Anthony A. Petrarca v. Things Remembered, Inc.

65 F.3d 169 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Anthony A. PETRARCA, Plaintiff-Appellee, v. THINGS REMEMBERED, INC., Defendant-Appellant. No. 94-3980. United States Court of Appeals, Sixth Circuit. Nov. 15, 1994. [1] Before: MARTIN and BATCHELDER, Circuit Judges; and ENSLEN, District Judge.* ORDER [2] This action, initially filed in the Court of Common Pleas of Summit County, was removed by defendant pursuant to 28 U.S.C. Secs. 1441 and 1452. Finding that the notices of removal were not timely filed, the district court remanded the action to state court. Defendant filed a notice of appeal of the remand order. In response to a show cause order issued by the court, defendant argues that the remand order is reviewable on appeal. Plaintiff asserts that the court lacks jurisdiction to consider the appeal. [3] As a general rule, an order remanding an action to a state court from which it was removed "is not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d). Defendant argues that this general prohibition against appellate review is not applicable because this action was removed and remanded pursuant to the bankruptcy removal statute, 28 U.S.C. Sec. 1452. The record clearly demonstrates that defendant sought removal pursuant to the general removal statute and that the district court held that the notice of removal was not filed within the time required by 28 U.S.C. Sec. 1446(b). Thus, section 1447(d) prohibits review of that ruling. See Ohio v. Wright, 992 F.2d 616, 618-19 (6th Cir.1993); Baldridge v. Kentucky-Ohio Transportation, Inc., 983 F.2d 1341, 1343-50 (6th Cir.1993). In addition, the district court held that the notice of removal pursuant to section 1452 was not timely filed. Appellate review of that ruling is likewise barred. Hernandez v. Brakegate, Ltd., 942 F.2d 1223, 1225-26, (7th Cir.1991); Sykes v. Texas Air Corp., 834 F.2d 488, 590-91, (5th Cir.1987); Boone Coal and Timber Co. v. Polan, 787 F.2d 1056, 1060, (6th Cir.1986); see United States v. Rice, 327 U.S. 742, 752 (1946). [4] It therefore is ORDERED that the appeal is dismissed sua sponte for lack of jurisdiction. Footnotes [-s] * The Honorable Richard A. Enslen, United States District Judge for the Eastern District of Michigan, sitting by designation