Summary Calendar RONNIE MEISSNER v. FROG LEAP, Etc;

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 29, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 03-40066
Summary Calendar
____________________
RONNIE MEISSNER
Plaintiff - Appellee
v.
FROG LEAP, Etc; ET AL
Defendants
RICHARD S KARAM
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
No. 2:02-CV-262
_________________________________________________________________
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Richard S. Karam appeals the district
court’s remand of this case to state court. Because we conclude

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that this court is statutorily precluded from reviewing the
remand order, we dismiss Karam’s appeal for lack of jurisdiction.
Plaintiff-Appellee Ronnie Meissner originally filed this
civil action in Texas state district court, seeking an order
requiring Karam to account and divide the assets and profits of
their general partnership, Defendant Frog Leap. Karam removed
the case to federal district court based solely on the existence
of diversity of citizenship. Meissner then filed a motion to
remand.
The federal district court determined that the Frog Leap
partnership consisted of two partners, one of whom (Meissner) was
a citizen of Texas, and the other (Karam) was a citizen of
Oklahoma. Consequently, the court found that Frog Leap should be
considered a citizen of both Texas and Oklahoma. Because both
Frog Leap and Meissner had Texas citizenship, the court concluded
that diversity jurisdiction did not exist. Given that diversity
jurisdiction was Karam’s only asserted basis for subject matter
jurisdiction, the court granted Meissner’s motion and remanded
the case to state court.
The threshold question in this case is whether we have
appellate jurisdiction to review the district court’s remand.
Section 1447(c) of Title 28 of the United States Code authorizes
remand for lack of subject matter jurisdiction, while § 1447(d)
provides that “an order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise.”

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Save for a few exceptions, “a remand to state court for lack of
subject matter jurisdiction under § 1447(c) is ordinarily barred
from appellate review by § 1447(d).” Arnold v. Garlock, 278 F.3d
426, 437 (5th Cir. 2001). This rule applies even if the district
court’s determinations regarding subject matter jurisdiction are
erroneous. Heaton v. Monogram Credit Card Bank of Ga., 231 F.3d
994, 997 (5th Cir. 2000).
One exception to this rule is derived from the Supreme
Court’s decision in Thermtron Products, Inc. v. Hermandorfer, 423
U.S. 336 (1976). The Thermtron Court carved out a “narrow
exception to the strict bar to appellate review of remand orders.
[The Thermtron exception provides that] a remand order may be
reviewed where the district court has ‘remanded [a case] on
grounds not authorized by the removal statutes.’” Angelides v.
Baylor Coll. of Med., 117 F.3d 833, 836 (5th Cir. 1997) (quoting
Thermtron, 423 U.S. at 353).
On appeal, Karam contends that the Thermtron exception
applies because the district court ruled on an issue not
specifically stated in the motion to remand when it determined
that Frog Leap was a necessary party to the litigation. In so
doing, he continues, the court exceeded its statutorily-defined
powers under § 1447(c). As a result, Karam concludes, appellate
jurisdiction is proper.

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We agree with Meissner’s contention that Thermtron is
plainly distinguishable from this case. In Thermtron, the Court
held that a district court exceeded its removal powers under
§ 1447(c) when “neither the propriety of the removal nor the
jurisdiction of the court was questioned,” and the district
court’s determining factor for remand was its heavy docket. 423
U.S. at 343-44. These unique considerations are not present in
this case. In his motion to remand, Meissner argued that the
basis for remand was the absence of diversity between the named
parties. The remand order, incorporating Meissner’s argument,
expressly concluded that diversity jurisdiction was lacking. In
so doing, the district court directly implicated subject matter
jurisdiction, which plainly indicates that the court remanded the
case on grounds that are authorized by § 1447(c). Thus,
regardless of the court’s determination that Frog Leap was a
necessary party to the litigation, the narrow Thermtron exception
is not applicable.
Because Karam fails to demonstrate that any of the available
exceptions to § 1447(c) apply, we are required under § 1447(d) to
DISMISS this appeal for lack of jurisdiction.

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