929 F.2d 830 (1st Cir. 1991), 91-1111, Com. of Mass. v. V & M Management, Inc.

Docket Nº:91-1111.
Citation:929 F.2d 830
Party Name:COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee, v. V & M MANAGEMENT, INC., et al., Defendants, Appellants.
Case Date:April 03, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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929 F.2d 830 (1st Cir. 1991)

COMMONWEALTH OF MASSACHUSETTS, Plaintiff, Appellee,

v.

V & M MANAGEMENT, INC., et al., Defendants, Appellants.

No. 91-1111.

United States Court of Appeals, First Circuit

April 3, 1991

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[Copyrighted Material Omitted]

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Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.

ORDER OF COURT

The plaintiff, Commonwealth of Massachusetts, filed suit in state court against the defendants, which are the owners and/or operators of a federally-subsidized low-income housing project. The suit was in thirteen counts and alleged violations of state and federal housing statutes and regulations. Defendants removed the action to federal court. Over plaintiff's objection, which sought a remand to state court, the district court found that five of the counts were based purely upon violations of federal law, falling within the original jurisdiction of the district court, and, thus, removal of the entire action was proper. 752 F.Supp. 519. 28 U.S.C. Sec. 1441(c). The district court indicated, however, that, were those five federal counts dismissed before trial, it might reconsider its decision to exercise jurisdiction in this case.

Subsequently, plaintiff moved to amend its complaint by dropping the five federal counts and sought reconsideration of its request to remand. The motion to amend the complaint was allowed and, four days later, the motion to remand was granted. Defendants filed a notice of appeal from both orders. We issued an order to show cause why this appeal should not be dismissed for lack of jurisdiction since an order remanding a case to a state court from which it was removed is generally not reviewable on appeal or otherwise. 28 U.S.C. Sec. 1447(d).

We have considered defendants' response to our show cause order. They argue that the bar to appellate review found in Sec. 1447(d) is inapplicable to the instant order of remand. Even accepting this argument, however, we conclude that dismissal is appropriate.

Section 1447(d) of Title 28 provides in pertinent part:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise [subject to an exception for civil rights cases which is not applicable here].

The Supreme Court has stated that Sec. 1447(d) "prohibits review of all remand orders issued pursuant to Sec. 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976) (emphasis added). Section 1447(c) provides in pertinent part:

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.... 1

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There is no allegation in this case as to any defect in the removal procedure. And, the district court did not purport to conclude that it lacked subject matter jurisdiction. In fact, the district court concluded that it had subject matter jurisdiction, but declined to exercise that jurisdiction, in light of the plaintiff's request (which the court granted) to amend its complaint by dropping the federal counts. Because the order to remand was not issued pursuant to Sec. 1447(c), the bar to appellate review of such orders found in Sec. 1447(d) is, as defendants suggest, simply inapplicable. See, e.g., Rothner v. City of Chicago, 879 F.2d 1402, 1406 (7th Cir.1989); Schmitt v. Insurance Co. of North America, 845 F.2d 1546, 1551 (9th Cir.1988); Corcoran v. Ardra Ins. Co., 842 F.2d 31, 33 (2d Cir.1988).

This does not end the matter, however. Although appellate review is not prohibited by Sec. 1447(d), we, nonetheless, must consider what source, if any, does authorize our review, i.e., whether review is by appeal or permissible only pursuant to a writ of mandamus. Our appellate jurisdiction, as a general rule, is limited to a final decision of the district court. 28 U.S.C. Sec. 1291.

Defendants suggest that appellate jurisdiction is proper over the district court's order granting plaintiff's motion to amend its complaint and that, because that order became the basis for the order of remand, appellate jurisdiction should extend to the remand order as well. But we would have jurisdiction over the grant of the motion to amend only upon appeal from the entry of a final judgment. The grant of a motion to amend is not, itself, a final judgment. Cf. City of Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934) (an order of dismissal of a cross-complaint which preceded an order of remand is reviewable by appeal) (emphasis added); Kozera v. Spirito, 723 F.2d 1003, 1005 n. 1 (1st Cir.1983) (an order of dismissal of a third-party complaint on sovereign immunity grounds which preceded an order of remand is reviewable by appeal) (emphasis added). 2

A conceivable argument can be made that the order of remand is a final judgment since no further proceedings are contemplated in the federal court. See Corcoran v. Ardra Ins. Co., 842 F.2d at 34 (pointing out that a stay of a diversity action pending resolution of a concurrent state-court action has been held to be a final appealable order because its sole purpose and effect is to surrender jurisdiction of a federal suit to a state court, effectively putting plaintiff out of federal court, and commenting that it is by no means clear why an order that remands an action to state court is any less final); see also, 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, Sec. 3914 (1976). Nonetheless, the Supreme Court has stated that "an order remanding a removed action does not represent a final judgment reviewable by appeal." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. at 352-53, 96 S.Ct. at 594. We have previously expressed doubt whether, even absent the bar to review found in Sec. 1447(d), a right of appeal would lie. "But even apart from the bar on review in section 1447(d), we

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question whether [appellant] would have a right to appeal from the district court's order: ordinarily, an order remanding a case to the state court is considered interlocutory, and does not fall within this court's appellate jurisdiction over the final orders of district courts." Nasuti v. Scannell, 792 F.2d 264, 267 (1st Cir.1986) (emphasis in the original). See also 1A J. Moore & B. Ringle, Moore's Federal Practice p 0.169[2.-1] (2d ed. 1990) ("The [remand] order is, however, interlocutory, despite the fact that it sends the case out of the federal court, and is thus not appealable as a final judgment.") (footnote omitted). Thus, if it is not barred by Sec. 1447(d), interlocutory review in the present case may be accorded only under our mandamus power. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. at 353, 96 S.Ct. at 594; Corcoran v. Ardra Ins. Co., 842 F.2d at 34-35.

"[I]ssuance of the writ [of mandamus, however,] is in large part a matter of discretion with the court to...

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