Opinion
No. 08-20491 Summary Calendar.
February 2, 2009.
Carlton Bryan Cantrell, West, Webb, Allbritton Gentry, College Station, TX, for Plaintiffs-Appellees.
J. Cary Gray, Travis Crabtree, Looper Reed McGraw, Houston, TX, for Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:07-CV-1003.
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
Defendants-Appellants appeal the district court's order remanding this case to Texas state court. Alternatively, they seek a writ of mandamus (which we have denied in a separate order) because, they claim, the district court did not have any authority to remand by virtue of its failure to apply the equitable exception to the one-year time limit for seeking removal predicated on diversity jurisdiction. See 28 U.S.C. § 1446(b); Tedford v. Warner-Lambert Co., 327 F.3d 423, 427 (5th Cir. 2003). Plaintiffs-Appellees argue that we lack jurisdiction. We agree.
Except in civil rights cases, this court lacks jurisdiction to consider a district court's order granting a motion to remand based on procedural defects in the removal process where, as here, the motion to remand was timely under 28 U.S.C. § 1447(c). See 28 U.S.C. § 1447(d); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 127 S.Ct. 2411, 2416, 168 L.Ed.2d 112 (2007); In re Medscope Marine Ltd., 972 F.2d 107, 110 (5th Cir. 1992). Defendants-Appellants argue that the district court remanded the case based on a discretionary finding that Plaintiffs-Appellees had not abused the forum-selection process. The district court remanded this case, however, because the notice of removal was untimely under § 1446(b), not based, for example, on its discretion to remand supplemental state law claims. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 (5th Cir. 1999) ("Reviewable non § 1447(c) remands are a narrow class of cases, meaning we review a remand order only if the district court `clearly and affirmatively' relies on a non § 1447(c) basis."). As Defendants-Appellants concede, the one-year time limit of § 1446(b) for removing a case is procedural; thus, the district court's remand on that basis falls within the ambit of § 1447(d) and this court lacks jurisdiction to hear this appeal.
Second, Defendants-Appellants argue that this court has jurisdiction based on the separable order rule, which it characterizes as the "substantive decision" exception. Under this rule, separable orders of the district court that logically and factually precede the remand order, and that are conclusive in the sense that the state court cannot review them, are reviewable, but only if otherwise appealable under, for example, the collateral rule doctrine. See, e.g., Arnold v. State Farm Fire Cos. Co., 277 F.3d 772, 776 (5th Cir. 2001). Essentially, Defendants-Appellants invite this court to extend the separable order rule to cover the present facts, in which the district court entered an order remanding the case based on its conclusion that Defendants-Appellants were not entitled to equitable extension under Tedford. We decline the invitation because the district court's consideration of the equitable extension rule announced in Tedford does not turn an otherwise unappealable remand order into two separate orders, one deciding the equitable issue and the other remanding the case.
APPEAL DISMISSED.