State of Texas v. Florance , 235 F. App'x 319 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 13, 2007
Charles R. Fulbruge III
Clerk
No. 07-40130
Summary Calendar
STATE OF TEXAS,
Plaintiff-Appellee,
versus
RICHARD JOHN FLORANCE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:06-CV-510)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Richard John Florance, Jr., appeals the
district court’s sua sponte remanding this action, pursuant to 28
U.S.C. § 1447(c), to Texas state court. Appellee has not filed a
brief.
On 22 December 2006, Florance removed the underlying state-
court action to district court, relying, inter alia, on 28 U.S.C.
§ 1331 (federal-question jurisdiction). The State of Texas did not
move for remand. Within 30 days of such removal, however, on 19
*
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this opinion should not be published and is not precedent except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.
January 2007, the district court sua sponte remanded the action due
to Florance’s failure to attach to his removal notice a copy of the
underlying state-court pleadings, in violation of local court rule.
In so doing, the district court cited Corry v. City of Houston, 832
F. Supp. 1095 (S.D. Tex. 1993), for the proposition that a
“district court may sua sponte remand a case for procedural defects
within thirty days of removal”. The district court did not provide
any other basis for remand.
“Our standard of review as to determinations of jurisdiction
is plenary.” Bogle v. Phillips Petroleum Co., 24 F.3d 758, 760
(5th Cir. 1994). Along that line, “[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). Our court “ha[s]
construed the § 1447(d) prohibition against appellate review of
remand orders as being limited to those situations where the
district court’s remand order is grounded upon either subject
matter jurisdiction or a timely filed [28 U.S.C.] § 1447(c) motion
asserting a defect in removal”. Albarado v. S. Pac. Transp. Co.,
199 F.3d 762, 764 (5th Cir. 1999); see also 28 U.S.C. § 1447(c).
Because, as noted, the only stated remand basis was a
procedural defect, § 1447(d) does not prohibit our reviewing the
remand order. See Albarado, 199 F.3d at 764; see also Certain
Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568,
572 (5th Cir. 2006) (“for a remand order to be reviewable on
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appeal, the district court must ‘clearly and affirmatively’ state
a non-§ 1447(c) ground for remand”).
Moreover, our court has held a “district court act[s] without
statutory authority when it sua sponte remand[s] ... on procedural
grounds”. In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993)
(vacating district court’s sua sponte procedural-defect-based
remand order); see also Schexnayder v. Entergy Louisiana, Inc., 394
F.3d 280, 284 (5th Cir. 2004) (“[W]ithout a motion from a party,
[a] district court’s [procedural-defect-based] remand order is not
authorized by § 1447(c)”.). The district court’s remand order,
therefore, exceeded its authority. Accordingly, the order is
vacated, and this matter remanded to district court for further
proceedings consistent with this opinion.
VACATED AND REMANDED
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