Liberty Mutual Insurance v. Ward Trucking Corp.

MANSMANN, Circuit Judge. by way This case comes to us of a for writ of mandamus filed the defendants Liberty Company Mutual Insurance and Lib- (collec- erty Company Mutual Fire Insurance Mutual”). tively, “Liberty Faced Liber- ty Mutual’s second notice of removal based diversity jurisdiction, on the United States District District Western Pennsylvania granted Plaintiff Ward Truck- (“Ward”) ing Company’s motion giving Liberty opportuni- an Mutual ty respond. Liberty Mutual asserts that- so, doing the district court acted without authority, are, and asks our review. We therefore, again required once to address the parameters statutorily district court’s power defined to remand under 28 U.S.C. scope Congress’ prohibi- appellate tion on review of remand orders set 1447(d). forth in 28 U.S.C. I. May

On Ward instituted civil action writ summons in the Court of Allegheny County, Common Pleas Penn- Mutual, sylvania against Liberty its insur- Thereafter, ers.1 Ward filed a seven-count tort, complaint assumpsit asserting claims, Liberty Mutual mishandled premiums serves and insur- various policies. Paragraph complaint ance 52 of engaged 1. The are since two other lawsuits. Mutual. This action has been 24, 1991, May equity Allegheny Pennsylvania. On County, Ward commenced transferred to 11, 1993, Liberty action in the Court of Pleas On Common of Blair June Mutual commenced an Mutual, County, Pennsylvania against Liberty against al- action Ward in the United States District duties, leging fiduciary Pennsylvania, breach of and contractual Court for the District Eastern seeking accounting alleging pay past-due and a failed to declaration of that Ward insur- premiums, premium. any, the amount if Ward ance owes to 28, 1993, July filed a damages resulting On “the amount stated that response original to Ward’s remand motion duty breach of from the breach and/or 20,1993, August ”, responded Ward’s ... presently unknown contract are 3, 1993, motion. On November amended in six of the clause seven the ad damnum opinion district court issued a memorandum in unspecified amount requested an counts order, granting and amended motion Ward’s limits damages in excess of returning to the case to state remand Division of the Court of of the Arbitration Citing in Foster v. court. our decision Mutu- Pleas, $25,000. currently Common F.2d al Marine & Inland Ins. Life complaint a III of the set forth Count (3d Cir.1993),2 rejected the district court Pennsylvania’s Bad Faith claim under Stat- as evidence of counsel’s affidavit Ward’s ute, which authorizes an Pa.C.S.A. damages, and held that because writ bad faith action for an insurer’s toward Liberty in Mutual’s notice complaint included for an of insured and allows award interest of in removal not establish amount equal in the amount to on the claim issue controversy necessary jur- support to federal 3%, plus prime punitive of rate interest isdiction, in remand was order. attorneys assessment of damages and the subsequent discovery, In the course of Lib- Ill’s ad damnum clause re- fees. Count erty response a Mutual Ward’s to obtained jurisdic- exceeding the quested “an amount request document which stated Ward Pleas], [the tional limits of Court of Common $156,045.89 attorneys arising in fees incurred 3%, equal plus to prime of interest inclusive dispute Liberty out Mutual for the of its damages, attorneys punitive costs and fees.” years to 1993.3 7, 1993, Liberty July Mutual a On 6, 1994, Liberty April On Mutual filed notice of removal with the United States removal, attaching notice second Ward’s District Court for the Western District of discovery response regarding attorneys fees diversity juris- Pennsylvania, alleging federal purpose establishing required for the diction under U.S.C. 1332. While both jurisdictional monetary federal amount. On complaint, the writ and the were at- which 28, 1994, April followed with motion Ward removal, to the notice of stated that tached remand, alia, Liberty asserting, to inter Pennsylvania Liberty Ward is a citizen and failed es- Mutual’s second removal notice to Massachusetts, a citizen neither Mutual is $50,000. damages that Ward’s exceed tablish damages document showed Ward’s ex- giving Liberty opportuni- an Without $50,000, controversy the amount in re- ceed ty respond, granted the district court jurisdiction. quirement diversity of federal opinion In a memorandum Ward’s motion. attempt Consequently, to establish this 9, 1994, May and order dated threshold, Liberty monetary Mutual attached Foster, again 986 F.2d at cited notice, affidavit to its removal set- counsel’s discovery re- and concluded that Ward’s personal ting his belief that Ward’s forth sponse could not be used to demonstrate $50,000. greater than damages were controversy requirement amount diver- 19, 1993, July sity Referring prior On Ward filed motion jurisdiction. to its remand, subsequently opinion, which was amended the district court found mand alia, challenging, August Liberty inter Lib- second removal suffered Mutual’s first, erty requisite deficiency failure to show the from the same as the Thus, diversity jurisdiction. required. damages amount of concluded remand was Foster, affirming asking By in- a remand 3. for the amount of fees Ward order years prior which was based on doctrines abstention over number of the 1993 curred comity, we took the to resolve County, Allegheny Penn- commencement of thirty-day period as when the action, sylvania, request apparently discovery paragraph of 28 removal § first U.S.C. brief, limited to this action. In its Ward was not 1446(b) triggered. We decided that the time $156,045.89 represents fees in- clarifies triggered when a limit for removal is summons, writ parties' n. in all three of the lawsuits. See curred complaint provides praecipe or ade- 1, supra. quate jurisdic- notice to the defendant of federal tion. at 54. (2) returning procedure” court issued order the removal the district the absence subject jurisdiction: of Common Pleas. the case state Court (c) A motion to remand the case on the Mutual then filed a any procedure basis defect mandamus, requesting writ of that we direct days must made within 30 after the 9,May court to vacate the filing of the notice removal under sec- order; permit reinstate case and 1446(a). tion If at time final respond Mutual an judgment appears that the district court motion; and find that Ward’s Ward’s lacks the case response discovery paper” constitutes “other shall be remanded. paragraph the second 1447(d), speaks Section which re- 1446(b), removability. which establish orders, viewability severely of remand cir Ward, turn, damages in filed a motion for for authority our by pro cumscribes to review appeal Fed.R.App.P. pursuant frivolous viding except that civil rights for cases re 38. pursuant 1443, § moved 28 U.S.C. “[a]n remanding order a case to the State court II. from which it was removed is not reviewable question before The threshold us is wheth- appeal By or adopting otherwise....” jurisdiction er to review we have the district 1447(d) statutory section predeces court’s remand order. We must determine sors, Congress sought judgment to make the the district decision to re- whether court’s of a district court a case final and mand, giving which was Liber- made in conclusive avoid delay order to caused ty respond to by appellate review remand decisions. light motion considered in Ward’s be Rice, 742, 751-52, States v. 327 United U.S. appellate the bar to review of remand orders 835, (1946). 838-39, L.Ed. 90 982 In n 1447(d). in set forth section keeping policy, with this until section 1447(d) prohibit was construed to review of statutes, par- turn first to We all exception. remand orders without In re 1447(d). history ticularly the II, Litigation TMI Cases Consolidated 940 — (3d Cir.1991), denied, 840 cert. A. U.S. -, S.Ct. L.Ed.2d 491 comprehensive (1992). Congress enacted a statu-

tory scheme for the removal of state In Supreme Court decided 1441- §§ actions to federal court. 28 U.S.C. Prod., Hermansdorfer, Thermtron Inc. 1441(a) provides pertinent 1452. Section (1976). S.Ct. L.Ed.2d 542 part: There, court had remanded Except expressly provided by as otherwise case removed from state court on basis of Congress, any brought Act of action civil an plaintiffs overcrowded docket. The court of which the district State courts sought a writ of from Court of mandamus original jurisdic-

the United States have Appeals compelling for the Circuit Sixth tion, may be removed defendant to exercise over the defendants, to the district court of the appeals peti- action. The court of denied the United States for the district and division tion, relying on the in section review bar embracing place where such action 1447(d). pending. Reversing, Supreme Court concluded procedure operates preclude Section 1446 sets forth the that section court, removing rely a case to federal and section view of those remand orders which procedure grounds controlling 1447 covers after removal oc- on has contained 1447(c) 1447(c). statute, specifically provides curred. Section held that case of a that has been sections must be read together “only removed under is- and delineates that remand orders (1) § categories invoking two under removal:- “defect sued citizen, Company, allegedly ... are immune Missouri had grounds therein specified 1447(d).” pro- in an unrelated state court Id. at submitted from review ceeding. pleading, Acknowledging that it had Southwestern had seemingly was a Texas citizen. The exception to abso- averred declared an 1447(d), remand, plaintiffs asserting filed a motion for in section prohibition to review lute diversity complete did not exist. Refus- the Court stated: contrary ing to hear evidence from South- pre- that in order to There is no doubt judicial citing the western and doctrine of delay in trial remanded eases vent estoppel, the court held that South- is- by protracted litigation estopped alleging western was its Mis- sues, all immunized from ... juris- citizenship diversity souri as basis for or- appellate review forms of diction, granted plaintiffs’ motion grounds specified in on the der issued remand on might whether or that order lacking. com- Southwestern appellate deemed erroneous proceeding compel a mandamus menced not convinced Con- But we are court. the district court to retain the case. to extend carte gress ever intended authority to the district courts to blanche Concluding that a remand based on the governing re- revise the federal statutes judicial estoppel of contem- doctrine not by remanding cases on that moval plated by Ap- of the Court justifiable but not to them which are seem peals the Fifth that Circuit held the controlling recognized by the statute. per- Supreme decision in Thermtron Court’s slowly in justice may move more That mitted The court that review. noted the courts than in their state some federal exclusively district court relied on the doc- one the counterparts is not of consider- judicial estoppel grant trine of the remand permitted the ations that has examining whether Southwestern recognize passing in on courts to citizen, a the was Texas held that doc- the District remand issues. Because trine not used to defeat could Southwest- properly Judge removed case remanded statutory right to a ern’s federal forum. Ac- authority grounds that he had no on cordingly, the a writ court issued of manda- consider, statutorily he exceeded his de- ordering mus the district court determine power; issuance of the writ of fined the were in fact diverse. In whether 1447(d). by § mandamus was not barred opinion, subsequent panel the determined required district court not (citation omitted). the 351, 96 S.Ct. at inquire diversity further into issue inas- Further, recognized that manda- the Court plaintiffs challenge much not “appropriate remedy require mus was the citizenship Missouri as a fac- Southwestern’s the remanded the District Court to entertain matter, squarely estop- but on tual stood 352, action.” Id. at 96 S.Ct. -at 593. pel theory as a matter of law to South- bar later, year Supreme Court revisit- One asserting citizenship. western from diverse 1447(d)’s prohibition ed issue banc, Sitting the court en concluded appellate on review of remand orders judicial estoppel use of doctrine of was erro- Gravitt Bell Tel. Southwestern neous, and issued a writ of mandamus direct- (1977). 52 L.Ed.2d 1 ing the remand be vacated. order Gravitt, plaintiffs, In of some whom were Texas, worded, tersely per two-page In a curiam citizens action a Texas reversed, plaintiffs opinion, Supreme dropped state court. After the all judicial estoppel. against alleged mentioning claims defendant doctrine citizen, Gravitt, remaining 430 U.S. at 97 S.Ct. at 1440. be Texas defendants District Court’s “[t]he removed the case to federal court on The Court stated jurisdiction. diversity Following plainly within the bounds basis of ex- remand order was discovery pretrial activity, the and hence was unreviewable tensive plaintiffs or other- pleading Appeals, that one of the Court of mandamus uncovered wise”, defendants, reemphasized rule down in Telephone set Southwestern lishing pursuant requirements issued diversity jurisdic Thermtron remands reviewable, are “whether tion. The issue the district court confronted opinion not”. Id. at 97 S.Ct. at each papers erroneous was whether the Thermtron, 1440; Liberty placed 423 U.S. 96 S.Ct. at before it established in controversy requirement the amount

diversity jurisdiction. Despite Liberty Mu position tual’s contrary, to the the court B. Liberty found that Mutual’s notices re Gravitt, Since Thermtron and we have an- moval did not damages show that Ward’s alyzed prohibitive reach of section $50,000. exceed While it is true that variety in a wide circumstances. refused consider the information set outset, however, theAt in order to address discovery response forth attached to specific reviewability presented issue Liberty Ward’s second removal notice in speak here determine which our cases reaching May decision, the court issue, clearly most to the we must decide did not remand because it concluded that precise May nature of the district court’s Liberty Mutual violated one the formali 1994 remand order. Ward While character- ties process by related to the removal includ “jurisdictional”, Liberty izes the order as ing an inappropriate document in the notice. it as Mutual describes based a “defect in Rather, the court remanded because con procedure”. cluded that Mutual failed to establish view, the district court remanded under the monetary the threshold amount essential to 1447(c) merely first sentence of section be- jurisdiction. the court’s thusWe conclude objected discovery response cause 9,May that the court’s 1994 remand order Liberty Mutual attached to its notice of re- jurisdictional grounds.. rested on See Baris moval; 1447(c)’s not under section second Inc., Sulpicio Lines 932 F.2d subject sentence because it found that matter (5th denied, Cir.), cert. 502 U.S. lacking. Liberty was (1991) (“As S.Ct. 116 L.Ed.2d 449 used grap- contends that the district court never 1447(c)], ‘procedural’ [section defect is pled question jurisdiction, point- with the go defect that does to the ing finding of a regarding the absence the originally whether case the could have been controversy amount in between the as ”).4 brought in federal district ... proof position. of its Since the district court found that C. similarly Mutual’s two removal notices were incorporated reasoning Having deficient and the that concluded the district court’s opinion jurisdictional, in its guid enunciated first into its second remand was we turn for opinion, we consider the court’s November ance our eases which address the reviewa- May 9, 1447(d) opinions together and bility under section of a remand or 9,May determine basis the court’s der on a based district court’s determination subject initially 1994 remand decision. lacking. We observe matter was began that the court its In Litigation November In re TMI Cases Consolidated II, (3d analysis by Cir.1991), noting denied, that the authoriz- statute 940 F.2d 832 cert. ing provides 906, 112 1262, 117 removal that an action is remov- L.Ed.2d 491 (1992), initially if able it could have plaintiffs been commenced actions in a brought party Pennsylvania in federal court and that the personal state court for desiring injuries arising bears the burden estab- economic out of an incident at removal, discussing grounds objections In the alternative for re- if the are aof character that waived, mand set forth in section Professor can be as such formal modal mat- explained Moore has that section “makes pertaining procedure ters for removal or a distinction between formal defects in removal non-removability proceeding of a otherwise procedure subject juris- ... lack of [and] matter jurisdiction.” within J. & B. federal 1A Moore diction", “[a] and has noted that motion to re- Ringle, § 0.168[4.-1] Moore’s Federal Practice [under the first sentence mand 1993) omitted). (2d (footnotes ed. 1447(c)] days must be made within 30 facility. Attorney for the Western nuclear the United States Island Mile Three removed, Pennsylvania, exercising the au- asserting that since the District

defendants Attorney thority delegated by the the Price- General arose plaintiffs’ claims States, five Act of 42 the United certified indi- Anderson Amendments acting claims must be vidual defendants were within the seq., those § 2011 et U.S.C. plaintiffs scope employment. their The United filed court. tried federal as claiming despite States was then substituted the sole de- motion for contrary plaintiffs fendant. The filed motion to explicit statement Congress’ a motion to strike Act, did not “arise under” remand and the substitu- their claims in the States, arguing tion of the United remanded law. The federal subject jurisdiction. acting had not individual defendants been lack federal triggered by scope employment the within the of their when order The remand Act, they allegedly defamatory com- which contained made holding that court’s jurisdiction upon conducting evidentiary which After ments. grant of federal removal, hearing, district court was itself entered order relied the defendants striking substitution unconstitutional.' to the state court. The United States case question con- determining the threshold In appeal,5 a notice of as well as a leg- we reviewed the cerning our seeking for mandamus review the remand. judicial history of section islative and detail, deciding In and held whether remand order was great reviewable, initially analyzed subject doing our we the Westfall review. order was removal, jurisdic- provisions regarding so, “the Act that because we concluded court, of the district and determined that when a tort suit is filed tional determination Attorney in a resting upon state General conclusion employee acting statutory authorizing removal certifies that the within scheme entire unconstitutional, type scope his employment was not the of feder- and removes the ease, the jurisdiction decision intend- district court does not have authori- al ty of or the to remand on that the Attor- governed the terms ed 1447(c)”, ney underlying section General’s certification was erroneous. policy This application. no Id. at 845. In Id. at 1356. determination was dictated had words, ruling triggered by the Act ex- since the which terms the Westfall which other type press Congress’ the routine intent the remand order was not jurisdiction involving conclusively upon jurisdictional established determination diversity Attorney or a federal General’s certification. Id. presence of court exceed- Congress entrusted the district We concluded district which courts, prohibited by statutorily powers was not ed its defined in section our review 1447(d). remanding in Id. at 844. the ease because there section it, jurisdictional question no was Graham, Likewise, 984 in Aliota F.2d 1447(d) held that section did not bar review. — (3d denied, -, Cir.), U.S. 1350 cert. Id. at 1357. (1993), 37 we ana 126 L.Ed.2d 1447(d) in lyzed section connec Before we decided merits of the dis- the reach of however, pute, noted, a removed case we that this case stood tion with an order jurisdic- in that federal “marked contrast to the normal to a state court on lacking. in jurisdiction There a defamation tional decisions made connection with re- was Pennsylvania fall[ing] types ... in a state mand thus ... outside the action had been filed 1447(d) employees in of cases to cov- against court five federal their section intended er”, capacities. [did] After the case was re and cautioned that not follow “[i]t individual 2679(d) anytime our court section from decision that the district moved to federal jurisdictional Act, misinterprets et seq., statute of the Westfall U.S.C. court's, appeal an under 28 U.S.C. 1291. 984 F.2d 5. We order concluded resubstituting originally in named defendants at 1352-54. place way States was reviewable of the United authority directing the remand we have the review to vacate the re- exception mand [s]uch decision ... an would order. [since] Thus, obviously swallow the rule.” Id. our considering 1447(d) In whether section holding limited to the “narrow situation review, permitted our we our holdings cited on a factor where the district has relied in Litigation TMI Aliota section jurisdictional analysis in its 1447(d) bars review remand orders based from intended to exclude consideration jurisdictional on the routine determinations jurisdictional issue.” Id.6 that Congress intends for the district courts to make. 682. Recognizing Id. at that we again We had examine presented were with a “garden-variety, rou- the limits of section in connection jurisdictional determination”, tine we none- with a remand order Carr v. expanded theless our reviewability remand (3d Cross, American Red Cir. principles and announced “where a sepa- 1994). inju- personal Carr had commenced a rable and final determination has been made ry action in state courts recover dam- court, by the district whether substantive or ages Osteopathic from Red Cross and the jurisdictional, triggers which determination Philadelphia arising Medical out of Center remand, we will review underlying both the HIV-injected blood he transfusion final order remand order itself.” Id. operation. during ceived Red Cross in- at 682-83. decision Our to address the re- voked its charter federal and filed notice upon mand was our based serious concern Acting to the court. sua reviewed, that unless order were sponte, the district court remanded the case Osteopathic would not have been able to court, rejecting con- state Red Cross’ obtain preceding review of the district court’s automatically tention that its charter con- dismissal, order of and the state court would ferred federal civil over actions obligated have give been full faith and remand, party. to which it is a After Carr unappealed credit to the decision the fed- answer, complaint. filed an amended eral court. Osteopathic asserted a cross-claim for contri- indemnity against bution and Red Cross. III. Following Supreme Court’s decision principles With the enunciated —S.G., American Nat. Red Cross v. Thermtron, Gravitt and our cases own inter -, (1992), L.Ed.2d preting mind, the reach which held that the Red charter con- Cross we turn to order before us. To fers over civil to which Red cases authority determine we whether have the Cross party, again is a Red Cross removed 1447(d)’s despite prohibition, review the action to the district court. Carr then first, we consider questions: two interrelated filed a motion to dismiss Red Cross type was the district court’s order of the that ease and a for to motion remand the state appellate intended from shield court, asserting that court the district no 1447(d); second, review under and section longer jurisdiction joint had as a result of a consistently did court the district act with its given tortfeasor that release Carr had Red 1447(c). statutory authority defined in section Cross. granted The district court Carr’s mo- tions for dismissal and on the regarding remand basis district court’s decision Lib- that erty once Red Cross entered into release Mutual’s failure to the mone- establish Carr, subject with tary diversity jurisdiction federal matter amount essential longer Osteopathic no ap- precisely type regular existed. filed an and routine jurisdictional peal7 and a for writ of mandamus that decision we determined Aliota, by logically preceded 6. Guided our decision in we subse- rate from remand quently Corp. decision. 226-30. held in Powers v. 4 F.3d Id. at Southland (3d Cir.1993), 1447(d) that section did not portion bar our review a of a district court's 7. We that the court's concluded district order granting plaintiff dismissing remand order Red Cross was reviewable under 28 sepa- a it relation back amendment because was U.S.C. 17 F.3d at 675-79. (5th Cir.1990). Mortg. Congress expected the in Aliota TMI and Thus, response cases are make in removal since a motion and not courts to district basis) (ie., by jurisdic- challenge enact are not the required to insulate from intended 1447(d). Further, 1447(c), the district ing tional remand orders under section section in the statutory was not made remand order court did not exceed its court’s the district determina separable authority by and final a waiting response of a from context reviewability tion, that Liberty alternatively, that the addition so Mutual. Stated apply. does not Carr Liberty response we announced absence of Mutual’s view, analogous most case is statutory our this deprive the district court of its Gravitt, As in by controlled Gravitt. power it to remand once determined that basic court here determined district subject lacking. matter diversity jurisdiction lacking, element (cid:127) however, reviewability, In support of “plainly falls order that and issued a remand Liberty Mutual contends 1447(c)”. within 1447(e) authority court exceeded its section Therefore, at 1440. at by breaching rules of fundamental fairness Thermtron, order is court’s shielded Assuming permitting respond. it to ar 1447(d). 336, not at by 423 U.S. section review guendo by process which the district Bregman v. Aider 585-86. See Cir.1992) (even (11th court was unfair and also violative remanded man, 955 F.2d legal principles, of established it does not remand order was the district court’s where pre argument follow finding as whether diver issued without vails, essentially equates it error with sity citizenship in fact existed could so, then mistaken, unauthorized action. Were ev appellate review was have been 1447(e) ery be re since the order was erroneous remand decision would barred section 1447(d) viewable, jurisdiction, subject and section would have no on a lack of based procedures). meaning. If in removal Thermtron Gravitt teach not a defect else, they nothing instruct that when a dis IV. power trict exercises its 1447(e), 1447(d) under section allows Additionally, we conclude that sec err; necessarily a district court to it follows court to authorizes district tion that section also allows district did, affording as it procedurally to be unfair. Just as respond to opportunity to Ward’s Mutual an 1447(d) prohibits our review of the must, plain start motion. As we we aof remand order that falls within the merits time language “[i]f of the statute — parameters prohibits it our judgment appears before final which such an jurisdic review the manner order court lacks tion, was rendered. note the case shall be remanded” —and compels and indeed allows Furthermore, keeping our decision is address policy minimizing delay with the which if not raise the issue. even do underlies the section bar to review. Moreover, general rule that the' federal If, 1447(d)’sprohibition, par- despite section ever-present obligation sat courts have an permitted opposing ties remand are to invoke juris subject matter isfy themselves of their upon appellate claims of a district review sponte sua diction and to decide issue unfairness, potential disrup- court’s applies equally in removal cases. Steel Val delay, Congress sought to tion and which Div., Signal ley Auth. v. Union Switch and 1447(d), by enacting minimize section would (3d Cir.1987), 1006, 1010 cert. dis 809 F.2d far-reaching. be missed, U.S. Thus, (1988). we hold that review of the district also American Pol L.Ed.2d 756 See Products, Inc., is court’s remand order in this case barred icyholders Nyacol v. Ins. Co. 1447(d). (1st Cir.1993), faulty matter we cert. section No how 989 F.2d 1258-59 — denied, -, reasoning might the district court’s consider 1447(d) methods, (1994); prohibits us Ziegler section Champion L.Ed.2d v. reviewing an action VI. take, and one that empowered Because we do not have correctly

intended to be final. dissent 1447(d), review under 28 U.S.C. will we require points opinion out that our does not a Liberty petition dismiss Mutual’s for writ of grant court to a motion for Having mandamus. Liberty determined that jurisdictional grounds waiting without on frivolous, petition Mutual’s was not we will indeed, response; our decision should deny damages pursuant Ward’s motion for imprimatur read as an not be Fed.R.App.P. 38. applying actions. This is a matter of court’s Congress’ enacting intent the removal BECKER, Judge, Circuit dissenting. statutes, and it is here where we and the Nothing is more regime central part ways. Accordingly, having dissent de- procedure federal principle civil than the termined that we not have do opportunity notice and heard. This review, we will not address the substance appeal is from an order district court Liberty questions presented granted plaintiff’s motion to remand a petition. removed case back to state court on the

ground that the defendant had not demon- V. damages support subject strated sufficient affording defen- impose requests Ward that we dam heard, dant notice and an to be ages Appellate under Federal Rule of Proce by simple memorandum, even letter on the against Liberty having dure 38 Mutual for dispute whether a existed as to the petition filed the for writ of mandamus. existence of amount.1 The ma- Ward characterizes the as frivolous jority procedure. cannot. blesses I Liberty and asserts that the issue 1447(c) Section authorizes such remand completely lacking is raises in merit. Rule appears where “it the district court 38 states: jurisdiction.” lacks I not do deficiency “appear” see how a can unless Damages Delay party opposing say can at least matter, something about the and hence I Appeals aIf Court of shall determine 1447(c) read requiring section as at least frivolous, appeal an is award minimal notice and to be heard. just damages single or double costs to my view, the majority’s rigid crabbed and appellee. reading 1447(c), gives which rise to Fed.R.App.P. 38. an egregious departure princi- from bedrock ple, majority’s is unsustainable. defen- employ objective We an standard deter 1447(d) sive al- statement “section also mining appeal whether an is frivolous. Hil procedurally lows a district court to be un- (V.I.) Int'l, Hyatt mon v. Co. 899 F.2d fair,” Maj.Op. startling is as (3d Cir.1990). damages impose un We distressing. appeal Rule 38 der when is frivolous. Corp. Mellon Bank First Union Real Es Nor do I think that would sec- we violate- Mortg., Equity tate 951 F.2d tion reviewing this remand order. (3d Cir.1991). Air-Shields, Fullam, opinion We find that Mutual Our Inc. v. (3d Cir.1989), question in petition regard raised a novel 891 F.2d 63 holds that when parameters ing the comply sections district court does 1447(d), presented argu requisites meritorious section Thus, reviewability. in favor ment we will does not shelter remand order from review. If, believe, impose damages against requires Rule 38 as I opportunity may Mutual. to respond before remand dictional,” agree opinion’s 1. I with the based conclusion rather than one on a "defect in "juris- procedure." Maj.Op. that the remand at issue was at order here 747. 752 if, any in suit in a circuit ordered, much of “the That commenced that is as one

be then statutorily a a district court’s court or removed from State parameters aof States, under 28 U.S.C. the power to remand circuit court of United shall defined 1447(c),” holding as the Maj.Op. appear the said circuit satisfaction of cannot sponte court, remands that sua has Air-Shields time such suit been after day limit. thereto, time be 30 ordered brought or removed that such suit short, that either dis- I cannot conceive really substantially a not involve does power admittedly broad remand trict court’s controversy properly or within the dispute 1447(c) delay avoidance or under section court, or said circuit a district renders policy of section have parties improp- to said suit been that it lacks parte determination court’s ex collusively joined, erly or as or made either without no- jurisdiction, made subject matter defendants, purpose plaintiffs or heard, inviolate and opportunity to be tice or creating cognizable a case or removable in a especially is so case This unreviewable. act, the circuit court under this said shall court is re- this the district such as where therein, further shall dis- proceed no but time. manding for the second or miss suit remand justice may court did offer from which it was removed as Because the district heard, require, such opportunity and an be even and shall take order as notice authority just; minimally, it acted excess as shall be but the order of said costs order, as a entering dismissing remanding circuit court or said sult, not bar review section does cause the State Court shall be reviewa- grant Liberty by I therefore Supreme thereof.2 would on writ of error ble may of mandamus and appeal, writ or as case be. allow court to Mu- direct district 3, 1875, 5,§ Act of March ch. Stat. Trucking’s respond to Ward tual to (emphasis supplied). At that time circuit ruling upon it. These views motion before courts, so, un- courts were federal trial merely by my are sense informed act, der this the trial court was directed to judicial policy, by of our but also fundaments if, alia, ap- remand an action inter “it shall begin. history, which I a venerable pear ... satisfaction that such suit [its] really substantially does not involve 1447(c) Requirement I. AND dispute controversy properly or within the TO OF NOTICE AND OPPORTUNITY jurisdiction of’ the court.3 Be Heard Statutory Origins A. provision interpreted That this should be Power Remand requirement containing as the trial currently power parties court hear from the affected The remand embodied remanding originally required Supreme Court’s is shown Gilmer, give opinion in courts in all cases to the affected Morris (1889). 32 L.Ed. That and an to be heard before case notice S.Ct. jurisdiction. appeal the circuit court for for a lack of Section involved plain- Judiciary of Alabama. The genesis had its in the Act of the Middle District tiff, provided: Alabama citizen and Section 5 of the Act recent resident 1875. 1447(d) applies, reviewability majority opinion bar of section makes much Aliota v. Graham, U.S. -, Cir.), denied, (3d 984 F.2d 1350 cert. authority exceeded its whether (1993), 126 L.Ed.2d 37 by remanding offering without first Cross, (3d Red and Carr v. American heard, Mutual notice and cases, 1994). discussion of these howev Cir. case we review the remand order. which Thus, er, point. argues one is besides the No controlling precedent, Air-Shields anything remand order at issue here but explained Part II. infra remand based a non-constitu tional, req nonseverable determination that dismiss, might provi- 3. The court also since controversy amount in had not been estab uisite governed both removed actions ones sion The real is whether lished. originally order in a manner au in the circuit courts. court entered its remand case thorized in which

753 citizen, claiming court, to had filed from the be a Tennessee record before the circuit and against who were of suit defendants citizens erroneously hence that the court to failed dismiss, Alabama. The defendants moved to in compliance dismiss the case with the sub- jurisdiction arguing that the court lacked five, 328-29, stance id. at 9 at S.Ct. actually plaintiff was an because the Alabama 293, the Court was nonetheless satisfied depo- considering After affidavit and citizen. the circuit had complied with section argument by testimony, sition “and after procedural five’s strictures: respective parties,” for the the court counsel In the question case before us the [of 321, 9 denied the motion. Id. at S.Ct. at 291 jurisdiction] formally was (emphasis supplied). plaintiff pre- When the raised, cause, during progress of the judgment, ap- on final vailed the defendants motion, by plaintiff written of which the pealed. notice, due appeared had and to which he other, reaching questions Not substantive objected. So that no there can be presented by appeal, Supreme Court question any as to want circuit concluded that the court should have heard, to him be produce to evidence dismissed the case under section five of opposition to motion dismiss. 324-25, Judiciary Act of 1875. Id. at 9 S.Ct. 327-28, explained (emphases sup- if Id. at 9 at plain- at 292. The court S.Ct. 293 plied). changed citizenship tiff had not his state of Tennessee, obliged was the circuit court distinguished The court this case from jurisdiction. the suit lack of In- dismiss 588, Hartog 521, v. Memory, 116 U.S. 6 S.Ct. statute,

terpreting explained the Court (1886). There, 29 L.Ed. 725 although the complaint properly alleged diversity jurisdic- duty appeared it arose when tion, the challenge defendant the satisfaction the court that the suit citizenship allegations receiving until after jurisdiction. not one if within its But Supreme unfavorable verdict. The controversy the record discloses of which said that properly cognizance, cannot take if, source, any the court is led to further, duty proceed its is to no and to jurisdiction suspect that im- suit; has been dismiss its failure or refusal what, posed upon by the applicable parties collusion do law do, proved, ought any way, may

facts is an error.... or in at other once itsof necessary inquiry own motion cause the 325, duty Id. at at 292. This comes made, by having proper to be either play into whenever court determines that tried, joined by issue some other lacking, for “the court is bound appropriate proceeding, and act as jurisdictional ques- [the to ask and answer form of justice may protection own itself, require for-its sug- tion] for even when not otherwise 326, gested,” against imposition.... (quoting id. at 292 fraud or S.Ct. at Swan, Mansfield, Ry. C. & L.M. Co. Morris, (quoted Id. at at 522 S.Ct. U.S. S.Ct. 28 L.Ed. 462 292-93) (emphases S.Ct. at U.S. (1884)). Moreover, point, more supplied). The Morris Court contrasted the prescribe particu- the statute does not actions the circuit court in its case with lar mode which such fact lack of [the Hartog, those the trial court in which had jurisdiction] may brought be to the atten- action, summarily upon the dismissed the may tion of the court. It be done ground solely want of with- affidavits, depositions or the taken in the any opportunity affording plaintiff out purpose. cause be used for that whatever to rebut or control the evidence done, upon However it should no- due upon jurisdiction. tice to the the dismiss- affected al. Morris, (em- at 293 (emphases supplied). phasis supplied). The trial court’s failure Thus, give plaintiff although Supreme to be heard Court con- jurisdiction dismissing cluded that lack was manifest for lack of 754 1911, Congress codified the Judicial Supreme Court’s re- to the

enough warrant 3,1911, 231, remanding Act of March eh. 36 Stat. of dismissal and Code. versing the order Thus, resurrecting the Su- 1087. Aside from not the re- proceedings. for further requiring reviewability provision, five as the 1911 act preme pealed read section Court par- provide provision the affected al- the trial court re-enacted section five’s remand i.e., remand, 231, 3, intent to notice of its Act ch. ties with most of March verbatim. juris- subject 37, Thus, of rule the existence § 1098. 1911 36 Stat. the Code diction, opportunity to heard. as an as well displays no intent the notice- eliminate

and-hearing requirement. lW(c) Section B. Evolution of of The 1948 re-codification the Judicial subsequent Nothing evolution of sec- in the pro- and the corrections thereto Code 1949 1447(c) Judiciary of the tion from section five provision’s change in duced the next an intent of 1875 forward demonstrates Act 25, 646, 1948, eh. form. See Act of June salutary abrogate restriction described the amended, 1447, 869, 939, § of 62 Stat. Act i.e., above, (original) statutory power the 1949, 139, 84, 89, 24, May 63 102. ch. Stat. trial to remand for lack of the federal courts changes, of the 28 As result these new jurisdiction required that remand orders of (with 1447(c) emphasis sup- read U.S.C. giving the affected be entered plied): opportunity to be parties notice and an judgment final If at time before following of the evolu- heard. The discussion appears the was removed case im- not, for most does the tion of section jurisdiction, providently the and without development the part, companion of treat the case, district court shall remand the of remand orders appellate bar on review payment order the of costs. 1447(d), expressed in U.S.C. now 28 is to that section point of the discussion show explained, Again, Supreme as the has require be held should change Judicial 1911 Code give to be notice and courts change 1447 “no[t] inten[ded] was a re- remanding heard prior substantively,” law but was meant demonstrated, that is sec- moved case. Once recodify pre-1948 law without “to materi- a problem to be because tion ceases change provisions §§ of 71 al insofar review of an order that section does not bar of the old here relevant were 80 Code au- of the district court’s entered excess Thermtron, 423 at concerned.” U.S. 350 n. thority. 15, at 592 n. 15.4 by Judiciary five was modified Section Moreover, language “it appears” car- 1887, repealed provision which Act re-codification, through ried albeit allowing orders “on writ of review remand dropped minor modification: the statute 1887, 3, Act March appeal.” error or See modifier “to the satisfaction of the district 373, 2, 6, provision §§ 24 ch. Stat. 552. (and court” the future switched from authorizing for lack of tense). The present elimination court- (or however, by unaffected the 1887 act requirement language from the centered correcting errors in the the 1888 act jurisdiction “appear” the lack of moves in the act, 13, August Act of enrollment of 1887 438). one opposite expect direction of what would 866, 1888, ch. 25 Stat. State Minne- requirement if delete a 48, 65, intended to 24 v. Northern Sec. 194 U.S. sota (1904); give parties oppor- notice and an that courts 870 S.Ct. L.Ed. Waite Cruz, tunity to be heard before cases City 184 U.S. Santa (1902). Thus, 327, 335, jurisdiction. 46 L.Ed. 552 for lack S.Ct. type Although “changes that were was less in substance” intend- dissent Thermtron ed, events, change all sanguine at S.Ct. at and at than the that no id. re-codification, provision language intact see Therm- relevant here—the intended tron, 359-60, (Rehn- "appear”— shall the lack of J., dissenting), quist, of the remained. See it offered no evidence infra. requirement, procedure still effect Judicial defects be made within re-codification in 1948. thirty days Code of survived Importantly, removal. (without change) statute retained opera- The current version of section phrase, appears.” tive “it A to remand the ease on the basis motion procedure any of defect in removal must days filing Consistency Policy C.

be made within 30 after the of Judicial the notice of removal under analysis shows, As foregoing 1446(a). judg- If at time before final 1447(c)requires give appears ment the district court parties affected opportunity notice and an subject jurisdiction, lacks matter the ease be heard before case. This shall be remanded. sense, subject makes jurisdic- matter 1447(c) (1994), 28 results from U.S.C.A. although a threshold issue —is not tion— many one of amendments the Judicial notice, something judicial fit for and the law by Congress made in 1988. Code See Judi given and of a generally facts ease must be cial Improvements and Access to Justice Act determined, in adversary system, by our 1988, 100-702, of Pub.L. 102 Stat. 4642. The court, hearing par- the interested two sentences of this version of section ties.5 1447(e) produced by up splitting were pre-amendment provi sole sentence of the specifically, More district courts are obli doing so, replaced sion. In the two gated parties to listen to the affected before prior authorized remand a case —if dismissing subject lack case for of matter “improvidently,” was removed or if a case jurisdiction. explained We have this jurisdiction” with, was removed “without — Berwick, Borough Neiderhiser F.2d 840 v. of respectively, authorizing a sentence remands (3d 213, Cir.1988). There, 216 n. 6 dis procedure” of for a eases “defect trict court had plaintiffs dismissed the action authorizing and one remands a “lack[ of] subject for lack of matter be subject jurisdiction.” matter See v. Rothner concluded, sponte, cause it sua suit 1402, City Chicago, n., 879 F.2d 1411 & 7 of did present controversy. not a live case or (7th Cir.1989). legislative scanty history The Id. at 216. The fact that the district court (a change paragraphs), this mere two see .of sponte. sua considered dismissal was H.R.Rep. 100-889, Cong., 100th 2d Sess. No. itself, problem procedure but used was (1988), reprinted 72 in 1988 U.S.C.C.A.N. impermissible: Cong.Rec. 5982, 6033; S16284, see also 134 While the district court’s of consideration (daily 1988); 14, Oct. S16308 ed. Court Re sponte issue sua Hearings and Access to Justice Act: on form proper, the did parties not afford Courts, H.R. 3152 Subcomm. on Before opportunity present evi- Civil Liberties and the Administration brief of Comm, dence on this find of issue. We this lack Justice the House on the Judicia of (1987- ry, Cong., improper. heard 100th 1st & 2d Sess. 97-98 1988), change reveals no intent have plain- [the the re below should allowed remands, quirements present tiff] for district court sufficient time to other evidence or require than respond jurisdic- that motions remands for otherwise of issue majority's 1310, (3d Cir.1987); 771, 5. The invocation cases where the 826 F.2d 1312 ion No. 490, Co., subject court sua sponte raised the issue of mat- Metropolitan 784 F.2d Kiick v. Edison (3d 1986); contrary. prac- ter is not to the 492 Cir. v. Utili General Pub. Stibitz 993, (3d 1984); tice at least of Circuit allow is to 746 F.2d Corp., 995 Cir. ties Lo 334, to be heard even when Journeymen sua cal Union United Ass’n and sponte raising subject jurisdic- issue Apprentices Plumbing Pipe Fitting Indus. See, 812, Canada, AFL-CIO, e.g., Colafella, tion. 885 F.2d 628 F.2d 813 Lunderstadt v. of U.S. (3d 66, Cir.1989); (3d Cir.1980); McMahan, 69 872 Knop v. 620 Boeing Medlin v. Vertol Cir.1989); (3d (3d Cir.1980); F.2d 113 Mfg. F.2d 958 & n. 1 Jersey Lovell v. Cen States, Export-Import 843 Light the United Bank tral & Co. v. Power Local Unions (3d Cir.1988); 1289, 1298, 1303, F.2d Lewis v. Interna- Int’l Brother Teamsters, Workers, Chauffeurs, tional Brotherhood 698 n. hood Elec. (3d Cir.1975). America, Helpers Warehousemen Local Un- normally may rely upon that none exist- tion it determined either written or oral evidence. The court ed. however, must, nonmoving party afford the supplied). We (emphases n. at 216 ample opportunity present ‘an to secure and there because —on to remand need jurisdic- evidence relevant to the existence of of the ruled favor record —we the extant ”) (quoting Gordon National Youth jurisdic- tion.’ plaintiff, holding that Alliance, (D.C.Cir. Work 675 F.2d tion existed. 1982) Robinson, III, C.J., (Spotswood W. con- matter, the district court is general As a curring)). oppor- and an give parties notice required to remanding tunity a re- heard before to be go jurisdictional facts, While these cases Local American Fed- moved ease. See why reasoning I their is not do not see also Bonatz, Musicians, AFL-CIO v. eration of Indeed, “jurisdictional applicable to law.” in Cir.1973) (“Even (3d on 476 F.2d case, Liberty Mutual the instant contends jurisdictional the record must fact] of [issues adopted that the district court verbatim jurisdiction was clearly that establish after Trucking’s of the Ward mistaken view re- plaintiff had an challenged the 1446(b) quirements of 28 for estab- U.S.C. by by deposition, present facts affidavit lishing controversy, in amount that this hearing, evidentiary support in of his inor an incorrectly error the district court led contention.”) (emphasis sup- jurisdictional plaintiff could not use dis- conclude Univ., 727 F.2d plied); Prakash v. American covery responses support In removal. (“When (D.C.Cir.1984) 1179-80 Liberty submission, questioned, jurisdiction is the jurisdictional law court’s confusion as to led must, course, satisfy authority itself of its of incorrectly Liberty the court to conclude that ease, may it doing, in so the hear fact, Mutual had not shown a disputes. The court has con- factual resolve i.e., controversy the an amount in in of devising procedures in excess latitude siderable $50,000. See discussion pertinent margin.6 in it ferret out the facts the will follow to Co., (3d Cir.1993), majority opinion generally Although refers Ins. 986 F.2d the Inland. However,' order, Maj.Op. cited at 744. court's remand in under the to the basis for the district 1446(b), paragraph incomplete picture. majority second issue paints the in an first second removal and remand was whether district court entered its re- notes that the Liberty presented Trucking’s Mutual had the district court Ward state court mand order because adequate paper" with "other that showed complaint writ to show a sufficient failed controversy. amount in Foster resolved controversy, and in because the affidavit amount "pleadings” counsel, of what and did opined constituted Liberty in which he of Mutual's indeed, paper"; report- $50,- not define "other several controversy in exceeded that the amount decisions, including And, ed one from Middle Dis- majori- legally insufficient. as discovery Pennsylvania, trict of hold that ty explains, the district court remanded sec- sponses paper" constitute "other that can to consider the discov- ond time it refused controversy amount in establish under section by ery responses since been submitted that had See, Inc., 1446(b). e.g., Penpac, Zawacki Despite Liberty support Mutual in of removal. (M.D.Pa.l990) F.Supp. (deposition Liberty presented Mutual thus ad- fact testimony). Trucking But Ward cited none of merely plaintiff, of the state- missions court, using these cases instead views, its counsel's ment of own pleadings argue definition of in Foster simply states: discovery responses remand motion court confronted in each issue the district controversy were inadmissible for amount in Liberty opinion papers whether the purposes. asking Liberty Without even whether placed established amount Mutual disagreed of with construction sec- juris- diversity controversy requirement (at of 144.6(b) in tion which time Mutual could diction. have tírese other called cases to court’s atten- consideration), Maj.Op. of the 755. This characterization tion for the district court entered incomplete. adopted issues that word for word remand order paragraph of interpretation 28 U.S.C. Trucking’s Under first Ward of Foster sec- 1446(b), 1446(b). issue in the first removal and tion not, course, pleadings” opine remand was whether the "initial I do to whether Trucking correctly interpreted by the defendant in the state action estab- Mutual or Ward 1446(b). My brought solely been in feder- discussion is meant lished that suit could have dangers majori- al v. Mutual Marine & to illustrate the inherent court. See Foster Life supported by light strongly views are of error in These the nature of our adver- Casualty re system.7 discussion In Continental sarial court (7th Cir.1994), where the 29 F.3d Appeals held the Seventh Circuit Consistency Congressional D. Policy with dis- that section does not authorize This construction of section accords procedural trict to remand courts eases policy underlying section 1447. In by party. defects absent a motion so Certainly, curtailing review remands concluding, importance the court stressed the issued lack hearing parties: from the affected judgment seek “to make the of a district motion, By acting a case final and conclusive judges increase the risk error —both delay order to avoid the appel- caused understanding legal error and error in late review Maj.Op. remand decisions.” parties’ desires. Ours is adversarial (emphasis supplied). concluding But lawyers system, rely and courts iden- the risk erroneous remand orders was tify pertinent facts and law. great enough outweigh to the threat judge the district stated facts case posed by protracted litigation jurisdic- over correctly apparently but was unaware of tional questions, Congress presup- have must that had eases discussed the issue and posed judgment. the exercise of Kloeb v. Cf. reached conclusions at odds with his own. 199, 201, 204, Armour & 311 U.S. 61 incorrect; Perhaps these other cases are 213, (1940) 215-16, S.Ct. 85 124 L.Ed. subject. we have no on views But the (where, plaintiffs motion, on remand district district court should have solicited the deciding took evidence grant before to parties’ acting, avoid submissions to before remand, unreviewable, remand was for the happened has what this case—extended remand statutes “entrust determination con- disputation, leading potentially to another cerning judicial such matter to the informed change judge of forum. If the district court”) of discretion (emphasis parties’ should entertain the views before supplied). That expectation would conform case, remanding ought he then also to 1447(c) my with view that requires wait for a motion.... par- district to afford the affected (citation omitted). Id. at 295 Because the ties and notice to be'heard be- appeals required court of the district court to fore it remands to cases state court. parties remanding, hear from the before assumption that district courts arrive concluded that the district court could not decisions, unlikely at reasoned remand to be proce- sponte sua remand on the wrong, also underlies the decision of re Although plain- dural defect. In See id. II, Litigation TMI ability procedural Cases Consolidated sup- tiffs to waive defects 940 (3d Cir.1991), ported supports my F.2d 832 the court’s conclusion con- that district relates, majority party’s must clusions here. As the courts await motion before id., defects, procedural ease held that section not bar independent requirement district that district courts review of a court’s remand order that parties” subject “solicit on must the views of the flowed was based the lack of matter general jurisdiction from the more flowing concerns about risks from the district court’s 1447(c) ty’s interpretation addressing rejecting as authoriz- defendants ing support jurisdiction); giving district courts remand without contentions in Mall v. Federal, 107, parties 127 notice and an heard. Atlantic Fin. 108-09 be F.R.D. (W.D.Pa.1989) (although plaintiff de- neither nor remand, 7. The construction of above plaintiff described fendants moved for both practice many also accords questioned jurisdic- sound one defendant the court's See, tion); judges. e.g., Allergy Diag (defendant our district court opposing at id. 110 523, Equitable, F.Supp. jurisdiction); nostics Lab. v. supplemental arguing 785 brief (W.D.Pa.1991) 290, (addressing arguments Kirby, F.Supp. 524 made Recchion v. 291 by removing (W.D.Pa.1986) ("[The "upon raising sponte defendant court] court's sua conference”); jurisdictional propriety issue at a status addressed the ... Penn., McDonough subject v. Blue N.E. Cross basis or- for ... (W.D.Pa.1990) issue.’’). (remanding parties F.R.D. 470-72 dered file briefs on parties responded had and the giving the act rise fed remanded determination Thermtron, 423 at 339- order. jurisdiction was itself See unconsti eral Gravitt, this In 430 U.S. at at How was at 587. Maj.Op. 747i S.Ct. tutional. order, at the district court had the remand to review court able 1447(c),” removing opportu- bounds of defendant afforded the “plainly within Gravitt, plain- at nity granting heard 430 U.S. to be 1447(d)? F.Supp. Because offending section remand motion. See tiffs (1976). jurisdictional “the deter & n. 2 concluded we ... was not the mination of Summary E. of federal type governed intended be decision conclusion, early Supreme Court on underlying section policy terms of or the 1875 forerunner that remands held 1447(c).” (quoting Maj.Op. at 747 TMI Liti 1447(c) required affected (internal 845) quotation gation, given opportu- and an be notice first omitted). majority here As the ex marks subsequent nity Nothing in the be heard. triggered the re ruling which “the plains, provision development of type the routine mand order requirement, which intended to abolish ... which Con determination 1447(d)’sunder- does not with section conflict courts[.]” to the district gress entrusted avoiding I lying policy delay. must there- supplied). (emphasis disagree with the that section fore the district court authorized might distinguished Litigation TMI allowing Liberty Mutual mand first grounds it involved a distinction that respond Trucking’s remand mo- to to Ward among subject court matters the. tion. determinations, procedures, rather than my that supports view but Reviewability 1447(d) § II. AND expect accept to verbatim district courts not ORDER District CouRt’s Remand of the law with- moving party’s statement views, party’s listening opposing out provide failed to Because the district court making not method of for that is a “routine” opportunity to be heard judges are hu- judicial decisions. Given remanding, remand order was un- before its man, rule without a court that would listen- result, our As a under authorized. likely to more err than one ing appreciably 1447(d) reviewability jurisprudence, section input. we sides’ Since that considers both issuing a writ of prevent does not us from district courts’ ordinarily do not scrutinize compel court to mandamus to subject jurisdiction remand decisions matter authority by of its remain within the bounds error, critically important it is for substantive awaiting Liberty response to Ward require- preserve prophylactic that wé Trucking’s I remand order. elaborate on par- hear first from ment that points as these follows. Indeed, remanding. providing ties before may heard Procedurally Reviewability notice and A. by reducing the delays, for even reduce Remand Unauthorized remands, this rule erroneous chances of Orders likely parties will need to makes it less Air-Shields, Fullam, opinion in Inc. Our (where the more than once remove actions (3d Cir.1989), dictates the conclu- permits) in order use subse- period time a man- sion that remand orders entered in govern- explain quent removal notice 1447(c) section are ner authorized ing to -the district court. law despite the limitations section reviewable 1447(d). Air-Shields, the district court In This is also consis- construction that it precedent sponte on re- sua remanded case concluded Supreme Court tent with. Thermtron, Untimely and without re- had been viewability,of remand orders. surety quired bond. Id. at 64-65. Because had an order to the district court entered 1447(c) would not why determined that section as the case should not be we show cause subject juris- the district court to remand for where it finds a lack of have allowed procedural thirty days allowing these defects outside diction notice and filing period,8 id. heard, at we conclud- from an opportunity to be the courts of by doing “the ex- ed so district court appeals only would review those decisions power,” statutorily defined id. at ceeded where the district court fails to listen to the Thermtron, (quoting 423 U.S. at 96 parties remanding. If 593) (internal quotation omit- marks argument ceives from each side before acting ted). Thus, we were barred section yet still remands lack of 1447(d) issuing a writ mandamus jurisdiction, review generally would be un- directing the district court to vacate its re- available, regardless of how erroneous the mand order. have been in its de- Since, termination. analogous. here is situation shown, I have notice and an Indeed, majority guilty is itself of con- be heard are before remand “essential flating error with unauthorized action. I 1447(e), § action ... then lack under agree that Thermtron and Gravitt teach that deprives judge power a district [thereof] “when a district power court exercises its return a case to state court.” Continental remand under section Casualty By granting 29 F.3d at 294. However, allows a district court to err.” Id. Trucking’s Ward motion to remand without logic does not as a matter “necessarily allowing Liberty respond, Mutual to the dis- follow[] also allows a statutorily trict court here exceeded its de- procedurally district court to be unfair.” Id. agree power. fined I of course with the majority’s deduction would be sound “only remand orders issued procedural if unfairness merely were invoking be, one form more of error. But that cannot specified ... therein are immune from re- legitima- for to so hold would undermine the 1447(d).” Maj.Op. view under at 745 cy procedural system. of our Procedural Thermtron, (quoting predicate legitimacy. fairness is the And 590) (internal quotation at marks omitted and 1447(e) (concomitantly) since section does not here). emphasis supplied But the district judges authorize to remand hearing without give Liberty court’s failure to Mutual notice parties, from district court does not precluded opportunity to be heard this power “its exercise to remand section under constituting from a “remand order issued 1447(c)” when it remands as the district 1447(c).” here, possesses it pow- no such er. conduct Such would then be an B. Unauthorized Action or 1447(d) by permitted “error” to stand section Unreviewable Error than would be the more remand issue majority While does address the Thermtron, which was entered for docket analysis, responds Air-Shields reasons; control both actions are ultra vires. arguments by attacking con- above, struction of section discussed majority’s reasoning The is therefore ei- accusing of “equat[ing] error ther or circular' inconsistent Thermtron. Maj.Op. with unauthorized action.” majority’s confident assertion that remonstrátion, however, This is misdirected. “Ijjust prohibits as section our re- 1447(c) requirement The section dis- view of the merits a remand order that parties trict parameters courts hear from the falls within the not, believes, majority prohibits does our review manner (em-' “every rendered,” dictate that erroneous deci- which id. remand sueh order is Rather, begs question: phasis supplied), sion would be reviewable.” Does a authority since the hearing district court’s remand without entered 1447(c)? removing party removed case extends to all “fall within” section situations party. 8. We did procedure not decide whether the district court moval absent a motion permitted was ever to remand for defect in re- See 65: id. at Arth, not, (argued), B. E. Ira Silverstein Gerald Since, argued, it does have as I Rothschild, Frankel, Fox, Phila- O’Brien & our review. bar to no PA, delphia, cross-appellant. Clothier, Kennedy, J. Robert C. III. William Conclusion Dechert, PA, Rhoads, Philadelphia, Price & constru- errs in I believe Consulting Engi- curiae: American for amici authorize district courts ing section Council, Action Co- neers Hazardous Waste giving the to issue remand orders alition, Engineers Consulting Council of notice Pennsylvania, of En- and AFSE: Ass’n damage holding Fortunately, the heard. Practicing in gineering Firms the Geosci- may in time jurisprudence does to remand ences. circumscribed, nothing in prove to be Bowman, Carrie, Grangier Gunther 0. C. requires majority’s opinion today district Powell, Trachtman, Logan, Carrie & Bow- constitutionally dubi- engage in this courts Prussia, PA, man, P.C., King of for amici might practice.9 never need ous Courts Architects, American Institute curiae: question if courts would address this Pennsylvania of Architects and its Nat. Soc. give the notice in the future County, Regional Chapters AIA, Bucks — spoken. I have This be heard of which PA, PA, AIA, Middle, AIA Central Eastern policy of undermine section 1447’s would not AIA, PA, AIA, PA, Northwest- Northeastern because, delay unless the avoidance PA, AIA, Philadelphia AIA and AIA ern it, the to extend substantive court desires Pittsburgh, Coalition of American Structural ruling without elaborate can be made Engineers, Valley Ass’n of Struc- Delaware filings procedures. Engineers, tural National Soc. Profession- reasons, foregoing respectfully I For the Pennsylvania Engineers, al Soc. of Profes- dissent. Engineers, Nat. Council of Structural sional

Engineers Associations.

SUR FOR REHEARING PETITION SLOVITER, Judge, Before: Chief STAPLETON, MANSMANN, HUTCHINSON, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, COWEN, LEWIS, SAROKIN, Circuit McKEE CORPORATION, VALHAL Judges. Appellee/Cross- Appellant, McKEE, Judge. Circuit petition rehearing appel- for INC., ASSOCIATES,

SULLIVAN in the lee/cross-appellant above-entitled case Engineers, Architects, Planners, having judges submitted been who Appellant/Cross-Appellee. participated in decision of this Court and 94-1221, Nos. 94-1241. judges of all the other available circuit service, judge no regular circuit active Appeals, Court of United States having in the asked who concurred decision Third Circuit. rehearing, for and a of the circuit judges regular active service of the circuit 20, 1995. March rehearing having voted for the court (ar- banc, McDonald, rehearing for is denied. K. Pamela Tobin Kean Doak, grant Judge & Phila- Hutchinson would banc re- gued), Fogel, C. Labrum Lisa in his PA, hearing forth at- delphia, appellant. reasons set brought chal- open such con- Mutual has not a constitutional It remains an whether Clause, lenge. duct the Due Process violates

Case Details

Case Name: Liberty Mutual Insurance v. Ward Trucking Corp.

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 24, 1995

Citation: 48 F.3d 742

Docket Number: 94-3377

Court Abbreviation: 3rd Cir.