     Case: 17-40329      Document: 00514387906         Page: 1    Date Filed: 03/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-40329                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 15, 2018
MURIEL FIEDLER,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

MACE BRINDLEY, Medical Doctor; THE EAR NOSE & THROAT CENTERS
OF TEXAS, P.L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:17-CV-75


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Muriel Fiedler appeals the district court’s order remanding this action to
state court. We are without jurisdiction and dismiss the appeal.
       Fiedler brought an action against Mace Brindley, MD, and The Ear Nose
& Throat Centers of Texas, P.L.L.C., in Texas state court. After more than a




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 17-40329
year of litigation, Fiedler’s lawyer moved to withdraw, and Fiedler continued
litigating her case pro se.
      Although she was the plaintiff, Fiedler subsequently removed the state
court action to the federal district court in the Eastern District of Texas. Three
weeks after Fiedler removed, a magistrate judge in the Eastern District issued
a report sua sponte recommending remand in light of the court’s lack of subject
matter jurisdiction and 28 U.S.C. § 1447(c). Fiedler v. Bridely, No. 4:17CV75-
ALM-KPJ, 2017 WL 5668007, at *1 (E.D. Tex. Feb. 22, 2017). 1 The magistrate
judge reasoned that because Fiedler, as plaintiff, had “submitted herself to the
jurisdiction of the state court,” she was “not entitled to avail [herself] of a right
of removal conferred only on a defendant who has not submitted himself to the
jurisdiction.” Id. (quoting In re Crystal Power Co., 641 F.3d 78, 81 (5th Cir.
2011)).
      The district court adopted the recommendations and findings of the
magistrate judge and explicitly concluded, “[t]he Magistrate Judge correctly
found that there is no subject matter jurisdiction here.” Fiedler v. Brindley, No.
4:17CV75, 2017 WL 5668008, at *1 (E.D. Tex. Mar. 23, 2017). Explaining that
Fiedler submitted herself to the jurisdiction of the state court, the court
concluded that she was not entitled to the federal removal statute under 28
U.S.C. § 1441 because she was not a defendant.
      Fiedler appealed and requested mandamus relief. Another panel of this
court denied mandamus relief, but left to this panel to decide “whether the
district court erred in remanding Fiedler’s case.” In re Muriel Fiedler, 17-
40359, order den. pet. for writ of mandamus [doc. 21] (5th Cir., Aug. 16, 2017).
      Under Supreme Court precedent, if a district court remands a case to
state court after concluding it is without subject matter jurisdiction under


      1   We note this caption misspelled Brindley’s name.
                                             2
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                                 No. 17-40329
§ 1447(c), appellate “review is unavailable no matter how plain the legal error
in ordering the remand.” Kircher v. Putnam Funds Tr., 547 U.S. 633, 642
(2006); see BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 470 (5th Cir.
2012) (“Any order issued on the grounds authorized by Section 1447(c) is
immunized from all forms of appellate review, whether or not that order might
be deemed erroneous by an appellate court.”); Sykes v. Tex. Air Corp., 834 F.2d
488, 492 (5th Cir. 1987) (“If the court says it is remanding for lack of
jurisdiction,   the   decision—even     if   flagrantly     wrong—is    completely
unreviewable.”). Thus, even if the district court wrongly bases a remand upon
the grounds of § 1447(c), an appellate court is without jurisdiction to review
the district court’s order and must dismiss the appeal.
      The district court premised its remand upon a lack of subject matter
jurisdiction under § 1447(c). We need not determine whether the district court
erred when issuing the remand. Instead, we conclude we are without
jurisdiction and dismiss this appeal.
      DISMISSED.




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