Zanders v. Wal-Mart Stores ( 1996 )

Rehearing granted and unpublished opinion filed 1/3/96
vacated by orders filed 1/17/96.
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HARRIETT ZANDERS,
Plaintiff-Appellant,
v. No. 95-1760
WAL-MART STORES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-94-2769-3-19)
Submitted: December 12, 1995
Decided: January 3, 1996
Before WIDENER, MURNAGHAN, and WILLIAMS,
Circuit Judges.
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Vacated and remanded with instructions by unpublished per curiam
opinion.
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COUNSEL
Gene Stockholm, Billy R. Oswald, BILLY R. OSWALD & ASSO-
CIATES, West Columbia, South Carolina, for Appellant. Jay Bender,
BAKER, BARWICK, RAVENEL & BENDER, L.L.P., Columbia,
South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Harriett Zanders appeals the district court's order granting sum-
mary judgment in favor of Wal-Mart in this diversity action for mali-
cious prosecution. Zanders originally brought this action in South
Carolina state court but Wal-Mart removed to federal court on the
basis of diversity of citizenship. See 28 U.S.C.A. § 1441(b) (West
1994). Because we hold that the district court lacked jurisdiction to
enter a final order in this action, we vacate the court's order and
remand for entry of an order remanding the action to state court.
Despite the fact the parties have not raised the issue in this case,
this court considers the district court's lack of subject matter jurisdic-
tion sua sponte. See, e.g., Schlumberger Indus. v. National Sur. Corp.,
36 F.3d 1274, 1278 n.5 (4th Cir. 1994); see also North Carolina v.
Ivory, 906 F.2d 999, 1000 n.1 (4th Cir. 1990). While the initial
removal in this case may have been proper, since Zanders did not
claim a total sum specific in damages, the district court's diversity
jurisdiction evaporated when she stipulated that her damages were
less than the $50,000 jurisdictional amount. 28 U.S.C.A. § 1332
(West 1993). The statute governing remand after removal provides
that "[i]f at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded."
28 U.S.C.A. § 1447(c) (West 1994).
Here, the district court failed to remand the case and instead
entered a final order in a case it lacked jurisdiction to decide. This
was error. Consequently, we vacate the district court's order and
remand the case for entry of an order remanding the action to the state
court. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,
151 (4th Cir. 1994). We dispense with oral argument because the
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facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED WITH INSTRUCTIONS*
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*Irrespective of the merits of the case, the district court must remand
the case even where the remand is obviously futile. See International
Primate Protection League v. Administrators of Tulane Educ. Fund, 500
U.S. 72, 87-88 (1990) (holding that remand was required despite fact that
party destroying jurisdiction would be omitted and case once again
removed to federal court).
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