IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20560

Summary Calendar

SPINDLETOP FILMS, L.L.C.; STF #1001, L.P.,

Plaintiffs - Appellees

v.

CESARE WRIGHT,

Defendants - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-4551

Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.

PER CURIAM:*

Appellant/defendant, Cesare Wright, appeals the district court’s order

remanding his case to state court and the court’s imposition of a $25,000 Rule

11 sanction. We DISMISS the appeal.

Wright removed this case, which concerns the ownership of footage of a

motion picture, just one day before trial was to start in state court and long after

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. 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not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

Case: 11-20560 Document: 00511961838 Page: 1 Date Filed: 08/20/2012
11-20560

the statutory thirty day window for removal had closed. Wright argued before

the district court that an amendment to the complaint made by the

plaintiffs/appellees made his removal proper, but the district court disagreed. 

The district court found that the removal was untimely becauseWright could not

avail himself of the revival exception under 28 U.S.C. § 1446(b). While the

plaintiff did amend the complaint, the amended complaint did not “substantially

. . . alter the character of the action and constitute essentially a new lawsuit,”

and thus the revival exception was inapplicable. Johnson v. Heublein Inc.,

227 F.3d 236, 241 (5th Cir. 2000). The district court also concluded that the

appellant’s timing in removing the case was objectively unreasonable per FED.R.

CIV. P. 11(b) and as a result imposed sanctions. 

After the instant appeal was filed, the district court granted Wright’s

Motion for Relief from the district court’s judgement as to sanctions. The district

court found that sanctions were not appropriate because Wright’s removal of the

case was not objectively unreasonable in light of new information about when

the state court trial would have actually started. In light of the district court’s 

order dated October 24, 2011, the sanctions portion of this appeal is moot and we

dismiss that portion of the appeal. 

As to the order to remand, we conclude that we are barred from reviewing

the order by 28 U.S.C. § 1447(d), which states that “an order remanding a case

to the state court from which it was removed is not reviewable on appeal.” See

also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct.

2411, 2417 (2007). Appellant points to Carlsbad Tech., Inc. v. HIF Bio, Inc.,

556 U.S. 635, 129 S. Ct. 1862 (2009), to argue that the remand order is

reviewable by this court. Carlsbad is inapposite, however, because in that case

2

Case: 11-20560 Document: 00511961838 Page: 2 Date Filed: 08/20/2012
11-20560

the district court had discretion to retain or remand state law claims based on

supplemental jurisdiction. Id. at 637, 129 S. Ct. at 1865. The Supreme Court

held that when the district court declined to retain state law claims after

dismissing the federal law claim, the remand was reviewable because it was not

based on a lack of subject matter jurisdiction, but was a discretionary decision

by the court. Id. at 641, 129 S. Ct. at 1867. 

In the instant case, the district court found that removal by Wright was

statutorily barred because it was not within the statutory time limit. While

Wright argues that this timing requirement should be considered nonjurisdictional like the 28 U.S.C. § 1367(c)(3) remand in Carlsbad, his argument

is foreclosed by our circuit’s precedent in BEPCO, L.P. v. Santa Fe Minerals,

Inc., 675 F.3d 466 (5th Cir. 2012). In BEPCO, we stated that “[b]ecause the

untimeliness of the removal petition was an independent and authorized reason

for remanding [the] case to state court, the district court’s remand order is

unreviewable. We therefore lack jurisdiction to consider [the] appeal.” Id. at

470. 

Accordingly, we DISMISS the appeal of the remand order and the

imposition of sanctions.

3

Case: 11-20560 Document: 00511961838 Page: 3 Date Filed: 08/20/2012