IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30386
Summary Calendar
_____________________
MEDERIC MEYER
Plaintiff-Appellee
v.
CALLON PETROLEUM OIL COMPANY; G M SCOTT
Defendants - Appellants
and
CONSTITUTION STATE SERVICE COMPANY; J M SCOTT, (a fictitious
name)
Defendants
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(CA-94-3576-E)
_________________________________________________________________
November 28, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This case arises from a personal injury action filed by
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
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plaintiff-appellee Mederic Meyer ("Meyer"), an oyster farmer,
against Callon Petroleum Company ("Callon") and G. Mac Scott
("Scott"), Callon's production foreman, in each of two Louisiana
judicial districts. The defendants removed both state court
cases to the United States District Court for the Eastern
District of Louisiana, where they were consolidated. Upon the
commencement of informal discovery, Meyer moved to amend his
complaint to add the State of Louisiana as a defendant. The
district court granted Meyer's motion to amend, and then remanded
the action to the state court.
Callon and Scott appeal the district court's decision
remanding the case. Finding that we lack jurisdiction to review
the appeal, we DISMISS.
I. FACTUAL AND PROCEDURAL HISTORY
On October 8, 1993, Meyer was injured when he struck an
abandoned pipeline while dredging oysters in Black Bay,
Louisiana. He filed suit against Callon, the owner of the
pipeline, as well as Scott, Callon's production foreman, in each
of two separate Louisiana judicial districts on September 22,
1994. On November 7, 1994, Callon and Scott removed both state
court actions to the United States District Court for the Eastern
District of Louisiana on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332. The two cases were consolidated.
Meyer did not file a motion to remand.
During informal discovery, Meyer discovered that the State
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of Louisiana, Department of Natural Resources or the Louisiana
State Mineral Board, or both, owned, controlled or leased the
water bottom in which the submerged pipes were located. On
February 8, 1995, before any trial date had been set and before
any dispositive motions were filed, Meyer filed a motion for
leave of court to supplement and amend the complaint in order to
add the State of Louisiana as a named defendant. Meyer argued
that Rule 15(a) of the Federal Rules of Civil Procedure, which
provides that "a party may amend the party's pleading only by
leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires" compelled
the court to allow him to seek relief from all liable parties,
even if that meant that federal jurisdiction would be sacrificed
as a result. Callon and Scott opposed the motion to amend,
arguing that the Eleventh Amendment precluded the court from
exercising jurisdiction over the State of Louisiana in diversity,
and that Meyer's motion to amend was nothing more than a "patent
and transparent attempt to defeat [federal] jurisdiction."
On April 10, 1995, the district court issued its written
order and reasons. The court granted Meyer's motion to amend his
complaint, reasoning that justice requires that Meyer be allowed
to add the State of Louisiana as a named defendant. The court
concluded that Meyer had stated a claim under Louisiana law
against Louisiana, and rejected Callon and Scott's contention
that Meyer's request to add Louisiana as an additional defendant
was based solely on strategic reasons. Because the case had not
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yet been set for trial, the court determined that remand would
not unduly prejudice the defendants and would promote judicial
economy. The court's order and reasons concluded by ordering
"that pursuant to 28 U.S.C. § 1447(e), this action is hereby
REMANDED to the [state court]."
On April 20, 1995, Callon and Scott filed a timely notice of
appeal, and also filed a motion for stay of the order remanding
the case pending appeal to this court. The district court denied
the motion for stay on the grounds that the order remanding the
case is non-reviewable pursuant to 28 U.S.C. § 1447(d) because it
was made on the grounds of lack of subject matter jurisdiction.
The district court specifically noted that "[w]hile explicitly
citing only subsection (e) of § 1447, it is patent that the Court
is also relying upon subsection (c) in remanding the case."
II. DISCUSSION Because Callon and
Scott do not challenge the district court's decision granting
Meyer's motion to amend and supplement his complaint, the only
issue on appeal is whether the district court erred in remanding
the action to state court. As Meyer correctly argues, however,
we lack jurisdiction to review the remand order.
Remand of a case after removal is controlled by 28 U.S.C. §
1447(c), which provides, in pertinent part: "If, at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded." Orders
remanding cases pursuant to 28 U.S.C. § 1447(c) are not
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reviewable on appeal, by mandamus, or otherwise, except in civil
rights cases. 28 U.S.C. § 1447(d);1 Tillman v. CSX Transp.,
Inc., 929 F.2d 1023, 1026 (5th Cir. 1991). In Tillman we held
that the district court need not explicitly state that it is
remanding a case pursuant to 28 U.S.C. § 1447(c) in order to
preclude review; as long as the district court utters the "magic
words" that it believes that it "lacks subject matter
jurisdiction," the remand is rendered "totally unreviewable."
929 F.2d at 1026 - 27.2
Tillman makes it clear that a remand based on a lack of
subject matter jurisdiction is "totally unreviewable, `no matter
how clearly erroneous the order appeared on its face.'" Id. at
1027 (quoting In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642,
648 (5th Cir. 1978)). This is also true whether or not the
1
28 U.S.C. § 1447(d) provides:
An order remanding a case to the State court
from which it was removed is not reviewable
on appeal or otherwise, except that an order
remanding a case to the State court from
which it was removed pursuant to section 1443
of this title shall be reviewable by appeal
or otherwise.
Section 1443 concerns the removal of civil rights actions.
2
28 U.S.C. § 1447(c) was amended in 1988. In Tillman,
we "fe[lt] it necessary to point out that the age-old language of
§ 1447(c), `removed improvidently and without jurisdiction,' has
been amended" to provide now that a case shall be remanded if "it
appears that the district court lacks subject matter jurisdiction
..." Tillman, 929 F.2d at 1026. While, in the past, the
language, "improvidently and without jurisdiction" served as
"magic words," the "mere incantation of which rendered any
remand order based thereon totally unreviewable," the "magic
words" now consist of the language "lack[ing] subject matter
jurisdiction." Id. at 1026 - 27.
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district court explicitly mentions 28 U.S.C. § 1447(c) in its
remand order. Thus, Callon and Scott's arguments that the
district court "tacitly" acknowledged that it retained diversity
jurisdiction are irrelevant in light of the fact that the
district court believed -- correctly or incorrectly -- that the
addition of the State of Louisiana as a defendant deprived it
completely of subject matter jurisdiction.
In this case, as in Tillman, appellants argue that the
remand is reviewable pursuant to Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336 (1976). In Thermtron, the Supreme
Court, analyzing a version of § 1447(c) that has since been
amended, held that review is available by mandamus when remand is
explicitly based on grounds other than those specified in §
1447(c). We have since interpreted Thermtron to have carved out
"only a very narrow rule which was intended to be limited to the
extreme facts of that case, in which a district judge stated only
that he was relying on a non-§ 1447(c) ground for remand."
Merrimack, 587 F.2d at 647; see also Tillman, 929 F.2d at 1027;
Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th
Cir. 1991). Because the district court clearly remanded this
case because it believed that it could not exercise subject
matter jurisdiction over one of the named defendants -- the State
of Louisiana -- Thermtron does not apply.
Further, Callon and Scott's attempt to point to our decision
in In re Shell Oil Co., 932 F.2d 1518 (5th Cir. 1991), for
support of reviewability is unavailing. In Shell Oil, we
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reaffirmed the principle that "remand orders for lack of subject
matter jurisdiction [remain] the only clearly unreviewable remand
orders." 932 F.2d at 1520. And, as discussed above, the
district court remanded the case because it believed it lacked
subject matter jurisdiction, despite Callon and Meyer's
conclusory attempts to characterize the reasons for the court's
order otherwise.
Moreover, Callon and Scott's argument that Freeport-McMoRan
v. KN Energy, Inc, 498 U.S. 426 (1991), gives us jurisdiction to
review the remand order is similarly misplaced. In Freeport-
McMoRan, the Court reviewed an order of the court of appeals
dismissing a case for want of jurisdiction. The application of §
1447(d) was not at issue.
Finally, Callon and Scott contend that we are able to review
the remand order because it was made for the reasons of
furthering "the interests of justice" -- a reason for remand not
recognized by 28 U.S.C. § 1447(c). This argument is meritless.
As the district court's order and reasons makes explicit,
furthering the "interests of justice" was, instead, the court's
reason for granting Meyer's motion to amend his complaint, and
not its reason for remand. Because Callon and Scott do not
challenge the district court's decision to grant Meyer's motion
to amend, they concede that the court did not err when it allowed
Meyer to add Louisiana as a defendant in the action.
Thus, Callon and Scott provide no basis to distinguish this
case from Tillman v. CSX Transp., Inc., 929 F.2d 1023 (5th Cir.
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1991). As in Tillman, we lack jurisdiction to review the remand
order.
III. CONCLUSION
For the reasons stated above, we DISMISS the appeal.
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