Remand After Allowing Addition Of Non-diverse Plaintiff Is Not Reviewable

The flood of recent opinions emphasizing that Congress wanted parties to follow remanded cases back into their respective state courts -- rather than spending any time on appealing remands -- continues. Here is a report about a new Second Circuit case on that topic.

Section 1447(e) was added to the Judicial Code in 1988 specifically to allow remand of diversity cases where a non-diverse defendant is added later:

“If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” (28 U.S.C. § 1447(e).)

Price v. J&H Marsh & McLennan, Inc., 493 F.3d 55 (2d Cir. July 6, 2007), analyzed the operation of 28 U.S.C. § 1447(e) under a slightly different scenario -- where the plaintiffs sought to join an additional plaintiff rather than an additional defendant.

After the district court had allowed the additional plaintiff to be added, and remanded the case as a result, defendant appealed. Plaintiffs moved to dismiss the appeal as falling within the scope of the prohibition against appellate review under 28 U.S.C. § 1447(d). Defendant argued that § 1447(d) did not apply because the remand was based on a post-removal event, i.e., the addition of a new plaintiff.

Unfortunately for defendant, while the motion was pending the Supreme Court decided Powerex Corp. v. Reliant Energy Services, Inc., 127 S. Ct. 2411 (U.S. June 18, 2007) (discussed in a previous post). The Second Circuit read Powerex as a complete rejection of the “post-removal event” doctrine, and therefore viewed the appeal as barred. It also held that the collateral order doctrine provided no basis for appellate jurisdiction either.

The Price case has the effect of revising 28 U.S.C. § 1447(e) to cover additional plaintiffs as well as defendants.