Pierpoint v. Barnes, 925

• Citation: 94 F.3d 813
• Decision Date: 05 September 1996
• Docket Number: D,No. 925,925
• Parties: Nancy PIERPOINT, Frederick Townsend, Administrator of the Estates of Geoffrey Pierpoint and Lauren Pierpoint; Dolores Willis, Administratrix of the Estate of Stacey Bjorkander and as Guardian Ad Litem of the Estates of Katie Bosko and Sara Bosko, Plaintiffs-Appellees, v. Brian A. BARNES, Administrator of the Estate of David L. Pierpoint, Defendant-Appellant. ocket 95-7736.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 813

94 F.3d 813

65 USLW 2195

Nancy PIERPOINT, Frederick Townsend, Administrator of the Estates of Geoffrey Pierpoint and Lauren Pierpoint; Dolores Willis, Administratrix of the Estate of Stacey Bjorkander and as Guardian Ad Litem of the Estates of Katie Bosko and Sara Bosko, Plaintiffs-Appellees, v. Brian A. BARNES, Administrator of the Estate of David L Pierpoint, Defendant-Appellant.

No. 925, Docket 95-7736.

United States Court of Appeals Second Circuit.

Argued Jan. 25, 1996.

Decided Sept. 5, 1996.

Stephen E. Arnold, Hartford, CT, (Jack G. Steigelfest, Matthew D. Gilmond, Howard, Kohn, Sprague & Fitzgerald, Hartford, CT, of counsel), for Defendant-Appellant.

Stephen Jacques, Cheshire, CT (Garrett M. Moore, Gregory E. O'Brien, Moore & O'Brien, Cheshire, CT, of counsel), for Plaintiffs-Appellees.

Before: JACOBS, LEVAL and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Plaintiffs represent the estates and dependents of three individuals who were killed when the private airplane in which they were flying went down thirty-seven miles off the New Jersey shore. They filed suit in Connecticut state court. Defendant removed the case to federal court on the grounds that plaintiffs' claim arose under a law of the United States, namely the Death on the High Seas Act ("DOHSA"), 46 U.S.C. §§ 761 et seq. Plaintiffs timely moved to remand the case to state court. This motion was granted by the district court on the ground that DOHSA cases are not removable. Pierpoint v. Barnes, 892 F.Supp. 60 (D.Conn.1995) (Peter C. Dorsey, Chief Judge ). Defendant appeals this holding. We decline to entertain his appeal, since we have no jurisdiction to review the remand order under 28 U.S.C. § 1447(d).

I. BACKGROUND

On August 14, 1994, David Pierpoint, Geoffrey Pierpoint, Lauren Pierpoint and Stacey Bjorkander were killed when the plane in which they were travelling crashed into the ocean 37 miles southeast of Sea Isle City, New Jersey. The airplane was owned and piloted by David Pierpoint. Representing the estates of Geoffrey Pierpoint, Lauren Pierpoint and Stacey Bjorkander, and their descendants, plaintiffs filed suit in Connecticut Superior Court seeking damages from the estate of David Pierpoint.

Defendant removed the case to federal court on March 31, 1995. Plaintiffs successfully moved to remand the case claiming, inter alia, that DOHSA cases are not removable. The district court agreed with plaintiffs, holding:

Cases ... which arise under admiralty laws are not removable.... [C]oncurrent state jurisdiction over admiralty cases contradicts removability....

DOHSA cases arise exclusively in admiralty....

The present case arises under DOHSA and not, therefore, under the "Constitution, treaties or laws of the United States" for the purposes of 28 U.S.C. § 1441(b). Since there is no diversity of parties, the district court may not exercise jurisdiction under 1441(b) and remand is necessary.

Pierpoint, 892 F.Supp. at 61. The district court declined to certify this issue for interlocutory appeal. Nevertheless, defendant appeals the district court's remand order, claiming that it was based on an "erroneous interpretation of federal substantive law."

We find that we do not have jurisdiction to review this remand order under 28 U.S.C. § 1447(d). Thus, we dismiss the appeal for lack of appellate jurisdiction.

II. DISCUSSION

This case presents at least one, and potentially two, extremely complicated issues of first impression in this Circuit. First, when are district court remand decisions appealable to the Court of Appeals? Second, if we have jurisdiction to review the remand order in this case, did the district court correctly conclude that DOHSA cases arise exclusively in admiralty and are therefore not removable from state to federal court? We find that we do not have jurisdiction to review this remand decision, thus, we do not reach the second question.

A. The Appealability of Remand Orders

To understand this question of appellate jurisdiction, one must be familiar with both the text of the remand statute, and the gloss the Supreme Court has put on it. The statute provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...." 28 U.S.C. § 1447(d). Despite the broad language of the statute, it is "not dispositive of the reviewability of remand orders in and of itself." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976). In Thermtron, the Supreme Court held that § 1447(d) must be "construed together" with § 1447(c).

Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court. But we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.

Id. at 351, 96 S.Ct. at 593 (emphasis added).

When Thermtron was decided, § 1447(c) provided that a district court "shall" remand a case "[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction...." Id. at 342, 96 S.Ct. at 589. The Court held that a district court's order remanding a case due to the overcrowding of its docket was not within the scope of § 1447(c), and was therefore reviewable in spite of the language of § 1447(d). Id. at 351, 96 S.Ct. at 593.

After the decision in Thermtron, in 1988, Congress amended the language of § 1447(c) to read 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.

28 U.S.C. § 1447(c). This court has recognized that the Thermtron holding should be read to encompass the 1988 amendment. LaFarge Coppee v. Venezolana De Cementos, S.A.C.A., C.A., 31 F.3d 70, 71-72 (2d Cir.1994); Hamilton v. Aetna Life and Casualty Co., 5 F.3d 642, 644 (2d Cir.1993) (per curiam), cert. denied, 510 U.S. 1130, 114 S.Ct. 1100, 127 L.Ed.2d 413 (1994). Thus, appellate review is now prohibited if remand was granted pursuant to a timely motion based on any defect in the removal procedure, or because the district court determined that it lacked subject matter jurisdiction. See Hamilton, 5 F.3d at 644.

Accordingly, reviewability of the remand order depends on the district court's basis for granting it. Relying on the last paragraph of the order, in which the district court stated that "[t]he present case arises under DOHSA and not, therefore, under the 'Constitution, treaties or laws of the United States' for the purposes of 28 U.S.C. § 1441(b)", appellees argue that the court was dismissing for lack of subject matter jurisdiction, depriving this court of appellate jurisdiction under § 1447(d) and Thermtron.

In isolation, the above-quoted excerpt from the district court's order seems to support appellees' contention that the order was based on a perceived lack of subject matter jurisdiction over DOHSA. However, it is hard to believe that the court would question federal subject matter jurisdiction over DOHSA, since the statute explicitly grants original subject matter jurisdiction to the federal courts. 46 U.S.C. § 761. Instead, the court's holding likely rested on its conclusion that DOHSA claims "arise exclusively in admiralty" and therefore are not removable. ¹

Admiralty excepts a class of cases from the general rule that cases which could originally have been filed in federal court are removable to federal court at the option of the defendant. Common law maritime cases filed in state court are not removable to federal court, due to 28 U.S.C. § 1333' § "saving to suitors" clause. Dating back to the Judiciary Act of 1789, this clause preserves a plaintiff's right to a state court forum in cases arising under the common law of the sea. Romero v. International Terminal Operating Co., 358 U.S. 354, 363, 79 S.Ct. 468, 475, 3 L.Ed.2d 368 (1959); 14 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 3673 (1985). Since federal and state courts have concurrent jurisdiction over DOHSA, the district court concluded that DOHSA cases are not removable. ² See Pierpoint, 892 F.Supp. at 61 (stating that "concurrent state jurisdiction over admiralty cases contradicts removability").

The district court remanded the case because of the special treatment accorded admiralty cases, not because of a perceived lack of subject matter jurisdiction. As a result, this court may not review the remand order if it was granted pursuant to a timely motion asserting a "defect in removal procedure." Plaintiffs' motion to remand was timely, having been filed within the proscribed thirty day period. Thus, the meaning of the phrase "defect in removal procedure" is at issue. Specifically, we must determine whether the perceived non- removability of DOHSA cases comes under the ambit of a "defect in removal procedure."

There are two conflicting ways to read this language. Appellant argues that this court should confine its reading of "defect in removal procedure" to mistakes by the parties regarding the timing, form or content of the removal. He claims that this reading is consistent with the plain language of the statute, given the legislature's selection of the term of art "procedure." On the other hand, one can interpret "defect in removal procedure" more broadly to include all removals that are not authorized by law. Under this interpretation, the removal of a case which is non-removable would fall within the rubric of "defect in removal procedure." See In re Medscope Marine Ltd....