Aetna Us Healthcare v. Hoechst Aktiengesellschaft

• Decision Date: 17 August 1999
• Docket Number: No. Civ.A. 99-2034-KHV.,Civ.A. 99-2034-KHV.
• Citation: 67 F.Supp.2d 1242
• Parties: AETNA U.S. HEALTHCARE, INC., on behalf of itself and its subsidiaries and all others similarly situated, Plaintiff, v. HOECHST AKTIENGESELLSCHAFT, Hoechst Marion Roussel, Inc., and Andrx Pharmaceuticals, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

67 F.Supp.2d 1242

AETNA U.S. HEALTHCARE, INC., on behalf of itself and its subsidiaries and all others similarly situated, Plaintiff, v. HOECHST AKTIENGESELLSCHAFT, Hoechst Marion Roussel, Inc., and Andrx Pharmaceuticals, Inc., Defendants.

No. Civ.A. 99-2034-KHV.

United States District Court, D. Kansas.

August 17, 1999.

Angela K. Green, Niewald, Waldeck & Brown, P.C., Kansas City, MO, Victoria M. Schroeder, Levy & Craig, P.C., Kansas City, MO, for plaintiff.

Joseph M. Rebein, Joseph G. Matye, Shook, Hardy & Bacon L.L.P., Kansas City, MO, Gregory T. Wolf, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

On June 9, 1999, the Court remanded this case for lack of subject matter jurisdiction. See Memorandum & Order (Doc. # 37). This matter comes before the Court on the motion for reconsideration which Andrx Pharmaceuticals, Inc. ("Andrx") filed on June 14, 1999 and plaintiff's motion for sanctions arising from the filing of the motion for reconsideration. See Motion (Doc. # 39) and Plaintiff's Memorandum In Response To Andrx's Motion For Reconsideration Of The Court's Remand Order And Motion For Sanctions Against Andrx (Doc. # 48) filed June 28, 1999. For the reasons stated below, both motions are denied.

Analysis

A. Defendant's Motion For Reconsideration

The Court must first decide whether it has jurisdiction to consider defendant's motion to reconsider its order of remand. SBKC Serv. Corp. v. 1111 Prospect Partners. L.P., 105 F.3d 578, 580 (10th Cir. 1997). By the time defendant filed its motion to reconsider on June 14, 1999, the Clerk of the Court had already sent a certified copy of the remand order to the District Court of Johnson County, Kansas. The Court therefore ordered Andrx to show cause why the Court should not deny its motion for reconsideration for lack of jurisdiction. See Order To Show Cause (Doc. # 42) filed June 18, 1999; Response of Defendant Andrx Pharmaceuticals, Inc. To The Court's Order To Show Cause (Doc. # 47).

The Court has the power to remand a removed case under 28 U.S.C. § 1447, which provides in relevant part that

(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction 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. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

(d) 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 shall be reviewable by appeal or otherwise.

In this case, as noted above, the Court found that removal was improper because the Court lacked subject matter jurisdiction over plaintiffs' claims. See Memorandum & Order (Doc. # 37) filed June 9, 1999 at 20. The remand therefore falls within the statutory reasons for remand set forth in Section 1447(c), causing Section 1447(d) to bar review "on appeal or otherwise." Archuleta v. Lacuesta, 131 F.3d 1359, 1362 (10th Cir.1997); Flores v. Long, 110 F.3d 730, 731 (10th Cir.1997). While the Tenth Circuit has never addressed a district court's jurisdiction to reconsider a remand order, other courts have generally followed two distinct paths. Some courts hold that district courts can reconsider a remand order under Section 1447(c) until the Clerk of the Court mails the remand order.¹ See Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 225 (3d Cir.1995); Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir.1984); Seedman v. U.S. Dist. Court for Cent. Dist. of Cal., 837 F.2d 413, 414 (9th Cir.1988); Federal Deposit Ins. Corp. v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir.1979). More recent decisions, however, hold that a district court simply cannot reconsider a remand order under Section 1447(c). See In re Lowe, 102 F.3d 731, 736 (4th Cir.1996); In re Loudermilch, 158 F.3d 1143, 1146 (11th Cir.1998).²

The Court agrees with the approach taken by the Fourth and Eleventh Circuits. As the First Circuit has noted:

Removal in diversity cases, to the prejudice of state court jurisdiction, is a privilege to be strictly construed, cf. Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 [1941], and the state court proceedings are to be interfered with once, at most. This is not only in the interest of judicial economy, but out of respect for the state court and in recognition of principles of comity. The action must not ricochet back and forth depending upon the most recent determination of a federal court.

Applying these considerations to the present case, there is no more reason for a district court being able to review its own decision, and revoke the remand, than for an appellate court requiring it to do so. Both are foreclosed; nothing could be more inclusive than the phrase `on appeal or otherwise.' The district court has one shot, right or wrong.

In re La Providencia Development Corp., 406 F.2d 251, 252-53 (1st Cir.1969). The broad language of Section 1447(d) clearly prohibits review of remand orders under Section 1447(c), see Archuleta, 131 F.3d at 1362; Flores, 110 F.3d at 732, and a motion for reconsideration is a form of review. See Three J Farms, Inc. v. Alton Box Bd. Co., 609 F.2d 112, 115 (4th Cir. 1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980).

The courts which allow reconsideration until the Clerk mails a copy of the remand order avoid the plain language of Section 1447(d). See In re Lowe, 102 F.3d at 735. The First, Third, Fifth and Ninth Circuits have all determined that reconsideration is possible until mailing by developing a chain of cases that all derive from Bucy v. Nevada Constr. Co., 125 F.2d 213 (9th Cir.1942). See In re La Providencia Dev. Corp., 406 F.2d at 252,³ Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir.1992); Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir.1984); Seedman, 837 F.2d at 414. In Bucy, the Ninth Circuit noted that an order to remand was not self-executing because under 28 U.S.C. § 71, the predecessor to Section 1447, the parties still needed to certify the action to the state court before the state court could resume jurisdiction. 125 F.2d at 217. Until the state court resumed jurisdiction, the federal court maintained jurisdiction and could reconsider its remand order. Id. at 217-18.

In the Court's view, however, even if the Court retains general jurisdiction over the action, Section 1447(d) prohibits the Court from exercising that jurisdiction to review its remand order — a decision which Congress expressly stated is nonreviewable. Bucy only discussed whether the term "immediately" in Section 71 meant that the district court lost jurisdiction upon entry of the remand order or upon certification of the order to state court. Id. at 217. Other than quoting Section 71 in its entirety, Bucy wholly ignored its prohibition against review. Id. at 216. The Court sees two possible rationales for the Ninth Circuit's failure to discuss the bar against review, but neither persuades the Court that Bucy is correct and that the Court has jurisdiction to reconsider its remand order in this case. First, the Ninth Circuit may simply have missed the issue. Second, the Ninth Circuit spoke of reconsideration as part of district court's "inherent powers" and may not have considered reconsideration to be a form of review that is barred. See id. at 217. To the extent that the Ninth Circuit made this determination, the Court disagrees. Section 1447(d) states that a remand order is not reviewable "by appeal or otherwise." Even if reconsideration is otherwise part of the inherent power of a district court, such language forecloses that type of review in this case. Given the extremely broad language of Section 1447(d), it clearly prohibits reconsideration. Indeed, with the possible exception of the Ninth Circuit, even those courts which allow reconsideration recognize that it is barred by Section 1447(d). See Federal Deposit Ins. Co., 598 F.2d at 636; New Orleans Public Service, Inc. v. Majoue, 802 F.2d 166, 167 (5th Cir.1986); Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151 (3d Cir. 1998). Rather than applying Section 1447(d) as a complete bar, however, the Fifth and Third circuits have created a dichotomy that Section 1447(d) does not appear to contemplate. In both circuits, the mailing of a remand order divests a district court of jurisdiction to reconsider a remand under Section 1447(c) but not other remands.⁴ In other words, according to the Fifth and Third Circuits, district courts can ignore Section 1447(d) and freely reconsider remand orders under Section 1447(c) but not otherwise because Section 1447(d) prohibits the exact same reconsideration when it occurs after the Clerk's mailing.⁵ The Court disagrees with such an approach and holds that Section 1447(d) completely bars reconsideration of remand orders under Section 1447(c). The Court therefore lacks jurisdiction to reconsider its remand order in this case.

Alternatively, the Court finds that it would lack jurisdiction in this case even under the Bucy approach. Even if the Court could reconsider its remand order until the Clerk mailed the order to the state court, this mailing occurred before defendant filed its motion to reconsider. Defendant argues that a federal court does not lose jurisdiction until the state court receives the remand order. While defendant cites various cases, none of them address the specific issue now presented. While...