Alvarez v. Uniroyal Tire Co.

Natalie Alvarez, individually and as personal representative of the estate and survivors of Elcira Gil, and Gloria Gil, individually (“Plaintiffs”), filed a personal injury action in state court against Uniroyal Tire Company, Inc., Ford Motor Co. and Sears Roebuck and Co. (“Appellants”). In August 2006, Appellants 1 removed the personal injury action to federal district court on the basis of diversity jurisdiction. After removal to the district court, Plaintiffs filed an amended complaint adding Robert Lafita, a resident of Florida, as a plaintiff, and Ely’s Tire, Inc., a Florida corporation, as a defendant. Finding that it lacked subject matter jurisdiction because there was no longer complete diversity among the parties, the district court remanded the case to state court pursuant to 28 U.S.C. § 1447(e). 2 Appellants now appeal the district court’s order remanding the case to state court. 3

Under 28 U.S.C. § 1447(d), an order remanding an action to state court pursuant to § 1447(c) is not reviewable on appeal. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976) (holding that § 1447(d) precludes review only of those remand orders issued pursuant to § 1447(c)). In Poore v. American-Amicable Life Insurance Co., 218 F.3d 1287 (11th Cir.2000), this Court held that 28 U.S.C. § 1447(d)’s bar to appellate review of a district court’s remand to state court pursuant to § 1447(c) did not apply where subject matter jurisdiction existed at the time of removal and the district court based its remand on a plaintiffs post-removal amendment to the complaint. 4

Appellants argue that under our prior interpretation of § 1447(c) in Poore, a district court’s order remanding a case to state court (pursuant to either § 1447(c) or § 1447(e)) based on a post-removal amendment to the complaint is reviewable if the case was properly removed in the first instance. 5 However, the Supreme Court’s *641 recent decision in Powerex Corp. v. Reliant Energy Services Inc., — U.S. -, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007), requires us to revisit our prior interpretation of § 1447(c). In Powerex, the Supreme Court held that when a district court remands a properly removed case because it nonetheless determines post-removal that it lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and thus is shielded from appellate review by § 1447(d). Therefore, Poore is overruled to the extent we held that a remand for lack of subject matter jurisdiction pursuant to § 1447(c) is reviewable if it is based on a post-removal amendment to the complaint.

Under the Supreme Court’s decision in Powerex, a remand for lack of subject matter jurisdiction under § 1447(e), which arises post-removal, and a remand for lack of subject matter jurisdiction under § 1447(c), which may arise at the time of removal or post-removal, are indistinguishable for purposes of determining whether § 1447(d)’s bar to appellate review applies. If at any time before final judgment the district court issues an order remanding a case to state court because it lacks subject matter jurisdiction, that order is not reviewable. Accordingly, the appeal is DISMISSED for lack of jurisdiction.