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Civil Procedure – jurisdiction — remand

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2014//

Civil Procedure – jurisdiction — remand

By: WISCONSIN LAW JOURNAL STAFF//August 11, 2014//

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U.S. Court of Appeals for the 7th Circuit

Civil

Civil Procedure – jurisdiction — remand

Where a non-final order permits amendment of the pleadings, and the subsequent amendment results in a final order remanding the case to state court for lack of diversity jurisdiction, the court of appeals lacks jurisdiction.

“Instead, the railroad argues that we should review only the court’s contemporaneous decision to allow Lindner to amend his complaint and join Scott and Griffin as defendants. The bar against reviewing remand orders does not prevent us from reviewing separate, appealable rulings that happen to be contained in the same document as the remand order. See City of Waco, Tex. v. U.S. Fidelity & Guar. Co., 293 U.S. 140, 143 (1934); Good v. Voest-Alpine Indus., 398 F.3d 918, 921–23 (7th Cir. 2005). For example, if a district court were to dismiss the one claim in the case supporting federal jurisdiction and then in the same order remand the remaining cross-claims, we would have jurisdiction to review the dismissal order even though we couldn’t review the decision to remand. Waco, 293 U.S. at 143. Since the remand itself couldn’t be reviewed, reversing the dismissal would simply send the case back to state court with the original claim still intact. See id.”

“But this doctrine doesn’t help Union Pacific because there is no appealable order here separate from the decision to remand. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 236 (2007) (‘Waco does not permit an appeal when there is no order separate from the unreviewable remand order.’); Good, 398 F.3d at 925 (‘Waco itself made clear that the order for which appellate review is sought must independently be reviewable.’). Our appellate jurisdiction extends to ‘final orders,’ 28 U.S.C. § 1291, but an order allowing the plaintiff to amend the complaint isn’t a final order because it doesn’t terminate the dispute; it doesn’t even grant or deny relief on any of the plaintiff’s claims. See Wingerter v. Chester Quarry Co., 185 F.3d 657, 662 (7th Cir. 1998) (holding that an order allowing amendment of the complaint was not a final order).”

Dismissed.

13-1422 Lindner v. Union Pacific Railroad Co.

Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Sykes, J.

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