     Case: 10-30556 Document: 00511356952 Page: 1 Date Filed: 01/20/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 20, 2011
                                     No. 10-30556
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SYLVIA CABIRAN,

                                                   Plaintiff-Appellee

v.

JOSEPH L. BAER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CV-7694


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Sylvia Cabiran, proceeding pro se, filed a civil action in Louisiana state
court to obtain payment on promissory notes signed by her ex-husband, Joseph
L. Baer. Baer, also proceeding pro se and acting on behalf of B & C Marine,
LLC, petitioned to intervene in the state action and asserted that Cabiran had
committed acts as an owner or operator of B & C Marine that were detrimental
to the company and to Baer as a co-owner, B & C Marine and Baer requested
damages exceeding $2,000,000. Baer then removed the case to federal court,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-30556 Document: 00511356952 Page: 2 Date Filed: 01/20/2011

                                  No. 10-30556

asserting diversity jurisdiction and, ultimately, admiralty jurisdiction. The
district court remanded the case to state court, finding that the parties were not
diverse and that the claims were not substantially related to traditional
maritime activities. Baer filed a timely notice of appeal from this ruling.
      This court must consider the basis for our jurisdiction, sua sponte if
needed. Smith v. Texas Children’s Hosp., 172 F.3d 923, 925 (5th Cir. 1999). If
the district court remanded for lack of jurisdiction pursuant to 28 U.S.C.
§ 1447(c), the remand order is not reviewable pursuant to § 1447(d). See Heaton
v. Monogram Credit Card Bank of Ga., 231 F.3d 994, 997 (5th Cir. 2000). “[W]e
will review a remand order only if the district court clearly and affirmatively
relies on a non-§ 1447(c) basis.” Id. (internal quotation marks and citations
omitted). “The critical distinction for determining appealability” is whether the
district court determined that “federal jurisdiction never existed” or whether
“federal jurisdiction did exist at some point in the litigation, but the federal
claims were either settled or dismissed.” Bogle v. Phillips Petroleum Co., 24 F.3d
758, 762 (5th Cir. 1994).
      Although the district court did not specifically advert to § 1447(c), its
ruling was based on a finding that there was an absence of federal jurisdiction
from the time of removal. See Victor v. Grand Casino-Coushatta, 359 F.3d 782,
784-85 (5th Cir. 2004); Smith, 172 F.3d at 924-27; Bogle, 24 F.3d at 762.
Although Baer asserts that the district court was incorrect in its conclusions
about diversity and admiralty jurisdiction, we lack jurisdiction to consider the
propriety of the court’s § 1447(c) remand. See Heaton, 231 F.3d at 997. Because
we lack jurisdiction in this case, we DISMISS the appeal pursuant to § 1447(d).




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