Alvarez v. Uniroyal Tire Co.

Decision Date21 November 2007
Docket NumberNo. 07-12191 Non-Argument Calendar.,07-12191 Non-Argument Calendar.
Citation508 F.3d 639
PartiesNatalie ALVAREZ, individually and as Personal Representative of the Estate and Survivors of Elcira Gil, and Gloria Gil, individually, Plaintiffs-Appellees, v. UNIROYAL TIRE COMPANY, a foreign corporation, Sears, Roebuck and Company, a foreign corporation, Ford Motor Company, a Delaware Corporation, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

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

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:

Natalie Alvarez, individually and as personal representative of the estate and survivors of Elcira Gil, and Gloria Gil, individually ("Plaintiffs"), filed a personal injury action in state court against Uniroyal Tire Company, Inc., Ford Motor Co. and Sears Roebuck and Co. ("Appellants"). In August 2006, Appellants1 removed the personal injury action to federal district court on the basis of diversity jurisdiction. After removal to the district court, Plaintiffs filed an amended complaint adding Robert Lafita, a resident of Florida, as a plaintiff, and Ely's Tire, Inc., a Florida corporation, as a defendant. Finding that it lacked subject matter jurisdiction because there was no longer complete diversity among the parties, the district court remanded the case to state court pursuant to 28 U.S.C. § 1447(e).2 Appellants now appeal the district court's order remanding the case to state court.3

Under 28 U.S.C. § 1447(d), an order remanding an action to state court pursuant to § 1447(c) is not reviewable on appeal. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976) (holding that § 1447(d) precludes review only of those remand orders issued pursuant to § 1447(c)). In Poore v. American-Amicable Life Insurance Co., 218 F.3d 1287 (11th Cir.2000), this Court held that 28 U.S.C. § 1447(d)'s bar to appellate review of a district court's remand to state court pursuant to § 1447(c) did not apply where subject matter jurisdiction existed at the time of removal and the district court based its remand on a plaintiff's post-removal amendment to the complaint.4

Appellants argue that under our prior interpretation of § 1447(c) in Poore, a district court's order remanding a case to state court (pursuant to either § 1447(c) or § 1447(e)) based on a post-removal amendment to the complaint is reviewable if the case was properly removed in the first instance.5 However, the Supreme Court's recent decision in Powerex Corp. v. Reliant Energy Services Inc., ___ U.S. ___, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007), requires us to revisit our prior interpretation of § 1447(c). In Powerex, the Supreme Court held that when a district court remands a properly removed case because it nonetheless determines post-removal that it lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and thus is shielded from appellate review by § 1447(d). Therefore, Poore is overruled to the extent we held that a remand for lack of subject matter jurisdiction pursuant to § 1447(c) is reviewable if it is based on a post-removal amendment to the complaint.

Under the Supreme Court's decision in Powerex, a remand for lack of subject matter jurisdiction under § 1447(e), which arises post-removal, and a remand for lack of subject matter jurisdiction under § 1447(c), which may arise at the time of removal or post-removal, are indistinguishable for purposes of determining whether § 1447(d)'s bar to appellate review applies. If at any time before final judgment the district court issues an order remanding a case to state court because it lacks subject matter jurisdiction, that order is not reviewable. Accordingly, the appeal is DISMISSED for lack of jurisdiction.

1. Sears Roebuck and Co. and Ford Motor Co. filed the notice of removal with the consent of Uniroyal Tire Co.

2. 28 U.S.C. § 1447(e) states that "[i]f after removal the plaintiff seeks to join additional defendants whose...

To continue reading

Request your trial
71 cases
  • PTA–FLA, Inc. v. ZTE USA, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 15 Diciembre 2016
    ...controversy requirement do not oust the district court's jurisdiction."), overruled in part on other grounds byAlvarez v. Uniroyal Tire Co., 508 F.3d 639, 640–41 (11th Cir. 2007). Thus, the fact that ZTE USA sought to confirm a zero-dollar arbitration award did not strip the district court ......
  • Barefield v. HSBC Holdings PLC, 1:18-cv-00527-LJO-JLT
    • United States
    • U.S. District Court — Eastern District of California
    • 7 Diciembre 2018
    ...requirement do not oust the district court's jurisdiction."), overruled in part on other grounds by Alvarez v. Uniroyal Tire Co. , 508 F.3d 639, 640–41 (11th Cir. 2007) ; Yong Qin Luo v. Mikel , 625 F.3d 772, 776 (2d Cir. 2010) (per curiam) (holding that "a plaintiff cannot seek to deprive ......
  • U.S. v. Foley
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 21 Noviembre 2007
  • Burns v. Superior Goods, Inc.
    • United States
    • U.S. District Court — Northern District of Alabama
    • 11 Febrero 2021
    ...v. American-Amicable Life Ins. Co. of Tex., 218 F.3d 1287, 1290-91 (11th Cir. 2000), overruled on other grounds by Alvarez v. Uniroyal Tire Co., 508 F.3d 639 (11th Cir. 2007)) (internal alterations omitted). This argument consequently lacks merit. And the court notes that complete diversity......
  • Request a trial to view additional results
1 books & journal articles
  • Appellate Practice and Procedure - Robert G. Boliek, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 59-4, June 2008
    • Invalid date
    ...that a notice of appeal was timely despite its late filing because of a legal assistant's failure to properly calendar the deadline). 104. 508 F.3d 639 (11th Cir. 2007). 105. Id. at 640. 106. Alvarez, 508 F.3d at 640 (citation omitted) (citing 28 U.S.C. Sec. 1447 (2000)) (emphasis in origin......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT