February 21, 2007
A confession ... then a case
Before my first post, I suppose I should confess: I'm a B-list CivPro Prof. Although I teach Federal Courts regularly, I only teach CivPro while Jeremy is sabbaticalling. There's enough of an overlap between the courses to encompass most of what I'll post, but I hope neither of our readers mind when I stray.
In re Hot-Hed: An ostensibly insignificant recent case from the 5th Circuit.
At first, the litigation proceeded according to the forum-fight template. Plaintiff filed in state court. Defendant removed. Plaintiff moved to remand, arguing that the district court had no subject-matter jurisdiction. The court denied the motion to remand.
From the 5th Circuit's (per curiam but to-be-released-for-publication) opinion, one would think that the next procedural step also fit the template--Plaintiff petitioned the 5th Circuit for a writ of mandamus ordering the district court to remand the case. The extent of the 5th Circuit's analysis regarding the interlocutory challenge disguised as an original proceeding was:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." In this case, a writ is an appropriate means by which we may review the denial of the motion to remand: “When the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.”
The court granted the petition in part and vacated the order denying the motion to remand. Is the court suggesting that petitioning for mandamus is, as a "matter of course,"
the a proper procedure for challenging a district court's interlocutory ruling that rejects a challenge to subject-matter jurisdiction? Without regard to whether the challenger has an adequate remedy by appeal or any exceptional circumstances? --RR
February 21, 2007 | Permalink
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The court (albeit a different panel) does not seem too concerned with a challenge to denial of a motion to remand by appeal. See, Love v. Ford Mot. Co., 2006 WL 3826991 (5th Cir. 12/28/2006)(Reviewing an APPEAL of a denial of a motion for remand (but note the appeal is not from a final order)).
In Hot-Hed, the court does not seem to be saying mandamus is the ONLY appropriate means of challenging denial of a remand, but is "an appropriate means ... ." Nevertheless, I believe they are wrong except in fairly eggregious circumstances where the remedy on appeal is simply not adequate.
In Aaron v. National Union Fire Ins. Co., 876 F.2d 1157 (54th Cir. 1989), cert. denied, 493 U.S. 1074 (1990), the plaintiff both appealed and alternatively sought a writ of mandamus for the denial of remand. That court noted "We agree that the district court's denial of plaintiff's motion for remand was error, but as we set forth below, we do not agree that mandamus is the appropriate remedy." That court found that the district court entered a final order by dismissing the case; therefore, the denial of remand order was appealable. Presumably, if there had not been a final order, there would be no remedy at all (in that court) for the denial of remand until the case became appealable.
The Hot-Hed court is on rather thin ice in applying the great writ to denial of a motion to remand. Their cite to Reyes (and ultimately to Schlagenhauf) is misplaced in that those cased dealt with overly broad discovery orders by the district court. The aggrieved parties there had no choice but to file a mandamus in that acceding to the discovery order would moot the issue when the case became appealable.
As noted in Reyes (814 F.2d 168, 170), "there has been a general loosening of the federal attitude toward mandamus ..." (quoting Wright & Miller) - Perhaps the Hot-Hed court is following this trend. In Hot-Hed, the plaintiff should have an adequate remedy on appeal, and the mandamus should have been denied. A harsh remedy for a practitioner's choice of form, when the appellate court seems fairly casual if they think the district court has no jurisdiction.
Posted by: Terry Carroll | Feb 21, 2007 4:50:30 PM
The court is on thin ice indeed. To be entitled to mandamus relief, the petitioner must show it has no "adequate means to obtain the relief he desires." Ordinarily, an adequate means exists so long as the issue can be challenged by appeal after a final judgment (absent some extraordinary circumstances, such as the ones you mentioned involving discovery and trade secrets). It has been long settled that merely having to endure trial and expenses after an unfavorable interlocutory ruling does not make appeal an inadequate means. If this weren't the case, of course, every potentially dispositive motion would be mandamusable.
I suppose if the court were writing on a clean slate, it could craft an argument that SMJ is different, and that mandamus relief--designed to confine a lower court to its proper authority--is uniquely suited for challenges to the court's assumption of power over the subject matter. But the court was not writing on a clean slate: "The writ of mandmaus may not be used to correct alleged error in a refusal to remand where, after final judgment, the order may be reviewed upon a writ of error." 234 U.S. 70. This last statement is perhaps a bit harsh, and is best viewed as the way the rule (must show no adequate means) usually applies to the procedural posture (motion to remand denied for want of subject matter jurisdiction). Mandamus relief would still be available in a situation where an appeal would be available, but because of some exceptional circumstances, would be inadequate.
In my view, the per curiam opinion simply misses the issue.
Posted by: Rory Ryan | Feb 22, 2007 7:05:37 AM