Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir. 1989). · Go Syfert
Search
Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir. 1989). Cases Citing This Book View Copy Cite
Quick Summary

A district court exceeds its statutory authority by remanding a case for procedural defects after the thirty-day limit imposed by section 1447(c) has expired.

After a defendant removed a state court breach of contract suit to federal court based on diversity, the district court sua sponte remanded the case, finding the removal untimely and lacking a required surety bond. The court applied the 1982 version of the removal statute rather than the version revised by the Judicial Improvements Act of 1988. Because the revised statute limits remands for procedural defects to within thirty days of the notice of removal, the district court exceeded its statutorily defined power by remanding the case seven months later. Appellate review is not barred by the statutory prohibition on reviewing remand orders because the district court's decision was not based on the controlling statute.

147 citation events (17 in the last 25 years) across 28 distinct courts.
Strongest positive: Ariel Land Owners v. Dring, No. 03-1563 (3d Cir. Dec. 10, 2003)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Statutes interpreted (leading-cases list)
#5 28 U.S.C. § 1441-1452 cited 1× in this case · 74 total citations of statute
How cited ↗
Cited for
At page 65 Limiting district court remand under section 1447(c)33 citing casesfinding that district court’s sua sponte decision to remand on procedural grounds more than 30 days after the filing of the notice of removal exceeded the court's authority3 citing courts put it this way · 31 listed here
  • Main Street Renewal LLC v. United Fin. Cas. Co., No. 4:26-cv-01385 (E.D. Mo. Sept. 23, 2026).
    E.g., In re Bethesda Mem’l Hosp, 123 F.3d at 1411 ; Maniar v. FDIC, 979 F.2d 782, 785-86 (9th Cir. 1992); FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir. 1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989).
  • William Stahl v., 526 F. App'x 179 (3d Cir. 2013).unpublished
    (discussing the propriety of sua sponte remand)
  • Wilma Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411 (2d Cir. 2004).published 2 cites
    (finding that district court’s sua sponte decision to remand on procedural grounds more than 30 days after the filing of the notice of removal exceeded the court's authority)
  • Farmland Nat'l Beef Packing Co. v. Stone Container Corp., 98 F. App'x 752 (10th Cir. 2004).unpublished
    Co., 29 F.3d 292, 294-95 (7th Cir.1994); Hamilton, 5 F.3d at 643-44 ; Maniar v. FDIC, 979 F.2d 782, 784-85 (9th Cir.1992); FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989).
  • In re FMC Corp. Packaging Sys. Div., in No. 99-5220, 208 F.3d 445 (3d Cir. 2000).published 3 cites
    “exceeded its statutorily defined power”
  • Calloway v. Boro of Glassboro Dep't of Police, 89 F. Supp. 2d 543 (D.N.J. 2000).published 2 cites
    (referring to untimely removal and removal without required surety bond as procedural defects)
  • Am. Home Assurance Co. v. RJR Nabisco Holdings Corp., 70 F. Supp. 2d 296 (S.D.N.Y. 1999).published
    Corp., 979 F.2d 782, 785-86 (9th Cir.1992); FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir.1989); Cassara v. Ralston, 832 F.Supp. 752, 753 (S.D.N.Y.1993); Estate of Harding v. Bell, 81…
  • Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999).published
    Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989); United States v. Affleck, 765 F.2d 944, 948 (10th Cir.1985).
  • Dao v. Knightsbridge Int'l Reinsurance Corp., 15 F. Supp. 2d 567 (D.N.J. 1998).published
    See Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46, 51 (3d Cir.1995) (noting that 30-day time limit for motion to remand to state court under 28 U.S.C. § 1447 (e) applies to sua sponte orders to remand, and holding that “an irreg…
  • Campbell Bohn & Leffert, LLC v. Gold Messenger, Inc. (In re Gold Messenger, Inc.), 221 B.R. 259 (D. Colo. 1998).published
    While the Supreme Court has not spoken, several circuits have held that a district court cannot remand a case sua sponte based on procedural defects after the thirty-day period to remand under § 1447(c) has expired. 6 See Maniar v. FDIC, 9…
Show 21 more citing cases
  • United States v. Rosendahl, 47 M.J. 689 (N.M.C.C.A. 1997).published
    “Absent provisions to the contrary, federal legislation becomes effective on the day of enactment”
  • Sherman v. Gulf Pride Marine Servs., Inc., 191 B.R. 328 (E.D. La. 1996).published
    Maniar v. FDIC, 979 F.2d 782, 785 (9th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir.1989).
  • Jones v. City of Buffalo, 867 F. Supp. 1155 (W.D.N.Y. 1994).published
    However, all remands to state court must be done in accordance with § 1447(c) which provides that “[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of…
  • James G. Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642 (2d Cir. 1993).published 2 cites
    (district court’s sua sponte decision to remand on *644 procedural grounds more than 30 days after the filing of the notice of removal exceeded court’s authority)
  • Clark v. Sears, Roebuck & Co., 827 F. Supp. 1216 (E.D. Pa. 1993).published
    See, e.g.: U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 922 (3rd Cir.1990); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir.1989); Davis v. Omitowoju, 883 F.2d 1155, 1170-1171 (3rd Cir.1989); Wheeling-Pi…
  • Cohen v. Austin, 826 F. Supp. 922 (E.D. Pa. 1993).published
    However, in Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989) and U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914 , 922 n. 9 (3d Cir.1990) the Third Circuit relied on the Bradley presumption and retroacti…
  • Aliota v. Graham, 984 F.2d 1350 (3d Cir. 1993).published
    Co., Ltd., 933 F.2d 1207, 1210-11 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 302 , 116 L.Ed.2d 245 (1991); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir.1989); Hewlett v. Davis, 844 F.2d 109, 115 (3d Cir.1988); Levy v. Weissman…
  • In re Aliota, 984 F.2d 1350 (3d Cir. 1993).published
    Co., Ltd., 933 F.2d 1207, 1210-11 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 302 , 116 L.Ed.2d 245 (1991); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir.1989); Hewlett v. Davis, 844 F.2d 109, 115 (3d Cir.1988); Levy v. Wei…
  • Savko v. Port Auth. of Allegheny Cnty., 800 F. Supp. 268 (W.D. Pa. 1992).published
    United States v. Jacobs, 919 F.2d 10, 11 (3d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1333 , 113 L.Ed.2d 265 (1991) (citing Bradley in the criminal context as the “general rule, as developed at common law”); U.S. Healthcare, Inc. v. Bl…
  • Greenwood v. Stone, 136 F. Supp. 2d 368 (W.D. Pa. 1992).published
    See, i.e., Bonjorno v. Kaiser Aluminum, 865 F.2d 566 (3d Cir.1989); United States v. Jacobs, 919 F.2d 10 (3d Cir.1990), cert. denied, 499 U.S. 930 , 111 S.Ct. 1333 , 113 L.Ed.2d 265 (1991); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d…
  • Fed. Deposit Ins. v. Loyd, 955 F.2d 316 (5th Cir. 1992).published 2 cites
    Air-Shields, 891 F.2d at 65 (footnote omitted). 5 We likewise refuse to read § 1447(c) so narrowly as to prohibit the parties from raising procedural defects after thirty days, but not to prohibit the district court from raising such defec…
  • Fed. Deposit Ins. Corp. v. Loyd, 955 F.2d 316 (1st Cir. 1992).published 2 cites
    Revised Section 1447(c) prohibits such untimely remand. 36 Air-Shields, 891 F.2d at 65 (footnote omitted). 5 We likewise refuse to read § 1447(c) so narrowly as to prohibit the parties from raising procedural defects after thirty days, but…
  • Thompson v. Johnson & Johnson Mgmt. Info. Ctr., 783 F. Supp. 893 (D.N.J. 1992).published
    On the other hand, in Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989), the court applied the Bradley rule that intervening law should be applied retroactively.
  • Foster v. Chesapeake Ins., 933 F.2d 1207 (3d Cir. 1991).published 4 cites
    ([t]he 1988 version of Section 1447(c) omits the previous 'improvidently removed' grounds for removal and restricts the time for remand motions based on procedural defects)
  • Am. Trade Partners, L.P. v. A-1 Int'l Importing Enter., Ltd., 757 F. Supp. 545 (E.D. Pa. 1991).published
    “even where the intervening law does not explicitly recite that it is to be applied in pending cases, it is to be given recognition and effect”
  • Smith v. Cont'l Ins. Corp., 747 F. Supp. 275 (D.N.J. 1990).published
    Goodman v. Lukens Steel Co., 482 U.S. 656, 662 , 107 S.Ct. 2617, 2621 , 96 L.Ed.2d 572 (1987); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989).
  • Fed. Deposit Ins. Corp. v. Loyd, 744 F. Supp. 126 (N.D. Tex. 1990).published 2 cites
    E.g., Air Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989); Wilson v. General Motors Corp., 888 F.2d 779, 780-81 (11th Cir.1989); Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir. *130 1989), cert. denied, — U.S.-, 110 S.Ct. 11…
  • United States v. David R. Brundage, 903 F.2d 837 (D.C. Cir. 1990).published
    See 2 Sutherland Statutory Construction § 33.06 (Sands 4th ed. Rev. 1986); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989); United States v. Stillwell, 854 F.2d 1045, 1047 (7th Cir.1988).
  • In re Allstate Ins. Co., 8 F.3d 219 (5th Cir. 1993).published
    See Maniar v. FDIC, 979 F.2d 782, 785-86 (9th Cir. 1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989).
  • Kam Hon, Inc. v. Cigna Fire Underwriters Ins., 933 F. Supp. 1060 (M.D. Fla. 1996).published
  • Palak v. Bj's Wholesale Club, Inc., No. 2:23-cv-00138 (D.N.J. May 23, 2023).unpublished
At page 66 District court exceeding power by late remand under section 1447(c)12 citing casesBy remanding the case for procedural defects after the thirty day limit imposed by … Section 1447(c) had expired, the district court exceeded [its] statutory defined power.4 citing courts put it this way
  • Ariel Land Owners v. Dring, No. 03-1563 (3d Cir. Dec. 10, 2003).published
    (By remanding the case for procedural defects after the thirty day limit imposed by . . . 4 Section 1447(c) had expired, the district court exceeded [its] statutorily defined power.)
  • Redevelopment Auth. of the City of Pottsville v. 23 North Centre Street, Pottsville, No. 3:25-cv-00902 (M.D. Pa. Feb. 4, 2026).
    (By remanding the case for procedural defects after the thirty day limit imposed by . . . Section 1447(c) had expired, the district court exceeded its statutorily defined power.)
  • Rand, No. 3:25-cv-00442 (M.D. Pa. Nov. 13, 2025).
    (By remanding the case for procedural defects after the thirty day limit imposed by … Section 1447(c) had expired, the district court exceeded [its] statutory defined power.)
  • Macri v. Wright Twp., No. 3:24-cv-01212 (M.D. Pa. Jan. 22, 2025).
    (By remanding the case for procedural defects after the thirty day limit imposed by … Section 1447(c) had expired, the district court exceeded [its] statutory defined power.)
  • El-Amin v. Brown, No. 3:19-cv-01335 (M.D. Pa. Apr. 16, 2020).
    Pursuant to Third Circuit precedent, A[a] district court does not have the statutory authority to remand a case because of a procedural defect, such as a defendant=s violation of the unanimity rule, after section 1447(c)=s thirty-day limit…
  • Ariel Land Owners, Inc. v. Lori Dring Nancy Asaro, 351 F.3d 611 (3d Cir. 2003).published
    FMC, 208 F.3d at 450 (“[I]t is clear under section 1447(c) that [the procedural] irregularity must be the subject of a motion to remand within 30 days after fifing the notice of removal.”); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d…
  • In re FMC Corp. Packaging Sys. Div., in No. 99-5220, 208 F.3d 445 (3d Cir. 2000).published 3 cites
    By remanding the case for procedural defects after the thirty day limit imposed by the revised Section 1447(c) had expired the district court "exceeded its statutorily defined power." 891 F.2d at 65-66 (internal citations omitted) (emphasi…
  • James G. Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642 (2d Cir. 1993).published 2 cites
    See, e.g., In re Shell Oil Co., 932 F.2d 1523 , 1527 n. 6 (5th Cir.1991) (“As amended, § 1447(e) requires that motions for remand must be made within 30 days of removal, except in eases in which the court lacks subject matter jurisdiction”…
  • Foster v. Chesapeake Ins., 933 F.2d 1207 (3d Cir. 1991).published 4 cites
    Cf. Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989) ("[t]he 1988 version of Section 1447(c) omits the previous 'improvidently removed' grounds for removal and restricts the time for remand motions based on procedural defects");…
  • Ramos v. Quien, 631 F. Supp. 2d 601 (E.D. Pa. 2008).published
    See Air-Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d Cir.1989) (“By remanding the case for procedural defects after the thirty day limit imposed by ...
Show 2 more citing cases
At page 64 Retroactivity of amended provisions upon removal3 citing cases“The court concluded that the removal petition was untimely, not having been filed as required by statute within "30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief....” 28 U.S.C. § 1446(b).”the opinion's own words at *64 · 2 listed here
  • Est. of Harding ex rel. Williams v. Bell, 817 F. Supp. 1186 (D.N.J. 1993).published
    Air-Shields, Inc. v. Fullam, 891 F.2d 63, 64 (3d Cir.1989); see also, Diaz, 975 F.2d at 1148 ; Loyd, 955 F.2d at 320 .
  • Morgan Guar. Trust Co. of New York v. Repub. of Palau, 971 F.2d 917 (2d Cir. 1992).published 2 cites
    See, e.g., In re Shell Oil Co., 932 F.2d 1523, 1526-27 (5th Cir.1991) (amended section 1447(c) provides that motion to remand based on defect in removal procedure must be made within 30 days after removal, whereas original statute provided…
At page 63 OPINION OF THE COURT ROSENN, Circuit Judge. The principal issue presented by this petition for mandamus is whether this court may review a federal district…1 citing caseopening of page *63 (no citing court says what it cites this page for)
  • Jane Pettitt v. Boeing Co., 606 F.3d 340 (7th Cir. 2010).published
    Plan, Inc., 254 F.3d 1317, 1318-21 (11th Cir.2001); Page v. City of Southfield, 45 F.3d 128, 132-34 (6th Cir.1995); Maniar v. FDIC, 979 F.2d 782, 785-86 (9th Cir.1992); FDIC v. Loyd, 955 F.2d 316, 321-22 (5th Cir.1992); Air-Shields, Inc. v…
Other citing cases5 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
AIR-SHIELDS, INC.
v.
Honorable John P. FULLAM, Chief Judge, United States District Court for the Eastern District of Pennsylvania, Nominal and Neomed Corporation
No. 89-1295.
Court of Appeals for the Third Circuit.
Dec 7, 1989.
Published opinion
891 F.2d 63
1989 WL 146737
1989 U.S. App. LEXIS 18483
John J. Barrett, Jr., Mark C. Levy, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for petitioner., Adam P. Schiffer, Vinson & Elkins, Houston, Tex., John J. Speicher, Rhoda, Stoudt & Bradley, Reading, Pa., for respondent.
Greenberg, Rosenn, Sloviter.
Cited by 69 opinions  |  Published
1 passages pin-cited by 2 cases
Citer courts: M.D. Pennsylvania (2)

OPINION OF THE COURT

ROSENN, Circuit Judge.

The principal issue presented by this petition for mandamus is whether this court may review a federal district court’s order remanding a diversity case, in the face of a[*64] Congressional enactment barring appellate review, except in civil rights cases, of an order remanding a case to the state court from which it had been removed. 28 U.S.C. § 1447(d). The district court relied on a former but recently abolished statutory remand ground of improvident removal. See 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). The United States District Court in Texas, to which the case had been removed after petition, transferred the case to the federal district court in Pennsylvania after granting a motion for change of venue. The United States District Court in Pennsylvania remanded the case to the Texas state court and the petitioner-defendant, Air-Shields, Inc. (Air-Shields), appealed. We vacate and remand.

In its petition for mandamus, Air-Shields asserts that the district court had no basis for remand under the Removal Statute, 28 U.S.C. § 1447(c) (1982), as amended by 28 U.S.C. § 1447(c) (1988). Though it does not raise the issue of which remand statute the district court should have followed, Air-Shields contests the court’s findings of defects in its petition for removal and surety bond. Air-Shields, therefore, petitions this court, pursuant to 28 U.S.C. § 1651 (1982), for a writ of mandamus directing the district court to vacate its remand order.

I.

Plaintiff-respondent Neomed Corporation, a Texas corporation, instituted a breach of contract suit, Neomed v. Air-Shields, Vickers, in a state court in Harris County, Texas, against Air-Shields, Vicker, a corporation chartered under the laws of Delaware. Thereafter, the court issued a citation[1] which directed the service of process upon “Air-Shields, Vickers’ ” agent, CT Corporation.

CT Corporation is a commercial corporation which, for a fee, acts as a registered agent for service of process throughout the United States. CT was Air-Shields’ registered agent in Texas. Some time before May 9, 1988, the process server attempted to serve CT as agent for “Air-Shields, Vickers.” CT refused service because it was not authorized to accept service for a company designated as “Air-Shields Vick-ers.” CT did not notify Air-Shields of this attempted service. A second attempt was made to serve CT on May 9, 1988. On this occasion, the process server orally represented to CT’s employees that the defendant in the suit was actually “Air-Shields, Inc.,” and then physically altered the citation cover sheet by changing the name of the defendant from “Air-Shields, Vickers” to “Air-Shields, Inc.” At that point, CT consented to accept service of process.

On June 8, 1988, Air-Shields filed a petition for removal in the United States District Court for the Southern District of Texas on the basis of diversity of citizenship. The court granted the petition for removal, whereupon Air-Shields filed a motion for change of venue to the United States District Court for the Eastern District of Pennsylvania. The federal district court in Texas granted Air-Shields’ motion and transferred the case to the federal district court in Eastern Pennsylvania.

Once in the Pennsylvania district court, Air-Shields filed a motion for leave to amend its answer. Rather than addressing the motion, the court, sua sponte, issued a memorandum and order, dated January 11, 1989, remanding the case to the Texas state court where it had originated.

The district court in Pennsylvania found that the defendant had actually received service of process before May 9, 1988 but had merely “rejected” it. The defendant’s petition for removal was filed June 8, 1988. The court concluded that the removal petition was untimely, not having been filed as required by statute within "30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief....” 28 U.S.C. § 1446(b). The court also found that the removal petition was not accompanied by the required surety[*65] bond. Therefore, the court held that the case had been improvidently removed.

II.

The Removal Statutes, 28 U.S.C. §§ 1441-1452, govern the removal of a state court case to a federal district court. The Removal Statutes were recently revised under the Judicial Improvements and Access to Justice Act (“Judicial Improvements Act”). Judicial Improvements Act, Pub.L. No. 100-702, 102 Stat. 4642 (1988). Congress enacted the Judicial Improvements Act on November 19, 1988.

Although most revisions under the Judicial Improvements Act were given explicit effective dates, the amendments made in §§ 1441, 1446, and 1447 of the Removal Statutes have no stated effective date. Absent provisions to the contrary, federal legislation becomes effective on the day of enactment. United States v. York, 830 F.2d 885, 892 (8th Cir.1987); 2 Sutherland’s Statutory Construction § 33.06 (4th ed. Sands Rev.1986). Therefore, the amendments to the foregoing sections of the Removal Statutes became effective on November 19, 1988.

In its January 11,1989 memorandum and remand order, the district court cited the 1982 edition of Section 1447(c), though the 1988 revisions were in effect at the time of the memorandum. We conclude that the district court entered its remand order unaware of the newly enacted revision by the Judicial Improvements Act.[2]

In the case of United States v. The Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801), Chief Justice Marshall authored the simple but now famous doctrine that a “court must decide according to existing laws.” Id. at 110. Courts are sometimes, however, faced with a situation where, as here, the law changes while a case is pending. In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973), the Supreme Court held that “even where the intervening law does not explicitly recite that it is to be applied in pending cases, it is to be given recognition and effect.” Id. at 715, 94 S.Ct. at 2018 (citing Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969)).

According to the above doctrine, the district court was obliged to proceed under the recently amended, rather than the 1982 version, of Section 1447(e).[3] The 1988 version of Section 1447(c) omits the previous “improvidently removed” grounds for removal and restricts the time for remand motions based on procedural defects. It provides:

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c).

Even if the district court’s sua sponte action qualifies as a motion[4] under the revised 28 U.S.C. § 1447(c), the district court could only remand within 30 days of the filing of notice to remove for procedural defects. Here, the district court issued its remand order more than seven months after the defendant filed its removal petition. Revised Section 1447(c) prohibits such untimely remand.

Usually, our review of such remand orders is strictly limited by subsection (d) of Section 1447. The subsection provides, with one exception, that an order remand[*66]ing a case to the State court from which it was removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d).

In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1975), the United States Supreme Court explained that “only remand orders issued under § 1447(c) and invoking the grounds specified therein ... are immune from review under § 1447(d).” In the Court’s view, Congress did not intend to “extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute.” Id. at 351, 96 S.Ct. at 593 (emphasis supplied). In Thermtron, the district court remanded a case to the state court solely on the ground that its heavy docket would unjustly delay the plaintiffs from proceeding to trial on the merits.

Because the district court’s remand decision in this case also was not based on the “controlling statute,” our review is not limited by subsection (d) of Section 1447. See Bloom v. Barry, 755 F.2d 356 (3d Cir.1985); Levy v. Weissman, 671 F.2d 766 (3d Cir.1982). By remanding the case for procedural defects after the thirty day limit imposed by the revised Section 1447(c) had expired, the district court “exceeded [its] statutorily defined power.” Thermtron, supra, at 351, 96 S.Ct. at 593. Therefore, the “issuance of the writ of mandamus [is] not barred by § 1447(d).” Id.

Accordingly, the petition for mandamus will be granted and the case remanded with direction to the district court to vacate its remand order of January 11, 1989.

1

A Citation under the Texas Rules of Civil Procedure appears to be the equivalent to a summons under the Federal Rules of Civil Procedure.

2

Because the district court sua sponte issued its remand order, the petitioner did not have the opportunity to raise the issue of the revised remand statute before the district court. The petitioner's failure to raise that issue in this court is not as excusable. However, the matter is one affecting our jurisdiction and therefore we are free to consider it. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1975).

3

The 1982 version of Section 1447(c) provided that if “at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case....” 28 U.S.C. § 1447(c) (1982) (emphasis supplied).

4

Blacks Law Dictionary defines "sua sponte" as "of his or its own will or motion."