Nathan Groves v. Darlington South Carolina, The

Filing 920091014

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1191

NATHAN ANDREW GROVES; JOEL FLAKE STROUD, Plaintiffs - Appellants, v. DARLINGTON SOUTH CAROLINA, THE CITY OF, Defendant - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cv-00402-TLW-TER)

Submitted:

September 25, 2009

Decided:

October 14, 2009

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Joel F. Stroud, JOEL F. STROUD, ATTORNEY PLLC, Chesterfield, South Carolina, for Appellants. J. Scott Kozacki, WILLCOX, BUYCK & WILLIAMS, P.A., Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Appellants, Stroud, appeal the of the Nathan district Andrew Groves and Joel Flake the their

court's judge

orders and

accepting

recommendation

magistrate

dismissing

complaint with leave to file an amended complaint, affirming the magistrate judge's order of remand, and denying reconsideration of that order. We dismiss in part and affirm in part.

With respect to the district court's order dismissing the complaint with leave to amend, this court may exercise

jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C.

§ 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 544-47 (1949). An order granting

leave to amend is interlocutory as it leaves the case open for either amendment of the complaint or entry of final judgment. Jung v. K. & D. Mining Co., 356 U.S. 335 (1958); see also Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993) (a dismissal without prejudice is not generally appealable). the district court's Accordingly, we lack jurisdiction over order to the extent it dismissed the

complaint with leave to amend. With respect to the district court's order of remand, we find that the order is not reviewable. See 28 U.S.C.

§ 1447(d) (2006); Thermtron Prods., Inc. v. Hermansdorfer, 423 2

U.S.

336,

342

(1976)

(holding

limited

on

other

grounds,

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-15 (1996)); Kolibash v. Comm. on Legal Ethics, 872 F.2d 571, 573 (4th Cir. 1989). The Supreme Court has specifically recognized that

§ 1447(d) "prohibits review of all remand orders issued pursuant to [28 U.S.C.] § 1447(c) [(2006)] whether erroneous or not." Thermtron Prods., 423 U.S. at 342; see also In re Lowe, 102 F.3d 731, 734 (4th Cir. 1996) (holding that once an order of remand is entered, the federal courts no longer have jurisdiction over the case). lack of Here, the district court's order of remand cites its matter jurisdiction the order as the reason for the to

subject and

remand,

therefore

was

entered

pursuant

§ 1447(c). With respect to the district court's order denying

reconsideration of these orders, the Appellants have failed to challenge appellate that review order of on that appeal order. and, See therefore, 4th Cir. forfeited R. 34(b).

Accordingly, we dismiss the appeal from the district court's order remanding the a portion of with the the case to to state for order court lack and of

dismissing

complaint affirm

leave district

amend

jurisdiction,

and

court's

denying

reconsideration of that order. We dispense with oral argument because the facts and legal contentions are adequately 3 presented in the materials

before the court and argument would not aid in the decisional process.

DISMISSED IN PART; AFFIRMED IN PART

4