Groves v. Darlington South Carolina, The City of

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1191
NATHAN ANDREW GROVES; JOEL FLAKE STROUD,
Plaintiffs - Appellants,
v.
DARLINGTON SOUTH CAROLINA, THE CITY OF,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cv-00402-TLW-TER)
Submitted: September 25, 2009 Decided: October 14, 2009
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Joel F. Stroud, JOEL F. STROUD, ATTORNEY PLLC, Chesterfield,
South Carolina, for Appellants. J. Scott Kozacki, WILLCOX, BUYCK
& WILLIAMS, P.A., Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellants, Nathan Andrew Groves and Joel Flake
Stroud, appeal the district court’s orders accepting the
recommendation of the magistrate judge and dismissing their
complaint with leave to file an amended complaint, affirming the
magistrate judge’s order of remand, and denying reconsideration
of that order. We dismiss in part and affirm in part.
With respect to the district court’s order dismissing
the complaint with leave to amend, this court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2006),
and certain interlocutory and collateral orders, 28 U.S.C.
§ 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 544-47 (1949). An order granting
leave to amend is interlocutory as it leaves the case open for
either amendment of the complaint or entry of final judgment.
Jung v. K. & D. Mining Co., 356 U.S. 335 (1958); see also Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064,
1066-67 (4th Cir. 1993) (a dismissal without prejudice is not
generally appealable). Accordingly, we lack jurisdiction over
the district court’s order to the extent it dismissed the
complaint with leave to amend.
With respect to the district court’s order of remand,
we find that the order is not reviewable. See 28 U.S.C.
§ 1447(d) (2006); Thermtron Prods., Inc. v. Hermansdorfer, 423
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U.S. 336, 342 (1976) (holding limited on other grounds,
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-15 (1996));
Kolibash v. Comm. on Legal Ethics, 872 F.2d 571, 573 (4th Cir.
1989). The Supreme Court has specifically recognized that
§ 1447(d) “prohibits review of all remand orders issued pursuant
to [28 U.S.C.] § 1447(c) [(2006)] whether erroneous or not.”
Thermtron Prods., 423 U.S. at 342; see also In re Lowe, 102 F.3d
731, 734 (4th Cir. 1996) (holding that once an order of remand
is entered, the federal courts no longer have jurisdiction over
the case). Here, the district court’s order of remand cites its
lack of subject matter jurisdiction as the reason for the
remand, and therefore the order was entered pursuant to
§ 1447(c).
With respect to the district court’s order denying
reconsideration of these orders, the Appellants have failed to
challenge that order on appeal and, therefore, forfeited
appellate review of that order. See 4th Cir. R. 34(b).
Accordingly, we dismiss the appeal from the district court’s
order remanding a portion of the case to state court and
dismissing the complaint with leave to amend for lack of
jurisdiction, and affirm the district court’s order denying
reconsideration of that order.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid in the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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