United States: Third Circuit Clarifies Federal Court Jurisdiction Surrounding Remand To State Court

Last Updated: November 25 2013
Article by Paige H. Forster

The Third Circuit recently clarified the limits of its own jurisdiction, and that of the district court, in connection with orders remanding cases to state court. The court held a firm line on the reviewability of such orders, ruling that just as it has no jurisdiction to review a remand order, it also has no jurisdiction to review a denial of a motion to reconsider a remand order.

The court's opinion reinforces some parameters already familiar to those who have moved, or opposed a motion, for remand:

  • In opposing a remand motion, energies should be focused on the district court briefing, since a remand order is unreviewable under 28 U.S.C. § 1447.
  • If the district court grants the motion and remands the case to state court, a motion for reconsideration can be filed in the district court.
  • The denial of such a reconsideration motion is unreviewable, just as the remand order itself is unreviewable.

In Agostini (full opinion here), the estates of individuals killed in an airplane crash sued various defendants, including the aircraft manufacturer, in state court in Philadelphia. One of the defendants removed to the U.S. District Court for the Eastern District of Pennsylvania on the basis of diversity jurisdiction. The plaintiffs moved to remand, arguing that there was not complete diversity. The District Court agreed and remanded. The defendant filed a motion for reconsideration, which the District Court denied, and the defendant appealed from that denial of reconsideration.

As an initial point of interest, the Agostini opinion was not written after full merits briefing on the subject matter of the appeal. Instead, Agostini is that rarer breed: a published federal appellate court opinion disposing of a motion. After the defendants appealed, the plaintiffs filed a motion in the Third Circuit to dismiss the appeal. In accordance with Federal Rule of Appellate Procedure 27(c), which provides that a judge may act alone on a motion, but "may not dismiss or otherwise determine an appeal," the motion was adjudicated by a three-judge panel (Judges Smith, Chagares, and Scirica).

Agostini required the court to delve into the intricacies of 28 U.S.C. § 1447(d), which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise" (with limited exceptions that did not apply in Agostini). The purpose of section 1447(d), as the court explained, is to prevent parties from using removal as a delay tactic. Without its limit on reviewability, a party could remove a state case to federal court and then, upon remand, "request reconsideration of remand, appeal, request rehearing, and then file a petition for writ of certiorari, all before being forced to return to state court several years later." Slip Op. at 10 (quoting Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 156-57 (3d Cir. 1998)).

The Court of Appeals, in a unanimous opinion authored by Judge Chagares, rejected the defendant's argument that an order denying reconsideration of remand is distinct from a remand order, and that only the latter is unreviewable under section 1447(d). Although courts may decide "collateral" issues after remand, such as motions for costs or attorneys' fees, a denial of reconsideration of a remand order does not involve a collateral issue.

The Court of Appeals also found that the District Court had jurisdiction to entertain the reconsideration motion in the first instance. To make that determination, the court had to consider when jurisdiction had been transferred from federal back to state court. Relying on its own precedent, the court determined that the "jurisdiction-transferring event" was the mailing of the certified copy of the remand order from the district court clerk to the state court. The court concluded that the District Court had jurisdiction to entertain the reconsideration motion because at the time when it did so, the certified copy of the remand order had not yet been mailed to the state court. (There is a circuit split on this issue, as the court noted in a footnote: the Second Circuit has ruled the same way as the Third Circuit in Agostini, while the Fourth Circuit has ruled that once the remand order is entered, the district court may not reconsider it.) For future reference, the court cautioned district courts that once the remand order is mailed, it may not be reconsidered.

Agostini holds a firm line on the unreviewability of remand orders under section 1447(d), reinforcing the conventional wisdom that the time to fight most motions to remand is in the opposition to the motion itself, not in a likely-to-be barred appeal. After a remand order has been entered, the district court's ability to reconsider turns on whether the certified copy of the order has been mailed to the state court, a factor outside the litigants' control.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Strasburger & Price, L.L.P.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Strasburger & Price, L.L.P.
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions