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Ariel Land Owners, Inc. v. Dring

December 09, 2003

ARIEL LAND OWNERS, INC.
v.
LORI DRING; NANCY ASARO, APPELLANTS



On Appeal From The United States District Court For The Middle District of Pennsylvania (Civil Action No. 01-CV-00294) District Judge: The Honorable A. Richard Caputo

Before: Mckee, Smith, and Greenberg, Circuit Judges

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Argued November 7, 2003

Appellants Lori Dring and Nancy Asaro appeal from an order of the District Court for the Middle District of Pennsylvania remanding this case to the state court in which the complaint was originally filed. Because Appellee Ariel Land Owners ("ALO") failed to file a timely motion to remand under 28 U.S.C. § 1447(c), the District Court had no authority to remand this case. For that reason, we have jurisdiction to review the remand order and we will reverse the order of the District Court.

I.

On May 17, 1999, ALO filed an action to quiet title against Appellants in the Wayne County Court of Common Pleas. The complaint could have been filed in federal court invoking diversity jurisdiction, and was therefore removable to federal court on May 17. Appellants removed the case to the Middle District of Pennsylvania almost two years later on February 15, 2001. On December 12, 2002, over 20 months after the case was removed to federal court, ALO filed a motion to remand challenging the timeliness of removal.

On January 28, 2003, the District Court granted ALO's motion, remanding the case to state court. Ariel Land Owners, Inc. v. Dring, 245 F. Supp. 2d 589 (M.D. Pa. 2003). The District Court concluded that, pursuant to 28 U.S.C. § 1446(b), it lacked jurisdiction over the case because removal had occurred more than one year after the commencement of the case. The District Court further held that, because the one-year time limit in § 1446(b) is jurisdictional, remand was appropriate despite the fact that ALO did not move to remand within 30 days after the notice of removal, as required by § 1447(c). Appellants filed a timely appeal of the District Court's remand order.

II.

A remand order terminating all proceedings in federal court is final and appealable under 28 U.S.C. § 1291. In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 449 (3d Cir. 2000). Our jurisdiction to review the District Court's remand order is nevertheless limited by 28 U.S.C. § 1447(d), which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43 (1976); Cook v. Wikler, 320 F.3d 431, 434-35 (3d Cir. 2003). Section 1447(d), however, does not bar review of "remand orders issued outside the authority granted to District Courts under section 1447(c)." FMC, 208 F.3d at 448; accord Cook, 320 F.3d at 435 n.5, 438-39 n.9.

Section 1447(c) states, in pertinent part:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

The statute is clear that, if based on a defect other than jurisdiction, remand may only be effected by a timely motion. FMC, 208 F.3d at 450 ("[I]t is clear under section 1447(c) that [the procedural] irregularity must be the subject of a motion to remand within 30 days after filing the notice of removal."); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d Cir. 1989) ("By remanding the case for procedural defects after the thirty day limit imposed by...

Section 1447(c) had expired, the district court exceeded [its] statutorily defined power."). On the other hand, a jurisdictional defect may be raised at any time. Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996) ("This 30-day limit does not apply, however, to jurisdictional defects...."); ...


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