*The Honorable James M. Burns, United States

District Judge for the District of Oregon, sitting

by designation.

 The Honorable Donald J. Stohr, United States District Judge 1

for the Eastern District of Missouri.

____________

No. 95-3163

____________

Robert Carney; Sheila Carney, *

*

Appellees, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

BIC Corporation, *

*

Appellant. *

____________

 Submitted: April 10, 1996

 Filed: July 8, 1996

____________

Before McMILLIAN, FAGG and BURNS, District Judge. *

____________

McMILLIAN, Circuit Judge.

BIC Corporation (BIC) appeals from a final order entered in the

United States District Court for the Eastern District of Missouri

1

remanding to Missouri state court for want of federal jurisdiction the

products liability action brought by Robert Carney and Sheila Carney,

husband and wife (collectively plaintiffs) against BIC. Carney v. BIC

Corp., No. 4:95CV417-DJS (E.D. Mo. July 14, 1993) (Order). For reversal,

BIC argues that the district court erred in holding that it lacked removal

jurisdiction to entertain plaintiffs’ action after the stipulated dismissal

of
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defendant Clifford Massie, d/b/a/ Massie One Stop (Massie), pursuant to Mo.

Rev. Stat. § 537.762. For the reasons discussed below, we dismiss the

appeal pursuant to 28 U.S.C. § 1447(d) for lack of jurisdiction.

I. Background

The underlying facts are not in dispute. Plaintiffs’ two-year-old

son died on January 30, 1992, because of injuries sustained while

attempting to use a butane lighter manufactured by BIC. On July 28, 1994,

plaintiffs filed the present wrongful death and personal injury action in

the Circuit Court of the city of St. Louis against BIC and Massie, a

commercial retailer who had sold the lighter to plaintiffs. BIC is

incorporated in New York and has its principal place of business in

Connecticut. At the time the present action was commenced, however,

plaintiffs and Massie were residents of the State of Missouri. Therefore,

diversity of citizenship did not exist between the parties when plaintiffs

filed their complaint against BIC and Massie. 
 Mo. Rev. Stat. § 537.762 provides as follows: 2

537.762. Motion to dismiss, defendant

whose liability is as seller in stream

of commerce, requirements, procedure -

order of dismissal

1. A defendant whose liability is

based solely on his status as a seller

in the stream of commerce may be

dismissed from a products liability

claim as provided in this section.

2. This section shall apply to any

products liability claim in which

another defendant, including the

manufacturer, is properly before the

court and from whom total recovery may

be had for plaintiffs’ claim.

3. A defendant may move for dismissal

under this section within the time for

filing an answer or other responsive

pleading unless permitted by the court

at later time shown.

4. The parties shall have sixty days

in which to conduct discovery on the

issues raised in the motion and

affidavit. The court for good cause

shown, may extend the time for

discovery, and may enter a protective

order pursuant to the rules of civil

procedure regarding the scope of

discovery on other issues.

5. Any party may move for a hearing

on a motion to dismiss under this

section. If the requirements of

subsections 2 and 3 of this section are

met, and no party comes forward at such

hearing with evidence of facts which

would render the defendant seeking

dismissal under this section liable on

some basis other than his status as a

seller in the stream of commerce, the

court shall dismiss without prejudice

the claim as to that defendant.

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On January 11, 1995, Massie filed a motion seeking dismissal from

plaintiffs’ complaint pursuant to Mo. Rev. Stat. § 537.762 (1987). As

2
6. No order of dismissal under this

section shall operate to divest a court

of venue or jurisdiction otherwise

proper at the time the action was

commenced. A defendant dismissed

pursuant to this section shall be

considered to remain a party to such

action only for such purposes.

7. An order of dismissal under this

section shall be interlocutory until

final disposition of plaintiff’s claim

by settlement or judgment and may be

set aside for good cause shown at

anytime prior to such disposition.

Mo. Rev. Stat. § 537.762 (1987) (emphasis added).

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required by § 537.762(3), Massie’s motion to dismiss
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was accompanied by an affidavit stating that he was aware of no facts or

circumstances supporting his liability other than his status as a seller

in the stream of commerce. On February 23, 1995, plaintiffs and Massie

entered into a stipulation of dismissal, which provided that Massie “shall

remain a party to this action only for the purposes of venue and

jurisdiction as provided in. . . § 537.762(6) (1987).” App. 71. 
 BIC also filed a petition for writ of mandamus on August 21, 3

1995. This court denied the petition on November 2, 1995.

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On March 3, 1995, BIC removed the present case to the United States

District Court for the Eastern District of Missouri, alleging that the

stipulated dismissal of Massie had created diversity of citizenship between

the parties. Upon motion by plaintiffs, the district court entered an

order remanding the case to the Circuit Court of the City of St. Louis on

July 14, 1995. This appeal followed.3

II. Discussion

The district court determined that a remand order was appropriate in

the present case because the dismissal of Massie did not create removal

jurisdiction based upon the diversity of the parties. In reaching this

conclusion, the district court noted that the stipulation of dismissal

expressly stated that Massie would remain a party to the action for the

purpose of venue and jurisdiction, in accordance with § 537.762(6). The

district court also held that § 537.762 was not, as BIC argued, an

“impermissible attempt by state law to defeat removal jurisdiction.” Slip

op. at 2.

On appeal, BIC contends that the district court erred in remanding

the present action to Missouri state court, because (1) § 537.762 does not

apply where a co-defendant is dismissed by stipulation rather than by order

and (2) § 537.762 was never intended to affect federal diversity

jurisdiction, or alternatively, the statute is invalid to the extent that

it limits diversity jurisdiction. We may not address the merits, however,

unless we determine that we have jurisdiction to review the district

court’s remand order. Title 28 U.S.C. § 1447(d) provides that, with the

exception of civil rights case, “[a]n order
 28 U.S.C. § 1447(c) currently provides in pertinent part: “If 4

at any time it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” At the time the Supreme

Court decided Thermtron, however, § 1447(c) stated that “[i]f at

any time before final judgment it appears that the case was removed

improvidently and without jurisdiction, the district court shall

remand the case.” 

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remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise.” In Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 346 (1976) (Thermtron), the Supreme Court

clarified that “only remand orders issued under § 1447(c) and invoking the 4

grounds specified therein . . . are immune from review under § 1447(d)".

Id. In Thermtron, the district court had remanded an otherwise proper

diversity action solely because of its crowded docket. Concluding that the

district court had exceeded its statutorily defined power by remanding the

case on a basis not specified in § 1447(c), the Supreme Court held that a

writ of mandamus was the appropriate remedy to compel the district court

to entertain the action. Id. at 352-53.

BIC contends that the present case falls within the Thermtron

exception because the district court’s remand order was not based upon a

ground specified in 28 U.S.C. § 1447(c) -- i.e., the lack of subject matter

jurisdiction -- but rather, was premised upon Mo. Rev. Stat. § 537.762(6),

which provides that retailers who have been dismissed from products

liability actions on the basis that their liability stems solely from their

status as sellers in the stream of commerce shall remain defendants for

purposes of venue and jurisdiction. In addition to Thermtron, BIC relies

on Karl Koch Erecting Co. v. New York Convention Center Dev. Corp., 838

F.2d 656, 658-59 (2d Cir. 1988) (Karl Koch). In Karl Koch, the Second

Circuit held that a remand order based on the district court’s

interpretation of a forum selection clause was reviewable because the

district court had gone beyond the jurisdictional determination and made

a decision affecting the merits of the case. See id. (reasoning that the

policy underlying 28 U.S.C. § 1447(d) 
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-- preventing protracted litigation of jurisdictional questions -- was

inapplicable to remand orders based upon interpretation of forum selection

clause); see also Pelleport Investors, Inc. v. Budco Quality Theatres,

Inc., 741 F.2d 273, 277 (9th Cir. 1984) (holding that remand order based

on enforceability of forum selection clause was reviewable).

In response, plaintiffs argue that 28 U.S.C. § 1447(d) forecloses

review of the remand order, because the order was based upon the district

court’s determination that, in light of Mo. Rev. Stat. § 537.762(6), it

lacked removal jurisdiction to entertain plaintiffs’ action. Plaintiffs

also maintain that the present case more closely resembles Hansen v. Blue

Cross, 891 F.2d 1384, 1388 (9th Cir. 1989) (Hansen), than Karl Koch. In

Hansen, the Ninth Circuit held unreviewable a remand order based upon the

district court’s determination that the insurance plan at issue was not

subject to ERISA. Id. The Ninth Circuit reasoned that the remand order

did not fall within the Thermtron exception because “[t]he district court’s

decision that Hansen’s plan was not subject to ERISA, rather than being

apart from the question of subject matter jurisdiction, was necessary to

determine whether such jurisdiction existed.” Id. Plaintiffs argue that

the reasoning of Hansen also applies in the present case. We agree and

hold that the district court’s remand order is not reviewable on appeal.

We are bound by the general rule of non-reviewability of remand

orders set forth in 28 U.S.C. § 1447(d). The remand order in the present

case does not come within the Thermtron exception, because it was based on

a ground specified in 28 U.S.C. § 1447(c) -- the district court’s

determination that it lacked subject matter jurisdiction to hear the

action. After noting that the stipulated dismissal provided that, in

accordance with Mo. Rev. Stat. § 537.762(6), Massie would remain a party

in the action for purposes of venue and jurisdiction, the district court

concluded that the dismissal of Massie did not create removal jurisdiction
 Thus, we do not reach the merits of BIC’s challenge to the

5

remand order.

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based upon diversity of citizenship and remanded the present case to

Missouri state court. Thus, the remand order was based solely upon the

district court’s conclusion that removal jurisdiction did not exist.

Although the district court applied Mo. Rev. Stat. § 537.762(6) in reaching

this conclusion, its consideration of § 537.762(6) was in no way separate

from the jurisdictional determination. Therefore, the present case is

distinguishable from Karl Koch, in which the remand order at issue was

based upon a matter affecting the merits of the case. By contrast, the

district court in the present case made no determinations concerning the

substantive rights of the parties. Thus, the remand order falls squarely

within 28 U.S.C. § 1447(d) and is foreclosed from appellate review.

III. Conclusion

We hold that the district court’s order remanding the present case

to the Circuit Court of the City of St. Louis is unreviewable on appeal.5

Accordingly, we dismiss the appeal pursuant to 28 U.S.C. § 1447(d) for lack

of jurisdiction.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.