IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41117
THE STATE OF RIO DE JANEIRO OF THE FEDERATED REPUBLIC OF BRAZIL
Plaintiff-Appellee,
versus
PHILIP MORRIS INCORPORATED; ET AL,
Defendants,
PHILIP MORRIS INCORPORATED; PHILIP MORRIS COMPANIES, INC.;
PHILIP MORRIS PRODUCTS, INC.; PHILIP MORRIS INTERNATIONAL, INC.;
R. J. REYNOLDS TOBACCO COMPANY; R. J. REYNOLDS INTERNATIONAL;
NABISCO GROUP HOLDINGS CORP., formerly known as RJR Nabisco
Holdings Corp.; R. J. REYNOLDS TOBACCO HOLDINGS, INC., formerly
known as RJR Nabisco, Inc.; LORILLARD, INC.; LORILLARD TOBACCO
COMPANY; LOEWS CORPORATION; BROWN & WILLIAMSON TOBACCO
CORPORATION; BATUS HOLDINGS, INC.; THE AMERICAN TOBACCO
COMPANY; B A T INDUSTRIES, PLC,
Defendants-Appellants.
Appeal from the United States District Court
For the Eastern District of Texas
January 22, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
To create jurisdiction, this appeal of a remand order has been
dressed as a challenge to the remanding court’s denial of a motion
to stay proceedings pending MDL transfer. We DISMISS the appeal
for lack of jurisdiction under 28 U.S.C. § 1448(d).
I
Rio de Janeiro sued Philip Morris and other tobacco companies
to recoup money spent treating smoking-related illnesses, one of at
least eight such cases filed by foreign governments. The MDL panel
designated the United States District Court for the District of
Columbia as the transferee forum for foreign government tobacco
cases.
This case was originally filed in a Texas state court, under
state law theories of negligence, fraud, and misrepresentation.
Defendants removed to federal court on federal question and
diversity grounds.1 The MDL Panel issued a Conditional Transfer
Order transferring this case to the District of Columbia in August
of 1999. As recited by the panel in its transmittal of the
transfer order, panel practice contemplates that a district court
may remand a removed case to state court before its transfer order
under 28 U.S.C. § 1407 becomes effective. Rio objected to the
conditional transfer order and moved to remand. Defendant tobacco
companies moved to stay any remand order pending transfer.
With the issue joined, the district court, before the MDL
transfer order became effective, granted the motion to remand,
1
The federal question theory sought to invoke the law of
foreign relations, since the plaintiff was a foreign government.
The diversity theory argued that one defendant had been
fraudulently joined to defeat diversity.
2
implicitly denying the motion to stay, finding no substantial
federal question and no proper diversity of citizenship.
Defendants urge that had the stay been granted, the case would have
been transferred and this district court would not have remanded.
II
Congress has withdrawn our jurisdiction to hear certain
appeals from remand orders.2 The district court here remanded “for
lack of subject matter jurisdiction.” We are persuaded that we
lack jurisdiction to review the remand order under 1447(c).3
The remand order does not fall within the limited exception of
Thermtron Products, Inc. v. Hermansdorfer.4 In Thermtron, the
Supreme Court held that section 1447(d) does not bar appellate
review of remand orders that are not grounded in a section 1447(c)
claim that a case was removed “improvidently and without
jurisdiction.”5 In Thermtron, the Court exercised appellate review
of a remand order grounded in the need to clear an overcrowded
docket. Here, by contrast, the remand order was expressly based on
2
See 28 U.S.C. § 1447(d) (2000) (“An order remanding a case
to the State court from which it was removed is not reviewable on
appeal or otherwise. . . .”); Thermtron Products, Inc. v.
Hermandorfer, 423 U.S. 336 (1976) (holding that § 1147(d) covers
all remands based on § 1447(c)).
3
See 28 U.S.C. § 1447(c) (2000) (authorizing remand for lack
of subject matter jurisdiction).
4
423 U.S. 336 (1976).
5
Id. at 343.
3
a lack of subject matter jurisdiction in the core of section
1447(d) and is not subject to the Thermtron exception.6 As the
Court repeated in Things Remembered, Inc. v. Petrarca,7 “[a]s long
as a district court’s remand is based on . . . lack of subject-
matter jurisdiction . . . a court of appeals lacks jurisdiction to
entertain an appeal of the remand order under § 1447(d).”8 And as
we recently reaffirmed, even if the district court’s determination
of subject matter jurisdiction was erroneous, it remains immune
from review.9 This much is rote.
III
Defendant tobacco companies attempt to escape the black hole
force of a remand for want of jurisdiction, urging error in
refusing to stay the case rather than dismissing it. The argument
goes that after reversing the stay, we should then reverse the
remand order, assertedly a ministerial task because the remand
6
For this reason, In re TMI Ligitation Cases Consolidated II,
940 F.2d 832 (3d Cir. 1991), even were we to adopt its holding
today, would not permit review of this case. TMI, while making an
exception to section 1447(d), made clear that any exceptions could
reach only “claims not remanded on jurisdictional grounds.” Id. at
841.
7
516 U.S. 124 (1995).
8
Id. at 127-28.
9
See Heaton v. Monogram Credit Card Bank of Georgia, 231 F.3d
994, 997 (5th Cir. 2000).
4
order could not have been entered had the stay been granted.10 We
are not convinced. The Supreme Court has made clear that an order
associated with a remand order can be reviewed only when it
precedes “in logic and in fact the decree of dismissal” and “if not
reversed or set aside” it would be “conclusive upon the
petitioner.”11 The denial of stay satisfies neither requirement.
The order denying a stay was not prior in logic and fact to
the remand order; it was simply the obverse of the remand order.
The motion to stay was no more than the contended-for alternative
to remand. The MDL’s conditional transfer order by its terms could
take effect only if the district court did not remand.
IV
We DISMISS this appeal for lack of jurisdiction.
10
Defendants rely upon Tramonte v. Chrysler Corporation, 136
F.3d 1025 (5th Cir. 1998). Tramonte held that a district court
judge was required to recuse herself under the federal recusal
statute. We held that the statute divested her of authority to
rule in the case, after her recusal was required, and that her
remand order was therefore invalid. Id. at 1027-28.
11
City of Waco v. United States Fidelity & Guaranty Co., 293
U.S. 140, 143 (1934).
5