326 F.3d 828 (7th Cir. 2003), 01-3081, Adkins v. Illinois Cent. R. Co.

Docket Nº:01-3081, 01-3418.
Citation:326 F.3d 828
Party Name:Billy E. ADKINS, Administrator of the Estate of Helena R. Adkins, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
Case Date:March 06, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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326 F.3d 828 (7th Cir. 2003)

Billy E. ADKINS, Administrator of the Estate of Helena R. Adkins, Plaintiff-Appellee,



Nos. 01-3081, 01-3418.

United States Court of Appeals, Seventh Circuit

March 6, 2003

Argued Feb. 11, 2002.

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Michael Demetrio (argued), Corboy & Demetrio, Chicago, IL, for Plaintiff-Appellee.

Diane I. Jennings, Susan K. Laing (argued), Anderson, Bennett & Partners, Chicago, IL, for Defendant-Appellant.

Before RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Although the underlying facts of this case relate to a tragic train accident that occurred several years ago in Bourbonnais, Illinois, the question before us in this appeal is a narrow procedural one: can this court review the district court's decision to remand the case to the state court in which it was originally filed? We conclude that the best way to interpret the district court's order is as one finding that it had no subject matter jurisdiction over the claims that were remanded. That being the case, this court has no appellate jurisdiction over the district court's remand order. Furthermore, even if we are wrong and the order was simply a decision to remand all supplemental state claims to the state court, we would exercise our jurisdiction to find that there was no abuse of discretion in that decision. We therefore dismiss this appeal for lack of appellate jurisdiction.


On March 15, 1999, an Amtrak passenger train known as the City of New Orleans (made famous in a song written by Steve Goodman and performed by Arlo Guthrie and later Willie Nelson) collided with a semi-tractor trailer loaded with steel rebar at a railroad crossing in Bourbonnais, Illinois. The City of New Orleans derailed as a result of the collision, resulting in significant injury and the loss of many passengers' lives. This suit, along with more than fifty others, was filed in Illinois state court by injured passengers and the estates of those killed as a result of the collision. The plaintiffs alleged negligence,

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strict products liability and breach of implied warranties on the part of several defendants, including General Electric, which designed and manufactured the locomotive that pulled the City of New Orleans. The additional defendants were the manufacturers, owners, and operators of the equipment involved in the accident. Two from that group are relevant to this appeal: Illinois Central, which operates the tracks on which the City of New Orleans traveled, and Birmingham Steel Company, which loaded the steel rebar onto the trailer involved in this collision from its adjacent manufacturing facility. Amtrak, though not initially named as a defendant in this suit, plays a role in the issues before us as well.

Essentially, the procedural posture of this case can be boiled down to a simple pattern. Plaintiffs (A) filed suit in state court raising a number of state law claims against a set of defendants (B through n ). One of those defendants, GE, removed the case to federal court, asserting as a basis for removal the argument that the federal Locomotive Inspection Act, 49 U.S.C. § 20701, et seq., "completely preempted" the state law claims. (In other words, GE claimed that any lawsuit these plaintiffs were bringing was inevitably and necessarily based on a federal question, and thus removal was available under 28 U.S.C. § 1441(a) and (b).) Later, defendant Birmingham Steel filed a third-party complaint pursuant to FED. R. CIV. P. 14 against Amtrak, which is a federal instrumentality. The district court initially concluded that GE's "complete preemption" argument was correct, and thus that the removal was properly based on the presence of a federal question (and supplemental jurisdiction over the remaining claims). The court then dismissed all claims that the plaintiffs had asserted against GE (all of which relied on state law) on preemption grounds. Finally, turning to the other defendants, the court ascertained that none of them was arguing that federal question jurisdiction existed based on the "complete preemption" idea. In the absence of a federal question, and in the absence of the complete diversity required by 28 U.S.C.§ 1332, he concluded that the case had to be remanded to state court. Believing that the order of remand was erroneous, Illinois Central filed an appeal to this court. (Plaintiffs have not filed a cross-appeal from the order dismissing their claims against GE, and thus we have no occasion to rule on the correctness of the findings supporting that order.)


The first question we must decide is whether we have appellate jurisdiction over Illinois Central's challenge to the remand order. After devoting scant attention to this threshold question in its opening brief, Illinois Central urged us to find such jurisdiction in its reply brief. Plaintiffs-appellees squarely challenged appellate jurisdiction in their brief. Even if they had not, however, we would have had an independent duty to satisfy ourselves that jurisdiction existed before we could proceed to the merits of the appeal.

The reason why appellate jurisdiction is problematic, at best, comes from the language of the statute governing removals and remands. In deceptively simple words, 28 U.S.C. § 1447(d) says

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 [which applies only to civil rights cases] shall be reviewable by appeal or otherwise.

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The naive reader might think that this meant no appellate consideration by appeal, by writ of mandamus, or by any other device that lawyers might serve up, but that reader would be wrong. In a line of cases that began with Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court has adopted a more nuanced interpretation of the statute, and it is therefore the Thermtron approach we are bound to follow.

In Thermtron itself, the Court faced an insubordinate district court judge who had remanded cases to the state court because his docket was overcrowded. The court of appeals had reviewed the propriety of these remands by means of a writ of mandamus, and the question before the Supreme Court was whether this was possible in light of the § 1447(d) ban on review "on appeal or otherwise." Using a close reading of the statute as a whole, the Court concluded that the § 1447(d) ban on appellate consideration of remand orders had to be linked to the reasons for remand found in § 1447(c). 423 U.S. at 346, 96 S.Ct. 584. If the district court announced that its remand order was based on one of the grounds for remand recognized in § 1447(c) (essentially, defects in removal procedure or want of subject matter jurisdiction), then review was barred. If the district court's order fairly read indicated that it was remanding for some other reason--if it was potentially ultra vires--then some form of appellate review could proceed. Id. In Thermtron itself, after accepting jurisdiction, the Court concluded that overcrowded dockets was not a permissible reason for remand. In the later case of Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Court agreed that remand in conjunction with a decision to abstain fell outside the scope of the § 1447(c) reasons and was thus reviewable despite § 1447(d); it then concluded on the merits that the remand order was unwarranted.

The Court has made it clear, however, that the Thermtron holding was not an open-ended invitation to exercise appellate review over remand decisions. To the contrary, it has three times cautioned that the Thermtron exception to § 1447(d) is to be narrowly construed. Just over a year after Thermtron was decided the Court issued a terse, per curiam opinion reversing the Fifth Circuit's decision to reverse and remand a case to the district court for reconsideration of a remand order that had been based upon a (possibly erroneous) finding that diversity jurisdiction was lacking. See Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 723-24, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). In doing so the Court stressed the fact that the appeals courts are entirely without jurisdiction to review a remand order based on jurisdictional grounds, and that nothing in Thermtron was to the contrary. Id. Nearly a decade later in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 356, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the Court described Thermtron as "a response to a clearly impermissible remand," and hence as something that did not forbid a district court from remanding pendent state-law claims. Finally, in Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), the Court held that a district court's order remanding a bankruptcy case to state court on the basis of untimely removal fell within the review prohibition of § 1447(d). Interestingly, Justice Kennedy (joined by Justice Ginsburg) filed a concurring opinion in Things Remembered in which he characterized Carnegie-Mellon as an opinion limiting Thermtron 's scope. He specifically distinguished between the legitimacy of remanding

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a pendent or supplemental state claim to state court, on the one hand, and the possibility of judicial review of such an order, on the other. See 516 U.S. at 130, 116 S.Ct. 940. The latter issue, he pointed out, was not before the Court in Things Remembered. Id.

Before turning to the further development of Thermtron in the lower courts, it is worth pausing for a moment to consider why Congress might have...

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