Business Men's Assur. Co. of America, In re, No. 93-1290

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM; PER CURIAM
Citation992 F.2d 181
PartiesIn re BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, Petitioner.
Docket NumberNo. 93-1290
Decision Date29 April 1993

Page 181

992 F.2d 181
In re BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, Petitioner.
No. 93-1290.
United States Court of Appeals,
Eighth Circuit.
Submitted Feb. 3, 1993.
Decided April 29, 1993.

Page 182

Robert Wilson McKinley, Kansas City, MO, for petitioner.

Kevin R. Thomas, Independence, MO, for respondent.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

PER CURIAM.

Business Men's Assurance Company of America (BMA) petitions for a writ of mandamus ordering the district court to retain jurisdiction of a vexatious refusal-to-pay claim brought against BMA by William A. Rodgers. We deny the petition.

Rodgers obtained BMA health insurance through his wife's employer, Family Institute (FI). After BMA denied Rodgers's claims for benefits, Rodgers filed this action in state court. BMA removed the case to federal district court, claiming ERISA preempted the state action because the health insurance policy was an employer-purchased plan. Rodgers petitioned for remand, claiming the policy was not an employee welfare benefit plan.

The district court could not determine whether FI had established and maintained an ERISA plan because it was unclear whether FI did more than collect and mail insurance premiums. The court resolved its doubt about federal question jurisdiction in favor of remand under 28 U.S.C. § 1447(c), and it declined to rule whether ERISA would control the remanded action. BMA challenges the correctness of the district court's remand order.

In general, remand orders issued under 28 U.S.C. § 1447(c) are not reviewable by appeal or writ of mandamus. See 28 U.S.C. § 1447(d) (1988); Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 588-89, 46 L.Ed.2d 542 (1976); Farm Credit Bank v. Finstrom, 888 F.2d 559 (8th Cir.1989) (per curiam). This is true "whether or not that order might be deemed erroneous by an appellate court." Thermtron, 423 U.S. at 351, 96 S.Ct. at 593. Although there are some exceptions to the general rule immunizing remand orders from review, see, e.g., id. at 345-46, 351, 96 S.Ct. at 590-91, 593 (remand based on grounds outside § 1447(c)); In re Resolution Trust Corp., 888 F.2d 57, 58-59 (8th Cir.1989) (review authorized by another statute); In re Life Ins. Co. of N. Am., 857 F.2d 1190, 1193 (8th Cir.1988) (substantive ruling on federal law that binds the state court), none of the exceptions apply in this case. Because the district court's order is based on...

To continue reading

Request your trial
611 practice notes
  • State v. Wayfair, Inc., 3:16–CV–03019–RAL
    • United States
    • U.S. District Court — District of South Dakota
    • January 17, 2017
    ...burden of proving that the removal was proper, and federal subject matter jurisdiction exists. In re Business Men's Assurance Co. of Am. , 992 F.2d 181, 183 (8th Cir. 1993) (per curiam). "A defendant generally is required to cite the proper statutory basis for removal and to allege facts fr......
  • McCorkindale v. American Home Assur. Co./AIC, No. C 95-4108.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 30, 1995
    ...validity of removal jurisdiction must be resolved in favor of remand of the action to state court. In re Business Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir.1993) (citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987), cert. denied, 484 U.S. 102......
  • Sutton Woodworking Mach. v. Mereen-Johnson Mach., No. CIV. 1:03CV01133.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 29, 2004
    ..."If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993); and Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 In the instant case, Mereen-Johnson does not di......
  • John S. Clark Co., Inc. v. Travelers Indem. Co. of Ill., No. CIV. 1:04CV00179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 16, 2004
    ..."If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993); and Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 In the instant case, Travelers does not dispute......
  • Request a trial to view additional results
611 cases
  • State v. Wayfair, Inc., 3:16–CV–03019–RAL
    • United States
    • U.S. District Court — District of South Dakota
    • January 17, 2017
    ...burden of proving that the removal was proper, and federal subject matter jurisdiction exists. In re Business Men's Assurance Co. of Am. , 992 F.2d 181, 183 (8th Cir. 1993) (per curiam). "A defendant generally is required to cite the proper statutory basis for removal and to allege facts fr......
  • McCorkindale v. American Home Assur. Co./AIC, No. C 95-4108.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 30, 1995
    ...validity of removal jurisdiction must be resolved in favor of remand of the action to state court. In re Business Men's Assur. Co. of Am., 992 F.2d 181, 183 (8th Cir.1993) (citing Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987), cert. denied, 484 U.S. 102......
  • Sutton Woodworking Mach. v. Mereen-Johnson Mach., No. CIV. 1:03CV01133.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • July 29, 2004
    ..."If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993); and Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 In the instant case, Mereen-Johnson does not di......
  • John S. Clark Co., Inc. v. Travelers Indem. Co. of Ill., No. CIV. 1:04CV00179.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 16, 2004
    ..."If federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151 (citing In re Bus. Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir.1993); and Cheshire v. Coca-Cola Bottling Affiliated, Inc., 758 F.Supp. 1098, 1102 In the instant case, Travelers does not dispute......
  • Request a trial to view additional results

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