UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

PATRICK J. MALLOY, III, Bankruptcy Trustee for the Bankruptcy Estate of George David Gordon, Jr., Plaintiff - Appellee,

v. COMMERCE BANK, N.A.; BRUCE C. HUMPHREY, Defendants - Appellants. No. 13-5065 (D.C. No. 4:13-CV-00059-JHP-FHM) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and BACHARACH , Circuit Judges.
“Congress has placed broad restricti ons on the power of federal appellate courts to review district court orders remanding remove d cases to state court.” Things Remembered, Inc. v. Petrarca , 516 U.S. 124, 127 (199 5). This is a case in point.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 11, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Patrick J. Malloy, III, trustee for th e bankruptcy estate of George David Gordon, Jr., filed suit in Oklahoma state court agains t Commerce Bank, N.A. and Bruce C. Humphrey, one of the bank’s offi cers. The suit alleged that Defendants were liable for facilitating Mr. Gordon’s stock schemes, for which he was criminally convicted, and for sharing in his profits. It asserted claims for (1) aiding and abetting violations of Oklahoma s ecurities laws, (2) civil c onspiracy to commit fraud, (3) aiding and abetting breach of fiduciary duty, (4) negligent supervision of Mr. Humphrey by Commerce Bank, and (5) fraudulent-transfer violations under federal and Oklahoma law. Defendants removed the suit to federa l court, claiming fe deral jurisdiction under (1) the Securities Litigation Unif orm Standards Act (SLUSA), 15 U.S.C. § 78bb(f); (2) the Class Action Fairness Act (CAFA), 28 U.S.C. §§ 1332 and 1453; (3) federal-question jurisdic tion, 28 U.S.C. §§ 1441 and 1331, because the claims concerned bankruptcy and banking law; a nd (4) 28 U.S.C. §§ 14 52(a) and 1334(b), because the fraudulent-tr ansfer claim arose in a bankruptcy case. Mr. Malloy moved to remand, asserting that (1) the distri ct court lacked subject-matter jurisdiction over the SLUSA and CAFA claims; (2) his first four claims did not arise under fe deral law or in a bankruptc y case and therefore were subject to mandatory abstenti on under 28 U.S.C. § 1334(c)(2 ); (3) his fifth claim for fraudulent transfer arose in part under bankruptcy law, but 28 U.S.C. § 1334(c)(1) gave the district court disc retion to abstain from hear ing the claim and the court- 3 - should exercise that discreti on since the other four claims were subject to mandatory abstention; and (4) equitable considera tions favored remand of all claims under 28 U.S.C. § 1452(b). In response, Defendants argued that the case was properly removed (1) because the federal court had jurisd iction under the SLUSA, the CAFA, and federal-question jurisdiction; (2) because mandatory, discreti onary, and equitable abstention were not required or appropriate in light of th e three independent grounds for federal jurisdiction and because the case was intertwined with Mr. Gordon’s bankruptcy and federal criminal-forfeitu re proceedings; and (3) because the fraudulent-transfer claim aros e in bankruptcy and was in tertwined with the other claims. Mr. Malloy filed a reply, reiterating hi s previous contentions. In a minute order the district court granted Mr. Mall oy’s motion to remand “for the reasons set forth in Plaintiff’s Memorandum in Suppor t of Plaintiff’s Motion to Remand and in Plaintiff’s Reply Memorandum in Support of Plaintiff’s Motion to Remand.” Aplt. App. at 284 (citations to docket numbers omitted). Because the reviewability of a remand or der may depend on the ground for the remand, we consider in turn the grou nds relied on by Mr. Malloy (which were adopted by the district court). First, the district court remande d under § 1447(c) for lack of subject-matter jurisdiction. S ection 1447(d) precludes our review of a remand on that ground as long as “the basis for the distri ct court’s decision can be- 4 - colorably characterized as s ubject-matter jurisdiction.” Moody v. Great W. Ry ., 536 F.3d 1158, 1163 (10th Cir. 2008) (internal quotation marks omitted); see Things Remembered , 516 U.S. at 129 (recognizing app licability of § 1447(d) when bankruptcy case is remanded to state court for lack of s ubject-matter jurisdiction). Second, to the extent that the court ab stained under §§ 1334(c)(1) or (2) from considering claims related to a bankruptcy case, our re view of the abstention is precluded by § 1334(d); and to the extent that the court remanded bankruptcy-related claims on equitable grounds under § 1452(b), that section also prohibits appellate review of the remand. See Allied Signal Recovery Tr ust v. Allied Signal Inc ., 298 F.3d 263, 269 (3d Cir. 2002) (discussing §§ 1334(c) and (d) and 1452(b) and noting congressional intent that remand in bankruptcy cases be barred from review). Thus, in light of the grounds for remand re lied on by the district court, we have no jurisdiction to review the remand. Defendants argue, however, that Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing , 545 U.S. 308, 313 (2005), s upports their position that remand was reviewable. Grable sets forth a framework for determining when “federal-question jurisdiction will lie over st ate-law claims that implicate significant federal interests.” Id . at 312. In that context a c ourt needs to ask: “[D]oes a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain wit hout disturbing any congressionally approved balan ce of federal and state judi cial responsibilities[?]” Id

.- 5 - at 314. Defendants assert th at the final consideration, balancing federal and state responsibilities, sets forth an abstention doctrine, and that remand based on such abstention is reviewable under Quackenbush v. Alls tate Insurance Co. , 517 U.S. 706, 711-12 (1996). The flaw in this argument is that no issue of a Grable balancing between federal and state responsibilities wa s implicated in the remand order. The district court expressly ba sed remand on Mr. Malloy’s init ial and reply memoranda in support of his motion for remand; but hi s initial memorandum di d not even cite Grable , and his reply addressed Grable only to say that his claims did not “necessarily raise” an issu e of federal law and neve r presented an argument concerning a federal/ state balance. We therefore conclude that we lack ju risdiction to review Defendants’ appeal from the district court’s remand or der. We dismiss this appeal. Entered for the Court

Harris L Hartz Circuit Judge