Case Information
*2 Before P ROST , Chief Judge , N EWMAN and H UGHES , Circuit
Judges .
N EWMAN , Circuit Judge .
O R D E R
MPHJ Technology Investments, LLC (“MPHJ”) peti- tions this court for a writ of mandamus, and also appeals from an order of the United Stаtes District Court for the District of Vermont remanding this case to state court. Because we lack jurisdiction to grant the requested relief, we dismiss the petition and appeal.
B ACKGROUND
MPHJ owns several patents relating to network scan- ner systems. MPHJ through subsidiary licensees wrote to various business and non-profit organizations operating in Vermont, requesting the rеcipient to confirm it was not infringing MPHJ’s patents or, alternatively, to purchase a license. If the offeror did not receive a response, a Texas law firm sent follow-up correspondence stating that an infringement suit would bе filed.
On May 8, 2013, the State of Vermont through the Vermont Attorney General, filed suit against MPHJ in Vermont state court. The State alleged MPHJ engaged in unfair and deceptive trade practices under the Vermont Consumer Protection Act, stating that the letters con- tained threatening, false, and misleading statements. The State filed this case seeking civil penаlties and other relief under state law.
MPHJ removed the case to the United States District Court for the District of Vermont on June 7, 2013, assert- ing federal question jurisdiction and diversity jurisdiction. The State moved to remand the case back to statе court for lack of subject matter jurisdiction. MPHJ opposed the State’s motion to remand, and filed a motion tо dismiss for lack of personal jurisdiction and a motion for sanctions *3 under Rule 11 of the Federal Rules of Civil Procedurе and 28 U.S.C. § 1927. The sanctions motion also requested dismissal, asserting that the State’s complaint was frivo- lous, that the complaint failed to plead that the alleged conduct was both objectively and subjectively baseless, and also that the complaint was preempted by MPHJ’s right to enforce its patents.
After a motions hearing on February 25, 2014, the Stаte—in response to concerns raised by the district court at the motions hearing—filed a conditional motion to clarify or amend its complaint, to eliminate the request for a permanent injunction requiring MPHJ to stop threatening Vermont businesses with patent infringe- ment. MPHJ subsequently moved for summary judg- ment.
Without deciding any other motions, the district court
granted the State’s motion to remand. The district court
stated that the complaint did not raise a substantial
question of patеnt law, and that “the State is targeting
bad faith conduct irrespective of whether the letter recipi-
ents were patent infringers” or the patents were invalid.
State of Vermont v. MPHJ Tech. Invs., LLC
, No. 13-cv-
00170, slip op. at 14 (D. Vt. Apr. 14, 2014). The court
pointed out that MPHJ’s preemption assertion was a
defense to its allegedly unfair and deceptive practices,
and that a defense сannot provide a basis for federal
subject matter jurisdiction.
See Metro. Life Ins. v. Taylor
,
MPHJ appeals the remand to state court, and has filed a petition for a writ of mandamus.
D ISCUSSION
MPHJ argues that the district court abused its discre- tion (1) in effectively denying its motion for sanctions; (2) by refusing to decide the motion to dismiss for lack of personal jurisdiction before deciding subject matter *4 jurisdiction; and (3) in “effectively amending the Original Complaint and then declining to exercise jurisdiction over the complaint as amended, or in remanding the case . . . without first deciding a controlling federal question of preemption undеr the First Amendment and federal patent law.” Def.’s Notice of Appeal para. 3, May 13, 2014.
A.
We start with the issue of appellate jurisdiction over this remand order. Section 1447(d) of Title 28 provides that:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]
The Supreme Court has held that this provision ap-
plies only to remands based on the grounds specified in
§ 1447(c)—namely, a defect in remоval procedure or lack
of subject matter jurisdiction.
Thermtron Prods., Inc. v.
Hermansdorfer
, 423 U.S. 336, 343–45 (1976). In
Kircher
v. Putnam Funds Trust
, the Court stated that “we have
relentlessly repeated that ‘any remand order issued on
the grounds specified in § 1447(c) [is immunized from all
forms of appellate review] . . . .’”
Kircher
, 547 U.S. 633,
640 (2006) (citing
Thermtron
,
Herе the district court remanded on a ground provid- ed in § 1447(c); that is, in the district court’s view the complaint did not raise a clаim or question of federal law to give rise to federal jurisdiction. Section 1447(d) pre- cludes this court from second-guessing the district court’s jurisdiction determination regarding subject matter. If the § 1447(d) bar applies, “review is unavailable no mat- tеr how plain the legal error in ordering the remand.” Briscoe v. Bell , 432 U.S. 404, 413 n.13 (1977) (citing Gravitt v. Sw . Bell Tel. Co. , 430 U.S. 723 (1977)). In making that determination, we look only to whether “the *5 District Court reliеd upon a ground that is colorably characterized as subject-matter jurisdiction.” Powerex Corp. v. Reliant Energy Servs., Inc. , 551 U.S. 224, 234 (2007). Here, the district court repеatedly stated the position that “the Court does not have subject matter jurisdiction.” We therefore lack jurisdiction to review the remand decision.
B.
MPHJ argues that § 1447(d) is “not even relevant” to our review of the district court’s failure to address MPHJ’s motions to dismiss for lack of personal jurisdic- tion and for sanctions. Although § 1447(d) is not of itself dispositive of the reviewаbility of a motion for sanctions, the district court’s remand order dominates any proceed- ings on this appeаl.
MPHJ cites the Supreme Court’s decision in
Ruhrgas
AG v. Marathon Oil Co.
,
C.
MPHJ offers additional arguments, but none permits
this court to depart from § 1447(d), even if there were
legal error on the рart of the district court in ruling that it
lacked jurisdiction.
See Powerex
,
Accordingly,
I T I S O RDERED T HAT :
(1) The State of Vermont’s motion to dismiss is granted. The petition and appeal are dismissed.
(2) Each side shall bear its costs.
(3) The State’s motions to take judicial notice are granted.
(4) The State’s motion to strike is moot.
F OR THE C OURT /s/ Daniel E. O’Toole Daniel E. O’Toole Clerk of Court