Circuit Watcher

06-1864 Civil Private Ellenburg v. Spartan Motors
Published opinion after argument: Reversed and remanded
District of South Carolina 8:06-cv-01606-HFF Henry F. Floyd
Before NIEMEYER and GREGORY, Circuit Judges, and James P. JONES,¹ Chief District Judge.
NIEMEYER, Circuit Judge: The defendants in this products liability action, which was commenced in South Carolina state court, filed a Notice of Removal in the district court, pursuant to 28 U.S.C. §§ 1441 and 1446, alleging diversity jurisdiction under 28 U.S.C. § 1332. Six days later, the district court sua sponte entered an order remanding the case to state court, concluding that the Notice of Removal’s allegation that the value of the matter in controversy exceeded the sum of $75,000 was “inadequate to establish” the jurisdictional amount, because it failed to “allege facts adequate to establish” the amount. The defendants appeal the remand order, and the plaintiff, in reply, urges that we dismiss the appeal pursuant to 28 U.S.C. § 1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”

Because the sua sponte remand order of the district court did not rely on lack of subject matter jurisdiction, but rather on a procedural defect in pleading that was not timely raised by the plaintiff, indeed not raised at all by the plaintiff, we conclude that it does not fall within the scope of orders that are deemed unreviewable under 28 U.S.C. § 1447(d) and that therefore we have authority to review the court’s remand order. … Ellenburg v. Spartan Motors.

1. Chief United States District Judge for the Western District of Virginia, sitting by designation. [↩]