                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2498
                                   ___________

Sharon R. Whittley;                   *
Tracy Annette Whittley,               *
                                      *
            Appellees,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Missouri.
Burlington Northern and Santa Fe      *
Railroad Company; Charles S. Nitsch, *
                                      *
            Appellants.               *
                                 ___________

                             Submitted: January 10, 2005
                                Filed: February 1, 2005
                                 ___________

Before WOLLMAN, FAGG, and BYE, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Burlington Northern and Santa Fe Railway Co. (BNSF) appeals the district
court's1 grant of Sharon R. Whittley and Tracy Annette Whittley’s (the Whittleys)
motion to remand to state court based on a lack of subject matter jurisdiction. BNSF
argues that the district court should have found fraudulent joinder and that it
improperly failed to consider the affidavits that BNSF submitted to prove that


      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
defendant Charles S. Nitsch, a citizen of Missouri, was improperly joined. We
conclude that we do not have jurisdiction to consider the appeal.

       The Whittleys, Missouri citizens, sued BNSF and Nitsch in Missouri state court
for the wrongful death of Jesse Whittley, Jr., resulting from a collision at a grade
crossing in rural Missouri. BNSF removed the case to federal district court. The
Whittleys moved to remand, claiming that there was not complete diversity and
therefore no subject matter jurisdiction. BNSF filed affidavits that it claims establish
that Nitsch was improperly joined because he was not the train master responsible
for the operation of trains on the relevant section of track at the time of the accident
and therefore could not be a responsible party. The district court declined to consider
the affidavits, found that Nitsch had not been fraudulently joined, concluded that
complete diversity therefore did not exist, and granted the motion to remand for lack
of jurisdiction.

        We may not review a district court’s decision to remand to state court for lack
of subject matter jurisdiction, even if erroneous. 28 U.S.C. § 1447(d); see also Filla
v. Norfolk Southern Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003); Transit Cas. Co. v.
Certain Underwriters at Lloyd’s of London, 119 F.3d 619, 623 (8th Cir. 1997). An
appellate court may review a district court’s decision to remand only if (1) the case
is a statutorily excepted civil rights case, 28 U.S.C. § 1447(d), or (2) the decision to
remand is based on grounds other than subject matter jurisdiction or defects in
removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12
(1996) (finding that an abstention-based remand order is appealable because “only
remands based on grounds specified in § 1447(c) are immune from review under §
1447(d).” (internal quotation omitted)); Thermtron Prods., Inc. v. Hermansdorfer, 423
U.S. 336, 343-45 (1976) (finding that the district court remanded principally because
it had a crowded docket, a ground not authorized by § 1447(c) and that its order was
therefore appealable). Although we may independently review the record for the
limited purpose of determining “the actual ground or basis upon which the district

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court considered it was empowered to remand,” see Transit Cas. Co., 119 F.3d at 624,
we need not do so in this case because it is undisputed that the district court remanded
the case because it believed that it lacked subject matter jurisdiction. We therefore
dismiss the appeal for lack of jurisdiction.
                        ______________________________




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