Hernandez v. Seminole County, Fla., No. 02-12230.

• Decision Date: 24 June 2003
• Docket Number: No. 02-12230.
• Parties: Johanna HERNANDEZ and Marie Hernandez, as Co-Personal Representatives of the Estate of Charles Hernandez, Deceased, Plaintiffs-Appellees, v. SEMINOLE COUNTY, FLORIDA, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

334 F.3d 1233

Johanna HERNANDEZ and Marie Hernandez, as Co-Personal Representatives of the Estate of Charles Hernandez, Deceased, Plaintiffs-Appellees, v. SEMINOLE COUNTY, FLORIDA, et al., Defendants-Appellants.

No. 02-12230.

United States Court of Appeals, Eleventh Circuit.

June 24, 2003.

Donald Andrew DeBevoise, Thomas W. Poulton, Gregory Ackerman, DeBevoise & Poulton, P.A., Winter Park, FL, Jeanelle Glover Bronson, Walter A. Ketcham, Jr., Grower, Ketcham, Moré, Rutherford, Noecker, Bronson, Siboni & Eide, Henry W. Jewett, II, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, FL, for Defendants-Appellants.

R. Spencer Rhodes, Orlando, FL, Joseph M. Taraska, Jacobs & Goodman, P.A., Altamonte Springs, FL, Bruce Robert Bogan, Hilyard, Bogan, Palmer & Lockeley, P.A., Orlando, FL, for Plaintiffs-Appellees.

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

Before TJOFLAT, ANDERSON and CUDAHY^*, Circuit Judges.

ANDERSON, Circuit Judge:

This appeal requires us to revisit the issue of the scope of appellate jurisdiction over a district court's remand decision under 28 U.S.C. § 1447(d). Plaintiffs originally filed this suit in state court under 42 U.S.C. § 1983 against thirty-one separate defendants. All but two of the defendants then filed a notice removing the case to federal court pursuant to 28 U.S.C. § 1441(a). Though removal normally requires the unanimous consent of all defendants, the defendants here argued that such consent was unnecessary due to the fact that the non-consenting defendants are nominal parties. After conducting an evidentiary hearing, the district court concluded that the lone holdouts were not nominal parties and that their consent was necessary to effectuate removal. The court then remanded the case to state court. The threshold issue presented here is whether we have jurisdiction to review that decision. We conclude that we do not.

I. BACKGROUND

Plaintiffs, relatives of the decedent, Charles Hernandez, originally filed this suit in a Florida court on July 13, 2001, alleging a cause of action under 42 U.S.C. § 1983 against the defendants, Seminole County, Florida, and a number of the county's officers and employees. Plaintiffs claim that Hernandez, a pretrial detainee, died while in the custody of the defendants as a result of their deliberate indifference to his serious medical needs. Two of the named defendants are Dr. Debra Dube and her professional association, Debra A. Dube Associates, P.A. (hereinafter "the Dube Defendants"). Plaintiffs alleged in their complaint that the Dube Defendants were under contract with the county to provide medical services to inmates such as Hernandez. Plaintiffs claim that Dr. Dube prescribed contraindicated medications to Hernandez and that she subsequently failed to transfer him to an appropriate medical facility once his condition deteriorated.

On September 19, 2001, the plaintiffs entered into an agreement with the Dube Defendants, with a purpose of defeating any possible removal of the case from state court. In exchange for the Dube Defendants' agreement to withhold their consent to removal, the plaintiffs agreed to limit any recovery against Dr. Dube to $250,000 (the limit of her insurance policy). Plaintiffs also agreed not to seek damages against Dr. Dube in the event that her insurance carrier refused to provide coverage.

Shortly thereafter, on November 14, 2001, the other defendants joined in filing a notice of removal in the United States District Court for the Middle District of Florida. The defendants, in their notice of removal, stated that the Dube Defendants did not consent to removal but that their consent was not required because they were nominal parties as a result of the September 19 agreement.

Plaintiffs then filed a motion to remand the case to state court, citing a lack of unanimity among the defendants.

On January 29, 2002, the district court held an evidentiary hearing to resolve these issues. After reviewing the September 19 agreement and hearing testimony from counsel about Dr. Dube's continuing interest in the litigation and intent to vigorously defend, the district court concluded that the Dube Defendants were not nominal parties and that the case should therefore be remanded to state court due to the lack of unanimous consent to removal. Defendants challenge that decision on appeal.

II. DISCUSSION

Before we can address the merits of the district court's position, we must first decide whether we have jurisdiction over this appeal. As a general rule, we cannot review a district court's decision remanding a case to state court. Specifically, Congress has provided that:

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.

28 U.S.C. § 1447(d) (West Supp.2003). With one exception not relevant here¹, § 1447(d) appears to bar appellate review of any remand decision by a district court. The simplicity of the statutory language is misleading, however, because there are a number of judicially created exceptions that provide for appellate review of remand decisions. Defining the contours of these exceptions has proven to be an elusive task. Consequently, "`straightforward' is about the last word judges attach to § 1447(d) these days...." In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir.1992).

The most notable exception to the bar on appellate review of remand decisions was announced by the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). The district court there remanded a case to state court, citing concerns about its overcrowded docket. The defendants petitioned the Sixth Circuit to issue a writ of mandamus directing the district court to retain jurisdiction over the case. They argued that the case was properly removed and that the district court did not have the discretion to remand the case on the grounds asserted. Citing § 1447(d), the Sixth Circuit held that it lacked jurisdiction to review the district court's remand decision. The Supreme Court reversed. The Court recognized that § 1447(d) must be read in pari materia with § 1447(c), which provides the grounds on which a district court can remand a case to state court.² The result, the Court noted, is that only remands based on grounds specified in § 1447(c) are insulated from review under § 1447(d). Id. at 351, 96 S.Ct. at 593. And, because the ground for the district court's remand decision was not based on § 1447(c), the Court held that § 1447(d) did not bar appellate review of that decision. Id.

Defendants rightly do not argue that the exception alluded to in Thermtron applies here. "§ 1447(c) implicitly recognizes two bases upon which a district court may — and in one case must — order a remand: when there is (1) a lack of subject matter jurisdiction or (2) a defect other than a lack of subject matter jurisdiction." Snapper, Inc. v. Redan, 171 F.3d 1249, 1252-53 (11th Cir.1999). The district court based its remand decision on a perceived defect in the removal process, specifically, the defendants' failure to satisfy the unanimity requirement of § 1446.³ "The failure to join all defendants in the petition is a defect in the removal procedure." See In re Bethesda Mem'l Hosp., Inc., 123 F.3d 1407, 1410 n. 2 (11th Cir. 1997). Consequently, when a district court remands a case on that basis, its decision is normally insulated from appellate review. See Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1044 (11th Cir.2001) (citations omitted) (noting that a district court's remand for lack of unanimity "is clearly based on a defect in the removal process.").

That conclusion applies with equal force to cases where defendants argued in the district court that a non-consenting party was either nominal or fraudulently joined. See Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 409-10 (7th Cir.2000) (noting that appeals court had no jurisdiction over a remand decision issued over the objections of defendant, who claimed that the plaintiffs who destroyed diversity were fraudulently joined or nominal parties, and holding that removing defendant's contrary argument in support of appellate jurisdiction was frivolous); Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027-28 (5th Cir.1998) (recognizing that the district court's remand decision, which was issued despite defendant's claim that another party had been fraudulently joined to defeat diversity, would not ordinarily be subject to review on appeal because it was "unquestionably based ... on a lack of subject matter jurisdiction."). See also Albert v. Bayerische Motorenwerke Aktiengesollschaft (BMW), 45 Fed.Appx. 170, 173 (3d Cir.2002) (holding that § 1447(d) bars review of district court's decision to remand based on district court's finding that the defendants who withheld their consent to removal were not nominal parties nor fraudulently joined).⁴ To the same effect are those decisions holding that § 1447(d) bars appellate review of a district court's remand decision based upon a finding that the amount in controversy was insufficient or that a party whose joinder would destroy diversity was a necessary and indispensable party. See, e.g., Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir.2001) (holding that appellate court lacked jurisdiction to review district court's remand decision where the district court concluded that it lacked subject matter jurisdiction due to the plaintiff's failure to show that the amount-in-controversy requirement had been met); Arnold v. State Farm Fire and Cas. Co., 277 F.3d 772, 775-76 (5th Cir. 2001) (recognizing that the court lacked jurisdiction to review a district court's determination that the...