal.
Wright removed this case, which concerns the ownership of footage of a
motion picture, just one day before trial was to start in state court and long after

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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the statutory thirty day window for removal had closed. Wright argued before
the district court that an amendment to the complaint made by the
plaintiffs/appellees made his removal proper, but the district court disagreed.
The district court found that the removal was untimely because Wright could not
avail himself of the revival exception under 28 U.S.C. § 1446(b). While the
plaintiff did amend the complaint, the amended complaint did not “substantially
. . . alter the character of the action and constitute essentially a new lawsuit,”
and thus the revival exception was inapplicable. Johnson v. Heublein Inc.,
227 F.3d 236, 241 (5th Cir. 2000). The district court also concluded that the
appellant’s timing in removing the case was objectively unreasonable per FED. R.
CIV. P. 11(b) and as a result imposed sanctions.
After the instant appeal was filed, the district court granted Wright’s
Motion for Relief from the district court’s judgement as to sanctions. The district
court found that sanctions were not appropriate because Wright’s removal of the
case was not objectively unreasonable in light of new information about when
the state court trial would have actually started. In light of the district court’s
order dated October 24, 2011, the sanctions portion of this appeal is moot and we
dismiss that portion of the appeal.
As to the order to remand, we conclude that we are barred from reviewing
the order by 28 U.S.C. § 1447(d), which states that “an order remanding a case
to the state court from which it was removed is not reviewable on appeal.” See
also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct.
2411, 2417 (2007). Appellant points to Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 129 S. Ct. 1862 (2009), to argue that the remand order is
reviewable by this court. Carlsbad is inapposite, however, because in that case

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the district court had discretion to retain or remand state law claims based on
supplemental jurisdiction. Id. at 637, 129 S. Ct. at 1865. The Supreme Court
held that when the district court declined to retain state law claims after
dismissing the federal law claim, the remand was reviewable because it was not
based on a lack of subject matter jurisdiction, but was a discretionary decision
by the court. Id. at 641, 129 S. Ct. at 1867.
In the instant case, the district court found that removal by Wright was
statutorily barred because it was not within the statutory time limit. While
Wright argues that this timing requirement should be considered non-
jurisdictional like the 28 U.S.C. § 1367(c)(3) remand in Carlsbad, his argument
is foreclosed by our circuit’s precedent in BEPCO, L.P. v. Santa Fe Minerals,
Inc., 675 F.3d 466 (5th Cir. 2012). In BEPCO, we stated that “[b]ecause the
untimeliness of the removal petition was an independent and authorized reason
for remanding [the] case to state court, the district court’s remand order is
unreviewable. We therefore lack jurisdiction to consider [the] appeal.” Id. at
470.
Accordingly, we DISMISS the appeal of the remand order and the
imposition of sanctions.

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