Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir. 1989). · Go Syfert
Search
Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir. 1989). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases · …by remanding the case for procedural defects after the thirty day limit imposed by ... section 1447(c) had expired, the district court exceeded statutory defined power. ≈ altered
147 citation events (16 in the last 25 years) across 27 distinct courts.
Strongest positive: Ariel Land Owners v. Dring (ca3, 2003-12-10)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Ariel Land Owners v. Dring
3rd Cir. · 2003 · quote attribution · 1 verbatim quote · confidence high
by remanding the case for procedural defects after the thirty day limit imposed by . . . 4 section 1447(c) had expired, the district court exceeded statutorily defined power.
discussed Cited as authority (quoted) Redevelopment Authority of the City of Pottsville v. 23 North Centre Street, Pottsville, Pennsylvania, Tax Parcel ID No. 68-27-0362.000, et al.
M.D. Penn. · 2026 · quote attribution · 1 verbatim quote · confidence low
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.
discussed Cited as authority (quoted) Charles Rand v. Edward Everson, et al.
M.D. Penn. · 2025 · quote attribution · 1 verbatim quote · confidence low
by remanding the case for procedural defects after the thirty day limit imposed by ... section 1447(c) had expired, the district court exceeded statutory defined power.
discussed Cited as authority (quoted) Macri v. Wright Township
M.D. Penn. · 2025 · quote attribution · 1 verbatim quote · confidence low
by remanding the case for procedural defects after the thirty day limit imposed by ... section 1447(c) had expired, the district court exceeded statutory defined power.
discussed Cited as authority (rule) El-Amin v. Brown
M.D. Penn. · 2020 · confidence medium
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 expires.@ See Ramos v. Quien, 631 F.Supp.2d 601, 608 (E.D.Pa. 2008) (citing Air-Shields, Inc. v. Fullam, 891 F.2d 63, 66 (3d Cir. 1989)).
cited Cited as authority (rule) William Stahl v.
3rd Cir. · 2013 · confidence medium
Bankr.P. 9027(a)(3); Hernandez v. Brakegate, Ltd., 942 F.2d 1223, 1225 (7th Cir.1991); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989) (discussing the propriety of sua sponte remand).
discussed Cited as authority (rule) Jane Pettitt v. Boeing Company
7th Cir. · 2010 · confidence medium
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. Fullam, 891 F.2d 63, 63-65 (3d Cir.1989).
discussed Cited as authority (rule) Wilma Williams v. Kfc National Management Company (2×)
2d Cir. · 2004 · confidence medium
Id. at 787 ; see also In re Shell Oil Co., 932 F.2d 1518, 1521 (5th Cir.1991) (acknowledging the distinction between waivable defects in removal procedure and unwaivable lack of subject matter jurisdiction); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir.1989) (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).
discussed Cited as authority (rule) Farmland National Beef Packing Co. v. Stone Container Corp.
10th Cir. · 2004 · confidence medium
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).
discussed Cited as authority (rule) Ariel Land Owners, Inc. v. Lori Dring Nancy Asaro
3rd Cir. · 2003 · confidence medium
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 Cir.1989) (“By remanding the case for procedural defects after the thirty day limit imposed by ...
examined Cited as authority (rule) In Re: FMC Corp (3×) also: Cited "see", Cited "see, e.g."
3rd Cir. · 2000 · confidence medium
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) (emphasis added).
discussed Cited as authority (rule) Calloway v. Boro of Glassboro Department of Police (2×)
D.N.J. · 2000 · confidence medium
See id. ("[fjailure of all defendants to join is a 'defect in removal procedure’ within the meaning of § 1447(c), but is not deemed to be jurisdictional”); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989)(referring to untimely removal and removal without required surety bond as procedural defects); see also 14C C.
discussed Cited as authority (rule) American Home Assurance Co. v. RJR Nabisco Holdings Corp.
S.D.N.Y. · 1999 · confidence medium
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, 817 F.Supp. 1186, 1192-93 (D.N.J.1993).
cited Cited as authority (rule) Shaffer v. Clinton
D. Colo. · 1999 · confidence medium
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).
discussed Cited as authority (rule) Dao v. Knightsbridge International Reinsurance Corp.
D.N.J. · 1998 · confidence medium
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 irregularity in removal of a case to federal court is to be considered ‘jurisdictional’ only if the case could not have initially been filed in federal court”); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65-66 (3d Cir.1989); see, e.g., Carroll v. United Air Lines, Inc., 7 F.Supp.2d 516, 520 (D.N.J.1998); see generally 16 Moore’s Federal Practice § 107.4…
discussed Cited as authority (rule) Campbell Bohn & Leffert, LLC v. Gold Messenger, Inc. (In re Gold Messenger, Inc.)
D. Colo. · 1998 · confidence medium
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, 979 F.2d 782, 785 (9th Cir.1992); FDIC v. Loyd, 955 F.2d 316, 321 (5th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989).
discussed Cited as authority (rule) United States v. Rosendahl
N.M.C.C.A. · 1997 · confidence medium
“Absent provisions to the contrary, federal legislation becomes effective on the day of enactment.” Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir.1989) (citing United States v. York, 830 F.2d 885, 892 (8th Cir.1987) and 2 Sutherland Statutory Construction § 33.06 (4th ed. Sands Rev.1986)).
cited Cited as authority (rule) Sherman v. Gulf Pride Marine Services, Inc.
E.D. La. · 1996 · confidence medium
Maniar v. FDIC, 979 F.2d 782, 785 (9th Cir.1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3rd Cir.1989).
discussed Cited as authority (rule) Jones v. City of Buffalo
W.D.N.Y. · 1994 · confidence medium
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 removal under § 1446(a).” Based on this provision, any motions to remand or sua sponte decisions to remand which are premised on procedural defects, such as the motion in present in this case, must be filed within thirty days of the filing of the notice of removal; otherwise such defects are waived; Hamilton v. Aetna Life & Casualty Co., 5 F.3d at 644 ;…
cited Cited as authority (rule) In re Allstate Ins. Co.
5th Cir. · 1993 · confidence medium
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).
cited Cited as authority (rule) In Re Allstate Insurance Company
5th Cir. · 1993 · confidence medium
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).
discussed Cited as authority (rule) James G. Hamilton v. Aetna Life and Casualty Company (2×)
2d Cir. · 1993 · confidence medium
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”), cert. denied, — U.S. —, 112 S.Ct. 914 , 116 L.Ed.2d 814 (1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989) (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); 14A C.
discussed Cited as authority (rule) Clark v. Sears, Roebuck & Co.
E.D. Pa. · 1993 · confidence medium
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-Pittsburgh Steel Corp. v. Interstate Commerce Commission, 723 F.2d 346, 355 (3rd Cir.1983); Savko v. Port Authority of Allegheny County, supra, at 272-274; Aiken v. Bucks Ass’n for Retarded Citizens, Inc., supra, at 530-531; Tyree v. Riley, 783 F.Supp. 877, 883-884 (D.N.J.1992).
discussed Cited as authority (rule) Cohen v. Austin
E.D. Pa. · 1993 · confidence medium
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 retroactively applied amendments to the Judicial Improvements Act and the Lanham Act, respectively.
cited Cited as authority (rule) Estate of Harding Ex Rel. Williams v. Bell
D.N.J. · 1993 · confidence medium
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 .
discussed Cited as authority (rule) In Re Aliota
3rd Cir. · 1993 · confidence medium
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, 671 F.2d 766, 768-69 (3d Cir.1982).
discussed Cited as authority (rule) Aliota v. Graham
3rd Cir. · 1993 · confidence medium
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, 671 F.2d 766, 768-69 (3d Cir.1982).
discussed Cited as authority (rule) Morgan Guaranty Trust Company Of New York v. Republic Of Palau
2d Cir. · 1992 · confidence medium
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 no time limit; application of amended provision seen as retroactive where removal occurred prior to date of amendment); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 64-65 (3d Cir.1989) (same); Wilson v. General Motors Corp., 888 F.2d 779, 780-81 (11th Cir.1989) (amended section 1447(b) provides that case must be removed within one year after initiation of actio…
discussed Cited as authority (rule) Morgan Guaranty Trust Co. of New York v. Republic of Palau
2d Cir. · 1992 · confidence medium
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 no time limit; application of amended provision seen as retroactive where removal occurred prior to date of amendment); Air-Shields, Inc. v. Fullam, 891 F.2d 63, 64-65 (3d Cir.1989) (same); Wilson v. General Motors Corp., 888 F.2d 779, 780-81 (11th Cir.1989) (amended section 1447(b) provides that case must be removed within one year after initiation of actio…
discussed Cited as authority (rule) Savko v. Port Authority of Allegheny County
W.D. Pa. · 1992 · confidence medium
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. Blue Cross of Greater Philadelphia, 898 F.2d 914, 922 (3d Cir.), cert. denied, — U.S. -, 111 S.Ct. 58 , 112 L.Ed.2d 33 (1990) (applying a Bradley analysis and finding that new substantive provisions of § 43(a) of the Lanham Act should be applied retroactively to a pending case); Doe v. City of Butler, PA, 892 F.2d 315, 323 (3d Cir.1989) (applying Bradl…
discussed Cited as authority (rule) Greenwood v. Stone
W.D. Pa. · 1992 · confidence medium
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 Cir.1989); U.S. Healthcare, Inc. v. Blue Cross of Philadelphia, 898 F.2d 914 (3d Cir.1990), cert. denied, 498 U.S. 816 , 111 S.Ct. 58 , 112 L.Ed.2d 33 (1990).
discussed Cited as authority (rule) Federal Deposit Insurance Corporation v. Loyd
1st Cir. · 1992 · confidence medium
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 not to prohibit the district court from raising such defects on its own initiative.
discussed Cited as authority (rule) Federal Deposit Insurance v. Loyd
5th Cir. · 1992 · confidence medium
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 defects on its own initiative.
cited Cited as authority (rule) Thompson v. Johnson & Johnson Management Information Center
D.N.J. · 1992 · confidence medium
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.
discussed Cited as authority (rule) Foster v. Chesapeake Insurance (2×)
3rd Cir. · 1991 · signal: cf. · confidence medium
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”); State v. Ivory, 906 F.2d 999 , 100 n. 1 (4th Cir.1990) (“The thirty-day limitation applies only to objections to defects in removal procedure”). 8 C.
discussed Cited as authority (rule) Foster v. Chesapeake Insurance Company (2×)
3rd Cir. · 1991 · signal: cf. · confidence medium
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"); State v. Ivory, 906 F.2d 999 , 100 n. 1 (4th Cir.1990) ("The thirty-day limitation applies only to objections to defects in removal procedure"). 8 C.
discussed Cited as authority (rule) American Trade Partners, L.P. v. A-1 International Importing Enterprises, Ltd.
E.D. Pa. · 1991 · confidence medium
Recently, the Third Circuit stated 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.’ ” Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989) (quoting Bradley v. Richmond School Board, 416 U.S. 696, 715 , 94 S.Ct. 2006, 2018 , 40 L.Ed.2d 476 (1973).
cited Cited as authority (rule) Smith v. Continental Ins. Corp.
D.N.J. · 1990 · confidence medium
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).
discussed Cited as authority (rule) Federal Deposit Ins. Corp. v. Loyd (2×)
N.D. Tex. · 1990 · confidence medium
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. 1126 , 107 L.Ed.2d 1033 (1990); Greer v. Skilcraft, 704 F.Supp. 1570, 1573 (N.D.Ala.1989) (en banc).
cited Cited as authority (rule) United States v. David R. Brundage
D.C. Cir. · 1990 · confidence medium
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).
cited Cited "see" Brandon W. Weir v. Progressive Advanced Insurance Company
M.D. Penn. · 2025 · signal: see · confidence high
See Air-Shields, Ine. v. Fullam, 891 F.2d 63 , 66 (3d Cir. 1989) “By remanding the case for procedural defects after the thirty day limit imposed by ...
cited Cited "see" Ramos v. Quien
E.D. Pa. · 2008 · signal: see · confidence high
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 ...
examined Cited "see" Carroll v. United Air Lines, Inc. (3×)
D.N.J. · 1998 · signal: see · confidence high
See Air-Shields, 891 F.2d at 64 .
discussed Cited "see" Korea Exchange v. Trackwise (2×) also: Cited "see, e.g."
3rd Cir. · 1995 · signal: see · confidence high
See Air-Shields, 891 F.2d at 65 .
discussed Cited "see" Korea Exchange Bank, New York Branch v. Trackwise Sales Corp. Moo Sung Ko and Young S. Ko. (2×) also: Cited "see, e.g."
3rd Cir. · 1995 · signal: see · confidence high
See Air-Shields, 891 F.2d at 65 .
discussed Cited "see" Joseph C. Balazik Edith C. Balazik David Bedard Judith L. Bedard Donald F. Fricchione, M.D. Maria Claudia Fricchione Joseph F. Salzinger Douglas G. Ricker Christine L. Ricker, on Behalf of Themselves and All Owners of Real Property That Was Constructed or Rehabilitated in the Townships Since July 1, 1983 v. County of Dauphin Dauphin County Board of Assessment Appeals Derry Township Lower Paxton Township Lower Swatara Township Susquehanna Township Swatara Township Central Dauphin School District Derry Township School District Lower Dauphin School District Middletown Area School District Steelton-Highspire School District Susquehanna School District, the Honorable William W. Caldwell, Nominal Swatara Township, Joseph C. Balazik Edith C. Balazik David Bedard Judith L. Bedard Donald F. Fricchione, M.D. Maria Claudia Fricchione Joseph F. Salzinger Douglas G. Ricker Christine L. Ricker, on Behalf of Themselves and All Owners of Real Property That Was Constructed or Rehabilitated in the Townships Since July 1, 1983 v. County of Dauphin Dauphin County Board of Assessment Appeals Derry Township Lower Paxton Township Lower Swatara Township Susquehanna Township Swatara Township Central Dauphin School District Derry Township School District Lower Dauphin School District Middletown Area School District Steelton-Highspire School District Susquehanna School District, Swatara Township
3rd Cir. · 1995 · signal: see · confidence high
See McGlinchey, 866 F.2d at 653 6 See, e.g., Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir.1989) (holding review appropriate where district court had remanded case for procedural defects after 30-day time limit in Sec. 1447(c) had expired); Foster v. Chesapeake Ins.
cited Cited "see" Maniar v. Federal Deposit Insurance
9th Cir. · 1992 · signal: accord · confidence high
Id. at 322; accord Air Shields, 891 F.2d at 65 .
cited Cited "see" Dinesh Maniar v. Federal Deposit Insurance Corporation
9th Cir. · 1992 · signal: accord · confidence high
Id. at 322; accord Air Shields, 891 F.2d at 65 .
cited Cited "see" United States v. Moshe Gozlon-Peretz
3rd Cir. · 1990 · signal: see · confidence high
See Air-Shields, Inc. v. Fullam, 891 F.2d 63 , 65 (3d Cir.1989); 2 Sutherland’s Statutory Construction § 33.06 (4th ed. 1986).
discussed Cited "see, e.g." PALAK v. BJ'S WHOLESALE CLUB, INC.
D.N.J. · 2023 · signal: see also · confidence medium
“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447 (c); see also Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir. 1989) (noting that “the district court could only remand within 30 days of the filing of notice to remove for procedural defects” and that § 1447(c) “prohibits . . . untimely remand”); Perea v. Benjamin H.
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
89-1295.
Court of Appeals for the Third Circuit.
Dec 7, 1989.
891 F.2d 63
Cited by 15 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #47,272 of 633,719
Citer courts: M.D. Pennsylvania (2)

891 F.2d 63

104 A.L.R.Fed. 857

AIR-SHIELDS, INC., Petitioner,
v.
Honorable John P. FULLAM, Chief Judge, United States
District Court for the Eastern District of
Pennsylvania, Nominal Respondent,
and
Neomed Corporation, Respondent.

No. 89-1295.

United States Court of Appeals,
Third Circuit.

Submitted Under Rule 12(6)
Oct. 3, 1989.

Decided Dec. 7, 1989.

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.

Before SLOVITER, GREENBERG, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

[*~63]1

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 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.

2

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.

3

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.

4

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 Vickers." 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.

5

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.

6

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.

7

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 bond. Therefore, the court held that the case had been improvidently removed.

II.

8

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.

9

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.

10

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]

11

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)).

12

According to the above doctrine, the district court was obliged to proceed under the recently amended, rather than the 1982 version, of Section 1447(c).[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:

13

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.

14

28 U.S.C. § 1447(c).

15

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.

16

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 remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. 28 U.S.C. § 1447(d).

17

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.

[*~63]18

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.

[*~65]19

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."