
USCA1 Opinion

	




          November 24, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1252                                                DATCOM, INC.,                                 Plaintiff, Appellee,                                          v.                             INTEGRATED TECHNOLOGY, INC.,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Kevin E. Sharkey and Kenna, Johnston, & Sharkey on brief for               ________________     __________________________          appellant.               Lawrence R. Opert, Opert & Shandler on brief for appellee.               _________________  ________________                                  __________________                                  __________________                 Per Curiam.    The question  before  us is  whether  the                 __________            district court order granting defendant's motion to dismiss a            petition for removal  is appealable.  We conclude  that it is            not.                 In  October 1992,  plaintiff-appellee,  Datcom, Inc.,  a            Massachusetts corporation, filed  suit in Middlesex  Superior            Court   in  Cambridge,   Massachusetts,  against   defendant-            appellant,   Integrated   Technology,    Inc.,   a   Delaware            corporation, with its  principal place of business  in Salem,            New Hampshire.  The suit sought in excess of $300,000 damages            for tortious  interference  with  contractual  relations  and            unfair  and deceptive  business practices.    On January  20,            1993,  a   default  order   was  issued  against   Integrated            Technology pursuant to Mass. R.  Civ. P. 55(a) because of its            failure to plead  or otherwise defend  itself as required  by            Mass. R. Civ. P. 12(a).  On January 22, Integrated Technology            filed a  petition to remove  the matter to the  United States            District Court for the District of Massachusetts on the basis            of diversity jurisdiction.  In response, Datcom, Inc. filed a            motion  to dismiss contending  that the petition  for removal            had not been timely filed since a default had already entered            in state  court prior to  the filing of the  remand petition.            On  February 10, 1993, the district  court allowed the motion            to  dismiss, noting  that the  case was  in default  in state            court  when  the  petition  for removal  was  filed.   Datcom                                         -2-            appeals the  district court's  order dismissing  its petition            for removal.                                      Discussion                                      Discussion                 Integrated Technology contends  first that the  order of            the district court  dismissing its petition for removal was a            dismissal of  its action and not a remand to the state court.            It notes that  the word "remand" was never used  in the order            and  that  no certified  remand  order appears  to  have been            mailed to the  state court clerk as  required by 28  U.S.C.              1447(c).   Integrated  Technology  further asserts  that  the            order is  thus directly appealable as a  final order pursuant            to 28 U.S.C.   1291.                 While not  expressly called  such, the  order dismissing            the  petition  for removal  was  in  effect  a remand.    The            district  court  docket  sheet  indicates  an  "intradistrict            transfer" of  the case to  state court on February  12, 1993.            Moreover,  the docket sheet  of the Middlesex  Superior Court            indicates  on June  3, 1993,  a  "[r]etransfer to  Sup[erior]            C[ou]rt from U.S.  District Court of Mass."   The record also            shows  that  the  case  is  now  proceeding  in  state court.            Integrated  Technology's contention  that the  district court            order was a dismissal rather than a remand is without merit.                 Given that the  district court order  was a remand,  the            next question is whether the  order was issued pursuant to 28                                         -3-            U.S.C.   1447(c).  If it were, 28 U.S.C.   1447(d)  precludes            appellate review of  the order "whether erroneous  or not and            whether review is sought by appeal or by extraordinary writ."            Thermtron  Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343            ________________________     _____________            (1976).                   Section 1447(c) provides  that a court may remand a case            to state  court either "on the basis of any defect in removal            procedures" or if "it  appears that the district court  lacks            subject matter jurisdiction."    The order in  this case does            not refer to section 1447(c)  nor does it indicate that there            was  either  a defect  in  removal  procedure  or a  lack  of            jurisdiction.1                    While the district court did not make explicit the basis            for its remand order, it  appears to have acted on the  basis            of a perceived  defect in removal procedure.  Datcom's motion            to  dismiss the petition  for removal  was predicated  on its            claim that,  because the petition was filed after the default            order had issued  in state court,  the "Petition for  Removal            was not  timely filed."   "[A]n untimely  notice of  removal"            qualifies as a procedural defect under section 1447(c).  FDIC                                                                     ____            v. Cabral, 989 F.2d 525, 525 (1st  Cir. 1992).  As such, this               ______            court  is precluded  from  considering  whether the  district            court was correct in its remand decision.  Id.                                                       __                                            ____________________            1.  The order simply  states that the  "Motion to Dismiss  is            allowed, as case was in  default in State Court when Petition            _______            for Removal was filed."                                         -4-                 Moreover,  even if  we were  to  find that  the district            court  remand was  not on  the basis  of section  1447(c), we            still would not disturb the remand order.                   An order remanding a removed case is not appealable as a            final judgment.  Garcia v. Island Program Designers,  No. 92-                             ______    ________________________            1853,  slip op. at 6-8 (1st  Cir. Sept. 14, 1993); Doughty v.                                                               _______            Underwriters at Lloyds, London, et al, Nos. 93-1174, slip op.            _____________________________________            at 7-11 (1st Cir. Oct. 18, 1993).                   Nor  does  the  remand order  in  this  case qualify  as            appealable under the collateral doctrine order.  See Cohen v.                                                             ___ _____            Beneficial Industrial Loan Corp., 337  U.S. 541, 546 (1949).             _______________________________            To qualify under  the Cohen test, a remand  order must, inter                                  _____                             _____            alia, decide a  "salient legal question that  stands separate            ____            and  apart  from the  merits  in  th[e]  case, that  is,  [a]            'collateral' issue."  Doughty, slip op. at 12.  In this case,                                  _______            the  "collateral" issue  is which  forum  should resolve  the            dispute.   However, "[d]etermining whether a state or federal            court  is  to  resolve an  issue  constitutes  the definitive            resolution   of  a   collateral  matter  only   when  special            circumstances  exist."     Id.  at  13.     No  such  special                                       __            circumstances exist in the present case.                   Finally, this is not a proper case for the issuance of a            writ  of mandamus requiring the district  court to vacate the            remand order and to accept jurisdiction of the case.  For one            thing, appellant  has  not asked  us to  issue a  prerogative                                         -5-            writ.   For another  thing, mandamus relief  is discretionary            with  this  court, Kerr  v.  United  States Dist.  Court  for                               ____      ________________________________            Northern Dist.,  426 U.S. 394,  403 (1975), and will  only be            _____________            granted when the  challenged order is palpably  erroneous and                                                                      ___            when the petitioner has shown that he faces a special risk of            irreparable harm, In re Pearson, 990 F.2d 653, 656 & n.4 (1st                              _____________            Cir.  1993) (collecting  cases).   "Interlocutory  procedural            orders .  . .  rarely will  satisfy  th[e] preconditions  for            mandamus relief."  In re  Recticel Foam Corp., 859 F.2d 1000,                               _________________________            1006  (1st Cir.  1988).   The mere  fact that  petitioner may            prefer  a  federal  forum  is  insufficient  to  establish  a            likelihood  that petitioner  will suffer irreparable  harm by            having its case litigated in the state system.  Doughty, slip                                                            _______            op. at 22.                 Appeal dismissed.                        _________                                         -6-
