          08-4423-cv
          The Estate of Theodore Lipin et al. v. Joan C. Lipin




                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
     32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
     COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.



 1               At a stated term of the United States Court of Appeals for the Second Circuit,
 2        held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
 3        the City of New York, on the 11th day of March, two thousand ten.
 4
 5        PRESENT:
 6                    JOSEPH M. McLAUGHLIN,
 7                                Circuit Judge,
 8                    KIMBA M. WOOD,*
 9                                District Judge.**
10        ___________________________________________________
11
12        The Estate of Theodore Lipin, Robert G. Lipin, and Ann Susan
13        Markatos,
14                                     Plaintiffs-Appellees,
15                       v.                                                     08-4423-cv
16
17        Joan C. Lipin,
18                                Defendant-Appellant.
19        ____________________________________________________
20
21        FOR DEFENDANT-APPELLANT:                         Joan C. Lipin, pro se, New York, N.Y.
22
23        FOR PLAINTIFFS-APPELLEES:                        David A. Berger, Allegaert Berger &
24                                                         Vogel LLP, New York, N.Y.


                  *
                   The Honorable Kimba M. Wood, Senior Judge of the United States District Court for
          the Southern District of New York, sitting by designation.
                  **
                     The Honorable Rosemary S. Pooler, originally a member of the panel, did not
          participate in consideration of this appeal. The two remaining members of the panel, who are in
          agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating
          Procedure E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
1           Appeal from a judgment of the United States District Court for the Southern District

2    of New York (Pauley, Judge).

3           ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

4    ADJUDGED, AND DECREED that the judgment of the district court be VACATED and

5    the matter REMANDED with instructions.

6           Appellant Joan C. Lipin, pro se, appeals from a judgment1 of the district court

7    “dismissing” for lack of subject matter jurisdiction the state court action she removed to

8    federal court. We assume the parties’ familiarity with the underlying facts, the procedural

9    history of the case, and the issues on appeal.

10          As an initial matter, upon consideration of the arguments raised therein, Lipin’s

11   pending motion to file her reply brief is hereby GRANTED, and her pending motion for

12   reconsideration of a March 2009 order of this Court regarding subpoenas served on Lipin is

13   hereby DENIED, because it has no basis in law.

14          Generally, with respect to a removed case, “[i]f at any time before final judgment it

15   appears that the district court lacks subject matter jurisdiction, the case shall be remanded”

16   back to state court. 28 U.S.C. § 1447(c) (emphasis added). This Court lacks jurisdiction to

17   review such “remand” orders. See id. § 1447(d). However, the district court here

18   “dismissed” the action for lack of subject matter jurisdiction. Accordingly, we have

19   jurisdiction to review the dismissal, and we review district court rulings on subject matter



            1
              Although no separate judgment was entered in this matter, the dismissal order was
     entered in July 2008. Under the 2002 amendments to Federal Rule of Civil Procedure 58 and
     Federal Rule of Appellate Procedure 4(a)(7), if a required separate judgment is not entered, it is
     deemed to have been entered 150 days after entry of the dispositive order.


                                                      2
1    jurisdiction de novo. See SEC v. Berger, 322 F.3d 187, 191 (2d Cir. 2003).

2           There is no federal question jurisdiction over the removed action. See 28 U.S.C.

3    § 1441(b); Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). However, we cannot

4    determine on the present record whether diversity jurisdiction exists. See 28 U.S.C.

5    §§ 1332 and 1441(b). Accordingly, we VACATE the district court’s judgment and

6    REMAND the matter with instructions for the district court to conduct further proceedings

7    to determine whether remand to state court is appropriate. See United Food & Commercial

8    Workers Union, Local 919 v. CenterMark Props., 30 F.3d 298, 305-06 (2d Cir. 1994); see

9    also 28 U.S.C. §§ 1332, 1441 and 1447(c).

10
11
12                                                       FOR THE COURT:
13                                                       Catherine O’Hagan Wolfe, Clerk
14

15




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