Gregory Brian Myers v. Naples Golf And Beach Club, Inc.

USCA11 Case: 23-11906 Document: 90-1 Date Filed: 01/07/2025 Page: 1 of 9

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11906

____________________

In re: Gregory Brian Myers,

Debtor.

___________________________________________________

GREGORY BRIAN MYERS,

Plaintiff-Counter Defendant-Appellant,

BARBARA ANN KELLY,

Plaintiff-Counter Defendant,

versus

NAPLES GOLF AND BEACH CLUB, INC.,

a Florida Corporation,

NAPLES PROPERTY HOLDING COMPANY, LLC,

a Delaware limited liability company,

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2 Opinion of the Court 23-11906

Defendants-Appellees,

NAPLES BEACH CLUB LAND TRUST TRUSTEE, LLC,

NAPLES BEACH CLUB PHASE II AND III LAND TRUST

TRUSTEE, LLC,

Delaware limited liability companies, as Trustees

under the Land Trust Agreement dated as of May 27,2021,

NBC CLUB OWNER, LLC,

a Delaware limited liability company,

Defendants-Counter Claimants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:23-cv-00013-JES-KCD,

Bkcy. No. 2:21-bk-00123-FMD

____________________

Before ROSENBAUM, LAGOA, and WILSON, Circuit Judges.

PER CURIAM:

This appeal concerns only two questions. The first is

whether the district court acted appropriately in denying the mo-

tion to reconsider its prior order, which remanded this case to state

court. Because we find that it did, we affirm.

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23-11906 Opinion of the Court 3

The district court concluded that 28 U.S.C. § 1447 prohibited

it from reconsidering its decision to remand. That statute provides,

in relevant part, that “[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or other-

wise,” if the remand was made on a ground that subsection (c) of

the statute sets forth. See 28 U.S.C. § 1447. The district court

rightly determined that it remanded the case on such a basis.

Namely, the court remanded because of (1) lack of subject-matter

jurisdiction and (2) a defect in the removal process. As a result,

Section 1447 precluded the district court from reviewing the merits

of the remand order. See First Union Nat. Bank of Fla. v. Hall, 123

F.3d 1374, 1377 (11th Cir. 1997). So we affirm the district court’s

ruling in this respect.

As for the second question this case presents—whether this

appeal warrants sanctions—we conclude that it does not. This ap-

peal is not clearly frivolous, so we deny the motion for sanctions

under Rule 38.

I. BACKGROUND

In 2021, Plaintiff-Counter-Defendant-Appellant Gregory B.

Myers filed a Chapter 13 bankruptcy petition. Later that year, My-

ers and his wife Barbara Ann Kelly filed a lawsuit in Florida state

court, asserting alleged easement rights over Defendants-Counter-

Claimants-Appellees Naples Golf and Beach Club, Inc., Naples

Property Holding Company, LLC, Naples Beach Club Land Trust

Trustee, LLC, Naples Beach Club Phase II And III LandTrust

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4 Opinion of the Court 23-11906

Trustee, LLC, and NBC Club Owner, LLC’s (collectively, the

“Club Defendants”) property.

The Club Defendants countersued to quiet title. Myers and

Kelly sought an automatic bankruptcy stay over the state-court

case, arguing that the asserted easements rights were part of My-

ers’s bankruptcy estate. The state court concluded that the Club

Defendants’ counterclaim didn’t violate the bankruptcy stay, and it

ruled in their favor on the merits of Myers and Kelly’s claims.

While appeals in the state-court system were pending, Myers and

Kelly purported to remove the state lawsuit to federal court.

The district court promptly issued an order to show cause,

asking Myers why the case should not be remanded to the state

court. The Club Defendants moved for remand, too. In March

2023, the district court granted that request.

In its remand order, the court found, first, that Myers un-

timely filed his notice of removal. Second, it observed that the state

court had entered final judgment by the time Myers sought to re-

move the case. As a result, the district court concluded that it

lacked “jurisdiction to intervene in or to entertain an appeal from

[the] state court’s final judgment.” The district court then denied

Myers’s motion for reconsideration on the grounds that the re-

mand order “may not be reconsidered” under 28 U.S.C. § 1447(d).

As the district court saw things, the remand order was subject to

Section 1447(d) because the untimeliness holding meant there was

a defect in the removal process, and the court had found it lacked

subject-matter jurisdiction to hear the case. The district court

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concluded that “[b]oth grounds bring the case within the purview

of § 1447(d).” In other words, the district court reasoned, it could

not reconsider the decision because the remand was based on

grounds that Section 1447(c) excludes from reconsideration.

Myers and Kelly appealed. They originally appealed three

of the district court’s orders: the show-cause order, the order

granting the Club Defendants’ motion to remand, and the order

denying Myers’s motion for reconsideration. We issued an order

dismissing Kelly’s appeal in whole, and we dismissed Myers’s ap-

peal in part, as to the show-cause and remand orders. And we said

that “[t]he appeal may proceed as to only Myers’s appeal of the or-

der denying reconsideration” of the remand order. 1

For their part, the Club Defendants moved for sanctions

against Myers and Kelly. The Club Defendants argue that Myers

and Kelly have brought several bad-faith lawsuits, including this

one. They contend that this appeal is both “frivolous” and

1 We also said in this order that “we have jurisdiction to review the district

court’s order denying reconsideration of the remand order.” See In re

Loudermilch, 158 F.3d 1143, 1145 n.2 (11th Cir. 1998) (holding that, while Sec-

tion 1447(d)’s prohibition on appellate review of remand orders is “strict,” we

nevertheless have jurisdiction to rule on a post-remand mandamus petition

that does not involve a review of the remand order itself and instead requires

“an assessment of the district court’s jurisdiction to have reviewed or recon-

sidered” the remand order); Bender v. Mazda Motor Corp., 657 F.3d 1200, 1201–

04 (11th Cir. 2011) (affirming a district court’s denial of a motion for reconsid-

eration of a remand order without expressly addressing jurisdiction).

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“designed only to delay and harass” them. So they seek sanctions

under Federal Rule of Appellate Procedure 38.

II. DISCUSSION

A. The district court properly denied reconsideration.

Under Section 1447(d), “[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). This rule applies specifically to

remands made on at least one of the bases that Section 1447(c) iden-

tifies: lack or subject-matter jurisdiction or defects in the removal

process. See id. § 1447(c); In re Bethesda Mem’l Hosp., Inc., 123 F.3d

1407, 1409 (11th Cir. 1997). So district courts may not reconsider

even their own remand orders that they issued on one (or both) of

these grounds. See Hall, 123 F.3d at 1377. That’s so because a dis-

trict court, upon remanding, “no longer ha[s] jurisdiction over the

case.” See Bender v. Mazda Motor Corp., 657 F.3d 1200, 1204 (11th

Cir. 2011). So it can’t entertain a motion for reconsideration of the

remand order. Id.

Nor can we consider the merits of a district court’s remand

or reconsideration order when the remand was based on grounds

that Section 1447(c) identifies. See In re Loudermilch, 158 F.3d 1143,

1145 (11th Cir. 1998). Rather, “[t]he only issue before us is whether

the district court acted appropriately in reconsidering the . . . re-

mand order.” Id. And that requires us to assess only whether the

remand fell within the bounds of Section 1447(c). See id.

As we’ve noted, under Section 1447, a remand order is not

reviewable if it is based on (1) lack of subject-matter jurisdiction in

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the district court, or (2) a timely filed motion to remand “which is

based upon a defect in the removal procedure.” In re Bethesda Mem’l

Hosp., Inc., 123 F.3d at 1409. Both grounds apply here.

The district court remanded the case to state court for two

reasons. First, the court found that it lacked subject-matter juris-

diction over the case. So check the Section 1447(c) box. See 28

U.S.C. § 1447(c); see also Loudermilch, 158 F.3d at 1146. Second, the

court remanded the case because of a defect in the removal process:

the removal was untimely. We have said that “untimely removal

is precisely the type of removal defect contemplated by section

1447(c).” Vachon v. Travelers Home & Marine Ins. Co., 20 F.4th 1343,

1347 (11th Cir. 2021) (quoting Things Remembered, Inc. v. Petrarca,

516 U.S. 124, 128 (1995)) (cleaned up). So double-check the Section

1447(c) box. In short, both of the district court’s grounds for re-

mand come within the ambit of Section 1447(c).

Myers contends that the district court’s underlying jurisdic-

tional decision was incorrect. 2 But when the remand order is based

on the jurisdictional grounds that Section 1447(c) covers, “review

by this court is foreclosed under § 1447(d) even if the district court

erred” in making that determination. See Harris v. Blue Cross/Blue

2 Myers contends that he is challenging a “void” state-court decision on the

basis of the applicability of the automatic bankruptcy stay; and void state-court

actions, he argues, “may be collaterally attacked at any time.” On this theory,

he contends that the district court never lost jurisdiction. And he urges us to

consider the issue as a “collateral attack.” He may characterize it however he

wishes, but the district court clearly concluded it lacked subject-matter juris-

diction.

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8 Opinion of the Court 23-11906

Shield of Alabama, Inc., 951 F.2d 325, 328 n.4 (11th Cir. 1992) (“[T]he

fact that the district court may have erred in its jurisdictional deci-

sion does not make the remand order reviewable.”); see also Bender,

657 F.3d at 1204 (“[E]ven if the district court erroneously remanded

the case to state court, § 1447(d) prohibits the district court from

reconsidering its remand order because the district court no longer

had jurisdiction over the case.”). So even if, as Myers contends, the

district court erred in remanding the case for lack of jurisdiction,

we can’t review the district court’s decision. And neither could the

district court.

For these reasons, the district court acted appropriately in

declining to reconsider its remand order for lack of jurisdiction.

B. We decline to issue sanctions.

We decline to issue sanctions here.

Federal Rule of Appellate Procedure 38 authorizes courts of

appeal to award sanctions upon determining that an appeal is “friv-

olous.” Fed. R. App. P. 38. Rule 38 sanctions may be “appropri-

ately imposed against appellants who raise ‘clearly frivolous claims

in the face of established law and clear facts.’” Parker v. Am. Traffic

Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (citation omitted).

“[A] claim is clearly frivolous if it is ‘utterly devoid of merit.’” Id.

(quoting Bonfiglio v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993)).

Although Myers and Kelly’s arguments were ultimately un-

convincing, we don’t think their claims on appeal were “utterly de-

void of merit.” See Bonfiglio, 986 F.2d at 1391. To be sure, it’s well

established that we can’t review a district court’s decision to grant

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a motion to remand on jurisdictional grounds—no matter how er-

roneous it may be. See New v. Sports & Recreation, Inc., 114 F.3d

1092, 1096 (11th Cir. 1997) (“Cases remanded for lack of jurisdic-

tion are immune from review even if the district court’s decision is

clearly erroneous.” (citing In re Decorator Indus., Inc., 980 F.2d 1371,

1374 (11th Cir. 1992)).

But we have considered district courts’ denials of reconsider-

ation of remand orders, to assess whether the district court “acted

appropriately” in that denial. In re Loudermilch, 158 F.3d at 1145.

So we don’t think this appeal was “clearly frivolous.” Parker, 835

F.3d at 1371. We deny the Club Defendants’ Rule 38 motion.

III. CONCLUSION

For these reasons, we affirm the district court’s order deny-

ing reconsideration of its remand order. And we DENY the Club

Defendants’ Rule 38 motion.

AFFIRMED.