### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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/ d e fendant, Cesare Wright, appeals the district court’s order remanding h i s c a s e to state court and the court’s imposition of a $25,000 Rule 11 sanction. We DISMISS the appeal. Wright removed this case, whic h concerns the ownership of footage of a motion picture, just one day before trial was to start in state court and long after U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 20, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld * not be publ ish ed and is not pr ece dentexc eptund er the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20560 Document: 00511961838 Page: 1 Date Filed: 08/20/201211-20560

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 h i s removal proper, but the district court disagreed. The district court found that the removal was untimely because Wright could not avail himself of the revival e x c eption 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 l a w suit,” and thus the revival exception was inappl i c ab l e . Johnson v. Heublein Inc. , 227 F.3d 236, 241 (5th Cir. 2000). The district court also concluded that the

ap p ell ant’s timing in removing the case was objectively unreasonable per F E D
. R

. C IV
. P. 11(b) and as a result imposed sanctions. After the instant appeal was filed, the distri c t c o u rt 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 ab o u t w h e n 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, 127S. Ct. 2411, 2417 (2007). Appell a nt p oints to Carlsbad Tech., Inc. v. HIF Bio, Inc. , 556 U.S. 635, 129 S. Ct. 186 2 ( 2 0 0 9) , to argue that the remand order is reviewable by this court. Carlsbad is inapposite, however, because in that case

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the district court had discretion to retain or remand state law claims based on supplemental j u ri s diction. Id. at 637, 129 S. Ct. at 1865. The Supreme Court held that when the district court declined to ret a i n s t a t e 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 co u rt f o u n d that removal by Wright was statutorily barred because it was not within t h e statutory time limit. While Wright argues that this tim i n g r e quirement should be considered nonjurisdictional like the 28 U.S.C. § 1367(c)(3) remand in Carlsbad , his argument is foreclos e d by our circuit’s precedent in BEPCO, L.P. v. Santa Fe Minerals, Inc. , 675 F.3d 466 (5th C i r . 2 0 1 2). 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] app e a l

. ” Id. at 470. Accordingly, we DISMISS the appeal of the remand orde r a n d the imposition of sanctions.

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