Virgil Meeks v. Swift Transportation Inc., et al

Filing

UNPUBLISHED OPINION FILED. [10-50052 Dismissed ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 11/17/2010 [10-50052]

Virgil Meeks v. SwiftCase: 10-50052 et al Transportation Inc., Document: 00511276358

Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 27, 2010 N o . 10-50052 Lyle W. Cayce Clerk

V I R G I L J. MEEKS P la in t if f -A p p e lle e v. S W I F T TRANSPORTATION, INC., SWIFT TRANSPORTATION CO., INC., a n d SWIFT TRANSPORTATION CORPORATION D e fe n d a n t s -A p p e lla n t s

A p p e a l from the United States District Court for the Western District of Texas, El Paso Division 3 :0 9 -C V -2 9 8

B e fo r e DAVIS, WIENER and DENNIS, Circuit Judges. P E R CURIAM:* T h is is an appeal of the district court's order remanding this case to state c o u r t after the Defendants-Appellants' attempted removal. Because 28 U.S.C. § 1447(d) prohibits appellate review of this decision, we dismiss the appeal.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 10-50052 Document: 00511276358 Page: 2 Date Filed: 10/27/2010

No. 10-50052 I. In June 2009, Plaintiff-Appellee Virgil J. Meeks filed a petition in Texas s t a t e court alleging wrongful termination in retaliation for filing a workers c o m p e n s a tio n claim against his former employer, Defendants-Appellants Swift T r a n s p o r t a t io n , Inc., Swift Transportation Co., Inc. and Swift Transportation C o r p . (hereafter "Swift"). Swift timely removed the case, and Meeks filed a t im e ly motion to remand, claiming that the case was not removable under 28 U .S .C . § 1445(c)1 because it arose under the workers compensation laws of the s t a t e in which it had been filed. Meeks sought remand pursuant to 28 U.S.C. § 1 4 4 7 (c ). Section 1447(c) allows remand on the basis of lack of subject matter ju r is d ic t io n if raised at any time and allows remand on the basis of any defect o t h e r than lack of subject matter jurisdiction by a motion if filed within thirty d a y s of the filing of the notice of removal. The district court granted Meeks's motion to remand after holding that M e e k s 's case arose under Texas workers compensation laws. This appeal

fo llo w s . Meeks v. Swift Transp. Inc., No. EP-09-CV-298-KC, 2009 WL 4878629, a t * 3 (W.D. Tex. Dec. 11, 2009).

II. The threshold issue in this case is whether federal law permits us to r e v ie w the district court's remand order. 28 U.S.C. § 1447(d) states in pertinent p a r t that "[a]n order remanding a case to the State court from which it was r e m o v e d is not reviewable on appeal or otherwise." As we explained in Thermtron Products, Inc. v. Hermansdorfer, 423 U .S . 336, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976), § 1447(d) must be r e a d in pari materia with § 1447(c), so that only remands based on

28 U.S.C. § 1445(c) provides: "A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States."

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No. 10-50052 g r o u n d s specified in § 1447(c) are immune from review under § 1 4 4 7 (d ). Id. at 345-46. As long as a district court's remand is based o n a timely raised defect in removal procedure or on lack of s u b je c t -m a t t e r jurisdiction ­ the grounds for remand recognized by § 1447(c) ­ a court of appeals lacks jurisdiction to entertain an a p p e a l of the remand order under § 1447(d). Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995). Section 1 4 4 7 (c ) states in pertinent part that: "A motion to remand the case on the basis o f any defect other than lack of subject matter jurisdiction must be made within 3 0 days after the filing of the notice of removal under section 1446(a)." The district court in this case clearly held that Meeks's suit arises under w o r k e r s compensation law and that such actions are not removable under § 1 4 4 5 (c ) . A statutory restriction against removal like the one in § 1445(c) is a

d e fe c t in removal procedure under § 1447(c). We have consistently held that "'when section 1447(c) speaks of any d e fe c t in removal procedure, it includes within its reach the b r in g in g of an action not within the court's removal jurisdiction but t h a t could have been brought originally in that court.'" Hopkins, 976 F .2 d at 926 (quoting Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1 5 4 4 -4 5 (5th Cir. 1991) (internal quotations omitted)). Albarado v. S. Pac.Transp. Co., 199 F.3d 762, 765 (5th Cir. 1999); Williams v. A C Spark Plug Div. of Gen. Motors Corp., 985 F.2d 783, 786-88 (5th Cir. 1993) ( R e m o v a l of an action contrary to statutory restrictions against removal ­ including those provided by §§ 1445(a) and (c) ­ is a procedural defect subject t o the requirements of § 1447(c)). Thus, based on this clear case law, this case w a s improperly removed, and under § 1447(d) this court has no jurisdiction to r e v ie w the district court's remand order. Albarado, 199 F.3d at 765. See also C e r ta in Underwriters at Lloyd's, London v. Warrantech Corp., 461 F.3d 568, 572 (5 t h Cir. 2006). Swift makes two arguments against this conclusion. First it relies on la n g u a g e in Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir. 3

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No. 10-50052 2 0 0 4 ), that in turn relies on In re Excel Corp., 106 F.3d 1197 (5th Cir. 1994). The la n g u a g e in Schexnayder suggests that a remand based on § 1445(c) is a non§ 1447(c) ground for removal and thus reviewable on appeal. Schexnayder sta tes: N o n - § 1447(c) grounds for which a district court might remand a c a s e include those remands made for purely discretionary reasons, G i le s v. NYLCare Health Plans, 172 F.3d 332, 336 (5th Cir. 1999), a b s t e n t io n -b a s e d remands, Quackenbush, 517 U.S. at 712, remands b a s e d on § 1367, Smith, 172 F.3d at 926 n.5, remands based on § 1 4 4 5 (c ), In re Excel Corp., 106 F.3d 1197, 1200 (5th Cir. 1997), and r e m a n d s based on the district court's discretionary powers under § 1 4 4 1 (c ), Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 103 (5th C ir . 1996), among others. 394 F.3d at 283 (emphases added). In Albarado, however, this court responded t o a similar argument by stating expressly that In re Excel should not be relied o n in resolving this issue. Thus, to the extent that our implicit holding in In re Excel can be r e a d as inconsistent with our prior holdings in Johnson, Hopkins, a n d Williams, our earlier decisions control . . . .Thus, remand based u p o n § 1445(a)'s statutory restriction against removal is a p r o c e d u r a l defect under § 1447(c), and the district court's remand o r d e r based thereupon is not subject to appellate review. A lb a r a d o , 199 F.3d at 766. Swift also argues that this court may review the remand order to pierce M e e k s 's pleadings to show that a claim has been fraudulently pled to prevent r e m o v a l. This argument goes to the merits of the district court's order, which is ir r e le v a n t in this circumstance. Section 1447(d) precludes examination of the merits of the district c o u r t 's actions; we only must determine what the district court p e r c e iv e d it was doing, as "no matter how erroneous," a remand o r d e r based on a § 1447(c) ground precludes review on appeal.

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No. 10-50052 C e r ta in Underwriters, 461 F.3d at 573. See also Albarado, 199 F.3d at 766 (" T h e r m tr o n and our own precedent prevent us from reviewing a remand order e n te r e d pursuant to § 1447(c) whether erroneous or not"). Swift lists several cases in support of its argument that this court reviews r e m a n d orders where the pleadings have been pierced to show that a claim has b e e n fraudulently pled to prevent removal. However, each of those cases

in v o lv e d denials of remand orders. See La. ex. rel. Caldwell v. Allstate Ins. Co., 5 3 6 F.3d 418 (5th Cir. 2008); Holmes v. Atl. Sounding, 437 F.3d 441 (5th Cir. 2 0 0 6 ). Section 1447(d) bars appellate review of remand orders. It does not bar r e v ie w of denials of remand requests. The same applies to the Jones Act Cases c it e d by Swift. All involved denials of motions to remand. Swift's argument for jurisdiction under the collateral order doctrine is s im ila r l y without merit. Although the Supreme Court has held that a court of a p p e a ls may review a district court decision that includes both the dismissal of a party and the consequential remand for lack of diversity of citizenship, the C o u r t has affirmed that the law does "not permit an appeal when there is no o r d e r separate from the unreviewable remand order." Powerex Corp. v. Reliant E n e r g y Servs., Inc., 551 U.S. 224, 236 (2007) (emphasis in original). There is no o r d e r at issue in this case other than the remand order. III. Based on the foregoing, Fifth Circuit and Supreme Court precedent is c le a r that under § 1447(d) this court lacks jurisdiction to review the remand o r d e r in this case, issued under § 1447(c), to correct a procedural defect, s p e c ific a lly an attempted removal in violation of § 1445(c) of a case arising under a state workers compensation law. Accordingly, this case is DISMISSED.

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