Hopewell Housing Authority v. Xavier Stokes ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1474
HOPEWELL HOUSING AUTHORITY,
Plaintiff - Appellee,
v.
XAVIER STOKES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:11-cv-00118-REP)
Submitted: November 17, 2011 Decided: November 22, 2011
Before KING, DAVIS, and WYNN, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Xavier Stokes, Appellant Pro Se. James J. Vergara, Jr., VERGARA
& ASSOCIATES, Hopewell, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xavier Stokes appeals the district court’s order
remanding this case to state court and granting Hopewell Housing
Authority attorney fees and costs. We dismiss in part and
affirm in part.
Generally, “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C. § 1447(d) (2006). The Supreme Court has
instructed that Ҥ 1447(d) must be read in pari materia with [28
U.S.C.] § 1447(c) [(2006)], so that only remands based on
grounds specified in § 1447(c) are immune from review under
§ 1447(d).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124,
127 (1995). Thus:
§ 1447(d) bars . . . review of a district court’s
remand order only if the order was issued under
§ 1447(c) and invoked the grounds specified
therein, . . . either (1) that the district court
granted a timely filed motion raising a defect in
removal procedure or (2) that it noticed a lack of
subject matter jurisdiction.
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196
(4th Cir. 2008) (internal quotation marks, alterations and
citations omitted). “Whether a district court’s remand order is
reviewable under § 1447(d) is not determined by whether the
order explicitly cites § 1447(c) or not.” Borneman v. United
States, 213 F.3d 819, 824 (4th Cir. 2000).
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In this case, the district court remanded the action
because it lacked subject matter jurisdiction. Under the cited
authorities, we are without jurisdiction to review the district
court’s decision to remand the case to state court, and we
dismiss this portion of the appeal.
With regard to the district court’s award of
attorneys’ fees and costs, we have reviewed the record and find
no abuse of discretion. See Calabro v. Aniqa Halal Live Poultry
Corp., 650 F.3d 163, 165-66 & n.2 (2d Cir. 2011) (stating
standard of review and collecting cases holding that appellate
court has jurisdiction to review order awarding fees and costs).
Accordingly, we affirm this portion of the order for
the reasons stated by the district court. Hopewell Hous. Auth.
v. Stokes, No. 3:11-cv-00118-REP (E.D. Va. Apr. 4, 2011). We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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