In Re Medscope Marine Limited and H. Glahr & Co., 972 F.2d 107

In Re Medscope Marine Limited and H. Glahr & Co.

972 F.2d 107

5th Cir.

1992

Check Treatment

POLITZ, Chief Judge:

Medscope Marine Limited and H. Glahr & Company petition for a writ of mandamus asking that we vacate an order of the district court which remanded this case to state court. Concluding that we are without jurisdiction we dismiss the petition.

Background

Roberto Geguera died while on the high seas. The plaintiffs-respondents, Charaito Bautista Geguera and Mamertо Geguera, filed wrongful death claims in Louisiana state court, invoking the Jones Act, 1 the Death on the High Seas Act (DOHSA), 2 and general maritime law. Medscope and Glahr removed the case, asserting that Mamerto Geguera had a separate and independent claim under DOHSA which would be removable if sued upon alone. The plаintiffs timely sought remand, contending that there was no removal jurisdiction over DOHSA claims. The district court granted the motion to remand on that basis and denied a subsеquent motion for an interlocutory appeal certification under 28 U.S.C. § 1292(b). The instant application for writ of mandamus followed.

Analysis

Before us is an ordеr of remand based on a timely motion under 28 U.S.C. § 1447(c) asserting a defect in removal procedure other than lack of subject matter jurisdiction. Our threshold consideration is whether we have jurisdiction to entertain this application for a writ of mandamus.

In prior decisions we have determined that we havе jurisdiction to review remand orders based upon untimely remand motions, finding that to be a rare exception to the general rule of nonreviewability. 3 In those cases we suggested in dicta 4 that a remand order based upon a timely remand *109 motiоn would be nonreviewable because of the prohibition ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍contained in section 1447(d) which provides that:

An order remanding a case to the State сourt from which it was removed is not reviewable on appeal or otherwise, ... 5

In Thermtron Products, Inc. v. Her- mansdorfer 6 the Supreme Court limited the broad nonreviewability language of seсtion 1447(d) to remand orders based on section 1447(c). Pre-1988 section 1447(c) provided, in relevant part, that:

If at any time before final judgment it appears thаt the case was removed improvidently and without jurisdiction, the district court shall remand the case....

In London v. United States Fire Ins. Co. 7 we held that either “improvident removal” or “lack оf [subject matter] jurisdiction” is a proper, independent basis for remand under section 1447(c). As amended in 1988 8 section 1447(c) provides, in relevant part, that:

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it аppears that the district court lacks subject matter jurisdiction, the case shall be remanded....

The resolution of the jurisdictional question in the instant cаse turns on the congressional intent in the 1988 amendment to section 1447(c).

The second sentence of section 1447(c) commands the remand upon discovery of lack of subject matter jurisdiction, reflecting the established rubric that a federal court has ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the continuing obligation to assure itself of its powеr to act in a proceeding before it, whether the issue is raised by the parties or by the court on its own motion. 9

The first sentence of section 1447(c), hоwever, requires a more considered reflection. Aided by the limited legislative history of the 1988 amendment to section 1447(c), 10 we conclude that the intent of Congress was to impose a 30-day time limit for a remand motion based upon “any defect in removal procedure.” The relevant legislative history informs that:

Section 1447(c) now appears to require remand to state court if at any time before final judgment it appears that the removal was imрrovident. So long as the defect in removal procedure does not involve lack of federal subject matter jurisdiction, there is no reason why either State or Federal courts, or the parties should be subject to the burdens of shuttling a case between two courts that each have subject mаtter jurisdiction. There is also some risk that a party who is aware of a defect in removal procedure may hold the defect in reserve as а means of forum shopping if the litigation should take an unfavorable turn. The amendment provides a period of SO days within which remand must be sought on any ground other than the lack of subject matter jurisdiction. The amendment is written in terms of “removal procedure” in order to avoid any implication that remand is unavailable after disposition of all federal questions leaves only State law questions that might be decided as a matter of ancillary or pendent jurisdiction or that might instead be remanded. 11

Thus informed, we are persuaded that section 1447(c) is a mere reconstitution of the existing statute and jurisprudence, with the addition of a strict time limitation on *110 the privilege of filing remand motions. The legislative history addressed several core concerns relating to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an unbridlеd right to seek a remand: (1) a party’s right to seek remand at any time before final judgment on any ground other than the lack of subject matter jurisdiction; (2) the burden on state and federal courts; (3) the burden on the parties; and (4) the potential sandbagging should the federal litigation take an unfavorable turn. All of these concerns are ameliorated by the imposition of a 30-day time limit for the filing of the remand motions. Thus, brief that it is, the legislative history of section 1447(c) convinсes us that the “removed improvidently” language of pre-1988 section 1447(c) was replaced, without intent to change the meaning, with the “defect in removаl procedure” in the current section 1447(c).

Having thus concluded that section 1447(c) is a specific, time-limited reconstitution of the earlier statute, in light of intervening jurisprudence, we may now address the jurisdictional question, guided by controlling Supreme Court precedent. The Thermtron court held that section 1447(d)

prohibits review of all remand ordеrs issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ ... If a trial judge purports to remand a case on the grounds that it was removed ‘improvidently and without jurisdiction,’ his order is “unreviewable.” 12

We have consistently followed Therm-tron’s teachings. The cases cited in footnotes 3 and 4, supra, involved orders of remand based upon untimely motions to remand for a defect in removal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍procedure. Because such a remand order is not a section 1447(c) remand, review was not prеcluded by section 1447(d) or Thermtron.

In the instant case, the district court remanded because a DOHSA case may not be removed to federal court. State аnd federal courts have concurrent original jurisdiction over DOHSA cases; 13 thus, the case before us could not be remanded for lack of subject matter jurisdiction. If DOHSA cases are not removable, then removal of a DOHSA case necessarily constitutes a defect in the manner by which the DOHSA casе was brought before the federal court. This would be a defect in the removal procedure, 14 waived absent a timely motion to remand. On the other hand, if DOHSA cases are removable, then the remand order premised upon a defect in removal procedure, although erroneous, would not be reviewable under Therm-tron. 15 We have pretermitted the question of DOHSA-case removability on a number of prior occasions. 16 Because of the Thermtron teaching that a section 1447(c) remand order is nonreviewable, “whether erroneous or not,” we are not now required to solve the DOHSA removability conundrum. 17

We conclude that wе are without jurisdiction to entertain the instant application for writ of mandamus to vacate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an order of remand based upon a timely sectiоn 1447(c) motion raising a defect in the removal procedure.

DISMISSED FOR LACK OF APPELLATE JURISDICTION.

Notes

. 46 U.S.C. App. § 688.

. 46 U.S.C. App. §§ 761-767.

. McDermott Int'l v. Lloyd’s Underwriters of London, 944 F.2d 1199 (5th Cir.1991); In re Shell Oil Co., 932 F.2d 1518 (5th Cir.1991); In re Shell Oil Co., 932 F.2d 1523 (5th Cir.1991); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540 (5th Cir.1991); In re Digicon Marine, Inc., 966 F.2d 158 (5th Cir.1992).

. McDermott Int'l, 944 F.2d at 1201 n. 1; In re Shell Oil Co., 932 F.2d at 1520 n. 5; In re Shell Oil Co., 932 F.2d at 1527; Baris, 932 F.2d at 1543; In re Digicon Marine, Inc., 966 F.2d at 160 n. 1.

. Added by May 24, 1949, ch. 139, § 84, 63 Stat. 102. Section 1447(d) has not been amended since.

. 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).

. 531 F.2d 257 (5th Cir.1976).

. P.L. 100-702, Title X, § 1016(c), 102 Stat. 4670.

. Save The Bay, Inc. v. United States Army, 639 F.2d 1100 (5th Cir.1981).

. H.R.Rep. No. 889, 100th Cong., 2d Sess.1988, reprinted in 1988 U.S.C.C. & A.N. 5982, 6031-6034.

. Id. at 6033.

. Thermtron, 423 U.S. at 343, 96 S.Ct. at 589, 46 L.Ed.2d at 549 (emphasis ours).

. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986).

. Baris, 932 F.2d at 1543.

. Thermtron, supra.

. Baris, 932 F.2d at 1543 n. 3.

. See Filho v. Pozos Int'l Drilling Services, Inc., 662 F.Supp. 94 (S.D.Tex.1987) (for a persuasive, well-reasoned, and scholarly opinion concluding that DOHSA cases are nonremovable).