Hood v. Allstate Ins Company

United States Court of Appeals
Fifth Circuit
F I L E D
April 30, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30716
_______________
ORSON HOOD,
Plaintiff-Appellee,
VERSUS
ALLSTATE INSURANCE COMPANY, ET AL.,
Defendants,
ALLSTATE INSURANCE COMPANY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CV-980-A
_________________________

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Before SMITH and BARKSDALE, Circuit
Judges, and DUPLANTIER,* District Judge.
PER CURIAM:**
Orson Hood sued Allstate Insurance Com-
pany (“Allstate”) and a nondiverse insurance
agent in state court. Allstate removed to fed-
eral court, asserting diversity jurisdiction under
28 U.S.C. § 1441 and fraudulent joinder of the
nondiverse agent. The district court remanded
to state court pursuant to 28 U.S.C.
§ 1447(c), declaring lack of subject matter jur-
isdiction. Allstate appeals that order. Because
we lack jurisdiction, we dismiss the appeal.
I.
Hood, on behalf of himself and a putative
class, alleged that Allstate had mishandled
claims stemming from a hailstorm. The insur-
ance agent was the adjuster for Hood’s
individual claim. Five other class actions
based on the same storm were also removed to
federal court. Unlike Hood, the plaintiffs in
the other class actions named multiple
insurance companies, including Louisiana
insurance companies. All six actions were
assigned to the same judge, who consolidated
them under FED. R. CIV. P. 42.
On plaintiffs’ motion, the district court is-
sued a single memorandum opinion remanding
all of the consolidated class actions to state
court, concluding that the joining of the
Louisiana insurance carriers was not
fraudulent. The court did not mention that no
Louisiana insurance carriers were joined in
Hood’s action, nor did it rule whether joinder
of the nondiverse agent in this action was
fraudulent.
Allstate moved for reconsideration, arguing
that the district court had not considered the
unique facts of this action separately from
those of the other consolidated class actions.
Hood opposed reconsideration, arguing that
the nondiverse agent defeated diversity. The
district court reviewed its order, found that di-
versity jurisdiction did exist, and issued a new
order (the “second order”).
The case was transferred to a second judge,
then to a third. Hood moved to vacate the
second order under FED. R. CIV. P. 60(b)(4),1
contending that the district court lacked
jurisdiction to reconsider its remand order.
The court granted the motion and issued
another order (the “third order”), vacated the
second order, and reinstated the original
remand. The court found that the second
order violated 28 U.S.C. § 1447(d), and the
court expressly remanded “pursuant to 28
U.S.C. § 1447(c) due to lack of subject
matter jurisdiction.”
II.
Hood asserts that we lack jurisdiction be-
cause of the third order’s express remand for
want of jurisdiction. Allstate responds that the
district court did not actually find a lack of
subject matter jurisdiction, but instead only re-
instated the prior judge’s order. Allstate ar-
gues that because Hood did not move to
remand for lack of subject matter jurisdiction,
* District Judge of the Eastern District of Louisiana,
sitting by designation.
** Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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.
1 Rule 60(b)(4) allows that “[o]n motion and
upon such terms as are just, the court may relieve
a party or a party’s legal representative from a[n]
. . . order [if] . . . the judgment is void.”

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the court was not addressing jurisdiction di-
rectly, but rather was announcing the result of
its vacatur of the second order. We disagree.
A.
Title 28 U.S.C. § 1447(d) provides:
An order remanding a case to the
State court from which it was removed
is not reviewable on appeal or
otherwise, except that an order
remanding a case to the State court from
which it was removed pursuant to
section 1443 of this title shall be
reviewable by appeal or otherwise.
This provision is interpreted in pari materia
with § 1447(c); “‘[T]his means that only re-
mand orders issued under § 1447(c) and in-
voking the grounds specified therein that re-
moval was . . . without jurisdiction are immune
from review under § 1447(d).’” Smith v. Tex.
Children’s Hosp., 172 F.3d 923, 925 (5th Cir.
1999) (quoting Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 345-46 (1976),
abrogated on other grounds by Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 715
(1996)).
In Heaton v. Monogram Credit Card Bank,
231 F.3d 994, 997 (5th Cir. 2000), the
appellant argued that the actions of the district
court suggested “that despite the clear
language of the remand order, the true basis
for the order was 28 U.S.C. § 1367(c)(3),”
which is a reviewable ground for removal.2
We rejected that argument, stating that
there was “no ambiguity whatsoever in
Judge Barbier’s remand order. Al-
though brief, the order clearly and
affirmatively stated a § 1447(c) reason
for remand, because Judge Barbier
concluded that he lacked subject matter
jurisdiction. . . . [E]ven if Judge Barbi-
er’s conclusion that he lacked subject
matter jurisdiction was clearly
erroneous, he did not state a
non-§ 1447(c) ground for remand and
we cannot review his order.
Id. at 998.
Therefore, a remand that invokes subject
matter jurisdiction as its basis is not review-
able, even if circumstances indicate that the
remand was not taken for such a purpose.
Without exception, where the district court
states a jurisdictional basis for remand, that
court “is the final arbiter of whether it has
jurisdiction to hear the case.” Smith, 172 F.3d
at 925.
The district court may not have
reconsidered whether removal jurisdiction was
originally present. Even so, there is no tenable
basis on which to distinguish the doctrine laid
down in Heaton and prior cases. As with the
district court in Heaton, the district court here
“clearly and affirmatively stated a § 1447(c)
reason for remand.” Heaton, 231 F.3d at 998.
2 The district court purported first to dismiss
Heaton’s federal counterclaim before remanding
what it considered to be remaining state law
claims. The appellant asserted that the district
court’s “dismissal of the claim with prejudice dem-
(continued...)
2 (...continued)
onstrated that he thought he had subject matter
jurisdiction over that claim,” meaning that the “the
remand order was necessarily pursuant to
§ 1367(c)(3), and Judge Barbier simply mislabeled
the order as one pursuant to § 1447(c).” Heaton,
231 F.3d at 997.

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Though Allstate argues that Hood had not
moved to dismiss for want of jurisdiction,3 the
specter of jurisdiction was certainly before the
court, and, in any event, subject matter juris-
diction may be raised sua sponte. H&D Tire
& Automotive-Hardware, Inc. v. Pitney Bowes
Inc., 227 F.3d 326, 328 (5th Cir. 2000).
B.
Allstate suggests that we may look past the
district court’s description in the third order
and may review the original remand that that
order purported to reinstate. Allstate cites In
re Digicon Marine, Inc., 966 F.2d 158 (5th
Cir. 1992), for support. In Heaton, we
addressed a similar argument, stating:
However, Digicon Marine supports,
rather than contradicts, our holding to-
day. In that case, the trial court granted
a motion to remand based on the lack of
authority to remove a maritime case un-
der 28 U.S.C. § 1441(b). [Digicon
Marine, 966 F.2d] at 159. Later, in an
order denying reconsideration, it stated
that the earlier ruling was based upon a
lack of subject matter jurisdiction. Id.
We concluded that “despite the district
court’s description of the remand as one
based on a lack of subject matter
jurisdiction in its order on
reconsideration, the district court’s
original remand order clearly indicates
on its face that the remand was not
based upon lack of original subject
matter jurisdiction . . . .” Id. at 160. In
the instant case, Judge Barbier did not
discuss his reasons for remanding in any
order outside the remand order itself.
Just as in Digicon Marine, in this case
we need only look to the face of the
remand order to determine his reasons
for remanding. We cannot read the
remand order to say that the court
“clearly and affirmatively” relied on a
non-§ 1447(c) basis as required by
Copling v. Container Store, Inc., 174
F.3d 590, 596 (5th Cir. 1999) and Giles
v. NYLCare Health Plans, Inc., 172
F.3d 332, 336 (5th Cir. 1999). The face
of the order clearly states a § 1447(c)
basis for remand.
Heaton, 231 F.3d at 999.
Here, the third order did discuss previous
orders. In contrast to what occurred in Digi-
com Marine, however, the court did not mere-
ly discuss and interpret a prior order before
denying reconsideration of it. Rather, it first
purported to reinstate the original remand,
then declared “that this case is REMANDED
. . . pursuant to 28 U.S.C. § 1447(c) due to
lack of subject matter jurisdiction.”
Allstate would have us ignore this direct
language and conclude that, in fact, the final
paragraph was merely a restatement of the ef-
fect of reinstating the remand order. This par-
agraph, however, appears to set forth separate
grounds for remand and does not refer to the
reinstated order. Such a direct statement con-
stitutes “magic words” that “render[] the dis-
trict court’s remand order unreviewable.” Bo-
gle v. Phillips Petroleum Co., 24 F.3d 758,
762 (5th Cir. 1994). This language of the
closing paragraph is unambiguous and
controlling; to the extent that it is inconsistent
3 Hood disputes this contention, stating that he
“has at all times contended that subject matter jur-
isdiction does not exist.” This is accurate, though
the original basis of his argument was that diver-
sity was lacking, and he now argues only that the
district court was divested of jurisdiction when the
original remand order was mailed.

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with previous paragraphs, it supersedes them
and renders them void.4
The appeal is DISMISSED for want of
jurisdiction.
4 Heaton, 231 F.3d at 1000 (finding that a con-
current order purporting to dismiss the federal
claim was void because it was contrary to the
finding of no subject matter jurisdiction); Bogle, 24
F.3d at 762 (holding that grant of partial nonsuit
with prejudice was void and of no effect because of
a remand for lack of subject matter jurisdiction).

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