                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                           F I L E D
                                                            April 30, 2003
                    In the
                                                        Charles R. Fulbruge III
United States Court of Appeals                                  Clerk
          for the Fifth Circuit
              _______________

                m 02-30716
              _______________




               ORSON HOOD,

                                          Plaintiff-Appellee,

                   VERSUS

 ALLSTATE INSURANCE COMPANY, ET AL.,

                                          Defendants,

    ALLSTATE INSURANCE COMPANY,

                                          Defendant-Appellant.


        _________________________

  Appeal from the United States District Court
     for the Eastern District of Louisiana
               m 01-CV-980-A
       _________________________
Before SMITH and BARKSDALE, Circuit                               Louisiana insurance carriers were joined in
  Judges, and DUPLANTIER,* District Judge.                        Hood’s action, nor did it rule whether joinder
                                                                  of the nondiverse agent in this action was
PER CURIAM:**                                                     fraudulent.

   Orson Hood sued Allstate Insurance Com-                           Allstate moved for reconsideration, arguing
pany (“Allstate”) and a nondiverse insurance                      that the district court had not considered the
agent in state court. Allstate removed to fed-                    unique facts of this action separately from
eral court, asserting diversity jurisdiction under                those of the other consolidated class actions.
28 U.S.C. § 1441 and fraudulent joinder of the                    Hood opposed reconsideration, arguing that
nondiverse agent. The district court remanded                     the nondiverse agent defeated diversity. The
to state court pursuant to 28 U.S.C.                              district court reviewed its order, found that di-
§ 1447(c), declaring lack of subject matter jur-                  versity jurisdiction did exist, and issued a new
isdiction. Allstate appeals that order. Because                   order (the “second order”).
we lack jurisdiction, we dismiss the appeal.
                                                                     The case was transferred to a second judge,
                      I.                                          then to a third. Hood moved to vacate the
   Hood, on behalf of himself and a putative                      second order under FED. R. CIV. P. 60(b)(4),1
class, alleged that Allstate had mishandled                       contending that the district court lacked
claims stemming from a hailstorm. The insur-                      jurisdiction to reconsider its remand order.
ance agent was the adjuster for Hood’s                            The court granted the motion and issued
individual claim. Five other class actions                        another order (the “third order”), vacated the
based on the same storm were also removed to                      second order, and reinstated the original
federal court. Unlike Hood, the plaintiffs in                     remand. The court found that the second
the other class actions named multiple                            order violated 28 U.S.C. § 1447(d), and the
insurance companies, including Louisiana                          court expressly remanded “pursuant to 28
insurance companies. All six actions were                         U.S.C. § 1447(c) due to lack of subject
assigned to the same judge, who consolidated                      matter jurisdiction.”
them under FED. R. CIV. P. 42.
                                                                                         II.
    On plaintiffs’ motion, the district court is-                    Hood asserts that we lack jurisdiction be-
sued a single memorandum opinion remanding                        cause of the third order’s express remand for
all of the consolidated class actions to state                    want of jurisdiction. Allstate responds that the
court, concluding that the joining of the                         district court did not actually find a lack of
Louisiana insurance carriers was not                              subject matter jurisdiction, but instead only re-
fraudulent. The court did not mention that no                     instated the prior judge’s order. Allstate ar-
                                                                  gues that because Hood did not move to
                                                                  remand for lack of subject matter jurisdiction,
     *
       District Judge of the Eastern District of Louisiana,
sitting by designation.
                                                                     1
   **
      Pursuant to 5TH CIR. R. 47.5, the court has de-                    Rule 60(b)(4) allows that “[o]n motion and
termined that this opinion should not be published and            upon such terms as are just, the court may relieve
is not precedent except under the limited                         a party or a party’s legal representative from a[n]
circumstances set forth in 5TH CIR. R. 47.5.4.                    . . . order [if] . . . the judgment is void.”

                                                              2
the court was not addressing jurisdiction di-             We rejected that argument, stating that
rectly, but rather was announcing the result of
its vacatur of the second order. We disagree.                there was “no ambiguity whatsoever in
                                                             Judge Barbier’s remand order. Al-
                     A.                                      though brief, the order clearly and
   Title 28 U.S.C. § 1447(d) provides:                       affirmatively stated a § 1447(c) reason
                                                             for remand, because Judge Barbier
        An order remanding a case to the                     concluded that he lacked subject matter
   State court from which it was removed                     jurisdiction. . . . [E]ven if Judge Barbi-
   is not reviewable on appeal or                            er’s conclusion that he lacked subject
   otherwise, except that an order                           matter jurisdiction was clearly
   remanding a case to the State court from                  erroneous, he did not state a
   which it was removed pursuant to                          non-§ 1447(c) ground for remand and
   section 1443 of this title shall be                       we cannot review his order.
   reviewable by appeal or otherwise.
                                                          Id. at 998.
This provision is interpreted in pari materia
with § 1447(c); “‘[T]his means that only re-                 Therefore, a remand that invokes subject
mand orders issued under § 1447(c) and in-                matter jurisdiction as its basis is not review-
voking the grounds specified therein that re-             able, even if circumstances indicate that the
moval was . . . without jurisdiction are immune           remand was not taken for such a purpose.
from review under § 1447(d).’” Smith v. Tex.              Without exception, where the district court
Children’s Hosp., 172 F.3d 923, 925 (5th Cir.             states a jurisdictional basis for remand, that
1999) (quoting Thermtron Prods., Inc. v.                  court “is the final arbiter of whether it has
Hermansdorfer, 423 U.S. 336, 345-46 (1976),               jurisdiction to hear the case.” Smith, 172 F.3d
abrogated on other grounds by Quackenbush                 at 925.
v. Allstate Ins. Co., 517 U.S. 706, 715
(1996)).                                                     The district court may not have
                                                          reconsidered whether removal jurisdiction was
   In Heaton v. Monogram Credit Card Bank,                originally present. Even so, there is no tenable
231 F.3d 994, 997 (5th Cir. 2000), the                    basis on which to distinguish the doctrine laid
appellant argued that the actions of the district         down in Heaton and prior cases. As with the
court suggested “that despite the clear                   district court in Heaton, the district court here
language of the remand order, the true basis              “clearly and affirmatively stated a § 1447(c)
for the order was 28 U.S.C. § 1367(c)(3),”                reason for remand.” Heaton, 231 F.3d at 998.
which is a reviewable ground for removal.2

                                                             2
                                                                 (...continued)
   2
     The district court purported first to dismiss        onstrated that he thought he had subject matter
Heaton’s federal counterclaim before remanding            jurisdiction over that claim,” meaning that the “the
what it considered to be remaining state law              remand order was necessarily pursuant to
claims. The appellant asserted that the district          § 1367(c)(3), and Judge Barbier simply mislabeled
court’s “dismissal of the claim with prejudice dem-       the order as one pursuant to § 1447(c).” Heaton,
                                     (continued...)       231 F.3d at 997.

                                                      3
Though Allstate argues that Hood had not                      matter jurisdiction . . . .” Id. at 160. In
moved to dismiss for want of jurisdiction,3 the               the instant case, Judge Barbier did not
specter of jurisdiction was certainly before the              discuss his reasons for remanding in any
court, and, in any event, subject matter juris-               order outside the remand order itself.
diction may be raised sua sponte. H&D Tire                    Just as in Digicon Marine, in this case
& Automotive-Hardware, Inc. v. Pitney Bowes                   we need only look to the face of the
Inc., 227 F.3d 326, 328 (5th Cir. 2000).                      remand order to determine his reasons
                                                              for remanding. We cannot read the
                       B.                                     remand order to say that the court
   Allstate suggests that we may look past the                “clearly and affirmatively” relied on a
district court’s description in the third order               non-§ 1447(c) basis as required by
and may review the original remand that that                  Copling v. Container Store, Inc., 174
order purported to reinstate. Allstate cites In               F.3d 590, 596 (5th Cir. 1999) and Giles
re Digicon Marine, Inc., 966 F.2d 158 (5th                    v. NYLCare Health Plans, Inc., 172
Cir. 1992), for support. In Heaton, we                        F.3d 332, 336 (5th Cir. 1999). The face
addressed a similar argument, stating:                        of the order clearly states a § 1447(c)
                                                              basis for remand.
   However, Digicon Marine supports,
   rather than contradicts, our holding to-                Heaton, 231 F.3d at 999.
   day. In that case, the trial court granted
   a motion to remand based on the lack of                     Here, the third order did discuss previous
   authority to remove a maritime case un-                 orders. In contrast to what occurred in Digi-
   der 28 U.S.C. § 1441(b). [Digicon                       com Marine, however, the court did not mere-
   Marine, 966 F.2d] at 159. Later, in an                  ly discuss and interpret a prior order before
   order denying reconsideration, it stated                denying reconsideration of it. Rather, it first
   that the earlier ruling was based upon a                purported to reinstate the original remand,
   lack of subject matter jurisdiction. Id.                then declared “that this case is REMANDED
   We concluded that “despite the district                 . . . pursuant to 28 U.S.C. § 1447(c) due to
   court’s description of the remand as one                lack of subject matter jurisdiction.”
   based on a lack of subject matter
   jurisdiction in its order on                                Allstate would have us ignore this direct
   reconsideration, the district court’s                   language and conclude that, in fact, the final
   original remand order clearly indicates                 paragraph was merely a restatement of the ef-
   on its face that the remand was not                     fect of reinstating the remand order. This par-
   based upon lack of original subject                     agraph, however, appears to set forth separate
                                                           grounds for remand and does not refer to the
                                                           reinstated order. Such a direct statement con-
   3
      Hood disputes this contention, stating that he
                                                           stitutes “magic words” that “render[] the dis-
“has at all times contended that subject matter jur-       trict court’s remand order unreviewable.” Bo-
isdiction does not exist.” This is accurate, though        gle v. Phillips Petroleum Co., 24 F.3d 758,
the original basis of his argument was that diver-         762 (5th Cir. 1994). This language of the
sity was lacking, and he now argues only that the          closing paragraph is unambiguous and
district court was divested of jurisdiction when the       controlling; to the extent that it is inconsistent
original remand order was mailed.

                                                       4
with previous paragraphs, it supersedes them
and renders them void.4

   The appeal is DISMISSED for want of
jurisdiction.




   4
     Heaton, 231 F.3d at 1000 (finding that a con-
current order purporting to dismiss the federal
claim was void because it was contrary to the
finding of no subject matter jurisdiction); Bogle, 24
F.3d at 762 (holding that grant of partial nonsuit
with prejudice was void and of no effect because of
a remand for lack of subject matter jurisdiction).

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