the Northern League, Inc. v. Jeffrey Earl Gidney

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1554
THE NORTHERN LEAGUE, INC., et al.,
Plaintiffs-Appellees,
v.
JEFFREY EARL GIDNEY, et al.,
Defendants-Appellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 C 6585—Samuel Der-Yeghiayan, Judge.
SUBMITTED JANUARY 15, 2009—DECIDED FEBRUARY 18, 2009
Before EASTERBROOK, Chief Judge, and CUDAHY and
RIPPLE, Circuit Judges.
PER CURIAM. Defendants removed this suit from state
to federal court, asserting that jurisdiction is proper under
28 U.S.C. §1332. The district judge remanded it after
concluding that the allegations do not establish complete
diversity of citizenship. Defendants have appealed, and
plaintiffs have confessed error (apparently they, too,
now want to be in federal court), but we lack appellate
jurisdiction.

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2 No. 08-1554
A case remanded to state court is not reviewable, by
appeal or otherwise, unless one of a few exceptions
applies. 28 U.S.C. §1447(d). See Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336 (1976). These litigants con-
tend that their case is exceptional because the district
court remanded because of a defect in removal proce-
dure, something that may be done only on motion within
30 days of removal, see 28 U.S.C. §1447(c), while this
remand occurred sua sponte and some 90 days after re-
moval. But the district court said that it was remanding
for lack of subject-matter jurisdiction, a step proper at any
time.
The district judge observed that the notice of removal
alleged the parties’ “residence,” while jurisdiction
depends on their citizenship, which is to say their domi-
cile. Gilbert v. David, 235 U.S. 561 (1915). This is not, as the
parties would have it, a “defect in removal procedure.” It
is a genuine jurisdictional problem. E.g., Steigleder v.
McQuesten, 198 U.S. 141 (1905); Denny v. Pironi, 141 U.S. 121
(1891); Robertson v. Cease, 97 U.S. 646 (1878). Perhaps the
judge should have allowed the parties to amend their
jurisdictional allegations, but the fact remains that the
remand was for lack of subject-matter jurisdiction. That a
jurisdictional remand may have been erroneous does not
make it appealable. Powerex Corp. v. Reliant Energy
Services, Inc., 551 U.S. 224 (2007); Kircher v. Putnam Funds
Trust, 547 U.S. 633 (2006); Gravitt v. Southwestern Bell
Telephone Co., 430 U.S. 723 (1977).
The appeal is dismissed for want of jurisdiction.
2-18-09

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