Jones v. Belhaven College , 98 F. App'x 283 ( 2004 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
FOR THE FIFTH CIRCUIT April 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-60680
Summary Calendar
VIRGINIA H. JONES; SCOTT MCCAY; BETTYE MCCAY; RICHARD STAMM;
ROY JONES; LAURA JONES; JAMES CRAIG; ANITA CRAIG; JOEL DRUMMOND;
AMY DRUMMOND; JUDY STAMM,
Plaintiffs-Appellees,
versus
BELHAVEN COLLEGE; CITY OF JACKSON, MISSISSIPPI,
Defendants-Appellants.
--------------------
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-874
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Belhaven College (College) and the City of Jackson,
Mississippi (City), appeal the district court’s order extending a
temporary restraining order (TRO) until the district court could
hold a hearing on whether the court had subject-matter
jurisdiction over the case following removal. This court must
examine the basis of its jurisdiction on its own motion if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
*
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that this opinion should not be published and is not precedent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.
No. 03-60680
-2-
The continuation of a TRO without the consent of the parties
beyond that twenty-day maximum in FED. R. CIV. P. 65 has the same
practical effect as a preliminary injunction and may be treated
as a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 86-
88 (1974). Because the district court’s extension of the TRO had
the same practical effect as the granting of a preliminary
injunction, it is immediately appealable under 28 U.S.C.
§ 1292(a)(1).
The City did not file a notice of appeal within 30 days
after the entry of the district court’s order as required by FED.
R. APP. P. 4(a). Because a timely notice of appeal is a
mandatory prerequisite to the exercise of appellate jurisdiction,
we do not have jurisdiction to consider the City’s appeal. See
United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998).
The College argues that the district court abused its
discretion in extending the TRO without holding an evidentiary
hearing. The district court did not abuse its discretion
extending the TRO as the court had the inherent authority to
preserve the status quo until the question of its jurisdiction
could be resolved. See United States v. United Mine Workers of
America, 330 U.S. 258, 292-93 (1947); United States v. Hall, 472
F.2d 261, 265 (5th Cir. 1972).
The College argues that removal of the action was proper
because the homeowners alleged an equal protection claim which
created federal question jurisdiction. In this case, a federal
No. 03-60680
-3-
question was presented on the face of the homeowners’ complaint
and, therefore, removal was proper. See Sam v. Majors Jewelers
v. ABX, Inc., 117 F.3d 922, 924 (5th Cir. 1997). However, the
district court has discretion to remand the entire case, both
state and federal claims, if state law predominates. Metro Ford
Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 328 (5th Cir.
1998); 28 U.S.C. § 1441(c). Therefore, this case is remanded to
the district court for a determination whether it will exercise
its discretion to consider this case, or whether it will remand
the entire case if it determines that state law predominates.
The Homeowners’ request for sanctions is DENIED.
AFFIRMED; REQUEST FOR SANCTIONS DENIED; REMANDED FOR FURTHER
PROCEEDINGS.