De Leon v. Ross Dress for Less, Inc.

Filing 14

ORDER denying 8 Motion for Reconsideration. Signed by Judge Virginia M. Hernandez Covington on 6/13/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEBORAH DE LEON,
Plaintiff,
v.

CASE NO.: 8:13-cv-930-T-33TGW

ROSS DRESS FOR LESS, INC.,
Defendant.
_____________________________/
ORDER
Defendant Ross Dress for Less, Inc. removed this case
on

the

basis

subsequently

diversity

remanded

reconsideration.
other

of

governing

Upon
law,

and
review
this

jurisdiction.
Defendant
of

the

Court

This

now

Court

moves

relevant
concludes

for

rules
it

and

lacks

jurisdiction to reconsider the remand order. Therefore, the
remand

Order

stands

and

Defendant’s

Motion

for

Reconsideration is denied.
I.

Background
Plaintiff Deborah De Leon filed suit against Defendant

on February 11, 2013, in the Thirteenth Judicial Circuit in
and

for

Hillsborough

County,

Florida;

service

was

effectuated on March 14, 2013. (Doc. # 1). On April 12,
2013, Defendant removed the case to this Court on the basis

of diversity jurisdiction. (Id.).

The Court, sua sponte,

determined it lacked subject matter jurisdiction over the
case and remanded the case to state court on April 18,
2013. (Doc. # 7). The Court reasoned that Defendant failed
to prove by a preponderance of the evidence that the amount
in

controversy

$75,000.
Motion

(Id.).

jurisdictional

threshold

of

April

24,

2013,

Defendant

filed

“in

light

of

newly

acquired

controversy

exceeds

that

On

the

Reconsideration

for

evidence

exceeded

the

amount

in

a

$75,000.00.” (Doc. # 8 at 1).
II.

Legal Standard and Discussion
28 U.S.C. § 1447(c) states, in pertinent part: “[i]f

at

any

time

before

final

judgment

it

appears

that

the

district court lacks subject matter jurisdiction, the case
shall

be

remanded.”

Section

1447(d)

states

“[a]n

order

remanding a case . . . is not reviewable on appeal or
otherwise, except [when] . . . removed pursuant to section
1443

of

this

title

shall

be

reviewable

by

appeal

or

otherwise.”
In Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723, 723-724
(1977),

the

remands

a

Supreme

case

Court

pursuant

held

when

§

1447(c),

to

2

a

district
then

§

court
1447(d)

“unmistakably commands that the order remanding the case
. . . is not reviewable” by a court of appeal or otherwise.
The

Eleventh

Circuit

has

ruled

in

accordance

with

Gravitt. For example, in Harris v. Blue Cross/Blue Shield
of Ala. Inc., 951 F.2d 325, 326-327 (11th Cir. 1992), the
defendant removed an action from state court in which the
plaintiff

alleged

Consolidated
(COBRA)

in

Omnibus
addition

that

the

Budget
to

defendant

violated

Reconciliation

claiming

breach

of

Act

of

contract

the
1985
and

The district court remanded

other state law claims. Id.

the action to state court for lack of jurisdiction after
the single federal claim, asserted pursuant to COBRA, was
dropped. Id.

The defendant sought reconsideration of the

remand order, and the district court granted the motion for
reconsideration by reasserting jurisdiction over the case.
Id.

at

325.

Thereafter,

the

district

court

entered

a

summary judgment order against the plaintiff, and plaintiff
filed an appeal.

Id.

The Eleventh Circuit held, pursuant to § 1447(d), that
neither an appellate court nor a district court may review
a remand order predicated upon lack of jurisdiction.

The

court specified: “this court has no jurisdiction to review
the remand order.

Similarly, the district court had no

3

jurisdiction to review the remand order.” Id. at 330.

The

Eleventh Circuit also indicated that the district court’s
order on summary judgment was issued in the absence of
jurisdiction. Id.

The summary judgment order was vacated

and

Circuit

the

Eleventh

instructed

that

the

case

be

remanded to the state court. Id.
Likewise, in Bender v. Mazda Motor Corp., 657 F.3d
1200,

1203

(11th

Cir.

2011),

the

court

held:

“Unquestionably, § 1447(d) not only forecloses appellate
review, but also bars reconsideration by the district court
of its own remand order.” (quoting Harris, 951 F.2d at 330
(internal quotations and citations omitted)).

There the

Eleventh Circuit characterized as “irrelevant” the inquiry
of whether the district court’s remand order “was legally
erroneous”

and

explained:

“[E]ven

if

the

district

court

erroneously remanded the case to state court, § 1447(d)
prohibits the district court from reconsidering its remand
order because the district court no longer had jurisdiction
over the case.

The case has been [remanded] to state court

and that is where it will stay.” Id. at 1204.
Here, this Court’s remand order was based on a failure
to meet the amount in controversy requirement – i.e. a lack
of subject matter jurisdiction - and thus falls squarely

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within the ambit of § 1447(d). (Doc. # 7). Therefore, this
Court may not review its remand order.
Accordingly it is
ORDERED, ADJUDGED, and DECREED:
Defendant’s

Motion

for

Reconsideration

of

Order

Remanding Case to State Court (Doc. # 7) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
13th day of June, 2013.

Copies to: All counsel of Record

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