UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-20148
Summary Calendar
RITA MCCORQUODALE; STEVEN MCCORQUODALE
Plaintiffs-Appellees,
VERSUS
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA;
PRUCO LIFE INSURANCE COMPANY OF TEXAS;
PRUDENTIAL HEALTH CARE PLAN, INC.;
ALLAN CHERNOV, M.D.,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-95-4807)
July 17, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
In August 1995, Rita and Steven McCorquodale (“plaintiffs”)
filed suit in the 278th State Judicial Court of Madison County,
Texas, against Prudential Insurance Company of America and other
named defendants (the “defendants”) seeking recovery for medical
expenses incurred pursuant to a group health insurance policy
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
issued by defendants. On October 11, 1995, defendants filed a
notice of removal of this suit from the state district court to the
United States District Court for the Southern District of Texas on
the grounds that (1) the suit involved claims subject to and
controlled by the Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001, et seq., commonly known as “ERISA”; and (2)
diversity of citizenship existed between the plaintiffs and
Prudential Insurance Company of America, and the other named
defendants had been fraudulently joined as a sham to defeat
diversity jurisdiction. On November 9, 1995, plaintiffs moved to
remand. After extensive briefing and affidavits bearing on the
issue of federal question and diversity jurisdiction, the district
court determined that it did not have jurisdiction under either
ERISA or diversity jurisdiction and entered an order under 28
U.S.C. § 1947(c) remanding the case to the state district court on
January 24, 1996. The defendants timely filed a notice of appeal
“from the order of remand, from the district court’s award of
attorneys’ fees and from its determination that `the plan is not an
employee welfare benefit plan’”.
We have carefully reviewed the briefs, the reply brief, the
record excerpts and relevant portions of the record itself.
To the extent that this appeal purports to raise an appeal
“from the order of remand” in this case, we determine that we lack
appellate jurisdiction under 28 U.S.C. § 1947(d) and accordingly we
dismiss the appeal for lack of appellate jurisdiction as to that
issue and as to the district court’s determination that the
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insurance coverage in question did not constitute an ERISA plan
which was inextricably involved in the district court’s determina-
tion of its lack of jurisdiction.
As to the district court’s award of costs and $2,500
attorneys’ fees in favor of plaintiffs against defendants, we
affirm.
APPEAL DISMISSED IN PART AND AFFIRMED IN PART.
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