Magana v. Biogen Idec, Inc. et al

Filing 12

ORDER Denying (Doc. 9 ) Defendant's Ex Parte Application to File a Motion for Reconsideration. Signed by Judge Thomas J. Whelan on 6/8/2010. (cap)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 v. BIOGEN IDEC, INC., a Corporation, Defendant. Pending before the Court is an ex parte application by Defendant Biogen Idec JOSUECTOR MAGANA, Plaintiff, CASE NO. 09-CV-2637 W (BLM) ORDER DENYING DEFENDANT'S EX PARTE APPLICATION TO FILE A MOTION FOR RECONSIDERATION [DOC. 10] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

20 Inc. ("Biogen") requesting leave to file a motion for reconsideration of the Court's order 21 remanding Plaintiff Josuector Magana's case to state court. For the following reasons 22 the Court DENIES Defendant's ex parte application. (Doc. 10.) 23 Because this case has already been remanded to State court for lack of subject 24 matter jurisdiction, this Court no longer has the authority to reconsider the order. 25 Removal is a privilege to be strictly construed, and out of respect for the State court's 26 authority, in the interest of judicial economy, and in recognition of the principles of 27 comity, an action should not "ricochet back and forth depending on the most recent 28 determination of a federal court." Harris v. Blue Cross/Blue Shield, 951 F.2d 325, 330
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1 (11th Cir. 1992); see also Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723 (U.S. 2 1977) ("28 U.S.C. § 1447(d) unmistakably commands that the order `remanding a case 3 to the State court from which it was removed is not reviewable on appeal or 4 otherwise'"). Furthermore, the Supreme Court has found that under § 1447(d) neither 5 a district court nor a court of appeals has jurisdiction to review remand orders "whether 6 erroneous or not." Thermtron Prods. v. Hermansdorfer, 423 U.S. 336, 343 (U.S. 1976) 7 (abrogated on other grounds) (emphasis added); see also Id. ("If a trial judge purports to 8 remand a case on the ground that it was removed `improvidently and without 9 jurisdiction,' his order is not subject to challenge . . . by appeal, by mandamus, or 10 otherwise.") Thus, this Court lacks jurisdiction to reconsider the remand order and 11 Defendant's ex parte application is DENIED. 12 13 14 15 DATED: June 8, 2010 16 17 18 19 20 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge