Boston v. Titan Indemnity Co ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 99-60181
Summary Calendar
_________________
JERLINE PETTIES BOSTON, Individually and as Personal
Representative of the Wrongful Death Beneficiaries of J C Petties,
Deceased,
Plaintiff - Appellee,
versus
TITAN INDEMNITY COMPANY; ET AL,
Defendants,
TITAN INDEMNITY COMPANY,
Defendant - Appellant,
versus
COAHOMA COUNTY, MS, By and Through Its
Board of Supervisors In Their Official Capacity,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
(2:98-CV-154-B-B)
October 11, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellee Jerline Petties Boston, a Missouri citizen, brought a wrongful death
action in state court against defendant-appellee Coahoma County (the “County”), a Mississippi
county. Boston and the County resolved the suit by reaching an agreement under which the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
County would pay Boston $42,500 and have judgment entered against it in the amount of
$557,500. In return, Boston agreed to pay the County any amount up to $42,500 that Boston
obtained in an action against the County’s alleged insurer, defendant-appellant Titan Indemnity
Company (“Titan”), a Texas corporation with its principal place of business in Texas.
Boston subsequently brought this writ of garnishment against Titan and the County. Titan
removed to federal court, arguing that there was diversity of citizenship between the parties. It
contended that Boston should be treated as a Mississippi citizen because Boston was acting as the
personal representative of Mississippi citizens, that it was a Texas citizen, and that the County
should be “realigned”as a plaintiff. Boston subsequently moved to remand. The district court
agreed with Titan that the County should be treated as a plaintiff. However, the court found that
with the County so realigned, Titan should be treated as a Mississippi citizen under the “direct
action” provision of the diversity statute.1 See 28 U.S.C. § 1332(c)(1). Because this destroyed
diversity jurisdiction, the court remanded for lack of subject matter jurisdiction and subsequently
denied Titan’s motion for reconsideration. Titan appeals these rulings.
Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise.” This bar extends even to “erroneous
remands,” Copling v. The Container Store, Inc., 174 F.3d 590, 596 (5th Cir. 1999), but it is not
absolute; the bar applies only to remands based on 28 U.S.C. § 1447(c), where the district court
makes “determinations as to its subject matter jurisdiction and compliance with remand
procedures.” Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027 (5th Cir. 1998). Thus, appellate
review remains available where the district court “clearly and affirmatively state[s] that it relied on
1
This provision treats a defendant insurer as a citizen of the insured’s state when the insured is not also a
defendant. It provides that:
[I]n any direct action against the insurer of a policy or contract of liability insurance, whether
incorporated or unincorporated, to which action the insured is not joined as a party-defendant,
such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of
any State by which the insurer has been incorporated and of the State where it has its principal
place of business.
28 U.S.C. § 1331(c)(1).
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a non-1447(c) ground.” Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 409 (5th Cir.
1991); see also Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999)
(reviewing the district court’s discretionary remand of pendent state law claims).
Here, the district court, finding that there was no diversity, held that it lacked jurisdiction
over the case. Even though the court did not expressly state that it was remanding based on §
1447(c), it was clear from its ruling that it relied on this section and thus § 1447(d) prevents us
from reviewing the court’s order. See Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1027 (5th
Cir. 1991) (“[E]ven if the trial court neither states as grounds for remand the specific words of §
1447(c) nor cites the statute itself, the order is unreviewable if, by substantially similar language, it
is evident that the court intends to remand for the grounds recited in § 1447(c).”).
Titan’s argument to the contrary—that we may review the remand order because it was
based on an improper application of the direct action provision of the diversity statute, see 28
U.S.C. § 1331(c)(1), rather than on § 1447(c)—is unavailing. Because the district court’s
application of the direct action provision was a necessary part of its determination that diversity
jurisdiction did not exist, we are barred from reviewing that application.2
Alternatively, Titan argues that the court’s finding that Titan insured the County is an
independently reviewable “separable” portion of the court’s ruling. This argument also fails. An
order is separable from a remand order and may be reviewed on appeal if it “precede[s] the order
of remand in logic and in fact, so as to be made while the district court had control of the case,”
and if it is “conclusive.” Angelides v. Baylor College of Medicine, 117 F.3d 833, 837 (5th Cir.
1997) (quotations and citations omitted); c.f., e.g., Mitchell v. Carlson, 896 F.2d 128, 133 (5th
Cir. 1990) (reviewing a resubstitution order that was “prior to and separable from the remand
order”). The remand order fails the second prong of this test. The court made its determination
about Titan’s insured status to determine whether it had jurisdiction over the case. As such, it
2
In light of our finding in this regard, we do not reach Boston’s alternative argument that Titan’s appeal
was untimely.
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was a finding that was “jurisdictional in nature,” can be revisited by the state court, and therefore
is not “conclusive.” Angelides, 117 F.3d at 837-38 (finding that exhaustion and immunity
findings were jurisdictional decisions and thus not separable); see also Copling, 174 F.3d at 597(finding that an ERISA preemption determination made in a remand order was not separable).
Because the district court remanded for lack of subject matter jurisdiction, we DISMISS
the appeal for lack of jurisdiction under § 1447(d).
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