Opinion
IP 1:03-CV-0476 SEB-VSS
December 12, 2003
ENTRY DENYING DEFENDANT'S MOTION TO RECONSIDER
Introduction
The Defendant Voest-Alpine Industries, Inc. ("Voest") asks the Court today to reconsider its order of September 11, 2003 in which we denied its first motion to reconsider our remand order of July 25, 2003. We declined then to reconsider on the basis that we had been divested of jurisdiction once the remand order had been properly sent to and received by the state court. Today we reiterate this narrow ground for denying the motion and add further reflections on the jurisdictional questions the motion has raised.
A motion to reconsider a ruling denying a motion to reconsider has carried federal civil procedure to new levels of abuse. We trust this will be the last time we will be asked to opine on this matter.
Procedural Background
Following the bankruptcy of Heartland Steel, Inc. ("Heartland") in 2001 and the filing of a Proof of Claim by Voest, the parties have been involved in adverse proceedings in the bankruptcy court of the Southern District of Indiana. In 2003, Margaret Good ("Good"), the debtor's liquidating agent, filed a breach of contract claim against Voest in state court. Voest removed the action to the bankruptcy court, pursuant to 28 U.S.C. § 1452(a), according to which a civil claim related to a bankruptcy case may be removed to the district court for the district where such civil action is pending, if such district court has jurisdiction over such claim or cause of action under section 1334 of this title. Good subsequently moved to withdraw the reference and remand to state court, pursuant to 28 U.S.C. § 1452(b), in which the remand of such removed claims is justified on any equitable ground and, furthermore, is "not reviewable by appeal or otherwise" by the court of appeals.We granted Good's motion on July 25, 2003 for reasons which are enumerated in that entry. Voest has challenged the remand order in two ways: (1) by moving this court once again to reconsider the order, and (2) by appealing the denied motion to the Seventh Circuit. See Voest's Motion to Reconsider Voest's First Motion to Reconsider; Appellant Voest-Alpine's Designation of Items to be Included in Record on Appeal.
Voest contends there is Seventh Circuit precedent to suggest we are not precluded from reconsidering our own order, despite our assertion that we no longer have jurisdiction to do so. For the reasons stated below, we disagree and DENY the defendant's second motion to reconsider.
J.O. v. Alton Community Unit School Dist 11. 909 F.2d 267, 273 (7th Cir. 1990), holding that when there is appellate court power to review a remand order it would be efficient to allow the district court also to retain jurisdiction to reconsider its order or, as in this case, to allow an amendment of the pleadings.
Discussion
This request presents two questions: (1) a general jurisdictional question about the reviewability of a district court's remand order and, (2) more specifically, whether a district court can review its own remand order. Generally speaking, it is the appellate power to review a lower court's remand order that is precluded by statute. Title 28 of U.S.C. § 1447(c) addresses remand orders and 1447(d) deals with reviewability of such orders. Section 1447(c) obliges a district court to remand claims which fall into one of two categories: if there has been a "defect in the removal procedure" of if the court lacks subject matter jurisdiction. A remand order based on either of these grounds is not reviewable on appeal or otherwise," according to Section 1447(d). Thus, the statute itself creates a bar to the reviewability of remand orders, with one exception: civil rights cases removed pursuant to 28 U.S.C. § 1443. The general bar against review serves to limit interruptions in litigation and spare parties undue delay and further postponement of a decision on the merits.
See 28 U.S.C. § 1446, Procedure for Removal.
See Matter of Continental Cas. Co., 29 F.3d 292 (7th Cir. 1994).
Wright, Miller Cooper, Federal Practice and Procedure § 3740 (3d ed. 1998).
An effective remand not only is based on proper grounds but also complies with the following procedure: the clerk of the district court is required to send a certified copy of the order of remand to the clerk of the state court, at which time the state court may proceed with the case. Courts in the Fourth, Tenth and Eleventh Circuits have interpreted the transition in jurisdiction to occur when the order is filed or entered whereas courts in the First, Third, Fifth, Seventh and Ninth view the triggering event to be the mailing of the certified copy of the order to the state court.
Title 28 of the Unites States Code, Section 1447(c).
The cases in each circuit are discussed in: Aetna U.S. Healthcare Inc. v. Hoechst Aktiengesellschaft, 67 F. Supp.2d 1242 (D. Kan. 1999); Eby v. Allied Products Corp., 562 F. Supp. 528 (N.D. Ind. 1983).
This court entered its remand order on July 25, 2003 and mailed a certified copy to the Vigo Superior Court on August 6, 2003. Regardless of which interpretation we apply, we no longer possessed jurisdiction over the cause of action as of August 22, 2003, the date of the Defendant's First Motion to Reconsider. However, even if the Court had retained jurisdiction over the action, it is our view that § 1447(d) precludes our exercising jurisdiction to review the remand order.
The defendant argues that the rule we relied on, namely that "once a Federal District court remands a case and mails a certified copy of its order to the State court, the District court loses all jurisdiction," was altered by J.O. et. al. v. Alton Community Unit School District 11, in which the Seventh Circuit held that a district court retains the ability to reconsider an appealable remand order, despite its having been certified. The appellate court specifically declined to resolve the question of whether a district court has the power to take further action in a case after it issues a remand order over which no appellate jurisdiction exists. Id. at 271. Because we believe this to be the posture of the case before us, the holding in J.O. v. Alton is neither relevant to our analysis nor compels reconsideration of the remand order.
City of Valparaiso v. Iron Workers Local Union #395, 118 F.R.D. 466, 468 (N.D. Ind. 1987).
See infra, n. 2.
To recap, when remand is proper under § 1447(c) then review is barred, with the exception stated in (d) that civil rights cases removed pursuant to section 1443 shall be reviewable by appeal or otherwise. Thermtron Prod., Inc. v. Hermansdorfer. 423 U.S. 336 (1976) held that despite the bar created by (d), there is appellate review of certain categories of remand orders; namely, those issued outside the authority granted to the district courts in (c).
The preceding discussion has relied on the removal and remand rules set forth in 28 U.S.C. § 1446-1447 because that is how the parties briefed the issue. Ironically, the case before us was not removed and remanded under those statutes and so this discussion must foray into the bankruptcy code, where it properly belongs. Under 28 U.S.C. § 1452 (a)-(b), the defendant's removal of the state law claim was made in the hopes that it would be found to be within the district court's jurisdiction over bankruptcy cases. Without repeating the grounds for granting the plaintiffs Motion to Withdraw Reference and the Motion for Remand (see July 25, 2003 Entry), suffice it to say our equitable remand was authorized by § 1452(b). Moreover, under the statute, it is unreviewable. As Judge Posner points out, the statutory bar to review of remand orders applies only to those remands based on grounds specified in the statute, and when it comes to § 1452(b), there is only one stated ground — "any equitable ground" — and this simply means any appropriate ground. In the Matter of U.S. Brass Corp., 110 F.3d 1261 (7th Cir. 1997). See also. Hernandez v. Brakegate. Ltd., 942 F.2d 1223 (7th Cir. 1991). Thus, we encounter a second statute designed to foreclose review of remand orders at the appellate level and fail to see any proper basis on which we may justify conducting the requested review.
See supra.
Conclusion
We believe the two jurisdictional threads come together to produce this outcome: there are two statutory bars to the review of a proper remand and we fail to find any grounds by which we come within any recognized exception. For the above reasons, we again DENY the defendant's Motion to Reconsider.It is so ORDERED.