George P. Stoe v. William E. Flaherty

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3947
GEORGE P. STOE,
Appellant
v.
WILLIAM E. FLAHERTY; DAVID CARPENTER;
JAMES CARPENTER; WILLIAM SMELAS;
ROBERT SUNDERMAN; RONALD STATILE
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 04-cv-00489)
District Judge: Hon. Donetta W. Ambrose
Argued October 18, 2005
BEFORE: SMITH, STAPLETON and NYGAARD,
Circuit Judges
ORDER
IT IS ORDERED that the opinion of the Court entered
January 23, 2006, is hereby amended by deleting the last

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Mandatory abstention applies only “[u]pon timely1
motion of a party” and does not implicate the Court’s subject
matter jurisdiction. 28 U.S.C. § 1334(c)(2); In re V&M Mgmt.,
Inc., 321 F.3d 6, 8 (1st Cir. 2003) (“[T]he abstention provision,
which is waiveable by the parties, does not detract from the
district court’s subject matter jurisdiction.”).
2
sentence of Section III-C and substituting in lieu thereof a new
paragraph to read as follows:
This argument has been waived. But1
even were we to consider it, our conclusion
would be the same. We do not read section
959(a) as creating federal jurisdiction that would
exist independent of 28 U.S.C. § 1334.
Accordingly, section 959(a) does not suggest that
this state law action is anything other than “an
action that could not have been commenced in a
court of the United States absent jurisdiction
under” 28 U.S.C. § 1334. 28 U.S.C. §
1334(c)(2).
By the Court
/s/ Walter K. Stapleton
United States Circuit Judge
DATED: March 17, 2006

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