     Case: 12-30711        Document: 00512268775          Page: 1    Date Filed: 06/10/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                            June 10, 2013

                                        No. 12-30711                        Lyle W. Cayce
                                                                                 Clerk

SHARON G. FONTENOT, et al,

                                                    Plaintiffs-Appellees
v.

WATSON PHARMACEUTICALS, INC., et al,

                                                    Defendants-Appellants



                     Appeal from the United States District Court
                        for the Western District of Louisiana


Before JONES and CLEMENT, Circuit Judges, and KAZEN, District Judge.*
KAZEN, District Judge:
      After Plaintiffs-Appellees’ case was removed from state court on the basis
of diversity jurisdiction, the district court allowed the joinder of several non-
diverse defendants and remanded the case pursuant to 28 U.S.C. § 1447(e).
Defendants-Appellants appealed the district court’s order, claiming that the
remand was in error since the joinder ruling was a prohibited exercise of
supplemental jurisdiction under 28 U.S.C. § 1367(b). Because we lack appellate
jurisdiction, we DISMISS.




      *
          District Judge of the Southern District of Texas, sitting by designation.
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                                   No. 12-30711

                                BACKGROUND
      For the sake of brevity, we condense the long and complicated history of
this case. In early 2009, Joseph Fontenot died in a Louisiana hospital after
being administered a transdermal pain patch. His wife, Sharon Fontenot, and
six children (“Appellees”) filed suit in Louisiana state court, asserting tort claims
against the hospital and various entities involved in the manufacture and sale
of the pain patches. Over a year later, one of the defendants-manufacturers
removed the case to federal court on the basis of diversity jurisdiction.
      At that point, the parties were not actually diverse, but the manufacturer
asserted that the non-diverse healthcare providers were improperly named
defendants under the Louisiana medical malpractice statute, which bars claims
against qualified healthcare providers until a medical review panel has
evaluated them. See LA. REV. STAT. § 40:1299.47(A)(1)(a) & (B). The district court
agreed and dismissed the non-diverse defendants without prejudice. Appellees
later amended their complaint to add Watson Pharmaceuticals, Inc., Watson
Laboratories, Inc. and Watson Pharma, Inc. (“Appellants”), as defendants, and
after two voluntary dismissals, Appellants were the only defendants remaining.
      In the meantime, the medical review panel had completed its work.
Consequently, Appellees requested leave to file an amended complaint that
would join the non-diverse healthcare providers and the previously dismissed
claims against them. Appellants objected, asserting that the motion was barred
by 28 U.S.C. § 1367(b). The matter was referred to a magistrate judge. In a
lengthy Report and Recommendation, the magistrate judge stated that
Appellants were “correct” in contending that § 1367(b) “expressly prohibited” the
court from exercising supplemental jurisdiction over the medical malpractice
claims in the amended complaint, but added “that is not the proper analysis that
should be undertaken.” The magistrate judge, concluding that 28 U.S.C. §
1447(e) governed, then analyzed the proposed joinder under Hensgens v. Deere

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                                  No. 12-30711

& Co., 833 F.2d 1179, 1181-1183 (5th Cir. 1987), which describes the inquiry for
joinder of a non-diverse, dispensable party after removal. After conducting the
Hensgens analysis, he recommended joinder and remand. The district court
adopted that recommendation, and this appeal followed.
                                 DISCUSSION
      As a threshold issue, this Court must determine whether it has appellate
jurisdiction to review the district court’s order. See Backe v. LeBlanc, 691 F.3d
645, 647 (5th Cir. 2012). Jurisdiction exists to determine the Court’s jurisdiction.
Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010). Specifically, we must
decide 1) whether we can review a remand order based on the joinder of a non-
diverse defendant and 2) whether we can separately review an alleged error in
the joinder ruling.
            1. Reviewability of the Remand Order
      The removal statute expressly provides that an order remanding a case to
the state court from which it was removed is not reviewable on appeal, with the
exception of cases against federal officers and agencies or concerning civil rights.
See 28 U.S.C. § 1447(d). This bar to appellate review, however, is narrower than
the text of the statute would suggest. Concluding that “§ 1447(d) must be read
in pari materia with § 1447(c),” the Supreme Court added its own gloss to the
words of the statute, holding “that only remands based on grounds specified in
§ 1447(c) are immune from review under § 1447(d).” Quackenbush v. Allstate Ins.
Co., 116 S.Ct. 1712, 1718 (1996) (citing Thermtron Products, Inc. v.
Hermansdorfer, 96 S.Ct. 584, 590 (1976) and Things Remembered, Inc. v.
Petrarca, 116 S.Ct. 494, 497 (1995)). One such ground is lack of subject-matter
jurisdiction. See 28 U.S.C. § 1447(c).
      Appellants acknowledge the preclusive effect of § 1447(d) on remands
based on lack of subject-matter jurisdiction, but argue that a remand order is
immune from our review only if it was issued under § 1447(c) and concerned

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jurisdictional defects at the time of removal. Since the remand order here was
based on § 1447(e), and the jurisdictional defect arose post-removal, they
maintain that § 1447(d) does not prevent our review. This argument, however,
is foreclosed by the Supreme Court’s reasoning in Powerex Corp. v. Reliant
Energy Services, Inc., 127 S.Ct. 2411, 2417 (2007).
      In Powerex, the Supreme Court held that “when a district court remands
a properly removed case because it nonetheless lacks subject-matter jurisdiction,
the remand is covered by § 1447(c) and thus shielded from review by § 1447(d).”
Id. In reaching this holding, the Court relied on the language of § 1447(e), noting
that it “unambiguously demonstrates that a case can be properly removed and
yet suffer from a failing in subject-matter jurisdiction that requires remand.” Id.
(emphasis in original omitted). In other words, a loss of subject-matter
jurisdiction that occurs after removal falls within the specified grounds of §
1447(c), and thus a remand on that basis under § 1447(c) is barred from
appellate review by § 1447(d).
      Although Powerex concerned remand orders issued under § 1447(c), “[a]
standard principle of statutory construction provides that identical words and
phrases within the same statute should normally be given the same meaning.”
Id. (noting also that this principle “is doubly appropriate here, since the phrase
‘subject matter jurisdiction’ was inserted into § 1447(c) and § 1447(e) at the same
time”). Thus, if § 1447(d) precludes appellate review of § 1447(c) remand orders
for lack of subject matter jurisdiction after removal, then it necessarily precludes
appellate review of § 1447(e) remand orders.
      Every Circuit to address the issue has reached the same conclusion. See
Blackburn v. Oaktree Capital Management, LLC, 511 F.3d 633, 636-37 (6th Cir.
2008); Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 639 (11th Cir. 2007); Stevens
v. Brink's Home Sec., Inc., 378 F.3d 944, 949 (9th Cir. 2004); Matter of Florida
Wire & Cable Co., 102 F.3d 866, 868 (7th Cir. 1996); Washington Suburban

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Sanitary Comm'n v. CRS/Sirrine, Inc., 917 F.2d 834, 835 (4th Cir. 1990). This
Court has intimated its concurrence with this construction of § 1447(d) in a
prior, unpublished opinion. See Boudreaux v. U.S. Flood Control Corp., 389 F.
App'x 376, 377 (5th Cir. 2010) (dismissing the appeal of a § 1447(e) remand order
because “[w]e have construed § 1447 as prohibiting review of orders remanding
cases for lack of subject matter jurisdiction where lack of jurisdiction resulted
from joinder of non-diverse parties”). Joining the Fourth, Sixth, Seventh, Ninth,
and Eleventh Circuits, we now expressly hold that § 1447(d) precludes appellate
review of a remand order issued pursuant to § 1447(e).1
                     2. Reviewability of the Joinder Ruling
       Appellants attempt to avoid the § 1447(d) bar by asking this Court to
independently review the alleged error in the joinder ruling that provided the
basis for remand. Independent review of this issue, however, is foreclosed by our
decision in Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 493 (5th Cir. 2001).
       In the context of remand orders, jurisdiction to review a ruling that
preceded remand is a two-step inquiry involving both separability from the
remand itself and the collateral order doctrine. See id. at 479, 485. First, the
ruling must be separable “in logic and in fact” from the remand order and be
conclusive. Id. at 479 (quoting Waco v. United States Fidelity & Guaranty Co.,
55 S.Ct. 6 (1934)). In Doleac, we held that joinder is an issue separable from the
remand order for § 1447(d) purposes. 264 F.3d at 485-89 (citing Tillman v. CSX
Transp., Inc., 929 F.2d 1023, 1026 (5th Cir. 1991)). That holding, however, does
not end the inquiry. Since no final judgment on the merits was entered in this



       1
         Powerex did allow a limited appellate inquiry into confirming whether the district
court’s characterization that the remand rested upon lack of subject-matter jurisdiction, as
opposed to discretionary or other grounds, was “colorable.” 127 S.Ct. at 2417-18. Here, since
§ 1447(e) remands are only for lack of subject-matter jurisdiction, the district court’s
characterization as such was clearly colorable.

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case,2 the joinder ruling, if reviewable at all, would have to fall under the
collateral order doctrine. See Doleac, 264 F.3d at 490; see also Osborn v. Haley,
127 S.Ct. 881, 892-93 (2007). In this second part of the inquiry, Doleac held that,
although a joinder ruling that precedes remand is both conclusive and collateral
to the rights asserted in the action, it is neither “effectively unreviewable” on
appeal from a final judgment nor “too important to be denied review.” 264 F.3d
at 490-91.
       The failure to satisfy these last two requirements highlights the
insuperable defect with Appellants’ request. Although Appellants express a
general desire to remain in federal court, reversing the joinder ruling would do
nothing to make this so. As we determined above, the remand itself is
irreversible. Thus, we could only offer an impermissible advisory opinion as to
the applicability of § 1367(b). See Powerex, 127 S.Ct. at 2419.3 In sum, whatever
the merits of the district court’s treatment of § 1367(b), appellate review of the
district court’s joinder ruling is barred.
                                     CONCLUSION
       For the foregoing reasons, we DISMISS for lack of appellate jurisdiction.




       2
          The district court incorrectly titled the remand order “Judgment,” even though the
document only granted the request to amend the complaint and remanded the case to state
court.
        3
          The petitioner in Powerex had argued “that § 1447(d) does not preclude review of a
district court’s merits determinations that precede the remand.” 127 S.Ct. at 2419. The
Supreme Court found the lower court’s application of the narrow exception in Waco v. United
States Fidelity & Guaranty Co., 55 S.Ct. 6 (1934), to be “mistaken.” Id. It concluded that
petitioner’s argument:
        “amounts to a request for one of two impermissible outcomes: an advisory opinion. . .
        that will not affect any order of the District Court, or a reversal of the remand order.
        Waco did not, and could not, authorize either form of judicial relief.”
Id.


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