Opinion
No. 04-4062-SAC.
October 14, 2004
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to reconsider the court's remand of the case to state court for lack of federal subject matter jurisdiction, and a motion for a stay. The court's order of remand, dated September 2, 2004, found that the plaintiff's petition for eviction stated no basis for federal question jurisdiction, the sole basis alleged for federal jurisdiction, and ordered defendant to pay $500 to plaintiff for its attorney's fees and costs expended in defending the frivolous removal litigation. In response to defendant's motion to reconsider, plaintiff contends that the motion raises no new issues, and requests an additional $500 as attorney's fees and costs.
The motion for stay, captioned "Memorandum and Order," purports to order a stay of all proceedings, lacking only the court's signature. Dk. 36. Having reviewed this document, the court earlier instructed the clerk to file the pleading as a motion for stay.
Motion to reconsider remand order
The court first examines whether it has jurisdiction to consider defendant's motion to reconsider its order of remand. See SBKC Serv. Corp. v. 1111 Prospect Partners. L.P., 105 F.3d 578, 580 (10th Cir. 1997). The general statutory provision governing the reviewability of remand orders is 28 U.S.C. § 1447(d). That section provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
The present action was not removed under § 1443, so §
1447(d) appears to deprive this court of jurisdiction.
However, "the application of § 1447(d) is not as broad as its language suggests. Appellate review is barred by § 1447(d) only when the district court remands on grounds permitted by § 1447(c)." Dalrymple v. Grand River Dam Auth., 145 F.3d 1180, 1184 (10th Cir. 1998) (citing Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S. Ct. 494, 133 L. Ed. 2d 461 (1995) and Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976), overruled on other grounds, Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996)).In re Stone Container Corp., 360 F.3d 1216, 1218 (10th Cir. 2004).
Where, as here, a remand order is based on lack of subject matter jurisdiction, the order is unreviewable.
. . . § 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d). (Citation omitted.) As long as a district court's remand is based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction — the grounds for remand recognized by § 1447(c) — a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d).Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-128 (1995).
The same analysis controls the district court's jurisdiction to entertain a motion for reconsideration of an order remanding a case. See e.g., Welch v. Centex Home Equity Co., L.L.C., 2004 WL 2066883, *2 (D. Kan. 2004) (finding jurisdiction to consider remand order where basis for remand was on grounds other than grounds stated in § 1447(c)); Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 67 F. Supp. 2d 1242, 1246 (D. Kan. 1999) (finding no jurisdiction where remand order was made pursuant to § 1449(c)). "A remand order is unreviewable if the federal district court purports to remand on grounds specified in § 1447(c), even if the court's decision concerning those grounds is wrong. FDIC v. Alley, 820 F.2d 1121, 1123 (10th Cir. 1987)." F.D.I.C. v. OKC Partners, Ltd., 961 F.2d 219, 1992 WL 73005, *5 (10th Cir. 1992). This court remanded based on lack of subject matter jurisdiction, a ground stated in § 1447(c), thus the remand order is unreviewable.
Finally, even if the Court had jurisdiction, it would not grant defendant's motion to reconsider because defendant has not made the requisite showing that the court has misapprehended the facts, a party's position or the controlling law pursuant to D. Kan. Rule 7.3, or that any basis for relief from the judgment exists under Rules 59(e) or 60 of the Federal Rules of Civil Procedure.
Nor will the court grant plaintiff's request for additional fees, as no motion has been filed and an award of additional fees is not warranted.
Motion for stay
In this document, defendant contends that plaintiff has violated Fed.R.Civ.P. 62(a) and K.S.A. § 60-256(c). Defendant seeks a stay "until the legal process has expired to protect the Defendants (sic) due process rights upon appeal." Dk. 36. Because the court has remanded this case to state court, it lacks jurisdiction to consider this motion.
IT IS THEREFORE ORDERED that defendant's motion to reconsider the court's order of remand (Dk. 31) is denied, and that defendant's motion for stay (Dk. 36) is denied.