Shell Oil Co., In re

• Citation: 932 F.2d 1518
• Decision Date: 28 May 1991
• Docket Number: No. 91-2040,91-2040
• Parties: In re SHELL OIL COMPANY, Castle & Cooke, Inc., Dole Fresh Fruit Company, Standard Fruit Company, Standard Fruit and Steamship Company, and Occidental Chemical Corporation, Petitioners.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1518

932 F.2d 1518

60 USLW 2003

In re SHELL OIL COMPANY, Castle & Cooke, Inc., Dole Fresh Fruit Company, Standard Fruit Company, Standard Fruit and Steamship Company, and Occidental Chemical Corporation, Petitioners.

No. 91-2040.

United States Court of Appeals Fifth Circuit.

May 28, 1991.

Rehearing and Rehearing En Banc Denied

July 29, 1991.

Tobi A. Tabor, James P. Cooney, Royston, Rayzon, Vickery & Williams, Houston, Tex., for Castle & Cooke, et al.

R. Burton Ballanfant, Shell Oil Co., Jose Berlanga, Hirsch, Glover, Robinson & Sheiness, Houston, Tex., for Shell Oil Co.

Stephen C. Lewis, Sanford Svetcov, Landels, Ripley & Diamond, San Francisco, Cal., W. Arthur Lindsay, Thomas V. Erdos, Jr., Kirk & Lindsay, Houston, Tex., for Occidental Chemical Corp.

F. Walter Conrad, Michael Samford, Baker & Botts, Houston, Tex., for Dow Chemical Co.

Charles S. Siegel, Baron & Budd, Dallas, Tex., for Gerardo A. Castillo, et al.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before POLITZ, DAVIS and BARKSDALE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

A large number of Costa Rican nationals sued several defendants in Texas state court. The plaintiffs alleged that a chemical manufactured and used by the defendants in Costa Rican banana plantations rendered them sterile. On October 24, 1990, the defendants removed the case to the United States District Court in Houston. On November 27, 1990, the plaintiffs moved to remand the case to the state court. The plaintiffs argued that the case was improperly removed because two of the defendants were citizens of Texas, the original forum state. The local-citizen defendants argued that they were fraudulently joined to defeat removal. The defendants further contended that because the plaintiffs did not move to remand within 30 days of removal, they had waived their right to remand. In December 1990, the district court granted the plaintiffs' motion and remanded the case to state court. The defendants have applied to this court for a writ of mandamus compelling the district court to recall its remand order.

I.

The first issue we face is whether this court may review the district court's remand order. Severe limits have been placed on our authority to review a remand order. See 28 U.S.C. Sec. 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...."). But in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court concluded that Sec. 1447(d) did not preclude all review of remand orders. At that time, Sec. 1447(c) provided that a district court shall remand a case if "the case was removed improvidently and without jurisdiction." The Court first observed that Sec. 1447(d) prohibited review of all remand orders issued pursuant to Sec. 1447(c). The Thermtron Court then framed the issue presented as "whether Sec. 1447(d) also bars review where a case has been properly removed and the remand order is issued on grounds not authorized by 1447(c)." Id. at 343, 96 S.Ct. at 589. The judge in Thermtron had issued a remand order based not on improvident removal and lack of jurisdiction, but "[b]ecause of [his] crowded docket and because other cases had priority on available trial time." Id. at 340, 96 S.Ct. at 588. The Supreme Court held that that remand order was reviewable because it was made for grounds not specified in Sec. 1447(c).

Applying Thermtron to the instant case is difficult because Sec. 1447(c) has been amended since that case was decided. ¹ That section now provides:

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. Sec. 1447(c). Thus the old language referring to a case being "removed improvidently and without jurisdiction" has been replaced with the new language of "lacks subject matter jurisdiction." Moreover, the new version of the statute imposes a 30-day time limit on filing remand motions for defects in "removal procedure."

In the instant case the district court never specifically cited Sec. 1447(c). Instead it based its remand order on Sec. 1441(b). That section 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. Sec. 1441(b). The forum defendants argue that they were fraudulently joined to circumvent removal. The district court rejected the defendants' argument and specifically found that they "failed to prove fraudulent joinder." ² Although the defendants were citizens of the forum state, the district court still had subject matter jurisdiction because complete diversity existed. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Thus the district court, which clearly had subject matter jurisdiction, based its remand order on a lack of removal jurisdiction under Sec. 1441(b). The question becomes whether a remand under these circumstances is reviewable.

While both sides take comfort in Thermtron, that case interpreted a pre-amendment Sec. 1447(c). The defendants read Thermtron literally. They contend that Thermtron only bars review of remand orders issued on the authority of Sec. 1447(c). See 423 U.S. at 345, 96 S.Ct. at 590. Because amended Sec. 1447(c) only refers to remand for "lack of subject matter jurisdiction," the defendants argue that only remands based on jurisdiction are immunized from review. Thus the defendants conclude that because the district court remanded the case for a non-jurisdictional reason, its order may be reviewed.

The plaintiffs read Thermtron differently. They argue that the remand in Thermtron was facially unauthorized because removal in that case had been entirely proper and not in violation of any statute. They cite language in Thermtron which says that "no express statutory provision forbid[s] the removal of this action." 423 U.S. at 344 n. 8, 96 S.Ct. at 589 n. 8; see also id at 343-44, 96 S.Ct. at 589-90 (respondent did not question the propriety of the removal); id. at 345, 96 S.Ct. at 590 (the Court of Appeals did not suggest that the case was not removable under Sec. 1441); id. at 351, 96 S.Ct. at 593 (noting the case was "properly removed"). The plaintiffs argue that a patently unauthorized remand (such as in Thermtron) is different from a remand based on a statutory restriction on removal (such as Sec. 1441(b)). ³

We do not read Thermtron to say that the reviewability of a remand order depends on whether it is issued on the authority of a statute. While subsection (d) of Sec. 1447 prohibits appellate review of remand orders, the Court held that that subsection must be read in conjunction with subsection (c). Thus according to Thermtron, only remand orders based on improvident removal and lack of jurisdiction (the text of then-existing Sec. 1447(c)) escaped review. See 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3740, at 595 (2d ed. 1985) [hereinafter Wright & Miller] ("the ban on review prescribed in Section 1447(d) was limited to remand orders based on grounds for removal authorized by Section 1447(c)"); see also 1A J. Moore & B. Ringle, Moore's Federal Practice p 0.169[2.-1], at 694 (2d ed. 1990) [hereinafter Moore's Federal Practice ] (mandamus is appropriate for cases "remanded on grounds not authorized by Sec. 1447(c)").

When Congress amended Sec. 1447(c), it deleted the reference to "improvident removal" while simultaneously adding a requirement that motions to remand based on "any defect in removal procedure" ⁴ be made within 30 days. These changes reflect a congressional intent to delete improvident removal as an unreviewable basis for remand, at least when a motion to remand based on such improvident removal is made outside the 30-day time limit. ⁵ This leaves remand orders for lack of subject matter jurisdiction as the only clearly unreviewable remand orders. In the instant case, the district court based its remand order on Sec. 1441(b) and not on lack of subject matter jurisdiction. While this basis may have been unreviewable under old Sec. 1447(c) as an "improvident removal," it is not unreviewable under the amended Sec. 1447(c). Thus, we are able to review the district court's remand order.

The Third Circuit adopted a similar view in Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir.1989). In Air-Shields, the district court found that the defendant had untimely removed a case under 28 U.S.C. Sec. 1446(b). ⁶ Id. at 64-65. The district court then sua sponte remanded the case to state court even though more than 30 days had elapsed since the time of removal. Id. at 64. The Third Circuit reviewed the remand on a writ of mandamus, noting that:

Because the district court's remand decision ... was not based on the "controlling statute," [i.e., newly amended Sec. 1447(c) ] our review is not limited by subsection (d) of Section 1447.... By remanding the case for procedural defects after the thirty day limit imposed by the revised Section 1447(c) had expired, the district court "exceeded [its] statutorily defined power." Therefore, the "issuance of the writ of mandamus [is] not barred by Sec. 1447(d)."

Id. at 66 (quoting Thermtron, 423 U.S. at 351, 96 S.Ct. at 593).

In summary, we agree with the Third Circuit that Sec. 1447(d) does not bar review of remands not based on Sec. 1447(c). Because the instant remand was not based on Sec. 1447(c), we may review the district court's remand order under the present writ of mandamus.

II.

Now that we have determined that we have jurisdiction to review the district court's remand order, the next issue presented is the...