United States Court of Appeals 

for the Federal Circuit ______________________ 

STATE OF VERMONT,

Plaintiff-Appellee,

v.

MPHJ TECHNOLOGY INVESTMENTS, LLC,

Defendant-Appellant.

______________________ 

2014-1481

______________________ 

Appeal from the United States District Court for the 

District of Vermont in No. 2:13-cv-00170-wks, Judge 

William K. Sessions III.

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IN RE MPHJ TECHNOLOGY INVESTMENTS, LLC,

Petitioner.

______________________ 

2014-137

______________________ 

On Petition for Writ of Mandamus to the United 

States District Court for the District of Vermont in No. 

2:13-cv-00170-wks, Judge William K. Sessions III.

______________________ 

ON MOTION

______________________ 
2 STATE OF VERMONT v. MPHJ TECHNOLOGY INVESTMENTS

Before PROST, Chief Judge, NEWMAN and HUGHES, Circuit 

Judges. 

NEWMAN, Circuit Judge. 

O R D E R

MPHJ Technology Investments, LLC (“MPHJ”) petitions this court for a writ of mandamus, and also appeals 

from an order of the United States District Court for the 

District of Vermont remanding this case to state court. 

Because we lack jurisdiction to grant the requested relief, 

we dismiss the petition and appeal.

BACKGROUND

MPHJ owns several patents relating to network scanner systems. MPHJ through subsidiary licensees wrote to 

various business and non-profit organizations operating 

in Vermont, requesting the recipient to confirm it was not 

infringing MPHJ’s patents or, alternatively, to purchase a 

license. If the offeror did not receive a response, a Texas 

law firm sent follow-up correspondence stating that an 

infringement suit would be filed. 

On May 8, 2013, the State of Vermont through the 

Vermont Attorney General, filed suit against MPHJ in 

Vermont state court. The State alleged MPHJ engaged in 

unfair and deceptive trade practices under the Vermont 

Consumer Protection Act, stating that the letters contained threatening, false, and misleading statements. 

The State filed this case seeking civil penalties and other 

relief under state law.

MPHJ removed the case to the United States District 

Court for the District of Vermont on June 7, 2013, asserting federal question jurisdiction and diversity jurisdiction. 

The State moved to remand the case back to state court 

for lack of subject matter jurisdiction. MPHJ opposed the 

State’s motion to remand, and filed a motion to dismiss 

for lack of personal jurisdiction and a motion for sanctions 
STATE OF VERMONT v. MPHJ TECHNOLOGY INVESTMENTS 3

under Rule 11 of the Federal Rules of Civil Procedure and 

28 U.S.C. § 1927. The sanctions motion also requested 

dismissal, asserting that the State’s complaint was frivolous, that the complaint failed to plead that the alleged 

conduct was both objectively and subjectively baseless, 

and also that the complaint was preempted by MPHJ’s 

right to enforce its patents.

After a motions hearing on February 25, 2014, the 

State—in response to concerns raised by the district court 

at the motions hearing—filed a conditional motion to 

clarify or amend its complaint, to eliminate the request 

for a permanent injunction requiring MPHJ to stop 

threatening Vermont businesses with patent infringement. MPHJ subsequently moved for summary judgment.

Without deciding any other motions, the district court 

granted the State’s motion to remand. The district court 

stated that the complaint did not raise a substantial 

question of patent law, and that “the State is targeting 

bad faith conduct irrespective of whether the letter recipients were patent infringers” or the patents were invalid. 

State of Vermont v. MPHJ Tech. Invs., LLC, No. 13-cv00170, slip op. at 14 (D. Vt. Apr. 14, 2014). The court

pointed out that MPHJ’s preemption assertion was a

defense to its allegedly unfair and deceptive practices, 

and that a defense cannot provide a basis for federal 

subject matter jurisdiction. See Metro. Life Ins. v. Taylor, 

481 U.S. 58, 63 (1987). 

MPHJ appeals the remand to state court, and has 

filed a petition for a writ of mandamus.

DISCUSSION

MPHJ argues that the district court abused its discretion (1) in effectively denying its motion for sanctions; (2) 

by refusing to decide the motion to dismiss for lack of 

personal jurisdiction before deciding subject matter 
4 STATE OF VERMONT v. MPHJ TECHNOLOGY INVESTMENTS

jurisdiction; and (3) in “effectively amending the Original 

Complaint and then declining to exercise jurisdiction over 

the complaint as amended, or in remanding the case . . . 

without first deciding a controlling federal question of 

preemption under the First Amendment and federal 

patent law.” Def.’s Notice of Appeal para. 3, May 13, 

2014. 

A. 

We start with the issue of appellate jurisdiction over 

this remand order. Section 1447(d) of Title 28 provides

that: 

An order remanding a case to the State court from 

which it was removed is not reviewable on appeal 

or otherwise[.]

The Supreme Court has held that this provision applies only to remands based on the grounds specified in 

§ 1447(c)—namely, a defect in removal procedure or lack 

of subject matter jurisdiction. Thermtron Prods., Inc. v. 

Hermansdorfer, 423 U.S. 336, 343–45 (1976). In Kircher 

v. Putnam Funds Trust, the Court stated that “we have 

relentlessly repeated that ‘any remand order issued on 

the grounds specified in § 1447(c) [is immunized from all 

forms of appellate review] . . . .’” Kircher, 547 U.S. 633, 

640 (2006) (citing Thermtron, 423 U.S. at 351).

Here the district court remanded on a ground provided in § 1447(c); that is, in the district court’s view the 

complaint did not raise a claim or question of federal law 

to give rise to federal jurisdiction. Section 1447(d) precludes this court from second-guessing the district court’s 

jurisdiction determination regarding subject matter. If 

the § 1447(d) bar applies, “review is unavailable no matter how plain the legal error in ordering the remand.” 

Briscoe v. Bell, 432 U.S. 404, 413 n.13 (1977) (citing 

Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723 (1977)). In 

making that determination, we look only to whether “the 
STATE OF VERMONT v. MPHJ TECHNOLOGY INVESTMENTS 5

District Court relied upon a ground that is colorably 

characterized as subject-matter jurisdiction.” Powerex 

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 234 

(2007). Here, the district court repeatedly stated the 

position that “the Court does not have subject matter 

jurisdiction.” We therefore lack jurisdiction to review the 

remand decision.

B. 

MPHJ argues that § 1447(d) is “not even relevant” to 

our review of the district court’s failure to address 

MPHJ’s motions to dismiss for lack of personal jurisdiction and for sanctions. Although § 1447(d) is not of itself 

dispositive of the reviewability of a motion for sanctions, 

the district court’s remand order dominates any proceedings on this appeal.

MPHJ cites the Supreme Court’s decision in Ruhrgas 

AG v. Marathon Oil Co., 526 U.S. 574 (1999), as showing 

that personal jurisdiction and subject matter jurisdiction 

are distinct concepts, and that district courts have discretion under certain circumstances to address personal 

jurisdiction before turning to subject matter jurisdiction. 

Id. at 588. However, Ruhrgas does not create an exception to the § 1447(d) bar.

C. 

MPHJ offers additional arguments, but none permits 

this court to depart from § 1447(d), even if there were 

legal error on the part of the district court in ruling that it 

lacked jurisdiction. See Powerex, 551 U.S. at 236.

Accordingly,

IT IS ORDERED THAT: 

(1) The State of Vermont’s motion to dismiss is 

granted. The petition and appeal are dismissed.

(2) Each side shall bear its costs. 
6 STATE OF VERMONT v. MPHJ TECHNOLOGY INVESTMENTS

(3) The State’s motions to take judicial notice are 

granted.

(4) The State’s motion to strike is moot.

 FOR THE COURT

 /s/ Daniel E. O’Toole 

Daniel E. O’Toole 

Clerk of Court