Meissner vs. Frog Leap, (5th Cir. 2003)

Docket Number: 03-40066

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED July 29, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 03-40066 Summary Calendar RONNIE MEISSNER Plaintiff - Appellee v.FROG LEAP, Etc; ET AL Defendants RICHARD S KARAM Defendant - Appellant Appeal from the United States District Court for the Eastern District of Texas No. 2:02-CV-262 Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM: * Defendant-Appellant Richard S. Karam appeals the district courtÂ’s remand of this case to state court. Because we conclude that this court is statutorily precluded from reviewing the remand order, we dismiss KaramÂ’s appeal for lack of jurisdiction .

Plaintiff-Appellee Ronnie Meissner originally filed this civil action in Texas state district court, seeking an order requiring Karam to account and divide the assets and profits of their general partnership, Defendant Frog Leap. Karam removed the case to federal district court based solely on the existence of diversity of citizenship. Meissner then filed a motion to remand. The federal district court determined that the Frog Leap partnership consisted of two partners, one of whom (Meissner) was a citizen of Texas, and the other (Karam) was a citizen of Oklahoma. Consequently, the court found that Frog Leap should be considered a citizen of both Texas and Oklahoma. Because both Frog Leap and Meissner had Texas citizenship, the court concluded that diversity jurisdiction did not exist. Given that diversity jurisdiction was KaramÂ’s only asserted basis for subject matter jurisdiction, the court granted MeissnerÂ’s motion and remanded the case to state court.

The threshold question in this case is whether we have appellate jurisdiction to review the district courtÂ’s remand.

Section 1447(c) of Title 28 of the United States Code authorizes remand for lack of subject matter jurisdiction, while § 1447(d) provides that § 1447(c) is ordinarily barred from appellate review by § 1447(d).§ 1447(c). As a result, Karam concludes, appellate jurisdiction is proper.

We agree with Meissner§ 1447(c) when § 1447(c). Thus, regardless of the courtÂ’s determination that Frog Leap was a necessary party to the litigation, the narrow Thermtron exception is not applicable.

Because Karam fails to demonstrate that any of the available exceptions to § 1447(c) apply, we are required under § 1447(d) to DISMISS this appeal for lack of jurisdiction.