Alvarez v. Uniroyal Tire Co.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 07-12191 NOV 21, 2007

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 06-21974-CV-FAM

NATALIE ALVAREZ, individually and

as Personal Representative of the Estate

and Survivors of ELCIRA GIL, and

GLORIA GIL, individually,

Plaintiffs-Appellees,

versus

UNIROYAL TIRE COMPANY, a foreign

corporation, SEARS, ROEBUCK AND

COMPANY, a foreign corporation, FORD

MOTOR COMPANY, a Delaware

Corporation,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:

Natalie Alvarez, individually and as personal representative of the estate

and survivors of Elcira Gil, and Gloria Gil, individually (“Plaintiffs”), filed a

personal injury action in state court against Uniroyal Tire Company, Inc., Ford

Motor Co. and Sears Roebuck and Co. (“Appellants”). In August 2006,

Appellants1 removed the personal injury action to federal district court on the basis

of diversity jurisdiction. After removal to the district court, Plaintiffs filed an

amended complaint adding Robert Lafita, a resident of Florida, as a plaintiff, and

Ely’s Tire, Inc., a Florida corporation, as a defendant. Finding that it lacked

subject matter jurisdiction because there was no longer complete diversity among

the parties, the district court remanded the case to state court pursuant to 28 U.S.C.

§ 1447(e).2 Appellants now appeal the district court’s order remanding the case to

state court.3

1

Sears Roebuck and Co. and Ford Motor Co. filed the notice of removal with the consent

of Uniroyal Tire Co.

2

28 U.S.C. § 1447(e) states that “[i]f after removal the plaintiff seeks to join additional

defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder,

or permit joinder and remand the action to the State court.”

3

On March 16, 2007, the district court sua sponte entered an order dismissing the case

for lack of subject matter jurisdiction. Plaintiffs filed a motion for clarification, arguing that the

case should be remanded to state court rather than dismissed. On April 17, 2007, the district

court granted the motion and issued a final order remanding the case to state court. We do not

believe, and Appellants have not argued, that the district court’s two orders issued for the single

purpose of finding that it lacked subject matter jurisdiction constitute separate orders, the former

2

Under 28 U.S.C. § 1447(d), an order remanding an action to state court

pursuant to § 1447(c) is not reviewable on appeal. See Thermtron Prods., Inc. v.

Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976)

(holding that § 1447(d) precludes review only of those remand orders issued

pursuant to § 1447(c)). In Poore v. American-Amicable Life Insurance Co., 218

F.3d 1287 (11th Cir. 2000), this Court held that 28 U.S.C. § 1447(d)’s bar to

appellate review of a district court’s remand to state court pursuant to § 1447(c)

did not apply where subject matter jurisdiction existed at the time of removal and

the district court based its remand on a plaintiff’s post-removal amendment to the

complaint.4

Appellants argue that under our prior interpretation of § 1447(c) in Poore, a

district court’s order remanding a case to state court (pursuant to either § 1447(c)

or § 1447(e)) based on a post-removal amendment to the complaint is reviewable

if the case was properly removed in the first instance.5 However, the Supreme

of which is reviewable and the latter of which is not under the Supreme Court’s decision in Waco

v. United States Fidelity & Guaranty Co., 293 U.S. 140 (1934).

4

28 U.S.C. § 1447(d) states that “[a]n order remanding a case to the State court from

which it was removed is not reviewable on appeal or otherwise, except that an order remanding a

case to the State court from which it was removed pursuant to section 1443 of this title shall be

reviewable by appeal or otherwise.”

5

28 U.S.C. § 1447(c) provides in part: If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case shall be remanded.

3

Court’s recent decision in Powerex Corp. v. Reliant Energy Services Inc., 127 S.

Ct. 2411 (2007), requires us to revisit our prior interpretation of § 1447(c). In

Powerex, the Supreme Court held that when a district court remands a properly

removed case because it nonetheless determines post-removal that it lacks subject-

matter jurisdiction, the remand is covered by § 1447(c) and thus is shielded from

appellate review by § 1447(d). Therefore, Poore is overruled to the extent we

held that a remand for lack of subject matter jurisdiction pursuant to § 1447(c) is

reviewable if it is based on a post-removal amendment to the complaint.

Under the Supreme Court’s decision in Powerex, a remand for lack of

subject matter jurisdiction under § 1447(e), which arises post-removal, and a

remand for lack of subject matter jurisdiction under § 1447(c), which may arise at

the time of removal or post-removal, are indistinguishable for purposes of

determining whether § 1447(d)’s bar to appellate review applies. If at any time

before final judgment the district court issues an order remanding a case to state

court because it lacks subject matter jurisdiction, that order is not reviewable.

Accordingly, the appeal is DISMISSED for lack of jurisdiction.

4