Wachovia Mortgage, FSB v. Caridad Marquez

Case: 12-14460 Date Filed: 05/28/2013 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-14460
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-22434-FAM

WACHOVIA MORTGAGE FSB,
f.k.a. World Savings Bank,

Plaintiff-Counter Defendant-Appellee,

versus

CARIDAD MARQUEZ,

Defendant-Counter Claimant-Appellant,

TENANT #1, et al.,

Defendants.

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Appeal from the United States District Court
for the Southern District of Florida
________________________

(May 28, 2013)
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Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Wachovia Mortgage FSB (“Wachovia”) brought a mortgage foreclosure

action against Caridad Marquez in the Circuit Court for Miami-Dade County,

Florida. After the Circuit Court entered a final order of foreclosure, Marquez

removed the case to the United States District Court for the Southern District of

Florida. Upon Wachovia’s motion, the District Court remanded the case to state

court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.

Marquez then filed post-remand motions (1) requesting a temporary restraining

order, (2) filing objections to the remand order, (3) seeking to amend her civil

cover sheet, and (4) requesting to cancel the order to remand the case under

Federal Rule of Civil Procedure 60 (the “motion to cancel”). In three separate

orders, the court denied these post-remand motions.

Marquez, proceeding pro se, now appeals. Wachovia moved this court to

dismiss the appeal for lack of appellate jurisdiction. We granted that motion in

part, but concluded that we retained jurisdiction only to review whether the District

Court had jurisdiction to consider Marquez’s post-remand motions.

We review issues of federal subject matter jurisdiction de novo. Bender v.

Mazda Motor Corp., 657 F.3d 1200, 1202 (11th Cir. 2011). Federal Rule of

Appellate Procedure 4(a)(1)(A) requires that the notice of appeal in a civil case be

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filed within 30 days after entry of the judgment or order appealed from. Fed. R.

App. P. 4(a)(1)(A). “[T]imely filing of a notice of appeal in a civil case is a

jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360,

2366, 168 L.Ed.2d 96 (2007).

Under 28 U.S.C. § 1447(c), “[i]f 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). Subsection (d) of § 1447 states that “[a]n order remanding a

case to the State court from which it was removed is not reviewable on appeal or

otherwise . . . .” 28 U.S.C. § 1447(d).1 “[O]nly remand orders issued under [28

U.S.C.] § 1447(c) and invoking grounds specified therein like subject matter

jurisdiction or untimely removal are immune from review under § 1447(d).” In re

Loudermilch, 158 F.3d 1143, 1145 (11th Cir. 1998) (brackets omitted) (quoting

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46

L.Ed.2d 542 (1976)). Section 1447(d) “not only forecloses appellate review, but

also bars reconsideration by the district court of its own remand order.” Bender,

657 F.3d at 1203. Section 1447(d)’s limitation on review applies whether or not

the remand order was erroneous. Id. at 1204.

1
Section 1447(d) contains two exceptions allowing review of remand orders in certain
civil rights actions and in cases against federal officers or agencies. 28 U.S.C. § 1447(d).
Neither of these exceptions is relevant here.
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In Bender, we affirmed the District Court’s denial of a post-remand Rule

60(b) motion because the District Court lacked jurisdiction after remanding the

case to the state court. Id. at 1204. Moreover, in Loudermilch, we held that the

court exceeded its jurisdictional authority by granting a post-remand motion for

reconsideration. Loudermilch, 158 F.3d at 1144, 1147.

As a preliminary matter, Marquez’s notice of appeal was timely filed only as

to the District Court’s order denying her motion to cancel. See Fed. R. App. P.

4(a)(1)(A). Marquez filed her notice of appeal 30 days after the entry of the order

denying the motion to cancel, but more than 30 days after the orders denying (1)

her request for a temporary restraining order and objections to the remand order

and (2) her request to amend her civil cover sheet. Therefore, as to these two

orders, we lack jurisdiction. See Bowles, 551 U.S. at 214, 127 S.Ct. at 2366.

The District Court’s denial of Marquez’s motion to cancel was proper

because the court lacked jurisdiction to grant the motion. The court explicitly

remanded the case to state court based on a lack of subject matter jurisdiction.

Thus, following entry of this order, the court lacked jurisdiction to reconsider the

remand order. Bender, 657 F.3d at 1204; Loudermilch, 148 F.3d at 1147.

Although the order denying Marquez’s motion to cancel did not set forth the

grounds for the denial, and thus did not state specifically that the court lacked

jurisdiction, the court’s summary denial resulted in the correct outcome. See

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Bender, 657 F.3d at 1204; see also Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010) (“The district court’s decision may be affirmed if the

result is correct, even if the [district] court relied upon an incorrect ground or gave

a wrong reason.”).

AFFIRMED, in part; DISMISSED, in part.