Self v. Self

¶6PER CURIAM:

¶7Christine Self brings this appeal to contest the district judge’s remand of her removal petition. The appeal is dismissed because this Court lacks jurisdiction. Further, because of the frivolous nature of the appeal, we remand this case to the district court for an assessment of costs and damages to be paid to James Self.

¶8Christine and James Self were divorced in June 1976. The decree provided James visitation rights with their minor daughtér of two weekends per month. In September 1978 James filed a motion in state court for Christine to show cause why she should not be held in contempt for failing to allow James to exercise his visitation rights.

¶9The state trial judge declined to find Christine in contempt, but did enter a temporary order for the protection of the child. On November 17th, Christine filed a petition for removal and James countered with a motion to remand. On February 12,1979, the federal district judge remanded this case due to lack of jurisdiction. The district court also reserved the issue of attorneys’ fees for James Self. Christine Self then instituted this appeal.

¶10The district judge remanded the case for lack of jurisdiction, a basis for remand provided in 28 U.S.C. § 1447(c).128 U.S.C. § 1447(d)2 states that remand orders are not reviewable on appeal or otherwise except in civil rights cases. See Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir. 1975); McClanahan v. State of Louisiana, 399 F.2d 695 (5th Cir. 1968); In re Weaver, 610 F.2d 335 (5th Cir. 1980); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3740 (1976); C. Wright, Law of Federal Courts § 41 (3d ed. 1976); 1A Part 1 Moore’s Federal Practice ¶ 0.169[2] (2d ed. 1979). Christine Self’s removal petition was not based upon a civil rights claim. See 28 U.S.C. § 1443 (1973).

¶11The Supreme Court slightly enlarged the scope of review of remand orders in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). *1028There the Court held that the ban on appellate review of remand orders applies only if the order was issued on a ground specified in Section 1447(c). Lack of jurisdiction, the basis of the remand in the case at bar, is one of the grounds provided in Section 1447(c) for remand.

¶12The Court has also held that if a district court dismisses a party and the dismissal leads to a remand, the order of dismissal may be reviewed. Waco v. United States Fidelity and Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934); Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir. 1975); C. Wright, Law of Federal Courts § 41 (3d ed. 1976). This action did not involve the dismissal of a party.

¶13A review of the applicable jurisprudence establishes, beyond pale, that this Court has no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed for want of jurisdiction.

¶14James Self has requested damages for this frivolous appeal under F.R.A.P. 38. We agree with his contention that this appeal is frivolous. James Self has been required to file a brief and incur costs and attorneys’ fees in order to protect his interests. We remand this case to the district court for determination of the amount of costs and damages to be paid to appellee James Self as a result of this frivolous appeal.

¶15On remand, the district court should hold the attorney for Christine Self personally liable to the extent provided by law if he is found to have been culpable. See e. g., 28 U.S.C. § 1927.

¶16This appeal is dismissed for lack of jurisdiction and the case is remanded for a determination of damages and costs.

¶17DISMISSED AND REMANDED.