* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40130

Summary Calendar

STATE OF TEXAS,

Plaintiff-Appellee,

versus

RICHARD JOHN FLORANCE, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(4:06-CV-510)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Proceeding pro se, Richard John Florance, Jr., appeals the

district court’s sua sponte remanding this action, pursuant to 28

U.S.C. § 1447(c), to Texas state court. Appellee has not filed a

brief.

On 22 December 2006, Florance removed the underlying statecourt action to district court, relying, inter alia, on 28 U.S.C.

§ 1331 (federal-question jurisdiction). The State of Texas did not

move for remand. Within 30 days of such removal, however, on 19
2

January 2007, the district court sua sponte remanded the action due

to Florance’s failure to attach to his removal notice a copy of the

underlying state-court pleadings, in violation of local court rule.

In so doing, the district court cited Corry v. City of Houston, 832

F. Supp. 1095 (S.D. Tex. 1993), for the proposition that a

“district court may sua sponte remand a case for procedural defects

within thirty days of removal”. The district court did not provide

any other basis for remand.

“Our standard of review as to determinations of jurisdiction

is plenary.” Bogle v. Phillips Petroleum Co., 24 F.3d 758, 760

(5th Cir. 1994). Along that line, “[a]n 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). Our court “ha[s]

construed the § 1447(d) prohibition against appellate review of

remand orders as being limited to those situations where the

district court’s remand order is grounded upon either subject

matter jurisdiction or a timely filed [28 U.S.C.] § 1447(c) motion

asserting a defect in removal”. Albarado v. S. Pac. Transp. Co.,

199 F.3d 762, 764 (5th Cir. 1999); see also 28 U.S.C. § 1447(c).

Because, as noted, the only stated remand basis was a

procedural defect, § 1447(d) does not prohibit our reviewing the

remand order. See Albarado, 199 F.3d at 764; see also Certain

Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568,

572 (5th Cir. 2006) (“for a remand order to be reviewable on
3

appeal, the district court must ‘clearly and affirmatively’ state

a non-§ 1447(c) ground for remand”). 

Moreover, our court has held a “district court act[s] without

statutory authority when it sua sponte remand[s] ... on procedural

grounds”. In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993)

(vacating district court’s sua sponte procedural-defect-based

remand order); see also Schexnayder v. Entergy Louisiana, Inc., 394

F.3d 280, 284 (5th Cir. 2004) (“[W]ithout a motion from a party,

[a] district court’s [procedural-defect-based] remand order is not

authorized by § 1447(c)”.). The district court’s remand order,

therefore, exceeded its authority. Accordingly, the order is

vacated, and this matter remanded to district court for further

proceedings consistent with this opinion.

VACATED AND REMANDED