Tillman v. CSX Transp., Inc.

• Decision Date: 11 April 1991
• Docket Number: No. 90-3146,90-3146
• Citation: 929 F.2d 1023
• Parties: David E. TILLMAN, Plaintiff-Appellee, v. CSX TRANSPORTATION, INC. & Marler L. Bennett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1023

929 F.2d 1023

19 Fed.R.Serv.3d 1156

David E. TILLMAN, Plaintiff-Appellee, v. CSX TRANSPORTATION, INC. & Marler L. Bennett, Defendants-Appellants.

No. 90-3146.

United States Court of Appeals, Fifth Circuit.

April 11, 1991.

L. Havard Scott, III, Brent A. Talbot, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for defendants-appellants.

Anthony S. Taormina, Clark Richard, Metairie, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and JOHNSON, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case requires us to determine whether the trial court abused its discretion in allowing the addition of a party that it determined would destroy its jurisdiction and then remanding the case back to state court. Reaching the most crucial conclusion first, we hold that by remand to state court, this case lies irretrievably in state court, despite, as the basis for remand, the trial court's mistaken belief that it no longer had jurisdiction. The trial court brought its remand order within the absolute immunity from review of 28 U.S.C. Sec. 1447(c) by expressly referring to a lack of jurisdiction as one of the bases of its decision to remand.

Through appeal under 28 U.S.C. Sec. 1291, and a petition for a writ of mandamus, CSX Transportation, Inc. (CSX) and Marler Bennett seek review of both parts of the district court's order which (i) allowed the amendment adding the Louisiana Department of Transportation and Development (DOTD), and (ii) remanded the case to state court. As for the propriety of allowing the amendment, we hold that this part of the order did not terminate federal jurisdiction and was therefore an interlocutory, nonappealable order. With regard to the trial court's decision to remand, although the trial court did not mention Sec. 1447(c) by name, the court did cite the destruction of its jurisdiction as one of its grounds for remand. With the order resting on the trial court's belief that it lacked jurisdiction, the case is irretrievably in state court.

An Unwanted Addition

Near New Orleans, on November 17, 1987, a train owned and operated by CSX with Bennett, the engineer, at the controls struck a tractor/trailer rig driven by David Tillman. There was immediate, complete, thorough diversity jurisdiction from the outset. Tillman, a Mississippi resident, brought suit in Louisiana state court against CSX, a Florida resident, and Bennett, an Alabama resident. CSX and Bennett then properly removed the case to the Eastern District of Louisiana on the basis of diversity.

Soon after removal, Tillman filed for a continuance of the original trial date. The trial court relented, pushing the trial date back to January 22, 1990, with a cut-off date for amendments to pleadings of June 9, 1989. Four months after this deadline for amendments had passed, Tillman moved to file an amended complaint to add the DOTD as a defendant. In addition, Tillman included a motion to remand to state court. The trial court denied this first attempt to amend, stating that the DOTD was not an indispensable party, Tillman was grossly and inexcusably dilatory, and the defendants would be substantially prejudiced by the amendment.

This denial, however, did not sound the death knell for Tillman's motions. Less than one week before trial, in the course of court-ordered settlement discussions, the trial court informed the defendants that it was considering adding the DOTD as a party defendant and remanding the action back to state court. When court-ordered settlement discussions failed, the trial court fully resuscitated Tillman's motions for leave to amend and for remand. On the eve of trial, the trial court allowed the joinder of the DOTD as a party defendant. Turning to what it considered to be the concomitant effect of such an addition, the trial court held that the joinder of a state party not amenable to suit in federal court under the Eleventh Amendment ¹ destroyed its jurisdiction over the case. Within the same order, the trial court remanded the case back to state court. ²

In its remand order, the trial court did not expressly cite the remand statute of 28 U.S.C. Sec. 1447(c). ³ Instead, the trial court based its decision to send the case back to state court on two separate grounds. First, the joinder would destroy its subject matter jurisdiction, necessitating remand, and, second, the court believed that the suit "should be tried before one fact-finder due to the closely interrelated nature of the facts which form the basis of potential liability in this matter."

Separating the Separable

As a preliminary matter, the appellee contends that the part of the trial court's order granting leave to amend and the part of the order remanding the case must be construed together. The Supreme Court, however, rejected this position in Waco v. United States Fidelity & Guar. Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934). See also Mitchell v. Carlson, 896 F.2d 128 (5th Cir.1990). Like the present situation, Waco involved an appeal of a district court decree embodying several orders, including a remand order. The Waco Court determined that no appeal would lie from the order of remand, "but in logic and in fact the decree of dismissal preceded that of remand and was made by the District Court while it had control of the cause," Waco, 293 U.S. at 143, 55 S.Ct. at 7, 79 L.Ed. at 245. The court could review the decree of dismissal though it was unable to review the remand order. Here, the trial court issued the joinder and remand orders in a single decree. The order granting leave to amend to join the DOTD appeared first in the document, followed by the order remanding the case, both "in logic and in fact." Since the joinder of the DOTD provided the judge's mistaken impetus for remanding the case, we think it best to evaluate the appealability of each order separately.

Return to Sender?

As this issue will essentially determine the entire disposition of this case, we first consider the appellants' contention that the trial court erred in remanding the case to state court. However, to reach this issue, we must initially determine whether we may review it, either on appeal or by mandamus.

Reviewability of a remand order depends entirely upon the trial court's stated grounds for its decision to remand. Remand after removal is controlled by Sec. 1447(c), ⁴ which provides that "[i]f ... it appears that the district court lacks subject matter jurisdiction, the case shall be remanded...." Through the prohibitory effect of 28 U.S.C. Sec. 1447(d), ⁵ remand orders under Sec. 1447(c) are not reviewable on appeal, by mandamus, or otherwise, except in civil rights cases. See Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977); Volvo Corp. v. Schwarzer, 429 U.S. 1331, 97 S.Ct. 284, 50 L.Ed.2d 273 (1976); Mitchell, 896 F.2d at 128. We feel it necessary to point out that the age-old touchstone language of Sec. 1447(c), "removed improvidently and without jurisdiction," has been amended to read as provided above. The previous language, "improvidently and without jurisdiction," served as "magic words" in case law under the prior statute, the mere incantation of which rendered any remand order based thereon totally unreviewable, "no matter how clearly erroneous the order appear[ed] on its face." In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642, 648 (5th Cir.1978); see also Volvo Corp., 429 U.S. at 1332, 97 S.Ct. at 285, 50 L.Ed.2d at 275; Royal v. State Farm Fire & Casualty Co., 685 F.2d 124, 126 (5th Cir.1982). We see no reason why the incantation of the new phrase, "lacks subject matter jurisdiction," should not have the same magical effect. See 28 U.S.C.A. Sec. 1447(c) (as amended) and Commentary on 1988 Revision (Supp.1990) (no substantive change).

In its remand order, the trial court never mentioned Sec. 1447(c). However, it is clear from the trial court's prior orders that it was aware of Sec. 1447(c), as its order of November 1, 1989, declining to add the DOTD, specifically cites both the statute and its amended language verbatim. Oblivious to the amended language in Sec. 1447(c), the appellants contend that we may review the remand order by mandamus because the trial court did not recite the magic words, "improvidently and without jurisdiction," when remanding the case. As we mention above, that language no longer exists, and while the appellants may still have some attachment to it, it is no longer the basis for remand. Still, the appellants argue that the failure to cite to Sec. 1447(c) places this remand within the small class of cases that fall under the Thermtron exception to Sec. 1447(c). See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).

In Thermtron, the Supreme Court slightly enlarged reviewability of remand orders from the narrow constraints imposed by Sec. 1447(d), holding that review is available by mandamus when remand is explicitly based upon grounds other than those specified in Sec. 1447(c). Thermtron 's progeny, however, has construed this exception very narrowly. See, e.g., Merrimack, 587 F.2d at 647. Rather than extend this exception to any situation where a trial court, in the remand order, neither specifically recited the actual language of Sec. 1447(c) verbatim nor mentioned the statute itself, "Thermtron announced only a narrow rule that was intended to be limited to the extreme facts of that case, in which a district judge stated openly that he was relying on a non-Sec. 1447(c) ground for remand." Id. See also Soley v. First Nat'l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.1991) (holding that while the remand order was "confusing, we conclude that our decision in Merrimack precludes review of the remand order because the district court did not clearly and affirmatively state that it relied on a non-1447(c) ground"). Thus, even if ...