OpenJurist

919 F2d 144 Campbell v. Donero

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Ron CAMPBELL, Plaintiff-Appellant,
v.
Thalia DONERO, et al., Defendants-Appellees.

No. 89-15493.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 16, 1990.*
Decided Nov. 20, 1990.

Before FLETCHER, WIGGINS and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Ron Campbell appeals pro se the district court's remand of his civil RICO action which Campbell had removed to federal court. We dismiss the appeal pursuant to 28 U.S.C. Sec. 1447(d) for lack of jurisdiction.

3

On September 26, 1988, Campbell filed his complaint in Nevada state court alleging federal and state RICO violations by the defendants. The next day, Campbell removed his action to federal district court for the District of Nevada. On March 17, 1989, the district court denied the petition for removal and remanded Campbell's action to state court because it could only properly be removed by the defendants pursuant to 28 U.S.C. Sec. 1446. Campbell filed a timely notice of appeal with this court.

4

28 U.S.C. Sec. 1447(c) requires a district court to remand a case to state court when it determines the case was removed without jurisdiction. Whitman v. Raley's, Inc., 886 F.2d 1177, 1180 (9th Cir.1989). Remand orders based on the grounds specified in section 1447(c), i.e., that removal was "improvident and without jurisdiction," are immune from appellate review. Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976); Hansen v. Blue Cross, 891 F.2d 1384, 1387 (9th Cir.1989) (citing 28 U.S.C. Sec. 1447(d); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 723 (1977) (per curiam)). When a district court's remand order is based on a nonjurisdictional ground, however, section 1447(d) does not bar appellate review. Hansen, 891 F.2d at 1387 (citations omitted).

5

Here, the district court remanded Campbell's action to district court because Campbell, and not the defendants, had removed the case to federal court. Removal is available only to defendants. 28 U.S.C. Secs. 1441(c), 1442, 1443, 1446(c); Okot v. Callahan, 788 F.2d 631, 633 (9th Cir.1986). The district court, therefore, determined that it lacked jurisdiction to review Campbell's action due to a "defect in removal procedure." See 28 U.S.C. Sec. 1447(c). Because the district court's decision to remand was based on a jurisdictional ground, section 1447(d) precludes our review of the remand order. See id.; Hansen, 891 F.2d at 1387.

6

Appellees' request for attorneys fees on appeal pursuant to Fed.R.Civ.P. 11 is denied.

7

DISMISSED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4