in-re-gre-re-of-america-corporation-case-no-90-5944-and-in-re-delta , 915 F.2d 1571 ( 1990 )

915 F.2d 1571

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
In re GRE-RE OF AMERICA CORPORATION, et al. Petitioners,
(Case No. 90-5944),
and
In re DELTA AMERICA RE INSURANCE COMPANY, in Liquidation
Elizabeth WRIGHT, Commissioner of Insurance of the
Commonwealth of Kentucky as Liquidator for Delta
America Re Insurance Company, Plaintiff-Appellee,
v.
ANDREW EDWARDS & COMPANY, INC., et al. Defendants,
Balis & Company, Inc., et al. (Case No. 90-5906), Wilcox
Inc., et al. (Case No. 90-5907), Sullivan Payne Company, et
al. (Case No. 90-5908), Towers, Perrin, Forster & Crosby,
Inc. (Case No. 90-5953), Frank B. Hall Re of New York, Inc.,
(Case No. 90-5954), Defendants-Appellants.

Nos. 90-5906 to 90-5908, 90-5944, 90-5953 and 90-5954.

United States Court of Appeals, Sixth Circuit.

Oct. 1, 1990.

Before KEITH and RALPH B. GUY, Jr., Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1

The petitioners are defendants in an action brought by the commissioner of insurance for the state of Kentucky as the liquidator of Delta America Re Insurance Company, a reinsurance company incorporated under Kentucky law. The action was brought in the Franklin (Kentucky) Circuit Court and removed to the eastern district of Kentucky. The petitioners seek a writ of mandamus directing the district court to vacate its order abstaining and remanding to the state court. (Case No. 90-5944). Additionally, the petitioners have filed direct appeals from the same order. (Case Nos. 90-5906/5907/5908/5953/5954). The liquidator moves for dismissal of the appeals on grounds that the order is reviewable, if at all, only via a petition for writ of mandamus.

2

An 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). However, remands for reasons other than those listed in 1447(c) may be reviewable by mandamus. Thermatron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976). This Court has held that a remand on grounds that a state action is not preempted by federal law was not appealable as either a final judgment or as an interlocutory ruling within the "collateral order exception". Beard v. Carrollton Railroad, 893 F.2d 117 (6th Cir.1989). However, in that case the Court permitted review in mandamus. The Second Circuit has held that an order of remand on abstention grounds is not appealable, but that such an order is reviewable in mandamus. Corcoran v. Ardra, Insurance Co., Inc., 842 F.2d 31 (2d Cir.), cert. denied, (1988). Accordingly, this Court lacks jurisdicti direct appeals taken from the district court's order any, may be had only via the petition for a writ of mandamus.

3

Upon review and consideration, it appears that this matter should be fully briefed and submitted to a panel for consideration upon the merits. We note that the district court judge has declined to file a response, but relies instead upon his opinion. Accordingly, the Commissioner of Insurance of the Commonwealth of Kentucky shall be the respondent in this matter.

4

It is therefore ORDERED that the motion to dismiss Case Nos. 90-5906/5907/5908/5953/5954 is granted. It is further ORDERED that the Commissioner of Insurance for the Commonwealth of Kentucky is named as respondent in Case No. 90-5944. The Clerk is directed to enter a briefing schedule in 90-5944. Upon completion of briefing, this matter shall be submitted to the Court for consideration.