Martin Groff Construction Company, Incorporated v. Kevin C. Betskoff

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2430
MARTIN GROFF CONSTRUCTION COMPANY, INCORPORATED,
Plaintiff – Appellee,
v.
KEVIN C. BETSKOFF,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cv-03024-RDB)
Submitted: June 3, 2011 Decided: June 9, 2011
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Kevin C. Betskoff, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin C. Betskoff appeals the district court’s order
remanding the underlying action to Maryland state court. We
vacate and remand for proceedings consistent with this opinion.
“Congress has placed broad restrictions on the power
of federal appellate courts to review district court orders
remanding removed cases to state court.” Things Remembered,
Inc. v. Petrarca, 516 U.S. 124, 127 (1995). Thus, remand orders
are generally “not reviewable on appeal or otherwise.”*
28 U.S.C. § 1447(d). The Supreme Court has explained that the
appellate restrictions of Ҥ 1447(d) must be read in pari
materia with § 1447(c), so that only remands based on grounds
specified in [28 U.S.C.] § 1447(c) [(2006)] [i.e., lack of
subject matter jurisdiction and defects in removal procedures]
are immune from review under § 1447(d).” Things Remembered,
516 U.S. at 127. Whether a remand order is reviewable is not
based on a district court’s explicit citation to § 1447(c);
“[t]he bar of § 1447(d) applies to any order invoking
substantively one of the grounds specified in § 1447(c).”
Borneman v. United States
* The statute provides an exception to the appellate ban for
civil rights cases removed under 28 U.S.C. § 1443 (2006).
28 U.S.C. § 1447(d) (2006).
, 213 F.3d 819, 824-25 (4th Cir. 2000).

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Although a remand based on a lack of subject matter
jurisdiction may be entered at any time, either sua sponte or by
any party, remand for a procedural defect “must be effected by
granting a timely filed motion.” Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 196-97 (4th Cir. 2008). Where, as
here, a district court sua sponte remands a case as untimely
removed, it acts outside the scope of § 1447(c), and the order
is reviewable by this court. Id.
Here, the district court’s remand order was entered
sua sponte, based on its finding that removal was untimely under
§ 1447(c). However, we have held that “a district court is
prohibited from remanding a case sua sponte based on a
procedural defect absent a motion to do so from a party.”
Ellenburg, 519 F.3d at 198.
Accordingly, we vacate the judgment of the district
court and remand for further proceedings consistent with this
opinion. In light of this disposition, we deny as moot
Betskoff’s motion to expedite. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED

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