Bregman v. Alderman
| Decision Date | 20 February 1992 |
| Docket Number | 92-4001,Nos. 91-6052,s. 91-6052 |
| Citation | 955 F.2d 660 |
| Parties | Howard BREGMAN and Paul E. Shapiro, Plaintiffs/Counter-Defendants-Appellees, v. Mark L. ALDERMAN, Steven A. Albittier, Sherry E. Baskin, W. Thomas Berriman, Robert L. Blacksberg, Sandra A. Bloch, Arthur Block, Robert McL. Boote, Jeffrey L. Braff, George M. Brantz, Leonard J. Bucki, Michael A. Budin, James S. Burns, Bernard Chanin, Louis Coffey, Daniel C. Cohen, Dennis L. Cohen, Leonard J. Cooper, Alan J. Davis, Michael M. Dean, David M. Doret, Alvin H. Dorsky, Lowell H. Dubrow, Herman C. Fala, Albert J. Feldman, H. Robert Fiebach, Joseph S. Finkelstein, Brian P. Flaherty, Robert I. Friedman, Thomas J. Gallagher, Philip E. Garber, Elliot S. Gerson, Henry A. Gladstone, Ronald B. Glazer, Edward M. Glickman, David R. Glyn, Mark E. Gold, Jay L. Goldberg, M. Norman Goldberger, Robert M. Goldich, Stephen M. Goodman, Gerald Gornish, William J. Green, Bruce Grohsgal, Ragan A. Henry, David N. Hofstein, Matthew H. Kamens, Harold Jacobs, Donald K. Joseph, Alan S. Kaplinsky, Bruce S. Katcher, David J. Kaufman, Mark K. Kessler, Steven B. King, Marvin Krasny, Barry M. Klayman, Charles G. Kopp, Bernard Lee, Roberta D. Liebenberg, Ivan I. Light, Gregory T. Magarity, Elizabeth H. Mai, Joseph M. Manko, Gerald J. McConomy, Robert M. McNair, Jr., Henry F. Miller, Donald M. Millinger, Anthony S. Minisi, Alan H. Molod, William J. Morehouse, Charles C. Murphy, Stanton S. Oswald, Robert C. Podwil, Franklin Poul, Daniel Promislo, James R. Redeker, Allan H. Rueben, E. Gerald Riesenbach, John S. Roberts, Jr., Jeremy T. Rosenblum, James A. Rosenstein, William A. Rosoff, Burt M. Rublin, Joseph A. Ryan, Jeffrey S. Saltz, Carl W. Schneider, Barry F. Schwartz, Jeffrey B. Schwartz, Robert M. Segal, Jason S. Shargel, Michael M. Sherman, Henry L. Shrager, Marc M. Silbert, David F. Simon, Franklin H. Spitzer, Ian A.L. Strogatz, Michael L. Temin, Robert E. Wachs, Kenneth J. Warren, Stewart M. Weintraub, Judith Widman, Ronald M. Wiener, Thomas P. Witt, Arthur A. Zatz, Wolf, Block, Schoor and Solis-Cohen, |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Harry A. Payton, Miami, Fla., Ian A.L. Strogatz, Wolf, Block, Schorr and Solis-Cohen, Patrick Matusky, Philadelphia, Pa., for appellants.
Larry Klein, Klein & Walsh, P.A., West Palm Beach, Fla., for appellees.
Kenneth G. Spillias, pro se.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY, HATCHETT and ANDERSON, Circuit Judges.
This equitable accounting action was initially filed in Florida state court. The defendants sought removal because of alleged diversity of citizenship between the parties. Following removal, this case was pending in federal court for more than two and one-half years, during which time there had been more than seventeen orders including orders striking pleadings and affirmative defenses, dismissing claims, granting amendments, ruling on protective orders, consolidating cases and denying plaintiffs' motion for summary judgment. On October 28, 1991, the district court, acting sua sponte, entered an order remanding the case to state court. On November 28, 1991, defendants filed a timely notice of appeal, Case No. 91-6052, seeking review of the remand order. On December 4, 1991, plaintiffs moved to dismiss the appeal. 1 On January 3, 1992, defendants filed a petition for writ of mandamus, Case No. 92-4001, seeking review of the remand order pursuant to 28 U.S.C. § 1651. On January 22, 1992, this court entered an order consolidating the appeal and mandamus petition because both actions raise the same issue.
On February 11, 1992, defendants brought an emergency motion for a stay of the remand order pending the disposition of their appeal and mandamus petition. Defendants sought this stay because, while the appeal and mandamus were pending in this court, plaintiffs and a third-party defendant have sought to expedite the proceedings in the state court. A hearing on a motion for summary judgment is scheduled in state court on February 19, 1992. Pending before this court is plaintiffs' motion to dismiss the appeal, defendants' petition for writ of mandamus, and defendants' emergency motion to stay.
The only issue before this court is whether we can review the district court's remand order. Title 28 U.S.C. § 1447(d) generally forbids review of remand orders by providing that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Before 1976, all remand orders were unreviewable by appellate courts. See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); see also Herrmann, Thermtron Revisited: When and How Federal Trial Court Remand Orders are Reviewable, 19 Ariz.St.L.J. 395 (1987). In Thermtron, however, the Supreme Court created a narrow exception to nonreviewability. There the district court remanded because of its overcrowded docket. The Supreme Court permitted review because the district court had remanded on grounds not contained in the controlling statute, 28 U.S.C. § 1447(c). At the time of the Thermtron decision, § 1447(c) provided in relevant part:
If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.
The Court held that § 1447(c) and § 1447(d) are to be read in pari materia. Thus, the bar on review contained in § 1447(d) applies only to those grounds contained in § 1447(c), i.e., when a case is removed either "improvidently" or "without jurisdiction."
Since the decision in Thermtron, Congress in 1988 has amended § 1447(c) to provide in relevant 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.
In this case, defendants rely on Thermtron and the new statutory language to urge this court to review the district court's remand order. Defendants argue that the 1988 amendment to § 1447(c) narrows the grounds for remand contained in the statute with respect to defects in removal procedure and, therefore, broadens an appellate court's authority to review remand orders based on defects in removal procedure. Defendants characterize the remand in this case as one involving a defect in removal procedure. In defendants' view, the district court remanded not because it had made a finding that it actually lacked subject matter jurisdiction but because the district court concluded that the plaintiffs' complaint did not plead adequately the existence of diversity of citizenship. The defendants argue that the district court completely ignored the notice of removal filed by them and, in essence, announced a new rule of removal procedure that plaintiffs have the burden of establishing diversity of citizenship for purposes of establishing federal jurisdiction.
Defendants' depiction of the remand order as involving a defect in removal procedure is essential to their argument that this court has the authority to review the order. According to § 1447(c), a motion to remand based on a defect in removal procedure must be made within thirty days following removal. In this case, defendants argue that the district court remanded based on a defect in removal procedure 911 days after the expiration of the thirty-day time period contemplated by § 1447(c).
Defendants rely principally on the following cases to support their argument: In re Shell Oil Co., 932 F.2d 1518 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992) ("Shell Oil I "), In re Shell Oil Co., 932 F.2d 1523 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992) ("Shell Oil II "); and Air Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir.1989). These cases are inapposite. For example, in Shell Oil I, the issue did concern a defect in removal procedure. Defendants had removed pursuant to § 1441(b); however, two of the defendants were citizens of the forum state. While the district court still had subject matter jurisdiction because there was complete diversity between the parties, see Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), this removal violated § 1441(b) which provides that a diversity action "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). Moreover, plaintiffs had moved to remand more than thirty days following the removal in violation of § 1447(c). The Fifth Circuit held that § 1447(d) did not bar review of the ensuing remand order which was based on § 1441(b) and an untimely motion to remand. The court emphasized, however, that "we limit our holding to cases in which the remand motions were not timely, and in which the remand orders were not based...
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