               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 01-40425


JAMES J. NAPLES, M.D.,
                                             Plaintiff-Appellee,

                                versus

SUN-TZU MANAGEMENT; ET AL.,
                                             Defendants,

EVANGELINE JOHNSON,
                                             Defendant-Appellant.




          Appeal from the United States District Court
                For the Eastern District of Texas
                          (5:00-CV-153)


                             July 10, 2002

Before KING, Chief Judge, and HIGGINBOTHAM and EMILIO M. GARZA,
Circuit Judges.

PER CURIAM:*

     Appellee James J. Naples, M.D. sued Sun-Tzu Management, Inc.

and Appellant Evangeline Johnson in state court for breach of

contract and fraud. After filing for Chapter 11 bankruptcy, Johnson

removed the case to federal court pursuant to 28 U.S.C. § 1452. The

district court dismissed the case for lack of subject matter

     *
        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this opinion should not be published and is not precedent except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.

                                   1
jurisdiction, and Johnson appeals. We reverse and remand.

                                     I

     Naples sued Sun-Tzu Management and Johnson in state court for

breach of contract and fraud, arising out of a dispute concerning

an alleged agreement to finance the purchase of a hospital located

in Dallas County, Texas. The case was scheduled for trial on

December 29, 1999 but the defendants did not appear and the state

court entered a default judgment awarding Naples $1,050,402.30 and

other relief. On March 9, 2000, the state court entered a turnover

order, noting that the defendants failed to appear for a hearing on

Naples’ motion for a turnover order despite having been sent notice

by fax and certified mail.

     Johnson argues that she did not learn of the default judgment

against her until February 25, 2000, and that on March 10, 2000 she

filed a Motion to Suspend Turnover and Reset Date of Judgment

Order. There is no record of this motion–it is absent from the

court’s   docket   sheet   and   Johnson’s   counsel   cannot   produce   a

filemarked copy. But it does appear to have been delivered to the

court clerk. The court scheduled a hearing on the motion in a

written, signed order dated March 22, 2000. Johnson re-filed the

motion on August 24, 2000, asking the state court to reset the

effective date of the default judgment to February 25, 2000, the

date she claims that she received notice of the judgment.

     On March 20, 2000, Johnson filed a suggestion of bankruptcy,

giving the state court notice that she had filed for Chapter 11

                                     2
bankruptcy protection in the United States Bankruptcy Court for the

Northern District        of   Texas.     Before   the   state      court   ruled    on

Johnson’s motion to reset date, she removed the state court action

to federal district court pursuant to 28 U.S.C. § 1452, which

authorizes      the    removal     of   pending     state   claims     related      to

bankruptcy cases.

       Naples then moved to remand to state court, and alternatively

for mandatory abstention under 28 U.S.C. § 1334(c)(2). He argued

that removal was improper because the state court judgment was

final and the plenary power of the state court had terminated

pursuant to Tex. R. Civ. P. 329(b). Naples also argued that the

removal was untimely, that if there was any cause of action to

remove then mandatory abstention was required, and that the notice

of    removal   was    defective.       Johnson   argued    that    the    case    was

removable because the state court retained the jurisdiction to

consider his post-judgment motions for relief from the default

judgment and the turnover order.

       The matter was referred to a magistrate judge, who issued a

report recommending that a motion to transfer venue be denied as

moot, a matter not before us, that the motion for remand be denied,

and    that   the     case   be   dismissed   for    lack   of     subject   matter

jurisdiction because nothing remained to be litigated in state

court. She concluded that Johnson’s motion to set aside the default

judgment was untimely and did not reinvoke the state court’s

jurisdiction. She also held that the motion to suspend the turnover

                                          3
order was not filed until August 24, 2000, rejecting Johnson’s

arguments that the motion had been filed long before the docketing

date. The district court adopted the magistrate judge’s report,

rejecting Johnson’s claim that 28 U.S.C. § 1447(c) mandates that

actions must be remanded to state court even if it appears that the

remand would be futile because the state court would also lack

jurisdiction.

                                 II

     Johnson argues that the district court had subject matter

jurisdiction because the state court judgment was not final. She

further argues, in the alternative, that if the district court

lacked subject matter jurisdiction, the case should have been

remanded to state court. We review the district court’s decision to

dismiss for lack of subject matter jurisdiction de novo.1

     Federal district courts lack jurisdiction to review final

state court judgments.2 A state court judgment is final if (1) it

is “subject to no further review or correction in any other state

tribunal,” and (2) it is “final as an effective determination of

the litigation and not of merely interlocutory or intermediate




     1
         Brumme v. I.N.S., 275 F.3d 443, 447 (5th Cir. 2001).
     2
       District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 476 (1983); In re Meyerland Co., 960 F.2d 512, 515 (5th Cir.
1992) (noting “the rule that federal district courts lack
jurisdiction to review final state court judgments”).

                                  4
steps therein.”3

     Naples claims that removal was improper because at the time of

removal, the state court judgment was final and the plenary power

of the state court had terminated pursuant to Tex. R. Civ. P.

329(b). Under Texas law, a trial court loses plenary power to grant

a new trial thirty days after signing a judgment.4 But if a party

adversely affected by a judgment has not received notice via first-

class mail and has no actual knowledge of the order within twenty

days after the judgment is signed, the thirty-day period begins on

the date that the party or his attorney received notice or acquired

actual knowledge of the judgment as long as that date is within

ninety days after the judgment was signed.5

     In this case, the state court signed a default judgment on

December 28, 1999 and thus lost plenary jurisdiction on January 27,

2000 in the absence of a timely motion. Johnson claims that she did

not receive proper notice of the default judgment, providing a

sworn affidavit from her attorney which states that neither Johnson

nor her attorney possessed notice or actual knowledge of the

judgment within twenty days of the date on which the default

judgment was signed and asserts that Johnson did not learn of the


     3
       Market St. Ry. Co. v. Railroad Commission of State of Cal.,
324 U.S. 548, 551 (1945).
     4
      Tex. R. Civ. P. 329b; Jackson v. Van Winkle, 660 S.W.2d 807,
808 (Tex. 1983).
     5
         Tex. R. Civ. P. 306a.

                                 5
judgment until February 25, 2000. She also claims that her motion

to suspend the turnover order and reset the judgment date was filed

“on or about March 10, 2000,” although there is no file-stamped

copy with that filing date. She points to the fact that the state

court set a hearing on the motion for April 10, 2000. The state

court’s written, signed order setting the hearing, dated March 22,

suggests that the motion was filed, but somehow lost or misplaced

by the court clerk.

     The district court held that the affidavit from Johnson’s

attorney sufficiently established that she was first aware of the

default judgment on February 25, 2000, noting that under Texas law

a trial court is bound to accept a movant’s sworn affidavit as

true, absent a hearing.6 Applying Rule 306a, the district court

determined that Johnson had until March 27, 2000 to properly

reinvoke the trial court’s jurisdiction but found that Johnson did

not timely file a motion with the trial court. Naples does not

contest the district court’s finding that Johnson was first aware

of the default judgment on February 25, 2000, and it is not clearly

erroneous. Johnson argues, however, that the district court clearly

erred in determining that she had not timely filed a motion to

reinvoke    the   court’s   jurisdiction.   She   claims   that   there   is

sufficient evidence to establish that she filed the motion before

March 27, 2000, despite the absence of a filemarked copy.


     6
         Ward v. Nava, 488 S.W.2d 736, 737 (Tex. 1972).

                                    6
      Naples contends that even if Johnson filed the motion within

thirty days of acquiring knowledge of the judgment, the act of

filing the motion does not itself extend the duration of the state

court’s plenary power over the judgment. He points to a recent

Texas court of appeals decision, In re Bokeloh,7 which specifies

that to invoke Rule 306a, a party must file a sworn motion, provide

notice to the other parties, and “prove in the trial court the date

upon which the party adversely affected first received the clerk’s

notice of judgment or acquired actual knowledge that the judgment

had been signed.”8

      But Naples misconstrues the law. Bokeloh only requires that

the   motion    “set    forth   facts   that   create   a   prima   facie   case

demonstrating the party did not receive the clerk’s notice or

acquire actual knowledge of the judgment within twenty days after

the judgment was signed.”9 Johnson urges that she submitted a sworn

affidavit from her attorney with the motion to reset date of

judgment that she filed on March 10, 2000–the same affidavit

submitted with the motion when she re-filed it on August 24, 2000.

That affidavit alleged each of the jurisdictional elements required

under Rule 306a(4), and the district court correctly held that it

establishes February 25, 2000 as the date of first awareness of the


      7
          21 S.W.3d 784 (Tex. App.–Hous. [14th Dist.] 2000).
      8
          Id. at 791.
      9
          Id.

                                        7
default judgment. The remaining issue before us, then, is whether

the district court’s determination that Johnson did not timely file

a motion to reinvoke the court’s jurisdiction is clearly erroneous.

     Under Texas law, an instrument is deemed to be filed at the

time it is delivered to the clerk, regardless of whether or not a

file mark is placed on the instrument and regardless of whether the

file mark gives some other date of filing.10 The Texas Supreme Court

has repeatedly held that a legal instrument is deemed to be filed

before an official file mark was affixed where there is external

evidence of an earlier delivery date. In Standard Fire Insurance v.

LaCoke,11 an insurer's petition for review was received one day late

because the deputy district clerk had instructed the postman not to

deliver the afternoon mail, which he would pick up a day later.12

The court held that the “petition in this case was within the

effective control of the deputy district clerk, even though it was

not within his actual physical possession.”13

     Similarly, in Biffle v. Morton Rubber Industries, Inc.,14 the

deputy clerk inadvertently failed to filemark a cost bond until



     10
          Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex.
1979).
     11
          Id.
     12
          Id. at 679-80.
     13
          Id. at 681.
     14
          785 S.W.2d 143 (Tex. 1990).

                                   8
after the deadline for perfecting an appeal had passed. Noting that

the deputy clerk submitted a signed affidavit affirming that the

bond was timely received, the court held that the instrument was

timely filed because it was in the custody and control of the

clerk.15

     The district court, in rejecting Johnson’s argument, stressed

that unlike the parties in LaCoke and Biffle, Johnson cannot

present “clear evidence” that her motion was timely filed. The

court cited First Heights Bank, FSB v. Marom,16 in which a Texas

appellate court held that a letter dated February 25 was filed on

March 1, when it was filestamped.17 In Marom there was no evidence

that the letter was filed on February 25 aside from the testimony

of a representative of one of the parties.18

     Although the district court relied upon the affidavit of

Johnson’s attorney to establish the date of his first awareness of

the default judgment, it properly concluded that the testimony of

an adversely affected party or the party’s attorney is not enough

to establish the date that a motion was filed when the testimony

conflicts with the official file mark. Indeed, this was the holding

in Marom. But there is more evidence in this case. On March 22,


     15
          Id. at 144.
     16
          934 S.W.2d 843 (Tex. App. Hous. (14th Dist.)) (1996).
     17
          Id. at 845 n.1.
     18
          Id.

                                  9
2000–twelve days after Johnson claimed that she filed the motion

and five days before the Rule 306a deadline–the state court issued

a written, signed order setting a hearing on the motion for April

10, 2000. Indeed, Johnson’s counsel states in his affidavit that he

traveled to New Boston for the hearing, which was ultimately not

conducted.19   Also,   contemporaneous   correspondence   between   the

parties refers to the motion and suggests that it was filed in

early March 2000, and the court clerk explicitly requested an

additional certificate of conference, indicating that the motion

was filed. This evidence, taken together, establishes that Johnson

filed a motion to reset date of judgment on March 10, 2000. In any

event, given that the state court ruled on Johnson’s motion on

March 22, 2000–five days before the Rule 306a deadline–it is clear

that her motion was filed by that date. The magistrate judge’s

contrary finding is clearly erroneous.

     The act of filing the motion and supporting affidavits is

itself sufficient to invoke the trial court’s jurisdiction,20 which

renders the default judgment something less than a “final” judgment


     19
       According to the affidavit of Johnson’s counsel, Naples’s
counsel was initially not present for the hearing on April 10.
Apparently Naples’s counsel and the trial judge concluded, in an ex
parte conversation, that no hearing would be necessary because a
Suggestion of Bankruptcy had been filed. Johnson’s counsel claims
that once he explained that the bankruptcy stay did not bar actions
on behalf of the debtor, the judge contacted Naples’s counsel, who
returned to the courthouse hours later. Nonetheless, the hearing
was not held on that day.
     20
          In re Bokeloh, 21 S.W.3d at 791.

                                  10
within the relevant definition used by this court.21 Accordingly,

we hold that the state court judgment was not final for purposes of

invoking federal removal jurisdiction, and that the district court

erred in determining that it lacked subject matter jurisdiction.

     Because the case was removable to federal court, we need not

decide whether the district court erred in dismissing the case

rather than remanding to state court, as required by 28 U.S.C. §

1447(c). We thus decline to consider this question, given that the

district court had subject matter jurisdiction in this case.

                                 III

     We therefore REVERSE and REMAND the case to the district court

for further proceedings. REVERSED AND REMANDED.




     21
          See supra note 3 and accompanying text.

                                  11
