Larry Powell v. Dallas Morning News, L.P.

Aug 20, 2012
11-10697
Versions:

Relief from the district court‘s judgement as to sanctions. The district court found that sanctions were not appropriate because Wright‘s removal of the case was not objectively unreasonable in light of new information about when the state court trial would have actually started. In light of the district court‘s order dated October 24, 2011, the sanctions portion of this appeal is moot and we dismiss that portion of the appeal.

As to the order to remand, we conclude that we are barred from reviewing the order by 28 U.S.C. § 1447(d), which states that “an order remanding a case to the state court from which it was removed is not reviewable on appeal.” See also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 2417, 168 L.Ed.2d 112 (2007). Appellant points to Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009), to argue that the remand order is reviewable by this court. Carlsbad is inapposite, however, because in that case the district court had discretion to retain or remand state law claims based on supplemental jurisdiction. Id. at 637, 129 S.Ct. at 1865. The Supreme Court held that when the district court declined to retain state law claims after dismissing the federal law claim, the remand was reviewable because it was not based on a lack of subject matter jurisdiction, but was a discretionary decision by the court. Id. at 641, 129 S.Ct. at 1867.

In the instant case, the district court found that removal by Wright was statutorily barred because it was not within the statutory time limit. While Wright argues that this timing requirement should be considered non-jurisdictional like the 28 U.S.C. § 1367(c)(3) remand in Carlsbad, his argument is foreclosed by our circuit‘s precedent in BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466 (5th Cir. 2012). In BEPCO, we stated that “[b]ecause the untimeliness of the removal petition was an independent and authorized reason for remanding [the] case to state court, the district court‘s remand order is unreviewable. We therefore lack jurisdiction to consider [the] appeal.” Id. at 470.

Accordingly, we DISMISS the appeal of the remand order and the imposition of sanctions.

ard Carl Rubin, Esq., Kessler & Collins, P.C., Dallas, TX, for Plaintiffs-Appellants.

Robert Elwood Sheeder, Esq., Christopher Lee Maberry, Esq., Bracewell & Giuliani, L.L.P., Dallas, TX, Brett Busby, Esq., Bracewell & Giuliani, L.L.P., Houston, TX, for Defendants-Appellees.

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

The plaintiffs were terminated as part of a reduction-in-force and sued, alleging disparate impact and disparate treatment under the Age Discrimination in Employment Act (“ADEA“) and claims under the Employee Retirement Income Security Act of 1974 (“ERISA“). The district court, per a magistrate judge designated by consent under 28 U.S.C. § 636(c), issued a 145-page Memorandum Opinion and Order granting the defendants’ motion for summary judgment.

We have read the briefs on appeal and have consulted the applicable law and pertinent portions of the record and have heard the arguments of counsel. We conclude that the plaintiffs did not give adequate notice of their specific disparate-impact claim and did not make a prima facie case of disparate-impact age discrimination under the ADEA. The defendants established a sufficient reasonable-factor-other-than-age defense and fulfilled their disclosure duties under ERISA.

The summary judgment is AFFIRMED, essentially for the reasons given by the magistrate judge in his comprehensive opinion.

Notes

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.