Bald Head Association v. Curnin ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1655
BALD HEAD ASSOCIATION,
Plaintiff - Appellee,
v.
PETER C. CURNIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:09-cv-00173-F)
Submitted: March 29, 2011 Decided: May 20, 2011
Before KING, SHEDD, and DAVIS, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Francis X. Moore, FRANK X. MOORE & ASSOCIATES, Atlanta, Georgia,
for Appellant. Theresa M. Sprain, WOMBLE CARLYLE SANDRIDGE &
RICE, PLLC, Raleigh, North Carolina; Andrew Kent McVey,
MURCHISON, TAYLOR & GIBSON, Wilmington, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peter C. Curnin appeals the district court’s order
remanding to state court the civil action filed against him by
Bald Head Association (“BHA”) in the General Court of Justice,
Superior Court Division, Brunswick County, North Carolina. The
district court granted the BHA’s motion to remand the petition
after finding no basis for removal under 28 U.S.C. §§ 1441,
1442, or 1443 (2006).
Pursuant to 28 U.S.C. § 1447(d) (2006), “[a]n order
remanding a case to the State court from which it was removed is
not reviewable on appeal or otherwise,” with the exception of an
order of remand pursuant to section 1443. The Supreme Court has
interpreted § 1447(d) to insulate from appellate review only
those remand orders based on the grounds specified in 28 U.S.C.
§ 1447(c) (2006): a defect in the removal procedure and a lack
of subject matter jurisdiction. Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 711-12 (1996) (instructing that § 1447(c) and
(d) must be read in conjunction with one another). Thus,
because the district court concluded it lacked subject matter
jurisdiction under §§ 1441 and 1442, that portion of the remand
order is not subject to appellate review. Ellenburg v. Spartan
Motors Chassis, 519 F.3d 192, 196 (4th Cir. 2008); In re
Blackwater Security Consulting, LLC, 460 F.3d 576, 582-83 (4th
Cir. 2006). Accordingly, we dismiss Curnin’s appeal to the
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extent it challenges the district court’s jurisdictional
determination under §§ 1441 and 1442. We decline to exercise
mandamus jurisdiction over these rulings.
The district court’s conclusion that removal was
improper pursuant to 28 U.S.C. § 1443 is reviewable, however.
28 U.S.C. § 1447(d). After a thorough review of the record and
the district court’s order, we find no reversible error;
accordingly, we affirm this portion of the remand order on the
reasoning of the district court. See Bald Head Association v.
Curnin, No. 7:09-cv-00173-F (E.D.N.C. May 10, 2010).
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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