State of Rio de Janeiro v. Phillip Morris Inc., 99-41117

• Decision Date: 22 January 2001
• Docket Number: No. 99-41117,99-41117
• Citation: 239 F.3d 714
• Parties: (5th Cir. 2001) THE STATE OF RIO DE JANEIRO OF THE FEDERATED REPUBLIC OF BRAZIL Plaintiff-Appellee, v. PHILIP MORRIS INCORPORATED; ET AL, Defendants, PHILIP MORRIS INCORPORATED; PHILIP MORRIS COMPANIES, INC.; PHILIP MORRIS PRODUCTS, INC.; PHILIP MORRIS INTERNATIONAL, INC.; R. J. REYNOLDS TOBACCO COMPANY; R. J. REYNOLDS INTERNATIONAL; NABISCO GROUP HOLDINGS CORP., formerly known as RJR Nabisco Holdings Corp.; R. J. REYNOLDS TOBACCO HOLDINGS, INC., formerly known as RJR Nabisco, Inc.; LORILLARD, INC.; LORILLARD TOBACCO COMPANY; LOEWS CORPORATION; BROWN & WILLIAMSON TOBACCO CORPORATION; BATUS HOLDINGS, INC.; THE AMERICAN TOBACCO COMPANY; B A T INDUSTRIES, PLC, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 714

239 F.3d 714 (5th Cir. 2001) THE STATE OF RIO DE JANEIRO OF THE FEDERATED REPUBLIC OF BRAZIL Plaintiff-Appellee,
v.
PHILIP MORRIS INCORPORATED; ET AL, Defendants, PHILIP MORRIS INCORPORATED; PHILIP MORRIS COMPANIES, INC.; PHILIP MORRIS PRODUCTS, INC.; PHILIP MORRIS INTERNATIONAL, INC.; R. J. REYNOLDS TOBACCO COMPANY; R. J. REYNOLDS INTERNATIONAL; NABISCO GROUP HOLDINGS CORP., formerly known as RJR Nabisco Holdings Corp.; R. J. REYNOLDS TOBACCO HOLDINGS, INC., formerly known as RJR Nabisco, Inc.; LORILLARD, INC.; LORILLARD TOBACCO COMPANY; LOEWS CORPORATION; BROWN & WILLIAMSON TOBACCO CORPORATION; BATUS HOLDINGS, INC.; THE AMERICAN TOBACCO COMPANY; B A T INDUSTRIES, PLC, Defendants-Appellants. No. 99-41117 IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT January 22, 2001

Appeal from the United States District Court For the Eastern District of Texas.

Page 715

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

To create jurisdiction, this appeal of a remand order has been dressed as a challenge to the remanding court's denial of a motion to stay proceedings pending MDL transfer. We DISMISS the appeal for lack of jurisdiction under 28 U.S.C. § 1448(d).

I

Rio de Janeiro sued Philip Morris and other tobacco companies to recoup money spent treating smoking-related illnesses, one of at least eight such cases filed by foreign governments. The MDL panel designated the United States District Court for the District of Columbia as the transferee forum for foreign government tobacco cases.

This case was originally filed in a Texas state court, under state law theories of negligence, fraud, and misrepresentation. Defendants removed to federal court on federal question and diversity grounds.¹ The MDL Panel issued a Conditional Transfer Order transferring this case to the District of Columbia in August of 1999. As recited by the panel in its transmittal of the transfer order, panel practice contemplates that a district court may remand a removed case to state court before its transfer order under 28 U.S.C. § 1407 becomes effective. Rio objected to the conditional transfer order and moved to remand. Defendant tobacco companies moved to stay any remand order pending transfer.

With the issue joined, the district court, before the MDL transfer order became effective, granted the motion to remand, implicitly denying the motion to stay, finding no substantial federal question and no proper diversity of citizenship. Defendants urge that had the stay been granted, the case would have been transferred and this district court would not have remanded.

II

Congress has withdrawn our jurisdiction to hear certain appeals from remand orders.² The district court here remanded "for lack of subject matter jurisdiction." We are persuaded that we lack jurisdiction to review the remand order under 1447(c).³

The remand order does not fall within the limited exception of Thermtron Products, Inc. v. Hermansdorfer.⁴ In Thermtron, the Supreme Court held that section 1447(d) does not bar appellate review of remand orders that are not grounded in a section 1447(c) claim that a case was removed "improvidently and without jurisdiction."⁵ In Thermtron, the...