In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1422

ROBERT LINDNER, Special Administrator

of the Estates of BURTON R. LINDNER and

ZORINE LINDNER, deceased,

Plaintiff-Appellee,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 12 C 5344 — Samuel Der-Yeghiayan, Judge. 

ARGUED APRIL 7, 2014 — DECIDED AUGUST 11, 2014

Before WOOD, Chief Judge, and KANNE and SYKES, Circuit

Judges.

SYKES, Circuit Judge. Robert Lindner’s parents were killed

when a Union Pacific train derailed and caused a bridge to

collapse. Soon after the accident, Lindner filed this wrongfulCase: 13-1422 Document: 00712304270 Filed: 09/02/2014 Pages: 9

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death action against Union Pacific in Illinois state court. Union

Pacific removed the case to federal court, asserting diversity

jurisdiction: The Lindners were domiciled in Illinois, whereas

Union Pacific is a Delaware corporation with its principal place

of business in Nebraska. After conducting some initial discovery, Lindner sought leave to amend his complaint to add

claims against two Illinois residents who worked for Union

Pacific. The district court granted the request and, because the

parties were no longer completely diverse, remanded the case

to state court.

Union Pacific appeals, but we lack jurisdiction to hear the

case. An order remanding a case to state court for lack of

subject-matter jurisdiction “is not reviewable on appeal or

otherwise.” 28 U.S.C. § 1447(d). We have no appellate jurisdiction to consider the other part of the district court’s order,

granting leave to amend the complaint, because it was not a

final order in any sense; it did not grant or deny relief on the

merits of any claim, and it can be revisited and challenged at

later stages of the litigation. Alternatively, Union Pacific asks

us to treat the appeal as a petition for mandamus. Because the

order granting leave to amend can be reviewed in state court,

mandamus relief is neither necessary nor appropriate. Thus,

Union Pacific’s appeal and request for a writ of mandamus

must be dismissed.

I. Background

Burton and Zorine Lindner were driving under a bridge

near Glenview, Illinois, when a Union Pacific train derailed

overhead. The derailment caused the bridge to collapse,

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crushing Burton and Zorine below. Their son Robert Lindner

filed this wrongful-death action in Illinois state court alleging

that Union Pacific caused the accident through its own negligence. 

At that time there was complete diversity between the

parties. The deceased Lindners were citizens of Illinois, and

their citizenship rather than Robert’s determines diversity

jurisdiction because Robert is merely a representative of their

estate. See 28 U.S.C. § 1332(c). Union Pacific, meanwhile, is a

Delaware corporation with its principal place of business in

Nebraska. The amount in controversy was more than $75,000.

Union Pacific timely removed the case to federal court.

Early in the discovery process, Lindner learned about two

Union Pacific employees who had been working at the scene of

the accident. One was Joe Scott, a signal inspector who had

called for an inspection of the track near the bridge where the

train derailed. The other was Jerome Griffin, a track inspector

who arrived at the track just before the derailment. Lindner

moved to amend his complaint to add negligence claims

against Scott and Griffin, arguing that they should have done

more to prevent the accident. Moreover, because Scott and

Griffin were both Illinois residents, Lindner asked the court to

remand the action back to state court.

Union Pacific opposed the proposed amendment on two

grounds. First, the railroad asserted that the amendment was

futile because any state-law claims against Scott and Griffin

would be preempted by federal law. See 49 U.S.C. § 20106.

Second, the railroad argued that even if the claims weren’t

preempted, the court should exercise its discretionary

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authority to deny any joinder that would destroy subjectmatter jurisdiction. See 28 U.S.C. § 1447(e).

The district court rejected Union Pacific’s arguments and

granted leave to amend. The court didn’t think the claims

would be preempted by federal law, either because they were

outside the scope of the preemption statute or because they

were exempted from preemption by the statute’s saving clause.

And the court concluded that joinder was appropriate because

Lindner had good reasons, unrelated to jurisdiction, for adding

the new claims. Because the amendment destroyed diversity,

the district court remanded the case to state court. Union

Pacific promptly appealed. 

II. Discussion

A. Appellate Jurisdiction

With a few exceptions not relevant here, orders remanding

a case to state court based on a lack of subject-matter jurisdiction are “not reviewable on appeal or otherwise.” § 1447(d).

Here, although subject-matter jurisdiction existed when the

case was removed, the addition of Scott and Griffin destroyed

diversity, and thus the district court was required to remand

the case. See § 1447(e) (requiring the district court to remand if,

in its discretion, it allows joinder that would destroy subjectmatter jurisdiction). Union Pacific does not dispute that

§ 1447(d) prevents us from reviewing a decision to remand on

this basis. See In re Fla. Wire & Cable Co., 102 F.3d 866, 868 (7th

Cir. 1996) (holding that § 1447(d) bars review of remands

required by § 1447(e)).

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Instead, the railroad argues that we should review only the

court’s contemporaneous decision to allow Lindner to amend

his complaint and join Scott and Griffin as defendants. The bar

against reviewing remand orders does not prevent us from

reviewing separate, appealable rulings that happen to be

contained in the same document as the remand order. See City

of Waco, Tex. v. U.S. Fidelity & Guar. Co., 293 U.S. 140, 143

(1934); Good v. Voest-Alpine Indus., 398 F.3d 918, 921–23 (7th Cir.

2005). For example, if a district court were to dismiss the one

claim in the case supporting federal jurisdiction and then in the

same order remand the remaining cross-claims, we would have

jurisdiction to review the dismissal order even though we

couldn’t review the decision to remand. Waco, 293 U.S. at 143.

Since the remand itself couldn’t be reviewed, reversing the

dismissal would simply send the case back to state court with

the original claim still intact. See id.

But this doctrine doesn’t help Union Pacific because there

is no appealable order here separate from the decision to

remand. See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224, 236 (2007) (“Waco does not permit an appeal when there is

no order separate from the unreviewable remand order.”);

Good, 398 F.3d at 925 (“Waco itself made clear that the order for

which appellate review is sought must independently be

reviewable.”). Our appellate jurisdiction extends to “final

orders,” 28 U.S.C. § 1291, but an order allowing the plaintiff to

amend the complaint isn’t a final order because it doesn’t

terminate the dispute; it doesn’t even grant or deny relief on

any of the plaintiff’s claims. See Wingerter v. Chester Quarry Co.,

185 F.3d 657, 662 (7th Cir. 1998) (holding that an order allowing

amendment of the complaint was not a final order).

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We also have jurisdiction to consider a small class of

“collateral orders” that although not “final orders” in the

technical sense, would be effectively unreviewable if they

couldn’t be appealed immediately. See Cunningham v. Hamilton

County, Ohio, 527 U.S. 198, 204 (1999); Travis v. Sullivan,

985 F.2d 919, 922 (7th Cir. 1993). But the collateral-order rule

offers no support for Union Pacific because there’s nothing

unreviewable about the court’s decision here: The state courts

are free to reject the district court’s reasoning on remand. See

Kircher v. Putnam Funds Trust, 547 U.S. 633, 647 (2006) (“While

the state court cannot review the decision to remand in an

appellate way, it is perfectly free to reject the remanding

court’s reasoning ... .”); Powers v. Southland Corp., 4 F.3d 223,

234–37 (3d Cir. 1993) (finding that order allowing joinder

would not be preclusive or unreviewable after remand). The

very fact that the district court’s ruling can’t be appealed

means that it will lack preclusive effect in the state court on

remand. See Kircher, 547 U.S. at 647 (“Collateral estoppel

should be no bar to ... revisitation of the preclusion issue

[decided prior to remand], given that § 1447(d) prevents the

funds from appealing the District Court’s decision.” (footnote

omitted)). Likewise, Illinois courts generally do not treat prior

rulings as the law of the case unless the previous order was

final, unlike the preliminary ruling allowing amendment of the

complaint here. See People v. Patterson, 610 N.E.2d 16, 41 (Ill.

1992) (“[A] finding of a final judgment is required to sustain

application of the [law-of-the-case] doctrine.”); Commonwealth

Edison Co. v. Ill. Commerce Comm'n, 858 N.E.2d 65, 76–77 (Ill. Ct.

App. 2006) (noting that “[t]he law-of-the-case doctrine binds a

court only where a court’s prior order was final” and declining

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to treat transferor court’s jurisdictional ruling as binding on

transferee court). That may explain why Illinois courts have

repeatedly declined to consider themselves bound by a federal

district court’s pre-remand ruling on a question of preemption.

See, e.g., Chi. Bd. Options Exch., Inc. v. Int'l Sec. Exch., L.L.C.,

973 N.E.2d 390, 397 (Ill. Ct. App. 2012) (“While ... [the district

court before remanding] rejected ISE’s preemption argument

on its merits, we are not bound to follow [that] ruling.”);

Hinterlong v. Baldwin, 720 N.E.2d 315, 323 (Ill. Ct. App. 1999)

(noting, without ruling on, Illinois trial court’s decision not to

treat federal court’s pre-remand preemption decision as law of

the case). Moreover, even if the law-of-the-case doctrine

applied, it could only bind a state trial court; the decision could

still be reviewed by the state appellate courts. See Powers, 4

F.3d at 234 (“[T]he law of the case doctrine would not limit the

state appellate court’s power to review the decision [of a district

court].”).

Because the court’s decision to allow Lindner to amend his

complaint is neither a final order nor an unreviewable collateral order, we have no jurisdiction to review it. That leaves

Union Pacific with nothing to appeal: Section 1447(d) bars any

consideration of the remand decision, and no other part of the

court’s order is appealable. We thus have no jurisdiction to

hear any appeal from the district court’s ruling. 

B. Mandamus Jurisdiction

In the alternative, Union Pacific asks us to issue a writ of

mandamus compelling the district court to deny plaintiff’s

motion to amend the complaint. The writ of mandamus “is a

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‘drastic and extraordinary’ remedy ‘reserved for really

extraordinary causes.’” Cheney v. U.S. Dist. Court, 542 U.S. 367,

380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)).

It is appropriate only if three conditions are satisfied: first,

there must be no other adequate means to remedy the problem; second, the party’s right to the writ must be clear and

indisputable; and third, the court must be satisfied that

granting the writ would be an appropriate exercise of its

discretion. Id.

Union Pacific’s request fails the very first condition.1

 As we

have explained, Union Pacific has adequate means to correct

any error in the district court’s decision: It can ask the state trial

court to reconsider the preemption issue and dismiss the

claims against Scott and Griffin, and if the trial court refuses,

state appellate courts can take up the question once there’s an

appealable judgment in the case. The defendants understandably do not wish to continue defending against claims that they

view as meritless—but in this regard they’re in the same

position as any other defendant who loses a motion to dismiss,

and mandamus relief is not appropriate merely because

defendants don’t want the burden of having to litigate the case

further. See Abelesz v. OTP Bank, 692 F.3d 638, 651 (7th Cir.

1

 We do not need to decide whether a writ of mandamus directed at the

district court would ever be appropriate in this situation. Recall that the

district court remanded the case to state court, an order that we cannot alter

“on appeal or otherwise.” 28 U.S.C. § 1447(d). Union Pacific has not

explained how we could issue an order compelling the district court to take

action in a case over which it has already relinquished jurisdiction. We

leave that issue for another day, however, since Union Pacific’s request fails

even if we assume that we could issue such an order.

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2012) (“[A]ppellate courts are not in the business of reviewing

routine denials of motions to dismiss ... and certainly not by

issuing a writ of mandamus.”). Rather, mandamus is reserved

for extraordinary situations in which the consequences of

denying review are much greater than those ordinarily

attending the rules barring piecemeal appeals. See, e.g., id. at

652 (granting mandamus in an “extraordinary” case in which

the failure to dismiss certain claims had serious foreign-policy

implications). 

DISMISSED.

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