George Avila v. Con-Way Freight Inc.
588 F. App'x 560
9th Cir.
2014
Check Treatment
Docket

George A. AVILA, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. CON-WAY FREIGHT INC., a Delaware Corporation, Defendant-Appellant.

No. 12-55997

United States Court of Appeals, Ninth Circuit

Filed Dec. 12, 2014.

Submitted Nov. 17, 2014.*

588 F. App‘x 560

James R. Hawkins, Esquire, Gregory Mauro, Esquire, James Hawkins APLC, Irvine, CA, for Plaintiff-Appellee.

Barrett Green, Littler Mendelson, P.C., Los Angeles, CA, Kenneth R. O’Brien, Esquire, Littler Mendelson, Sacramento, CA, for Defendant-Appellant.

Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior District Judge.**

MEMORANDUM***

The facts and procedural posture of this case are known to the parties, and we do not repeat them here. Appellant Con-way Freight Inc. poses only one question to us: whether the district court had the authority to remand the case to state court. We hold that once the district court concluded that it lacked subject matter jurisdiction, it had clear authority to remand this case.

We have jurisdiction to determine whether the district court acted within its authority. (“Although [28 U.S.C.] § 1447(d) on its face appears to withdraw all appellate jurisdiction to review remand orders . . . we have jurisdiction to decide whether a district court has the power to do what it did [in issuing a remand order].” (second alteration in original) (citation and internal quotation marks omitted)).

Con-way Freight argues that the district court did not have authority to remand the case because Appellee George A. Avila’s motion to remand was untimely under 28 U.S.C. § 1447(c), which states that a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.” Avila’s motion to remand, made more than thirty days after the filing of the notice of removal, contended that the $5 million amount in controversy necessary for jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2) had not been met. Con-way Freight argues that the motion was therefore untimely under § 1447(c), because “a dispute regarding whether the $5 million amount in controversy has been met is not an issue of subject matter jurisdiction.” We disagree. A dispute regarding the amount in controversy is inherently an issue of subject matter jurisdiction. A federal court cannot assert subject matter jurisdiction in a diversity case unless that case presents the requisite amount in controversy. See (per curiam).

Con-way Freight does not dispute that the district court lacked subject matter jurisdiction. The judgment is AFFIRMED.

Notes

**
The Honorable James K. Singleton, Senior District Judge for the U.S. District Court for the District of Alaska, sitting by designation.
***
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.