(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the public and
burdens on the legal profession." Pursuant to that Rule, the Court has
determined that this opinion should not be published.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_____________
Nos. 92-1973, 93-1071
(Summary Calendar)
____________
LUCILLE E. SKINNER,
Plaintiff-Appellee,
versus
VAN ECK SECURITIES CORPORATION,
ET AL.,
Defendants-Appellants.
IN RE VAN ECK SECURITIES CORPORATION,
PRUDENTIAL SECURITIES, INC.,
and GARRY SCOTT IVEY,
Petitioners.
_______________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(3:92 CV 1763 T)
________________________________________________
August 20, 1993
Before GARWOOD, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lucille Skinner filed an action in state court against Van Eck
Securities Corporation, Prudential Securities, Inc., and Garry
Scott Ivey (collectively referred to as the "defendants"), who

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1 Skinner stated in her original petition that both she and Ivey
were residents of Texas.
2 The notice of removal stated that "[d]efendants Prudential and Van
Eck are public corporations organized under the laws of the State of Delaware
with their principal places of business in the State of New York. Defendant
Ivey is a citizen of the State of Georgia, and Plaintiff is a citizen of the
State of Texas." Record on Appeal at 1-2.
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removed the case to federal district court. Subsequently, Skinner
filed a motion to remand the case back to state court, which was
granted. The district court denied the defendants' motion for
leave to file an amended notice of removal in the same order. The
defendants appeal the district court's order and request a writ of
mandamus directing the district court judge to vacate the order.
Finding that we are without jurisdiction to review the district
court's order, we dismiss both the appeal and the petition for writ
of mandamus.
I
Lucille Skinner originally sued the defendants in Texas state
court, alleging various state law claims. Skinner filed a
supplemental petition, in which she stated that Garry Ivey was a
resident of Georgia who did business in Texas and was not a
resident of Texas as alleged in her original petition.1 The
defendants filed a timely notice of removal in federal district
court, alleging diversity of citizenship of the parties.
Skinner filed a timely motion to remand the case back to state
court, claiming that the defendants failed in their notice of
removal to plead that diversity existed both at the time the
original petition was filed and at the time the notice of removal
was filed.2 In response, the defendants filed a motion for leave

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3 This appeal involves two consolidated cases, 92-1973 and 93-1071.
4 Remand orders involving civil rights cases are reviewable. 28
U.S.C. 1447(d) (1988). In addition, the FDIC may appeal any order of remand.
Buchner v. F.D.I.C., 981 F.2d 816, 818 n.4 (5th Cir. 1993).
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to amend their notice of removal to cure the alleged defect. The
district court in a single order denied the motion to amend and
remanded the case to state court. The defendants appeal the order
denying the motion to amend, and, in the alternative, request a
writ of mandamus directing the district court to vacate its order.3
II
A
The defendants claim that the district court abused its
discretion in denying their motion to amend. The defendants in the
petition for writ of mandamus also argue that the district court
exceeded its authority in remanding the case to state court,
because the district court abused its discretion in failing to
allow the defendants to amend their notice of removal.
The critical issue is whether we have jurisdiction to review
the district court's order, either on appeal or by mandamus. See
Hopkins v. Dolphin Titan Int'l, Inc,, 976 F.2d 924, 925 (5th Cir.
1992); In re Adm'rs of the Tulane Educ. Fund, 954 F.2d 266, 268
(5th Cir. 1992). Unless otherwise provided by statute,4 "[a]n
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). This also includes review by mandamus. See Gravitt v.
Southwestern Bell Tel. Co., 430 U.S. 723, 723, 97 S. Ct. 1439,
1440, 52 L. Ed. 2d 1 (1977); Tillman v. CSX Transp., Inc., 929

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5 However, we have held that a remand based on an untimely motion is
not considered a § 1447(c) remand and is therefore reviewable. Medscope, 972
F.2d at 110. See, e.g., In re Digicon Marine, Inc., 966 F.2d 158 (5th Cir.
1992); McDermott Int'l v. Lloyd's Underwriters of London, 944 F.2d 1199 (5th
Cir. 1991); In re Shell Oil Co., 932 F.2d 1523 (5th Cir. 1991); Baris v.
Sulpico Lines, Inc., 932 F.2d 1540 (5th Cir.), cert. denied, )) U.S. )), 112
S.Ct. 430, 116 L.Ed.2d 449 (1991).
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F.2d 1023, 1026 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct.
176, 116 L. Ed. 2d 139 (1991). The Supreme Court has limited the
§ 1447(d) prohibition to remands based on 28 U.S.C. § 1447(c)
(1988). See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.
336, 346, 96 S. Ct. 584, 590, 46 L. Ed. 2d 542 (1976). Section
1447(c) provides in part that "[a] motion to remand the case on the
basis of any defect in removal procedure must be made within 30
days after the filing of the notice of removal under section
1446(a)." Applying Thermtron, we have held that we have no
jurisdiction to review a remand order based upon a timely § 1447(c)
motion raising a defect in the removal procedure.5 See In re
Medscope Marine Ltd., 972 F.2d 107, 110 (5th Cir. 1992).
"[T]he availability and means of appellate review turns
exclusively on the district court's reason for remand." McDermott
Int'l. v. Lloyds Underwriters of London, 944 F.2d 1199, 1201 n.1
(5th Cir. 1991); see also Mobil Corp. v. Abeille Gen. Ins. Co., 984
F.2d 664, 665 (5th Cir. 1993); Tillman, 929 F.2d at 1026.
Therefore, the "district courts should take care to explain their
reasons for remanding cases." McDermott, 944 F.2d at 1201 n.1.
"[W]e will only review remand orders if the district court
`affirmatively states a non-1447(c) ground for remand.'" Soley v.
First Nat'l Bank of Commerce, 923 F.2d 406, 408 (5th Cir. 1991)

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6 The district court incorrectly based its finding that the
defendants improperly removed the case on the ground that the notice of
removal failed to plead that diversity existed both at the time of the filing
of the original notice of removal and at the time of the filing of the
original complaint. See Record on Appeal at 315. The Supreme Court set forth
the standard as follows:
[A] case [is] not removable from the state court, unless it
-5-
(quoting In re Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 647 (5th
Cir. 1978)).
In its remand order, the district court stated:
Plaintiff argues that a petition for removal based on
diversity must plead that diversity existed both at the
time of the filing of the original petition for removal
and at the time of the filing of the original complaint.
Plaintiff is correct. Wells v. Celanese Corp. of
America, 239 F.Supp. 602, 604 (E.D. Tenn. 1964); Schwinn
Bicycle Corp. v. Brown, 535 F.Supp. 486 (D. Ark. 1982).
Plaintiff is also correct that Defendants, in their
original notice of removal failed to plead that diversity
existed at the time of the filing of the original
complaint. Defendants acknowledge the defect.
Defendants attempt to correct the defect by filing an
amended notice of removal. Whether or not to permit such
an amendment is within the discretion of the court. The
court is of the opinion that Defendants should not be
permitted to file an amended notice of removal. Thus,
Defendants have failed to properly remove this case, and
this case must be remanded.
Record on Appeal at 315. The district court never mentioned
§ 1447(c) in its remand order. Nonetheless, we believe the
district court concluded that there was a defect in removal
procedure and remanded the case under § 1447(c), because the
district court (a) used the word "defect," (b) stated that the
defendants failed to properly remove the case, and (c) cited to two
cases where the district courts remanded the cases under § 1447(c).
Therefore, the remand order is unreviewable. See Tulane, 954 F.2d
at 269.6

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appear[s] affirmatively in the petition for removal, or elsewhere
in the record, that at the commencement of the action, as well as
when the removal was asked, [the defendants] were citizens of some
other state than the one of which the plaintiff was, at those
respective dates, a citizen.
Stevens v. Nichols, 130 U.S. 230, 9 S. Ct. 518, 518-19, 32 L. Ed. 914 (1889)
(emphasis added); see also Jackson v. Allen, 132 U.S. 27, 10 S. Ct. 9, 33 L.
Ed. 249 (1889). The defendants argue that the record affirmatively shows that
diversity existed both at the time the original suit was filed and at the time
the notice of removal was filed, and that therefore the district court
erroneously remanded the case. However, we decline to decide that issue,
because § 1447 "prohibits review of all remand orders issued pursuant to §
1447(c) whether erroneous or not." Thermtron, 423 U.S. at 343, 96. S. Ct. at
589, 46 L. Ed. 2d at 549.
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B
The defendants also urge us to review the portion of the order
denying the motion to amend on the ground that it is distinct and
separable from the remand portion and, therefore, may be reviewed
on appeal. See Waco v. United States Fidelity & Guar. Co., 293
U.S. 140, 55 S. Ct. 6, 79 L. Ed. 2d 244 (1934) (portion of order
dismissing cross-action was reviewable); Mitchell v. Carlson, 896
F.2d 128 (5th Cir. 1990) (portion of order vacating previous
substitution order and resubstituting original defendant was
reviewable); Vatican Shrimp Co. v. Solis, 820 F.2d 674, 680 & n.7
(5th Cir.), cert. denied, 484 U.S. 953, 108 S. Ct. 345, 98 L. Ed.
2d 371 (1987) (portion of order imposing Rule 11 sanctions was
reviewable). Given that we do not have jurisdiction to review the
remand order, any review of the order dismissing the motion to
amend is moot, because we lack the power to provide the defendants
with an effective remedy should we find in their favor and to
affect the rights of the parties. See In the Matter of Sullivan
Cent. Plaza, I, Ltd., 914 F.2d 731, 735 (5th Cir. 1990); Armendariz
v. Hershey, 413 F.2d 1006, 1008 (5th Cir. 1969).

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III
For the foregoing reasons, we DISMISS both the appeal and the
petition for writ of mandamus.

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