Bender v. Mazda Motor Corporation et al

Filing 19

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS re 6 MOTION to Remand to State Court filed by Peggy Bender, recommending that Plaintiff's motion be granted and that this action be remanded to the Wilcox County Circuit Court for all proceedings. Defendants' Motion to stay or certify for interlocutory appeal (doc. 17) is denied. Signed by Judge Kristi K. DuBose on 2/18/2010. (cmj)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION PEGGY MORGAN BENDER, ADMINISTRATRIX OF THE ESTATE OF DEJURNITTE BENDER, Plaintiff, : : : : : vs. : : MAZDA MOTOR CORPORATION, et al., : Defendants. :

CIVIL ACTION 09-0735-KD-M

ORDER After due and proper consideration of all pleadings in this file, and a de novo determination of those portions of the Recommendation to which objection is made, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated January 26, 2010 is ADOPTED as the opinion of this Court. Accordingly, it is ORDERED that Plaintiff's Motion to Remand (Doc. 6) be GRANTED and that this action is hereby REMANDED to the Wilcox County Circuit Court for all further proceedings. It is further ORDERED that Defendants' Motion to stay or certify for interlocutory appeal pursuant to 28 U.S.C. §1292(b) (Doc. 17) is DENIED. A motion to remand that is granted for lack of subject matter jurisdiction cannot be certified for interlocutory appeal under 28 U.S.C. §1447(d). In re WTC Disaster Site , 414 F.3d 352, 367 (2nd Cir. 2005) (concluding that § 1292(b) appeals are encompassed by the § 1447(d) prohibition); In re Bear River Drainage District, 267 F.2d 849, 851 (10th Cir. 1959) (footnote omitted) (providing that "[a]n order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise. [ ] While the generality of § 1292(b) might seem sufficient to encompass a remand order, it does not expressly either amend or

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repeal § 1447(d)[]"); Ray v. American Nat. Red Cross, 921 F.2d 324, 326 (D.C. Cir. 1990); Feidt v. Owens Corning Fiberglass Corp., 153 F.3d 124, 126-127 (3rd Cir. 1998) (holding that the Court of Appeals lacked jurisdiction under 28 U.S.C. § 1447(d) to hear an § 1292(b) interlocutory appeal from the order granting the motion to remand); Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 623 (8th Cir. 1997) (finding an order remanding a case to state court for lack of subject matter jurisdiction is not reviewable). DONE and ORDERED this the 18th day of February 2010. /s/ Kristi K. DuBose KRISTI K. DUBOSE UNITED STATES DISTRICT JUDGE

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