Victor v. Grand Casino, et al

United States Court of Appeals
Fifth Circuit
F I L E D
February 19, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-30703
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MAE LOUISE VICTOR,
Plaintiff-Appellee,
VERSUS
GRAND CASINO-COUSHATTA; COUSHATTA TRIBE OF LOUISIANA;
AND GRAND CASINOS OF LOUISIANA, INC.-COUSHATTA,
Defendant-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before HIGGINBOTHAM, SMITH, and
WIENER, Circuit Judges.
PER CURIAM:
Defendants challenge the remand of this
matter to state court. Because we lack appel-
late jurisdiction, we dismiss the appeal.
I.
Mae Victor claimed to have won a large
jackpot at Grand Casino-Coushatta. The casi-
no asserted that a malfunction in the slot ma-
chine generated the jackpot, so it refused to
pay. Victor sued in state court for breach of
contract, naming as defendants the casino; the
Coushatta Indian Tribe; and Grand Casinos of
Louisiana, Inc. (“Grand Casinos”). Defen-
dants removed to federal court via 28 U.S.C.
§ 1441(a) and based federal subject matter jur-

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isdiction on diversity of citizenship.1 See 28
U.S.C. § 1332(a)(1).
The district court, acting on the recommen-
dation of a magistrate judge, determined that
the parties were non-diverse and that federal
subject matter jurisdiction was lacking. Spe-
cifically, the court held that the Coushatta In-
dian Tribe destroyed diversity both in its pres-
ence as a stateless person and in the effect of
its Louisiana origin on the ownership of the
Casino itself. Consequently, the court re-
manded to state court.2
II.
Defendants challenge the remand on two
grounds related to the parties’ ability to main-
tain diversity jurisdiction: (1) the determination
that the Indian tribe waived its immunity; and
(2) the determination that an amendment to
the Tribal State Compact did not apply retro-
actively to bar Victor’s claim. Before con-
sidering such questions, however, we must de-
termine whether we have jurisdiction to hear
any element of this appeal.3
Because the district court remanded based
on lack of subject matter jurisdiction, we lack
the power to hear any element of the subse-
quent appeal. Title 28 U.S.C. § 1447 address-
es the removal of matters to federal court.
Section 1447(c) discusses remanding a case to
a state court.4 Section 1447(d) directly limits
the scope of federal appellate review of re-
manded cases: “An order remanding a case to
the State court from which it was removed is
not reviewable on appeal or otherwise” (with
the exception of cases removed to federal
courts under a civil rights statute).
The Supreme Court and this court have in-
terpreted the two statutes to prohibit appellate
jurisdiction over matters remanded to state
court where a district court bases remand on a
lack of subject matter jurisdiction. The lan-
guage of § 1447(d) is unambiguous. See, e.g.,
Angelides v. Baylor College of Med., 117 F.3d
1 Victor is a Louisiana citizen. The casino is a
business entity that consists of the Indian tribe and
Grand Casinos. Defendants assert that the tribe “is
a Federally recognized Grand Indian Tribe, with its
reservation located in Allen Parish, Louisiana.”
Grand Casinos is a Minnesota corporation with its
principal place of business in Minnesota. The
district court ultimately decided that the tribe de-
stroyed diversity because it was a non-state entity
and because of its citizenship viewed in conjunction
with its partial ownership in the casino.
2 As part of its remand, the court considered
whether the Indian tribe, by entering into a gaming
compact with the state, had waived its sovereign
tribal immunity. If the tribe retained its immunity,
Victor could recover no damages from it.
Defendants characterized Victor’s inclusion of the
tribeSSwhich inclusion frustrated diversitySSas
fraudulent. The court, however, determined that
the tribe waived its immunity in this kind of suit
and that Victor could, in the abstract, obtain dam-
ages from the tribe.
3 Because this appealSSconcerning both appel-
late jurisdiction and the question of tribal immuni-
tySSconcerns matters of subject matter jurisdiction,
we use a de novo standard of review. See, e.g.,
Washington v. Linebarger, Goggan, Blair, Pena
& Sampson, LLP, 338 F.3d 442, 444 (5th Cir.
2003); Bissonnet Invs. LLC v. Quinlan (In re
Bissonnet Invs. LLC), 320 F.3d 520, 522 (5th Cir.
2003) (“We review questions of subject matter
jurisdiction de novo.”).
4 “If at any time before final judgment it ap-
pears that the district court lacks subject matter
jurisdiction, the case shall be remanded . . . . The
State court may thereupon proceed with such
case.”

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833, 835 (5th Cir. 1997) (“Appellate courts
are precluded from reviewing remand orders
issued pursuant to § 1447(c), by appeal, man-
damus, or otherwise.”).5 Furthermore, “even
if the district court’s determination of subject
matter jurisdiction was erroneous, it remains
immune from review.” Rio de Janeiro of the
Federated Republic of Brazil v. Philip Morris,
239 F.3d 714, 716 (5th Cir. 2001).6
The Supreme Court has created a narrow
group of remanded cases that fall outside
§ 1447(d). “[W]here a case has been properly
removed and the remand order is issued on
grounds not authorized by § 1447(c),” an ap-
pellate court may review the decision to re-
mand. Thermtron Products, Inc. v. Hermans-
dorfer, 423 U.S. 336, 343 (1976). The district
court in Thermtron expressly remanded be-
cause of its crowded docket and not because
of jurisdictional concerns. Id. at 340-41.
The Supreme Court, however, has limited
the possible class of appealable remand orders.
“As long as a district court’s remand is based
on a timely raised defect in removal procedure
or on lack of subject-matter jurisdictionSSthe
grounds for remand recognized by §
1447(c)SSa court of appeals lacks jurisdiction
to entertain an appeal of the remand order
under § 1447(d).” Things Remembered, 516
U.S. at 127-28. The district court’s entire
reason for remanding Victor’s case centered
on the lack of diversity jurisdiction.7
III.
The district court ruled on an argument put
before it that directly implicated the subject
matter jurisdiction of that court. The court ex-
plicitly held “that the joinder of the tribe is not
fraudulent, and that the stateless status of the
tribe therefore destroys complete diversity, and
along with it, this Court’s diversity
jurisdiction.” The accompanying remand falls
directly within § 1447(c). Consequently,
pursuant to § 1447(d), we lack jurisdiction to
review the order of remand.
The appeal is DISMISSED for want of
jurisdiction.
5 The limitation on appellate review extends
only to matters remanded based on a lack of sub-
ject matter jurisdiction and pursuant to § 1447(c).
Things Remembered, Inc. v. Petrarca, 516 U.S.
124, 127 (1995) (Ҥ 1447(d) must be read in pari
materia with § 1447(c), so that only remands
based on grounds specified in § 1447(c) are im-
mune from review under § 1447(d).”).
6 The statute and the construing courts have
limited appellate review over such matters because
“federal appeal of remand orders would delay
justice in state courts.” Angelides, 117 F.3d
at 836.
7 Defendants lamely attempt to characterize the
district court’s consideration of the tribe’s sover-
eign immunity as something that “exceeded its au-
thority [and was] unnecessary in light of the find-
ings of the Magistrate and the remaining conclu-
sions reached by the District Court’s remand or-
der.” The district court’s analysis, however, arose
out of a question involving diversity jurisdiction.
Although the court determined that the inclusion of
an Indian tribe destroyed diversity, it also con-
sidered whether Victor may have engaged in some
kind of fraudulent joinder. If the tribe maintained
its immunity, Victor could not possibly recover
from it, and the district court could disregard its
presence for diversity purposes.

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