* Circuit Judge of the Ninth Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

Nos. 91–6363, 91–6364.

In re INTERNATIONAL PAPER COMPANY, Petitioner.

Alexander GRASSI, Sr., etc., Plaintiffs–Appellees,

v.

INTERNATIONAL PAPER COMPANY, Defendant–Appellant.

June 1, 1992.

Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Appeal from the United States District Court for the Southern District of Texas.

Before SNEED * , REAVLEY and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

The district court remanded this case to state court "in the spirit of federalism." Because the

district court lacked au t ho rit y to remand on that ground, we grant International Paper Company's

petition for a writ of mandamus and vacate the district court's remand order.

I. BACKGROUND

In 1983, Alexander and Karen Grassi, acting individually and as next friends of their three

children, filed suit in Texas state court alleging that the insulation in their home released formaldehyde

gases that caused th em physical and emotional injuries. The Grassis ultimately joined Ciba Geigy

PLC (CG–PLC), an English corporati on which man ufact ured t he insulation, as a defendant in the

case. CG–PLC received notice in 1985 but failed to appear. On September 28, 1986, the state court

entered a default judgment against CG–PLC for $21,382,843.While investigating ways to enforce this judgment , the Grassis discovered that CG–PLC

owned all of the shares of another English corporati on, Ilford Limited, which in turn owned all of the

shares of Ilford Photo Corporati on, a Delaware corporati on with headquarters in New Jersey. Ilford

Photo was apparently the only asset that CG–PLC owned or controlled in the United States. On

October 26, 1988, the Grassis filed an application for turnover relief in the Texas court that entered

the original judgment, seeking an order requiring Ilford Limited, on behalf of CG–PLC, to turn over

the Ilford Photo shares to the county sheriff fo r execution. Under the Texas "turnover statute," a

court may order a judgment debtor to turn over nonexempt property that is "i n the debtor's

possession

or is subject to the debtor's control." T E X .C IV .P RAC

. & R EM

. § 31.002(b)(1) (Vernon

1986). As permitted by the turnover statute, the Grassis filed the application for turnover relief as

a continuation of the suit that they originally filed in 1983. See id. § 31.002(d).

Ilford Pho t o removed the turnover proceeding to federal court on November 23, 1988,

alleging federal diversity jurisdiction under 28 U.S.C. § 1332. The Grassis moved for remand to state

court, arguing that, because the turnover proceeding was a continuation of the suit that they originally

filed in 1983, 28 U.S.C. § 1446(b) prevents re mo val. Under section 1446(b), "a case may not be

removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after

commencement of the action." The district court agreed with the Grassis and remanded the case on

March 14, 1989.

During the delay caused by the removal and remand, Ciba Geigy L imited (CG–Limited),

which owns CG–PLC, pursued plans to sell its interest in Ilford Photo. Less than a month after the

district court remanded the turnover application to state court, Internation al Paper Company

purchased Ilford Photo and other related businesses from CG–Limited for $241 million. As part of

this deal, CG–Limited agreed to indemnify International Paper for any losses that might arise from

the pending turnover proceeding.On August 29, 1990, the Grassis voluntarily dismissed their original turnover action and filed

an amended application for turnover relief (the Amended Application) in the state court. The Grassis

named International Paper as a defendant in the Amended Application, and alleged that International

Paper purchased Ilford Photo in violation of the Uniform Fraudulent Transfer Act (UFTA), T EX .B US

.

& C OM .C ODE §§ 24.001–.013 (Vernon 1987). The Grassis asked the state court to: (1) hold that,

under section 24.008(a)(1) of the UFTA, the transfer of Ilford Photo was void to the extent necessary

to satisfy the original judgment; and (2) order International Paper to turn over the Ilford Photo shares

that it fraudulently acquired. Like the original application, the Grassis filed the Amended Application

as a continuation of the suit that they originally filed in 1983.

International Paper removed the Grassis' Amended Application to federal court on September

21, 1990. In its notice of removal, Int ernational Paper asserted that the fraudulent transfer claim

co nst itutes a new and independent civil action and thus is removable despite the one-year rule o f

section 1446(b). CG–PLC did not join International Paper's notice of removal. On October 10,

1990, the Grassis filed a motion to remand, in which they argued that: (1) because the fraudulent

transfer claim is part of the Amended Application for turnover relief, it is not a new and independent

action and thus section 1446(b)'s one-year rule prohibits removal; and (2) because the transfer was

fraudulent, CG–PLC retained an equitable interest in Ilford Photo and thus CG–PLC's failure to join

in International Paper's notice of removal required remand.

The district court granted the Grassis' motion to remand on December 13, 1991. Because the

parties dispute the district court's reason for granting remand, we quote much of the district court's

order:

After extensively reviewing the pleadings, the motions and the numerous

accompanying briefs, it seems one question is begging to be asked before a motion to remand

can be granted. That question concerns whether o r no t fraud has occurred. If there is no

fraud, then this case rightfully belongs in this court as a separate and independent action court

under diversity jurisdiction. On the other hand, if fraud exist s, t he plaintiffs' claim to the

contested property is a direct extension of the state court suit for turnover relief and properlybelongs in state court because of Ciba Geigy PLC's delay in filing for removal. Though on

its face [International Paper] is a "new" party, that again is entangled in the issue of whether

fraud exists.

In American National Bank of Austin v. Mortgageamerica Corp., 714 F.2d 1266 (5th

Cir.1983), the Fifth Circuit dealing with the application of the Texas Fraudulent Transfers Act

stated such an action was:

essential ly one for property which properly belongs to the debtor and which the

debtor has fraudulently transferred in an effort to put out of reach of the credi tors....

The transferee may have colorable title to the property

, but the equitable interest—at

least as far as the creditors (but not the debtor) are concerned—is considered to

remain in the de bt or so that creditors may attach or execute judgment upon it as

though the debtor had never transferred it.

Id. at 1275. If this court were to delve into the existence of fraud in determining whether this

case should be remande d, t hen the heart of the litigation would be settled. If it was found

fraud existed, this court would ha ve t o remand to state court with the bulk of the matter

predetermined before the state fact finder had an opportuni ty to make its own findings. In

the spirit of federalism it would be wiser to leave this essential finding in the hands of the state

court.

On December 30, 1991, International Paper filed a notice of appe al and, alternatively, a

petition for writ of mandamus. We consider these together.

II. DISCUSSION

A. R EVIEWABILITY

Whenever a party asks this court to vacate or reverse a district court's remand order, "the

threshold question that confronts us is whether we have jurisdiction to consider [the] petition." I n

re Allied–Signal, Inc. 919 F.2d 277, 279 (5th Cir.1990). "An order remanding a case to the State

court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d).

The Supreme Court has construed section 1447(d) i n pari materia with section 1447(c) and

concluded that "only remand orders issued under § 1447(c) and invoki ng t he grounds specified

therein

... are immune from review under § 1447(d)." T hermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976). In light of Congress' post- T hermtron

amendment of section 1447(c) , t his court has concluded that "remand orders for lack of subject

matter jurisdiction [are] the only clearly unreviewable remand orders." I n re Shell Oil Co., 932 F.2d

1518, 1520 (5th Cir.1991), cert. denied, ––– U.S. ––––, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992).Although it is an open question, section 1447(d) may also prevent us from reviewing remand orders

that are based on a t imely-filed motion that alleges a "defect in removal procedure." S ee id. at 1520

n. 5; M cDermott Int'l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1201 (5th Cir.1991).

We need not reach that question in this case.

The Grassis contend that sectio n 1447(d) prevents us from reviewing this remand order

because the district court based it on a lack of subject matter jurisdiction and on a timely motion

alleging a defect in removal procedure. According to the Grassis' interpretation of the remand order,

the district court accepted their arguments that section 1446(b)'s one-year rule and CG–PLC's failure

to join the notice of removal required remand. We disagree. The dist rict court believed that the

one-year rule would require remand if the transfer of I lford Photo to Internati onal Paper was

fraudulent because, in that case, the existence of fraud would allow the turnover acti on to proceed

against International Paper as an extension of the 1983 suit. But the court also believed that, if it

determined that fraud was involved in the transfer, there would be little left to remand because the

existence of fraud was the essential fact issue in the turnover proceeding. So the court remanded the

case because "[i]n the spirit of federalism it would be wiser to leave this essential finding in the hands

of the state court."

Because the district court remanded this case "in the spirit of federalism," and not because it

lacked subject matter jurisdiction or because of a defect in removal procedure, section 1447(d) does

not prevent us from reviewing the remand order.

B. R EVIEW BY A PPEAL OR M ANDAMUS ?

We now consider whe t her we review the district court's remand order by appeal or

mandamus. M

cDermott recently addressed this question, and w e need not repeat that di scussi on

here. S ee 944 F.2d at 1201–04. When a district court has remanded a case without authority to do

so, we review by mandamus. Id. at 1203 (citing Thermtron, 423 U.S. at 352–53, 96 S.Ct. at 594).Presumably, we will always vacate a remand order that we review by mandamus because the district

court lacked authority to remand the case on the stated grounds. If, however, the district court had

aut ho rit y to remand on the stated grounds, we review by appeal to determine whether the court

properly exercised its authority in that particular case. Id. at 1203–04.

As this court explained in McDermott, there are three potential sources of a district court's

authority to remand a case: (1) statutes that grant such authority; (2) a contract between the parties;

and (3) circumstances t hat give the court discretion to dismiss the case. I d. at 1204. The district

court in the present case, however, based its remand order on "the spirit of federalism," and not on

one of these three sources. Because the district court remanded this case without authority to do so,

we review by mandamus and vacate the district court's remand order.

C. D ISPOSITION

We remand this case for the district court to consider the merits of the Grassis' motion to

remand, and we offer the following guidance for the court's consideration. The Grassis argued that

section 1446(b)'s one-year rule and CG–PLC's failure to join International Paper's notice of removal

made removal improper. If the Grassis' Amended Application is a continuation of the action filed in

1983, then the Grassis are correct. The district court believed that, to determine whether it could

treat the Amended Application as a continuation of the suit filed in 1983, it needed to determine

whether there was fraud in the transfer of Ilford Photo. But the question is actually whether, under

Texas law, a plaint iff may seek t urnover relief from a new defendant by alleging that the new

defendant obtained the property in viol at io n o f t he UFTA and thus the original defendant (the

judgment debtor) retains ownership or control of the property

. The key jurisdictional question is not,

as the district court believed, whether there was in fact fraud in the transfer, but whether the Grassis

can seek to prove that there was fraud in the transfer as part of their attempt to obtain relief under

the turnover statute.If the dist rict court determines that the Grassis can allege that International Paper is a

fraudulent transferee as part of the ir claim for turnover relief, then the Amended Application is an

extension of the 1983 suit and the district court must remand this c ase to state court under the

one-year rule of section 1446(b). If the Grassis cannot include the fraud claim in the turnover

application, then the Amended Application asserts a fraudulent transfer claim against International

Paper that is separate and independent from the 1983 suit.

We GRANT the petition for mandamus, VACA TE t he district court's remand order, and

REMAND the case to the district court. International Paper's appeal is DISMISSED.