D. Smitherman v. Bayview Loan Servicing, L.L.C., et al

Filing

UNPUBLISHED OPINION FILED. [16-20328 Dismissed as Moot and Remanded] Judge: JES, Judge: EBC, Judge: LHS. Mandate pull date is 04/19/2017 [16-20328]

Case: 16-20328

Document: 00513930879

Page: 1

Date Filed: 03/29/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20328

United States Court of Appeals
Fifth Circuit

FILED
March 29, 2017

D. PATRICK SMITHERMAN,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
BAYVIEW LOAN SERVICING, L.L.C.,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CV-798
Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
D. Patrick Smitherman, proceeding pro se, brought suit against Bayview
Loan Servicing, LLC in Texas state court, alleging various state law claims
regarding foreclosure proceedings related to Smitherman’s mortgage loan.
Bayview removed to federal court under a diversity jurisdiction theory. The
district court denied Smitherman’s motion to remand and then dismissed
Smitherman’s claims with prejudice.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 16-20328

Document: 00513930879

Page: 2

Date Filed: 03/29/2017

No. 16-20328
We ordered a limited remand to the district court to permit
supplementation of the record and to make findings regarding Bayview’s
citizenship. The district court then issued an order vacating its judgment and
remanding the case to state court. Because the district court lacked the
authority to do so, we construe it’s order to be an indicative ruling made
pursuant to Federal Rule of Civil Procedure 62.1(a)(3).
Accordingly, we REMAND this case to the district court and DISMISS
the appeal as moot and relinquish jurisdiction pursuant to Federal Rule of
Appellate Procedure 12.1(b).

2