FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 12, 2003 THOMAS K. KAHN CLERK

*Honorable Wilbur D. Owens, Jr., United States District Judge for the Middle District of Georgia, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-12794

________________________ D. C. Docket No. 01-00904-CV-CB-C SAMMIE BONNER CONSTRUCTION CO., INC., Plaintiff-Appellee,

versus WESTERN STAR TRUCKS SALES, INC., Defendant-Appe llant, DONALDSON COMPANY, INC., Defendant.

________________________ Appeal from the United States District Court for th e Sout hern D istri ct of A labama

_________________________ (May 12, 2003) Before ANDERSON and WILSON, Circuit Judge s, and OWENS * , District Judge.1 Bonn er fi led thi s cas e as a put ati ve cl ass act ion in s tat e cou rt. For t he s ake o f cl ari ty,

however, we will refer to all of the plaintiffs as Bonner. 2 WILSON, Circuit Judge: Western Star T

rucks Sales, Inc . appealed the distr ict court’s order

of remand, and Sammie Bonner Constructi on Co., 1 moved to dism iss the appeal, asserting that we l

acked jurisdiction

because the order was unreviewable pursuant to 28 U.S.C. § 1447(d). This Court, reviewing the motion to dismiss, concluded that the order of remand was not reviewable, but that “to the extent that the order determined that plaintiffs in the underlying products liability action were precluded from recovering attorneys’ fees under ALA .Code § 8-20-8, this Court has jurisdiction to review that decision.” Sammie Bonner Constr. Co. v. W. Star Trucks Sales, Inc. , 11th Cir. 2002, __ F.3d __ (No. 02-12794, Sept . 10, 2002). Because we find t

hat the district cour

t’s ruling on attorn

ey’s fees w

as a matter of substantive law intr

insic to the order of

remand, we

vacate our prior or

der in this case and dismiss this ap peal for lack of jurisdi ction. BACKGROUND Bonner originally filed suit against Western Star in state court, alleging that it purchased two Western Star trucks equipped with air intake systems that later proved to be defecti

ve. Bonner therefore asserted a common law breach of2 Although Western Star argued be

fore the district

court that the cla

ims of all of the cla

ss members could be aggregated to satisfy the jurisdictional minimum amount in controversy, the district court rejected that argument. Because Western Star has not addressed that arg ument on 3 contract claim

and various statutory

claims for br

each of warrant

y. It also included an express ad damnum clause in the complaint, which provided that compen sator y damage s woul d not excee d $74 ,500. Bonne r did n ot ass ert cl aims for punitive dam

ages or attorney ’s fees. Western Star r

emoved the acti

on to the Southern Dis

trict of Alabam

a on diversity grounds,

and Bonner subsequentl

y filed a m

otion to remand th

e case to state court, argu

ing that its claim

s did not satisfy th

e jurisdictional m

inimum amount in controve

rsy. The sole

issue before the dis

trict court on the m

otion to remand, ther

efore, was whe

ther the amount in controversy e xceeded $75,000. Because Weste

rn Star sought rem

oval to federal cour

t, it bore the burde

n of proving that Bonner’ s claims satisf ied the minim

um amount in controversy requirement. See Mitchell v. B rown & W

illiamson Tobacco Cor

p. , 294 F.3d 1309, 1314 (11th Cir. 2002). In support of its argument against remand, Western Star thus argued that Bonner would be entitled to an award of attorney’s fees under Alabama law if it prevailed at trial and that the amount of those fees, when added to Bonner’s $74,500 claim, woul d raise the total am

ount of the claim

above the juris dicti onal minimum. 2 Western Star acknowledged that B onner did not includeappeal, it is deemed waived and we do not consider it. See Chavis v. Clay ton County Sch. Dist. , 300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (“[I]ssues not argued on appeal are deemed waived, and a passing reference in an appellate brief is insufficient to raise an issue.”)

. 4 a claim for a

ttorney’s fe

es in its complai

nt, but nevertheles s asserted that the award of fees was mandated on a verdict for breach of warranty by section 8-20-8 of the Alabam

a Code, which prov

ides, “If it is determined by a court of competent jurisdiction that e

ither the manuf

acturer or new m

otor vehicle dealer

, or both, have violated an express or implied warranty, the court shall add to any award or relief granted an additional

award for reasonable attorney ’s fees.” Al a. Code § 8-20-8. The district court

examined both the

statute and the rele

vant case law and ultimately

concluded that We stern Star “f ailed to demonstr

ate that this statute provides for attorneys’ fees on plaintiff’s warranty claim .” Because the court concluded that Bonner

was not entitled to a

ttorney’s fe

es in the absence of a claim requesting them

, it ruled that Bonne

r’s claims did not exceed the $75, 000 jurisdictional thr

eshold and ordered tha

t the case be rem

anded back to state court. Western Star appealed the order of remand to this Court, and Bonner subsequently filed a motion to dismiss the appeal for want of jurisdiction. After reviewing the m

otion to dismiss, w

e concluded that we

did not have jurisdic

tion to review the order of remand, but that we have jurisdiction to review the district court’s ruling on th

e matter of a

ttorney’s fe

es.5 DISCUSSION Before reaching the merits of the parties’ arguments, w e feel it is necessary to reconsider our pr

ior order determ

ining that we have j urisdiction to review the district court’s atto rney’s fees ruling. See Fitzgerald v. Sea board Sys. R.R. , 760 F.2d 1249, 1251 (11th C

ir. 1985) (per cur

iam) (“A federal court not o

nly has the power but also the obl

igation at any tim

e to inquire into jur

isdiction whenever the possibility that jurisdiction does not exist arises.”). Although we addressed that issue in our prior o rder, we are not bound by tha t decision. See Vann v. Citic orp Sav. of Ill. , 891 F.2d 1507, 1509 n. 2 (11th Cir. 1990) (per curiam) ( “A motions panel’s order, however, does not bind the panel hearing the case on the merits.”). As a general rule, an appellate court may not review a district court’ s order remanding a case back to st ate court. See 28 U.S.C. § 1447( d); New v. Sports & Recreation, Inc. , 114 F.3d 1092, 1096 (11th Cir. 1997) (“Cases remanded for lack of jurisdiction ar

e immune f

rom review e

ven if the district court’s decision is clearly err

oneous.”). Ther

e are, however

, two widely recognized excepti ons to this rule. See Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc. , 179 F.3d 1279, 1285 (11th Cir. 1999). In Thermtron Products, Inc. v. Hermansdorfer , 423 U.S. 336, 346 (1976), abrogated on other grounds by Quackenbush v. A llstate Ins. Co. , 517 U.S. 7063 At the time that Thermtron Products, Inc. was decided, § 1447(c) provided that “[i]f at

any time before final judgment it appears that the case wa s removed improvidently and without jurisdiction, the district court shall remand the case.” 423 U.S. at 342 (internal quotation marks omitted). That section has since been amended to allow remand “[i]f at any time before fina l judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). Although § 1447(c) has been amended, the Thermtron Products, Inc. exception still applies and allows review only of cases remanded for reasons other than that specified in § 1447(c). See In re Shell Oil Co. , 932 F.2d 1 518, 1519– 20 (5th Ci r. 1991) (di scussing Thermtron Products, Inc. in light of the amendment to § 1447(c) and recognizing that “[t]his leaves remand orders for lack of subject matter jurisdiction as the only clearly unre viewable remand orders”). 6 (1996), the Suprem

e Court carved out a

n exception when it he

ld “that only

remand orders issued under [§] 1447(c) and invoking the grounds specified therein . . . are immune from review under [§] 1447(d).” 3 The Thermtron Products, Inc. exception does not appl

y to this case, however, because the district court ’s explicit basis for the order

of remand wa

s lack of subject m

atter jurisdicti

on pursuant to § 1447(c). See Aquamar, S.A. , 179 F.3d at 1285. In addition to the Thermtron Products, Inc. exception, we hav e recognized a second exception to the

§ 1447(d) bar against

review of rem

and orders. The “matter of substantive law” exception “perm its appellate review of a district court remand order only where that order is based solely on a m atter of substantive law.” Glasser v. Amal

gamated Workers U

nion Local 88 , 806 F.2d 1539, 1540 (11th Cir. 1986) (per curiam

). We have note

d, however, that

“[t]his exception . . . is a

narrow one . . .. It expressly does not permit r

eview of a rem

and order based on lack of jurisdiction.” Id . (footnote om itted). Thus, w

hen a district court

rules on a7

matter of substantive law that must be resolved to determine whether the court has jurisdiction over the case, we may not review the court’s r uling on that issue even if it is erroneous. See Calderon v. Aerovi as Nacionales de Co lom. , 929 F.2d 599, 602 (11th Cir. 1991 ) (“In deciding whether sub ject matter jurisdiction exi sts, a district court will

reach legal concl

usions concerning the p

resence of diversi

ty or federal question.[Appellant] m erely disagrees with the legal co nclusion that the district court drew. . . . Assum ing . . . that such a

decision is erroneou

s, section 1447(d) precludes review of remand orders based on lack of subject matter jurisdiction even when the decision is wrong” (alterations in original) (internal quotation marks omitted).). To determine

whether Bonner’ s claims satisf ied the minim

um amount in controversy, t

he district court ne

cessarily had t

o resolve a mat

ter of substantive law, specifi cally the qu estion of whether Bon ner was enti tled to rec over attor ney’s fees under section 8 -20-8. The attor ney’s fees issue therefore w as intrinsic to the jurisdictional qu estion and is, cons equently, unreviewable o n appeal. See id. (holding that the “

matter of subst

antive law” exce

ption is inapplicable w

hen “the substantive issue is int

rinsic to the distric

t court’s decision

to remand for lack of subject matte

r jurisdiction”).

For that reason, we find that the “ matter of substantive law” exception does not apply in this case.8

It thus is clear that neither the Thermtron Products, Inc. exception nor the “matter of substantive law”

exception to § 1447(d) permit us to revi ew the order of remand. Nevert heless, West ern Star arg ues that we still may revie w the attorn ey’s fees ruling under the

doctrine set forth i

n City of Waco v. United States Fide lity and Guaranty Co. , 293 U.S. 140 (1934). In Waco , a defendant in a s tate court action “

vouched in” a nonresid

ent third-party defendant which, in t urn, removed t

he case to federa

l court on the ground that the act ion against it was a s eparable controvers y. Id . at 141. The district court found t

hat the third-party

defendant “w

as an unnecessary

and improper party” and dismissed it from the action. Id . at 142. Having dismissed the nonresident third party, the court concluded that diversity no longer existed and remanded the case back t o state court. Id. The Fifth Circui t found that it could not review the order of remand and dismissed t he appeal. Id. The Su preme Court ultimate

ly held that the or

der of remand

was not reviewable on appeal, but that the order dism

issing the third-part

y defendant wa

s reviewable because “if not reversed or set aside, [it would be] conclusive upon the petitioner.” Id. at 143. In applying the Waco doctrine, we hav e recognized that a

court of appeals may “ review district court orders that lea d to, but are separ

ate from, or

ders of9

remand and have a conclusive effect upon the ensuing state court action.” Aquamar, S.A. , 179 F.3d at 1286. A s we further expla

ined, When a district court enters an order to do something other than remand (such as a dismissal of a claim or a party ), and this order changes the contours of the state court action after remand . . . it does not matter whether the issue of law the court decided when it entered the order was ju

risdictional or substa

ntive; either way

, the parties’ rights have been alte

red in a manner

that the state court

cannot revisit. Id. Thus, under the Waco doctrine and our dec ision in Aquamar, S.A. , we may review the underly

ing jurisdictional ba

sis of a district cour

t’s order of rem

and if the court’s decis

ion will, as a prac

tical matter

, affect the par

ties’ substantive r

ights in the state court pr

oceeding. Western Star asserts that the district court’s attorney’s fees ruling affected the parties’ substantive rights, because it was tantamount to the dismissal of a claim and ther

efore had separat

e and independent signi

ficance from

the order of remand. We do no t agree. The d istrict co urt did no t dismiss a cl aim for attorn ey’s fees; indeed, it could not have done so, be cause Bonner never

asserted such a claim. This c ase, t heref

ore, i s dis ting uish able f

rom Waco, in which the district court remande

d the case for lack

of jurisdiction only

after it first dis

missed one of the parties from the action

. Id. at 1287. Because Bonner’s complaint never included a claim

for attorney’ s fees, the distric t court’s ruling tha

t it was not10

entitled to fees did n

ot “alter[] the contours of the r emanded state court action” the same way that the dismissa

l of the third party

in Waco did. Id. Western Star, however, contends that the district court’s attorney’s fees ruling will be binding o

n the state court. W

e, however, do no

t agree. Because the district court’s attorney’s fees ruling was intrinsic to, and merely part and parcel of, the jurisdict

ional ruling, it cann

ot be said to have a pr

eclusive effect o

n the state court proceedi ngs. See In re Loudermilch , 158 F.3d 1143, 1146 (11th Cir. 1998 ) (per curia m) (fin ding that a dist rict c ourt’ s Emplo yee Ret iremen t Inco me Security Act preemption ruling on a motion to rema nd “ha[d] no preclusive effect on th e stat e cour t’s re solu tion of res pond ents’ preemp tion defen se in t he same case”). The dis

trict court’s or

der does not foreclo se Bonner’s right to amend the complaint to add a

claim for att

orney’s fees in state court, nor does it foreclose Western Star’s right to challenge such an amendment if it is m ade. The state court will not be bound by

the district court’ s analysis of the attorney’s f

ees issue and will “decide for itself what it finds to be persuasive.” Id . at 1147. CONCLUSION Thus, we fin d that we hav e no jurisd iction to review the d istrict co urt’s determination t

hat Bonner was not e

ntitled to attorney ’s fees under se ction 8-20-8, because that issue was a matter of substantive law intrinsic to the jurisdictional11

issue. Moreover,

because the distric

t court’s ruling did

not alter the parties’ substantive rights upon r

emand to state c

ourt, it also is unre

viewable under the Waco doctrine. Accordingl y, this appeal is DISMISSED for lack of jurisdiction.