Arnold London v. United States Fire Ins. Co., 531 F.2d 257 (5th Cir. 1976). · Go Syfert
Search
Arnold London v. United States Fire Ins. Co., 531 F.2d 257 (5th Cir. 1976). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases, last quoted 1992 · 2 courts · …thus, even when, as here, jurisdiction exists, the failure to comply with the statutory time requirements is the sort of defect which the district court was entitled to consider at p. 260 ✓
52 citation events (5 in the last 25 years) across 25 distinct courts.
Strongest positive: Abraham Watkins v. Festeryga (ca5, 2025-05-16)
Treatment trajectory · 1976 → 2026 · click a year to view as-of
1976 2001 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) Abraham Watkins v. Festeryga
5th Cir. · 2025 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir. 1976))); see also Rothner, 879 F.2d at 1406 (“As a starting point, we note that although this phrase is worded in the conjunctive, we believe the phrase must be read in the disjunctive.”). 13 Case: 23-20337 Document: 171-1 Page: 14 Date Filed: 05/16/2025 No. 23-20337 reflects an “improvident” removal, not a jurisdictional one.
cited Cited as authority (rule) Perry, Jr. v. Taylor
M.D. Fla. · 2025 · confidence medium
Co., 531 F.2d 257, 259 (5th Cir. 1976).1 As a preliminary matter, the Court cannot combine this action with the First and Second Actions which are pending in state court.
cited Cited as authority (rule) In re Allstate Ins. Co.
5th Cir. · 1993 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir. 1976), as authority for the proposition that a court may sua sponte remand on procedural grounds.
discussed Cited as authority (rule) In Re Allstate Insurance Company (2×)
5th Cir. · 1993 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976), as authority for the proposition that a court may sua sponte remand on procedural grounds.
discussed Cited as authority (rule) Federal Deposit Insurance Corporation v. Loyd
1st Cir. · 1992 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976) ("Thus, even when, as here, jurisdiction exists, the failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider"). 45 We thus interpret § 1447(c) as assuring that, after the thirty-day period has expired, neither the state or federal courts, nor the parties, should bear the burdens of shuffling a case between two courts that each have subject matter jurisdiction.
discussed Cited as authority (rule) Federal Deposit Insurance v. Loyd
5th Cir. · 1992 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976) (“Thus, even when, as here, jurisdiction exists, the failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider”).
cited Cited as authority (rule) Glover v. WR Grace & Co., Inc.
E.D. Tex. · 1991 · confidence medium
Co., 531 F.2d 257, 259 (5th Cir.1976).
cited Cited as authority (rule) Home Owners Funding Corp. of America v. Allison
N.D. Tex. · 1991 · confidence medium
Co., 531 F.2d 257, 259-60 (5th Cir.1976); Federal Deposit Ins.
cited Cited as authority (rule) Blackmore v. Rock-Tenn Co., Mill Div., Inc.
N.D. Tex. · 1991 · confidence medium
Co., 531 F.2d 257, 259-60 (5th Cir.1976); Federal Deposit Ins.
cited Cited as authority (rule) Moody v. Commercial Ins. Co. of Newark, NJ
N.D. Tex. · 1990 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976).
discussed Cited as authority (rule) Hernandez v. Six Flags Magic Mountain, Inc.
C.D. Cal. · 1988 · confidence medium
Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 99 , 18 S.Ct. 264, 266-67 , 42 L.Ed. 673 (1898); London v. United States Fire Insurance Co., 531 F.2d 257, 259 (5th Cir.1976); Weeks v. Fidelity and Casualty Co., 218 F.2d 503 (5th Cir.1955).
discussed Cited as authority (rule) Conrad Schmitt Charles Sackett Daniel Martin Michael Juneau v. Insurance Company of North America, Insurance Company of North America, Cross-Complainant/appellant v. Juneau & Martin, Inc. Dba J.M. Auto Sales, a Corporation, Juneau & Martin, Inc. Dba Century Motors, a Corporation Cross-Defendants, and Michael Juneau, an Individual, Daniel James Martin, an Individual, Cross-Defendants/appellees
9th Cir. · 1988 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976) ("[T]he failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider and which caused this case to be improvidently removed within the meaning of Sec. 1447(c), and accordingly Sec. 1447(d) divests this Court of jurisdiction to hear this appeal."); Schmidt v. National Organization for Women, 562 F.Supp. 210, 213 (N.D.Fla.1983) (untimely removal is "improvident" under section 1447(c)); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1269 (W.D.Pa.1982) ("An improvident removal is one that is legally de…
discussed Cited as authority (rule) Schmitt v. Insurance Co. of North America
9th Cir. · 1988 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir.1976) (“[T]he failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider and which caused this case to be improvidently removed within the meaning of § 1447(c), and accordingly § 1447(d) divests this Court of jurisdiction to hear this appeal.”); Schmidt v. National Organization for Women, 562 F.Supp. 210, 213 (N.D.Fla.1983) (untimely removal is “improvident” under section 1447(c)); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1269 (W.D.Pa.1982) (“An improvident removal is one that is lega…
cited Cited as authority (rule) Paul McQueary v. Jefferson County, Kentucky
6th Cir. · 1987 · confidence medium
Co., 531 F.2d at 259 (emphasis added), citing, Thermtron, 423 U.S. at 352 .
cited Cited as authority (rule) Billy Max Brown v. Demco, Inc. v. Employers Casualty Co., Intervenor-Appellant
5th Cir. · 1986 · confidence medium
London v. U.S. Fire Insurance Co., 531 F.2d 257, 260 (5th Cir.1976). 9 .
cited Cited as authority (rule) Pamela A. Loftin v. James K. Rush, United States of America, Garnishee-Appellee
11th Cir. · 1985 · confidence medium
Co., 531 F.2d 257, 259 (5th Cir. 1976).
cited Cited as authority (rule) Uni-Bond, Ltd. v. Schultz
E.D. Wis. · 1985 · confidence medium
Royal v. State Farm Fire & Casualty Company, 685 F.2d 124, 127 (5th Cir.1982); London v. United States Fire Insurance Company, 531 F.2d 257, 259-269 (5th Cir.1976).
cited Cited as authority (rule) Kenneth A. Royal v. State Farm Fire and Casualty Company
5th Cir. · 1982 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir. 1976).
discussed Cited as authority (rule) Skinner v. American Oil Co.
S.D. Iowa · 1979 · confidence medium
Co., 531 F.2d 257, 260 (5th Cir. 1976) (untimeliness of removal petition under § 1446(b)); Robertson v. Ball, 534 F.2d 63, 65, n. 2 (5th Cir. 1976); Manas y Pineiro v. Chase Manhattan Bank, N. A., 443 F.Supp. 418, 421-22 (S.D.N.Y.1978) (remand within court’s discretion on basis of judicial economy, comity and prejudice).
cited Cited as authority (rule) Live & Let Live, Inc. v. Carlsberg Mobile Home Properties, Ltd.-'73
5th Cir. · 1979 · confidence medium
Accord, e. g., Robertson v. Ball, 534 F.2d 63, 65 (5th Cir. 1976); London v. United States Fire Insurance Co., 531 F.2d 257, 259-260 (5th Cir. 1976).
cited Cited as authority (rule) Irving Trust Co. v. Century Export & Import, S.A.
S.D.N.Y. · 1979 · confidence medium
Co., 531 F.2d 257, 259-60 (5th Cir. 1976); Manas y Pineiro, supra, 443 F.Supp. at 421-22 . *1240 Judge Owen’s discussion of this point in the Manas case, supra, is instructive.
discussed Cited as authority (rule) Manas Y Pineiro v. Chase Manhattan Bank, N. A.
S.D.N.Y. · 1978 · confidence medium
See Therm-tron Products, supra note 1, 423 U.S. at 346 -50 & nn. 10-15, 96 S.Ct. 584 ; London v. United States Fire Insurance Co., 531 F.2d 257, 260 (5th Cir. 1976); Robertson v. Ball, 534 F.2d 63 , 65 n.2 (5th Cir. 1976).
discussed Cited "see" DuPont Energy Management Co. v. Delta Group, Ltd. (In Re Delta Group, Ltd.)
Bankr. N.D. Tex. · 1982 · signal: see · confidence high
See London v. United States Fire Insurance Co., 531 F.2d 257 (5th Cir. 1976); In Re Merrimack Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir. 1978); Friedrich v. Whittaker Corporation, 467 F.Supp. 1012 (S.D.Tex.1979); Intercoastal Refining Co., Inc., v. Jalil, 487 F.Supp. 606 (S.D.Tex.1980).
cited Cited "see, e.g." Owens v. General Dynamics Corp.
S.D. Cal. · 1988 · signal: see, e.g. · confidence medium
See, e.g., London v. United States Fire Insurance, 531 F.2d 257, 259-60 (5th Cir.1976); United States ex rel.
discussed Cited "see, e.g." Federal Deposit Insurance Corporation, in Its Corporate Capacity, and Successor to the First National Bank and Trust Company of Oklahoma City v. Honorable Wayne E. Alley, United States District Judge for the Western District of Oklahoma, Federal Deposit Insurance Corporation, as Receiver of the First National Bank and Trust Company of Oklahoma City v. Honorable Wayne E. Alley, United States District Judge for the Western District of Oklahoma, Federal Deposit Insurance Corporation, as Receiver of the First National Bank and Trust Company of Oklahoma City v. McClain County National Bank of Purcell, a National Banking Association First State Bank of Blanchard, a State Banking Association Reece & Gray, Inc., an Oklahoma Corporation E.R. Reece, an Individual Richard A. Gray, an Individual, Defendants-Counterclaimants-Appellees. William E. Crump, III v. William D. Vaughan William B. Vaughan Ellis Lindsey D.B. Mayberry Glendol Garrett Olen Treadway Wynnewood Bancshares, Inc. J.E. Epperson D.B. Mayberry, Defendant-Third-Party and Federal Deposit Insurance Corporation, as Receiver of the First National Bankand Trust Company of Oklahoma City v. Marvin Acree, Third-Party
1st Cir. · 1987 · signal: see also · confidence medium
In Sheet Metal Workers we noted that 9 "the Fifth Circuit has said that the conjunctive language of Sec. 1447(c), 'improvidently and without jurisdiction' (emphasis added), is not to be read as it appears; instead that court's position is that the phrase is to be read in the disjunctive so that a case may be properly remanded as removed improvidently, even if federal jurisdiction is present." 10 693 F.2d 1000 , 1004-05; see also London v. United States Fire Insurance Co., 531 F.2d 257, 260 (5th Cir.1976); Robertson v. Ball, 534 F.2d 63 , 65 n. 2 (5th Cir.1976).
discussed Cited "see, e.g." Federal Deposit Insurance v. Alley
10th Cir. · 1987 · signal: see also · confidence medium
In Sheet Metal Workers we noted that “the Fifth Circuit has said that the conjunctive language of § 1447(c), ‘improvidently and without jurisdiction’ (emphasis added), is not to be read as it appears; instead that court’s position is that the phrase is to be read in the disjunctive so that a case may be properly remanded as removed improvidently, even if federal jurisdiction is present.” 693 F.2d 1000 , 1004-05; see also London v. United States Fire Insurance Co., 531 F.2d 257, 260 (5th Cir.1976); Robertson v. Ball, 534 F.2d 63 , 65 n. 2 (5th Cir.1976).
cited Cited "see, e.g." Williams v. Farmers Home Administration
E.D. Va. · 1985 · signal: see, e.g. · confidence medium
See, e.g., London v. United States Fire Insurance Co., 531 F.2d 257, 259-60 (5th Cir.1976); United States ex rel.
Retrieving the full opinion text from the archive…
Arnold LONDON, Plaintiff-Appellee,
v.
UNITED STATES FIRE INSURANCE COMPANY, Defendant-Appellant
75--4096.
Court of Appeals for the Fifth Circuit.
May 5, 1976.
531 F.2d 257
Ira M. Witlin, Miami, Fla., for defendant-appellant., James W. Miller, Coral Gables, Fla., for plaintiff-appellee.
Brown, Gewin, Morgan, Per Curiam.
Cited by 51 opinions  |  Published
PER CURIAM:

This is an appeal from the District Court’s order remanding this case as untimely removed under 28 U.S.C.A. § 1446(b). [1] We hold that the appeal should be dismissed for failure of jurisdiction. [2]

The facts pertinent to this appeal are that the Plaintiff sued the Defendant insurance company in Florida state court attempting to recover for the theft of a boat under an insurance policy issued to him by the Defendant. More than 30 days after the complaint was filed the Defendant filed this petition for removal to Federal Court claiming excusable delay because the complaint was not explicit as to the residence of the Plaintiff. [3] The Federal District Judge rejected this argument and remanded this case and it is from this order that appeal was taken presumably pursuant to 28 U.S. C.A. § 1291.

[*259] Before the Supreme Court’s recent decision in Thermtron Products, Inc. v. Hermansdorfer, 1976, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 [44 L.W. 4085] there was little doubt that 28 U.S.C.A. § 1447(d) proscribed appellate review of orders by the District Court remanding cases to the state courts from whence they came, [4] except in civil rights cases. [5] See Thermtron Products, Inc. v. Hermansdorfer, supra (J. Rehnquist, dissenting); United States v. Rice, 1946, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982; United States v. Gunn, 9 Cir., 1975, 511 F.2d 1024, 1027; McClanahan v. State of Louisiana, 5 Cir., 1968, 399 F.2d 695; cf. Southeast Mortgage Company v. Mullins, 5 Cir., 1975, 514 F.2d 747, 749. See also 9 Moore's Federal Practice § 110.05 (2d ed. 1975); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3740 n. 1 (1976).

Now we are told by the majority in Thermtron that § 1447(d) must be read with § 1447(c) [6] and that a remand order may be reviewed by writ of mandamus by this Court if it was entered because of reasons other than those provided by § 1447(c), that is, the Federal Court lacked jurisdiction of the removed case and the case was removed improvidently.

Here the Court had Diversity Jurisdiction, 28 U.S.C.A. § 1332, because the insurer was a resident of New York and the insured was a resident of Florida and more than $10,000 was in controversy. Moreover, although the Defendant failed to petition for removal within the 30 day time limit prescribed by § 1446(d) this has been held not to constitute a jurisdictional defect. See, e. g., Weeks v. Fidelity and Casualty Company, 5 Cir., 1955, 218 F.2d 503. See also McLeod v. Cities Service Gas Company, 10 Cir., 1956, 233 F.2d 242; Adams v. Western Steel Building, Inc., D.Colo., 1969, 296 F.Supp. 759, 761.

Nevertheless, we hold that well within the bounds of § 1447(c) and the Thermtron decision this case was improvidently removed and that it is now improperly presented to this Court by appeal rather than mandamus.

This conclusion is bolstered by the Thermtron decision. In that case the Defendant had challenged by writ of mandamus or prohibition, presented to the Sixth Circuit, the Trial Judge’s decision to remand because he believed the case would be more expeditiously resolved in state court instead of being added to the already crowded docket of the Federal Court. Although there was no basis for this ruling in any of the removal statutes, the Sixth Circuit in reliance upon the strict limitations on appellate review of remand orders provided by § 1447(d), dismissed for lack of jurisdiction. The Supreme Court reversed, holding that a remand order which is outside the bounds of § 1447(c) may be reviewed in mandamus by the Court of Appeals notwithstanding the bar to review provided by § 1447(d).

But this is a different case both procedurally and factually. First, as mentioned above the appellant in this case has taken an improper avenue of review, for the Supreme Court in Thermtron specifically held that mandamus rather than direct appeal is the only remedy to require the District Court to entertain the remanded action. 44 L.W. at 4090, 423 U.S. at 352, 96 S.Ct. at 594, 46 L.Ed.2d at 555. Next, the Court recognized that in Thermtron all parties conceded that the District Court had jurisdiction and that the case had been[*260] timely removed under § 1446(b). [7] Thus, even when, as here, jurisdiction exists, the failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider and which caused this case to be improvidently removed within the meaning of § 1447(c), and accordingly § 1447(d) divests this Court of jurisdiction to hear this appeal.

APPEAL DISMISSED.

1

. 28 U.S.C.A. § 1446(b)

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
2

. Because we have no jurisdiction we do not consider or decide the issues presented: (i) whether the Court erred in its strict application of the 30 day time limit of § 1446(b) and, (ii) whether 28 U.S.C.A. § 1447(d) which prohibits appellate review of remand orders is unconstitutionally violative of the plaintiffs right to procedural due process. Even if this Court had jurisdiction this latter issue would not properly be before this Court because as far as we can see, it was never presented to the District Court and accordingly there is no ruling from which appeal could be taken.

3

. The Court apparently rejected the Defendant’s excusable delay argument because the insurance policy which was made a part of the complaint as permitted by both the Federal Rules, F.R.C.P. 19(c) and the State Rules, Fla.R. C.P. 1.130, clearly stated the Plaintiffs state of residence as Florida.

4

. § 1447(d)

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
5

. See 28 U.S.C.A. § 1443.

6

. § 1447(c)

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, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.
7

. By way of explanation the Court stated:

8. So far as the record reveals, it has not been questioned in this case that the cause is between citizens of different States, that it involves a claim of over $10,000 exclusive of interest and costs, is within the so-called diversity jurisdiction of the District Court and could have been initially filed in the District Court pursuant to 28 U.S.C. § 1331. It also seems common ground that there is no express statutory provision forbidding the removal of this action and that the cause was timely removed in strict compliance with 28 U.S.C. § 1446.
9. Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court’s jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute. Romero v. ITE Imperial Corp., 332 F.Supp. 523, 526 (P.R.1971); Isbrandtsen Co. v. Dist. 2, Marine Engineers Ben. Assn., 256 F.Supp. 68, 77 (E.D.N.Y. 1966); Davis v. Joyner, 240 F.Supp. 689, 690 (E.D.N.C.1964); Vann v. Jackson, 165 F.Supp. 377, 381 (E.D.N.C.1958); 3 U.S. at 344, 96 S.Ct. at 589, 46 L.Ed.2d at 550, 44 L.W. at 4088, n. 8.