1355/1139 Allied Signal Recovery Trust v. ALLIED SIGNAL INC. HONEYWELL INTERNATIONAL INC. f/k/a Allied Signal Inc.

PRECEDENTIAL
Filed July 31, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1111/1355/1139
*ALLIED SIGNAL RECOVERY TRUST
Appellant/Petitioner
(Nos. 01-1355/1139)
v.
ALLIED SIGNAL INC.
HONEYWELL INTERNATIONAL INC.
f/k/a Allied Signal Inc.,
Appellant (No. 01-1111)
*(Amended - See Court’s Order dated 5/16/01)
Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 00-cv-00147)
District Judge: Honorable Gregory M. Sleet
Argued December 7, 2001
Before: MANSMANN,* ROTH and FUENTES,
Circuit Judges
(Opinion filed July 31, 2002)
_________________________________________________________________
* The Honorable Carol Los Mansmann participated in the oral argument,
but died before the Opinion could be filed.
Thomas D. Yannucci, Esquire
Eugene F. Assaf, Esquire
Christopher Landau, Esquire
(Argued)
Craig S. Primis, Esquire
Jennifer R. Brosnahan, Esquire
Kirkland & Ellis
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Kevin Gross, Esquire
Rosenthal, Monhait, Gross &
Goddess, P.A.
919 N. Market Street, #1401
Wilmington, DE 19801
Attorney for Appellant/
Cross Appellee/Respondent

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Donald B. Ayer, Esquire (Argued)
Geoffrey S. Stewart, Esquire
Gregory M. Shumaker, Esquire
Edward K.M. Bilich, Esquire
Paul R. Reichert, Esquire
Jones, Day, Reavis & Pogue
51 Louisiana Avenue, N.W.
Washington, D.C. 20001-2113
Ian Connor Bifferato, Esquire
Bifferato, Bifferato & Gentilotti
Buckner Building
1308 Delaware Avenue
P.O. Box 2165
Wilmington, DE 19899-2165
Attorney for Appellee/
Cross Appellant/Petitioner
2
OPINION OF THE COURT
ROTH, Circuit Judge:
We have before us a procedural muddle. The District
Court has ordered a case remanded to state court in
Delaware even though the case was removed from a state
court in Florida. The parties agree that a case cannot be
remanded to a state court that is a stranger to the case.
They disagree, however, about the extent of our appellate
jurisdiction and the remedy we should order. We conclude
that we do not have jurisdiction to hear this appeal.
Nevertheless, a remedy exists because plaintiff, Breed
Technologies, Inc., has filed a petition for a writ of
mandamus. We will grant the writ, vacate the remand
order, and send the case back to the District Court.
I. Factual and Procedural History
The procedural complexities this appeal presents resulted
from Breed Technology Inc.’s 1997 decision to purchase
Allied Signal Inc.’s Safety Restraint Systems Division (SRS).
Breed paid $710 million for SRS but, for reasons not
relevant to this appeal, came to believe that Allied Signal
had made misrepresentations and had withheld material
information in connection with the sale. On August 2,
1999, Breed brought this suit against Allied Signal 1 on two
state law causes of action -- fraud and negligent
misrepresentation -- in the Circuit Court for Polk County,
Florida.
At the time it commenced the lawsuit, Breed was in
serious financial trouble. Less than two months later, Breed
filed for Chapter 11 bankruptcy protection in United States
District Court for the District of Delaware.2 Breed also
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1. Allied Signal Inc. has since merged with Honeywell, Inc. to form
Honeywell International, Inc. For clarity and convenience, however, this
opinion will continue to refer to the Defendant as Allied Signal.
2. Breed’s claims and lawsuit against Allied Signal Inc. were transferred
to a Delaware trust, the Allied Signal Recovery Trust, pursuant to
3
expanded its suit against Allied Signal by amending its
Florida complaint to add two federal bankruptcy claims:
one under 11 U.S.C. S 544(b) for avoidance of the SRS
transaction as fraudulent and one under 11 U.S.C.S 550
for recovery of the proceeds from that transaction.
When Breed added its federal bankruptcy claims to the
Florida action, Allied Signal removed the action to the
United States District Court for the Middle District of
Florida. Allied Signal asserted two grounds for removal. The
first was the general removal statute, 28 U.S.C.S 1441.
Allied Signal contended that Breed’s federal bankruptcy
claims arose under the laws of the United States and that
Breed’s state law claims were subject to supplemental
jurisdiction under 28 U.S.C. S 1367. Allied Signal also
moved for removal pursuant to the bankruptcy removal
statute, 28 U.S.C. S 1452(a). It pointed out that Breed’s
claims either arose out of Title 11 of the United States Code
or formed part of the same case or controversy as its
Chapter 11 proceeding.
Once the case had been removed, Allied Signal filed a
motion to compel arbitration and Breed filed a motion to
remand the case to Florida state court. The District Court
itself then issued an order to show cause why the case
should not be transferred to the United States District
Court for the District of Delaware, where Breed’s
bankruptcy case was proceeding. Breed opposed the
transfer, and Allied Signal favored it. The District Court
deemed Allied Signal’s favorable response to its show cause
order to be a motion to transfer and granted it. Breed did
not seek review of this transfer order, either by a motion for
reconsideration or by a petition for a writ of mandamus to
the Eleventh Circuit.
_________________________________________________________________
Breed’s Third Amended Joint Plan of Reorganization. That plan was
confirmed by an order of the United States Bankruptcy Court for the
District of Delaware dated November 22, 2000, and became effective on
December 26, 2000. After payment of fees and expenses, any recovery
from Allied Signal by the Trust will be distributed to Breed’s creditors.
For clarity and convenience, however, this opinion will continue to refer
to the plaintiff as Breed.
4
Once in Delaware, Breed made another motion to remand
the case to the Florida state court. The Delaware District
Court found that it had jurisdiction of the case under 28

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U.S.C. S 1334 as a bankruptcy matter but that it did not
have S 1331 federal question jurisdiction. The court then
determined that Breed’s claims, including the SS 544(b) and
550 claims, arose under Florida law and that the
bankruptcy abstention provisions of 28 U.S.C. S 1334(c)
required the court to abstain from hearing the matter. As a
result, it remanded the case to the Delaware Superior
Court, setting forth two reasons for doing so: (1) law of the
case principles prevented it from returning the case to the
District Court for the Middle District of Florida, and (2) only
the Florida federal court had the necessary authority to
remand to the Florida state court.
Both parties dispute this order. Allied Signal appealed it
on January 8, 2001, asking us to reverse the District
Court’s remand order and to order the District Court to
exercise its jurisdiction. Breed then filed a petition for
mandamus with us. Breed sought a writ, vacating the order
remanding the case to the Delaware Superior Court, and
directing the District Court to remand the case to the
Circuit Court for Polk County, Florida. Breed filed a cross-
appeal on February 5, 2001.3
II. Standard of Review
Our review of the jurisdictional questions is plenary. See
718 Arch St. Assocs. Ltd. v. Blatstein (In re Blatstein), 192
F.3d 88, 94 (3d Cir. 1999); Anthuis v. Colt Indus. Operating
Corp., 971 F.2d 999, 1002 (3d Cir. 1992). Whether a writ of
mandamus should be issued is committed to our
discretion. In re Sharon Steel Corp., 918 F.2d 434, 436 (3d
Cir. 1990).
III. Jurisdiction
The first issue we must address is our own jurisdiction to
hear this case. There is no dispute that the District Court
_________________________________________________________________
3. Pending these appeals, the Clerk of the U.S. District Court in
Delaware has not transferred the case of the Delaware Superior Court.
5
had bankruptcy jurisdiction over Breed’s Title 11 claims
pursuant to 28 U.S.C. S 1334(b). It also had jurisdiction
under S 1334(b) to hear the state law claims because they
were related to a Title 11 claim.4
The parties do, however, dispute the nature and extent of
our appellate jurisdiction. Allied Signal claims that we can
address this case on direct appeal, while Breed contends
that we must exercise our mandamus powers. Thus, we
must first decide the issue of appellate jurisdiction.
Although in Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 714-15 (1996), the Supreme Court held that a remand
order is an appealable final order pursuant to 28 U.S.C.
S 1291, Breed contends that we lack appellate jurisdiction

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of the District Court’s remand order because of the bar to
appellate review found in both the bankruptcy remand
statute, 28 U.S.C. S 1452(b), and the general remand
statute, 28 U.S.C. S 1447.5
The Supreme Court has stated that both S 1452(b) and
S 1447(d) are applicable in bankruptcy related cases. In
Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995),
after holding that appellate review of an untimely removal
was barred by S 1447(d), the Court went on to comment:
There is no express indication in S 1452 that
Congress intended that statute to be the exclusive
provision governing removals and remands in
bankruptcy. Nor is there any reason to infer from
_________________________________________________________________
4. Because the parties agree that the District Court had jurisdiction
under S 1334, we will not go on to determine whether it also had
jurisdiction under S 1331. Moreover, because there was S 1334
jurisdiction, remand is appropriately considered under SS 1452(b) and
1447(d), as we do below. Because this is a bankruptcy case, the
additional presence of concurrent S 1331 jurisdiction could not preclude
our consideration of remand as it presents itself in a bankruptcy case.
The need to avoid the time and expense of reviewing remands in
bankruptcy cases is substantial. See Things Remembered, Inc. v.
Petrarca, 516 U.S. 124, 136 (1995) (acknowledging a strong
Congressional policy against review of remand orders in bankruptcy
cases) (Ginsburg, J., concurring).
5. The remand in Quackenbush was based on abstention and thus an
appeal was not statutorily barred.
6
S 1447(d) that Congress intended to exclude
bankruptcy cases from its coverage. The fact that
S 1452 contains its own provision governing certain
types of remands in bankruptcy . . . does not change
our conclusion. There is no reason SS 1447(d) and
1452 cannot comfortably coexist in the bankruptcy
context. We must, therefore, give effect to both.
Id. at 129.
Our task then is to determine whether S 1447(d) or
S 1452(b) is applicable to the remand in the present case.
The District Court, in ordering remand to the Delaware
state court, did not mention which remand statute it was
applying.
Section 1452(b) provides in pertinent part that:
The court to which such claim or cause of action is
removed may remand such claim or cause of action on
any equitable ground. An order entered under this
subsection remanding a claim or cause of action, or a
decision to not remand, is not reviewable by appeal or
otherwise by the court of appeals under section . . .

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1291 . . . of this title . . . .
(emphasis added).
Section 1452(b)’s ban on appellate review is broad in
order to avoid prolonging litigation and increasing its costs
in bankruptcy proceedings. See, In re Cathedral of the
Incarnation in the Diocese of Long Island, 90 F.3d 28, 33
(2d Cir. 1996) (holding, "Section 1452(b) reflects Congress’s
judgment that the rare instance of an unlawful remand
order does not justify the time and dollar costs of making
remands appealable."); Hernandez v. Brakegate Ltd., 942
F.2d 1223, 1226 (7th Cir. 1991).
In addition, the "any equitable ground" language of
S 1452(b) has been interpreted by the Supreme Court as
not referring to the traditional distinction between law and
equity, and thereby as not rendering reviewable bankruptcy
cases that are remanded for "legal" reasons. 6 Things
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6. The Supreme Court’s comments on the meaning of"equitable" in
Things Remembered would appear to invalidate our law/equity
distinction of the reviewability provisions of S 1452(b) in Pacor, Inc. v.
Higgins, 743 F.2d 984 (3d Cir. 1984).
7
Remembered, 516 U.S. at 132-33 (Ginsburg, J.,
concurring). Rather, "equitable" is defined as"signal[ling]
that which is reasonable, fair, or appropriate." Id. at 133.
Moreover, as Justice Ginsburg explains in her concurrence
in Things Remembered, a "restrictive definition of what is
‘equitable’ could invite wasteful controversy over the
reviewability of bankruptcy case remand orders that are not
reached by S 1447 and rest on grounds a common-law
pleader might type ‘legal’." Id. at 135.
Turning to S 1447(d), it provides, "An order remanding a
case to the State court from which it was removed is not
reviewable on appeal or otherwise." This broad language
has been interpreted to bar appellate review of remand
orders only insofar as removal was authorized byS 1447(c).
In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 340
(1976), the Supreme Court held that S 1447(d) does not bar
"review where a case has been properly removed and the
remand order is issued on grounds not authorized by
S 1447(c)." 423 U.S. at 343. The Thermtron Court defined
the grounds for remand which were authorized byS 1447(c)
as being that removal was improvident or without
jurisdiction. Id. The Court in Quackenbush further defined
the categories of remand orders that are unappealable
under S 1447(d) as those based on lack of subject matter
jurisdiction or defects in the removal procedure. 517 U.S. at
712.
In Thermtron, the Court concluded that
There is no doubt that in order to prevent delay in

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the trial of remanded cases by protracted litigation of
jurisdictional issues, . . . Congress immunized from all
forms of appellate review any remand order issued on
the grounds specified in S 1447(c), whether or not that
order might be deemed erroneous by an appellate
court.
423 U.S. at 351.
With these explanations of the two remand statutes in
mind, we will turn to the Delaware District Court’s remand
of this case to the Delaware Superior Court. The reason
stated by the Delaware District Court to support its
decision was that the complaint raised only state law
8
claims for fraud and negligent misrepresentation and
related bankruptcy law claims, which were aimed at
avoiding the fraudulent transfers. Thus, the District Court
found that it had no S 1331 jurisdiction but only S 1334
bankruptcy jurisdiction. Citing S 1334(c), without
designating a subsection, the court then determined that it
"must abstain from hearing this matter." In making this
ruling, the District Court cited language from S 1334(c)(2),
the mandatory remand subsection. The court, however,
then noted that Breed’s SS 544(b) and 550 claims "by
definition" did arise under Title 11. Because the"arising
under title 11" nature of Breed’s claim would render
S 1334(c)(2) inapplicable, we have to presume that the
District Court based its abstention decision on the
permissive abstention language of S 1334(c)(1).7
Section 1334(c)(1) abstention is made "in the interest of
justice, or in the interest of comity with State courts or
respect for State law." We conclude for this reason that a
remand based on such abstention falls under the"any
equitable ground" provision of S 1452(b), i.e., here, a
concern that state courts decide state law issues. Thus,
appellate review would appear to be barred by S 1452(b) if
remand is based on S 1334(c)(1). Indeed, S 1334(d) (with one
unrelated exception) bars review of abstention orders based
on S 1334(c) -- thereby getting us the same result by a
different route.
_________________________________________________________________
7. Section 1334(c) provides:
(1) Nothing in this section prevents a district court in the interest
of justice, or in the interest of comity with State courts or respect for
State law, from abstaining from hearing a particular proceeding
arising under title 11 or arising in or related to a case under title
11.
(2) Upon timely motion of a party in a proceeding based upon a
State law claim or State law cause of action, related to a case under
title 11 but not arising under title 11 or arising in a case under title
11, with respect to which an action could not have been commenced
in a court of the United States absent jurisdiction under this

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section, the district court shall abstain from hearing such
proceeding if an action is commenced, and can be timely
adjudicated, in a State forum of appropriate jurisdiction.
9
Moreover, such a remand, based on state law concerns,
is not made for lack of subject matter jurisdiction or defect
in the removal procedure, the criteria for remand under
S 1447(c) and for the non-reviewability provisions of
S 1447(d). As a consequence, we determine that the remand
order here falls under S 1452(b), not underS 1447(d), and
that it is not reviewable.
This conclusion is consistent with the purpose, which we
mention above, that Congress had in enacting the
bankruptcy remand provisions. As Justice Ginsburg noted
in her concurrence in Things Remembered, Congress
"meant to enlarge, not to rein in, federal trial court
removal/remand authority for claims related to bankruptcy
cases." 516 U.S. at 132. The Congressional drafters wanted
bankruptcy forum remands to be "unreviewable" Id.
(quoting H.R.Rep. No. 95-595, p.51 (1977). By applying the
S 1452(b) bar to appellate review here, we are complying
with that statement of Congressional purpose.
Before concluding our consideration of appellate
jurisdiction, however, we must discuss the case of Bloom v.
Barry, 755 F.2d 356 (3d Cir. 1985), which Allied Signal
asserts supports appealability under S 1447(d) and which,
on the other hand, Breed contends is authority for granting
its petition for writ of mandamus. In Bloom, an action,
which was brought in Florida state court, was removed to
U.S. District Court in Florida and then transferred to the
U.S. District Court in New Jersey. The District Court in
New Jersey then remanded the case to New Jersey state
court. On appeal, we held that S 1447(d) did not bar review
of a "remand" when that "remand" was to a state court
other than the one from which the case had been removed
because in that situation S 1447(d) was "by its terms
inapplicable." Id. at 357. In explaining the inapplicability of
S 1447(d), we stated, " ‘Remand’ means ‘send back.’ It does
not mean ‘send elsewhere’." Id. at 358. We then cited
Thermtron for the proposition that "mandamus is available
to review a remand order made in excess of a district
court’s statutory authority." Id. We went on to hold, in view
of the fact that the order involved was "closely akin to an
order transferring to a venue to which [the case] cannot
legally be transferred," that the order was reviewable by
mandamus. Id.
10
Allied Signal cites Bloom as supporting its position that
review of such a "remand" is now available under S 1447(d)
since the Supreme Court in Quackenbush held that remand
orders are final orders. Breed, on the other hand, cites
Bloom as authorizing mandamus when an order is entered

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without legal authority and must be vacated. Contrary to
Allied Signal’s position, we conclude that under our
precedent in Bloom, we are dealing with a court order that
does not qualify as a "remand" because it sends the case
elsewhere, not back. As we explain below, however, the
sending of a case to a stranger court is clearly an
unauthorized exercise of judicial power. We will, therefore,
adopt Breed’s interpretation of Bloom and the choice of
mandamus as the appropriate remedy.
IV. Mandamus
What remedy exists then if a court remands a case to
limbo? As we determined in Bloom, such a remand would
be beyond the legal authority of a federal district court.
Under 28 U.S.C. S 1651, however, we may issue a writ of
mandamus when a district court has committed "a clear
abuse of discretion" or engaged in "conduct amounting to
usurpation of the judicial power." Mallard v. U.S. Dist. Court
for Southern Dist. Of Iowa, 490 U.S. 296, 309 (1989). The
use of the writ is discouraged. Nevertheless, when there has
been an unauthorized exercise of judicial power and no
other avenue of relief is open, the writ may issue. See
Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988).
Here, we have determined that we have no jurisdiction to
hear an appeal. Nevertheless, following Bloom , it is clear
that the Delaware District Court was not authorized to send
this case to the Delaware Superior Court. As we stated in
Bloom:
Remand means "send back." It does not mean"send
elsewhere." The only remand contemplated by the
removal statute is a remand ‘to the State court from
which it was removed.
755 F.2d at 358. In Bloom, we were referring to S 1447(d).
There is no reason to suppose, however, that "remand" in
S 1452(b) means anything other than "remand" does in
11
S 1447(d). Under both statutes, a court has authority to
send a case back to the state court where it originated. A
district court does not have authority to "remand" a case to
a stranger court. Such an order would be entered without
legal authority. Id.
We concluded in Bloom that a remand order, made in
excess of a district court’s statutory authority, was
reviewable by mandamus. Id. at 357. We reach the same
conclusion here. As with a remand order under S 1447(d),
if a remand order under S 1452(b) sends a case to a
stranger court, the remedy is a writ of mandamus in order
to vacate the unauthorized order.
We will, therefore, grant Breed’s petition for a writ of
mandamus, and we will vacate the order of the District
Court which remands this case to the Delaware Superior

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Court.
This result will leave the District Court faced with the
problem, it described in attempting to remand, that it could
not itself send the case to the Florida state court because
it was not the transferor court. We would suggest, however,
that a transferee court is deemed to inherit all the authority
of a transferor court. As the Tenth Circuit has stated: "The
transferee court’s powers are coextensive with those of the
transferor court; it may issue any order or render any
judgment that could have been made in the transferor
court had the transfer never taken place." Chrysler Credit
Corp v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th
Cir. 1991). We have echoed the same sentiment. In Bloom,
we stated that, "following the change of venue[the
transferee court] the District of Jersey had the same
authority with respect to disposition of the case as had [the
tranferor court,] the District Court for the Southern District
of Florida." 755 F.2d at 358. Accord, Abels v. State Farm
Fire & Casualty Co., 770 F.2d 26, 34 (3d Cir. 1985)
(instructing district court in Western District of
Pennsylvania to remand case to Superior Court of Los
Angeles County, California).
If, therefore, the District Court should desire itself to
remand this case under S 1334(c)(1) to the Florida state
court, such an order would appear to be within its
12
authority. See In re: Federal-Mogul Global, Inc. , Nos. 02-
1426 et al. (3d Cir. July ___, 2002). Cf. Republic of
Venezuela v. Philip Morris, Inc., 287 F.3d 192 (D.C. Cir.
2002) (holding that court of appeals would not issue a writ
of mandamus to prevent S 1447(d) remands in the future
from D.C. District Court to Florida state court, where cases
originated, despite claims of plaintiff foreign governments
that federal subject matter jurisdiction existed due to
foreign sovereigns’ interests.)
IV. Conclusion
For the above reasons we will grant the petition for writ
of mandamus, we will vacate the order of the district court
order purporting to remand this case to Delaware Superior
Court for New Castle County, and we will remand the case
to the District Court for further proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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