                                                                               [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                           FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                            ________________________                 ELEVENTH CIRCUIT
                                                                         JULY 20 2000
                                                                      THOMAS K. KAHN
                                   No. 99-12705                            CLERK
                             ________________________

                           D. C. Docket No. 98-00259-CV-4

MICHAEL POORE, BRUCE BIAS,
Individually and on behalf of all others similarly situated,

                                                                Plaintiffs-Appellees,

                                          versus

AMERICAN-AMICABLE LIFE INSURANCE
COMPANY OF TEXAS,

                                                                Defendant-Appellant.
                             ________________________

                     Appeal from the United States District Court
                        for the Southern District of Georgia
                          _________________________
                                  (July 20, 2000)

Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.

BLACK, Circuit Judge:




       *
         Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
      Appellant American-Amicable Life Insurance Company of Texas appeals the

district court’s order remanding the case filed by Appellees Michael Poore and Bruce

Bias to state court pursuant to 28 U.S.C. § 1447(c). Appellant claims the district court

did not have the authority to remand the case based on Appellees’ post-removal

amended complaint. We agree. Accordingly, we reverse the district court’s order and

remand with instructions.

                                 I. BACKGROUND

      Appellees filed a class action complaint on October 19, 1998, in the Superior

Court of Liberty County, Georgia. On behalf of a nationwide class of persons who

purchased life insurance policies from Appellant, Appellees sought compensatory and

punitive damages, recission, restitution, and injunctive relief against Appellant for

alleged fraudulent life insurance policies. Appellees asserted that the relief sought

would amount to less than $75,000 per class member.

      On November 12, 1998, Appellant filed a Notice of Removal to the United

States District Court for the Southern District of Georgia alleging diversity

jurisdiction, pursuant to 28 U.S.C. § 1332, as the basis for removal. Appellant

claimed the amount in controversy requirement was met by aggregating the punitive

damages sought in the complaint.




                                           2
      On November 25, 1998, Appellees filed a motion for leave to amend their

complaint. The amended complaint deleted the claims for punitive damages and

injunctive relief, and redefined the class to exclude any individual plaintiffs “who

wish to assert punitive damages claims . . . [or] claims where the matter in controversy

exceeds . . . $75,000 . . . .” The district court granted the motion to amend on

December 7, 1998.

      Subsequently, on December 15, 1998, Appellees filed a Motion to Remand,

claiming the district court lacked subject matter jurisdiction. On July 21, 1999,

pursuant to 28 U.S.C. § 1447(c), the district court remanded the case to the state court,

finding that the amended complaint did not satisfy the amount in controversy

requirement.

      On appeal, Appellant claims the district court erred in relying on the amended

complaint to determine whether the court had subject matter jurisdiction. We find the

district court did so err, and therefore reverse and remand for the district court to

determine whether the amount in controversy was met at the time of removal.



                                    II. ANALYSIS

      We review de novo a district court’s decision to remand based on 28 U.S.C. §

1447(c). See United States v. Veal, 153 F.3d 1233, 1245 (11th Cir. 1998). A district


                                           3
court’s order pursuant to § 1447(c) is only reviewable if the case is remanded on

“grounds wholly different from those upon which § 1447(c) permits remand.”

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S. Ct. 584, 589

(1976); see 28 U.S.C. 1447(d). In this case, the reviewability and merits of the order

are inextricably intertwined. As discussed below, we conclude the district court’s

order is reviewable and that the district court erred in granting the order. For ease of

discussion, we first will discuss the district court’s error.

A. District Court’s Authority to Remand

      Pursuant to 28 U.S.C. § 1447(c), a district court may remand cases when the

court lacks subject matter jurisdiction. As originally enacted, § 1447(c) stated “[i]f

at any time before final judgment it appears that the case was removed improvidently

and without jurisdiction, the district court shall remand the case . . . .” In analyzing

this version of § 1447(c), courts made clear that removal was the critical jurisdictional

juncture. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293, 58 S.

Ct. 586, 592 (1938) (stating “events occurring subsequent to removal which reduce

the amount recoverable . . . do not oust the district court’s jurisdiction”). That is,

under the original version of § 1447(c), the proper inquiry was whether the court had

jurisdiction at the time of removal. If the court did have jurisdiction at the time of

removal, that jurisdiction was unaffected by subsequent acts, such as loss of diversity


                                            4
or loss of the required amount in controversy. See Freeport-McMoRan, Inc v. KN

Energy, Inc., 498 U.S. 426, 428, 111 S. Ct. 858, 860 (1991) (noting the Supreme

Court has “consistently held that if jurisdiction exists at the time an action is

commenced, such jurisdiction may not be divested by subsequent events”); St. Paul

Mercury Indemnity, 303 U.S. at 293, 58 S. Ct. at 592; Doddy v. Oxy USA, Inc., 101

F.3d 448, 456 n.4 (5th Cir. 1996) (explaining that a district court’s jurisdiction is fixed

at the time of removal); Van Meter v. State Farm Fire & Cas. Co., 1 F.3d 445, 450

(6th Cir. 1993) (same).

       Section 1447(c), however, was amended in 1988 to read as follows: “If at any

time before final judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” The district court concluded § 1447(c), as

amended, authorized it to look at post-removal events to determine whether it had

subject matter jurisdiction.      On appeal, Appellant argues the district court’s

interpretation of § 1447(c) was incorrect and contends the amended statute still

prohibits courts from relying on post-removal events in examining subject matter

jurisdiction. We agree.

       While the district court concluded the amended § 1447(c) suggests that the time

of removal is no longer the focus of the inquiry, “courts have not construed it in this

revolutionary way.” Baldridge v. Kentucky-Ohio Trans., Inc., 983 F.2d 1341, 1348


                                            5
n.11 (6th Cir. 1993). Rather, every Circuit that has addressed this issue has held that

the proper inquiry is still whether the court had jurisdiction at the time of removal.1

For example, the Sixth Circuit has held that “the timing question is dispositive

because, despite the change in the wording of § 1447(c) . . . courts still read that

section as authorizing remand when a district court determines that jurisdiction had

been lacking at the time of removal, rather than later . . . .” Baldridge, 983 F.3d at

1348. See Matter of Shell Oil Co., 966 F.2d 1130, 1133 (7th Cir. 1992) (stating that

“[n]either the text of the revised § 1447(c) nor its legislative history implies that

Congress altered the traditional view. . . that jurisdiction present at the time a suit is

filed or removed is unaffected by subsequent acts”); Hudson United Bank v. LiTenda

Mortgage Corp., 142 F.3d 157 n.8 (3d Cir. 1998) (commenting “we will assume

Congress did not mean to upset [the focus on jurisdiction at the time of removal] and

that they remain in effect unchanged by the intervening textual modifications to §

1447(c)”); Doddy, 101 F.3d at 456 n.4 (5th Cir. 1996) (explaining that “§ 1447(c)

cannot be read to overrule the repeatedly expressed view that changes after removal

cannot eliminate jurisdiction and require remand”); see also Wisconsin Dep’t of

Corrections v. Schacht, 524 U.S. 381, 391, 118 S. Ct. 2047, 2053 (1998) (in


       1
         In discussing a different issue, we have noted the amendments to § 1447(c) were “legally
insignificant” and were not intended to change the meaning of the original section. See Snapper v.
Redan, 171 F.3d 1249, 1256-57 n.14 (11th Cir. 1999).

                                                6
discussing a different issue, noting that “[a] case such as this one is more closely

analogous to cases in which a later event, say the change in the citizenship of a party

or a subsequent reduction of the amount at issue below jurisdictional levels, destroys

previously existing jurisdiction. In such cases, a federal court will keep a removed

case.”); Freeport-McMoran, 498 U.S. at 428, 111 S. Ct. at 860 (in dicta, commenting

that jurisdiction is fixed at the time of removal).

           Finally, as noted by several other Circuits, the legislative history of § 1447(c)

does not indicate that Congress intended the amendment to cause a drastic change in

the law. See H.R. Rep. No. 104-799 at 2-3 (1996) (indicating that § 1447(c), as

amended, was intended only to clarify Congressional intent with respect to the

timeliness of remands made for reasons other than lack of subject matter jurisdiction);

Hudson United Bank, 142 F.3d at 156 n.8 (noting “Congress did not mean to upset”

the established interpretation of § 1447(c)).

       We join our sister Circuits and conclude the amendments to § 1447(c) did not

alter the fact that, in this case, the district court must determine whether it had subject

matter jurisdiction at the time of removal.2 That is, events occurring after removal

       2
          We note that other post-removal events, however, may divest the district court of
jurisdiction. See, e.g., In re Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 646 (5th Cir. 1978)
(holding that a district court must remand if indispensable parties have not been joined). This case
is binding on this Court pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), in which this Court adopted as binding precedent all decisions
of the former Fifth Circuit handed down prior to close of business on September 30,
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which may reduce the damages recoverable below the amount in controversy

requirement do not oust the district court’s jurisdiction. In this case, Appellees

amended their complaint after the case was removed to the district court. The district

court thus erred in relying on the amended complaint to conclude the parties did not

meet the amount in controversy requirement.

B. Reviewability of District Court’s Remand Order

            Under 28 U.S.C. § 1447(d), an order remanding an action to state court

pursuant to § 1447(c) is not reviewable on appeal or otherwise, even if the remand

order is clearly erroneous.3 See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

336, 342-43, 96 S. Ct. 584, 589 (1976). The Supreme Court, however, has explained

that § 1447(d)’s bar to appellate review is not as broad as it seems. See id. at 345-46,

96 S. Ct. at 590; Matter of Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th

Cir. 1992) (noting §1447(d) “does not mean what it says”). In Thermtron, the district

court had remanded a diversity suit due to the crowded federal docket. Relying on the

§ 1447(d) bar, the Sixth Circuit refused to consider the defendant’s mandamus

petition. The Supreme Court reversed, holding that §1447(d) precludes review only


1981.
        3
         28 U.S.C. § 1447(d) reads as follows: “An order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise, except that an order remanding a
case to the State court from which it was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.”

                                               8
of those remand orders issued pursuant to §1447(c). See id. at 346, 96 S. Ct. at 590

(stating “only remand orders issued under section 1447(c) and invoking the grounds

specified therein—that removal was improvident and without jurisdiction—are

immune from review under section 1447(d)”). Because the district court had not

remanded on the basis of § 1447(c), but rather on “grounds wholly different from

those upon which Section 1447(c) permits remand,” the district court had exceeded

its authority and the remand order was thus reviewable. Id. at 344, 96 S. Ct. at 589.

      In this case, the district court determined it lacked diversity jurisdiction

because the amount in controversy did not meet the jurisdictional minimum set forth

in 28 U.S.C. § 1332. This determination would seem to fall directly under Section

1447(c), and Section 1447(d) would prevent review. However, as discussed above,

the district court exceeded its authority under § 1447(c) by relying upon a post-

removal amendment to the complaint to determine the amount in controversy.

Because the district court acted beyond the scope of its § 1447(c) authority, § 1447(d)

does not act as a bar to appellate review. See In re: Bethesda Mem’ Hosp., Inc., 123

F.3d 1407, 1410 (11th Cir. 1997) (noting “because the district court exceeded the

grounds for remand contained in § 1447(c), § 1447(d) poses no bar to our review”);

Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 223 (3d Cir. 1995) (holding “a

remand only falls under § 1447(c) if the removal itself was jurisdictionally improper,


                                          9
not if the defect arose after removal . . . . Remand decisions based on grounds other

than . . . that jurisdiction was improper at the time of removal . . . are therefore

reviewable . . . as they do not implicate § 1447(c).”); Baldridge v. Kentucky-Ohio

Trans., Inc., 983 F.2d 1341, 1348 (6th Cir. 1992) (explaining if a district court “had

thought that the removal had been jurisdictionally proper but that jurisdiction had

‘vanished’ when [a party] dropped out, the remand—even though based on a finding

of lack of jurisdiction—would be reviewable, as § 1447(c) envisions remands only for

defective removal”); Amoco Petroleum, 964 F.2d at 708 (permitting appellate “review

when the district judge believes that removal was proper and that later developments

authorize remand”); but see Linton v. Airbus Industrie, 30 F.3d 592, 599 (5th Cir.

1994) (concluding “that jurisdictional remands premised on post-removal events are

not reviewable”). Upon our review of the record, as discussed above, we conclude the

district court committed reversible error by remanding based on Appellees’ post-

removal amended complaint.

                                III. CONCLUSION

      The district court erred in remanding the case to the state court based on the

amount recoverable alleged in Appellees’ amended complaint. Because the district

court exceeded its authority pursuant to § 1447(c), § 1447(d) does not act as a bar to




                                         10
our review. Accordingly, we reverse and remand to the district court to determine

whether it had subject matter jurisdiction at the time of removal.

      REVERSED AND REMANDED.




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