### *The Honorable James M. Burns, United State s

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 Cor poration (BIC) appeals from a final order entered in th e United S tates District Court for the Eastern District of Missour i 1 remanding to Missouri state court for want of federal jurisdiction th e produc ts liability action brought by Robert Carney and Sheila Carney , husband and wife (collectively plaintiffs) against BIC. Carney v. BI C Corp. , No. 4:95CV417- DJS (E.D. Mo. July 14, 1993) (Order). For reversal, BIC argues that the district court erred in hold ing that it lacked removal jurisdiction to entertain plaintiffs’ action after the stipulated dismissa l of

### -2-

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

. Rev. Stat. § 537.762. For the reasons discussed below, we dismiss th e 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 d ied on January 30, 1992, because of injuries sustained whil e 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 Circui t Court of the city of St. Louis against BIC and Massie, a commercia l retailer who had sold the lighter to plaintiffs. BIC i s incorpora ted in New York and has its principal place of business i n Conn ecticut. At the time the present action was commenced, however , plaintiffs and Massie were residents of the Stat e of Missouri. Therefore, diversity of citizenship did not exist between t he parties when plaintiffs filed their complaint against BIC and Massie.

### Mo. Rev. Stat. § 537.762 provides as follows: 2


### 537.762. Motion to dismiss, defendan t who se liability is as seller in strea m of commerce, requirements, procedure

- order of dismissal
1. A defendant whose liability i s based solely on his status as a selle r in the stream of commerce may b e dismissed from a products liabilit y claim as provided in this section. 2. Thi s section shall apply to an y products liability claim in whic h another defendant, including th e man ufacturer, is properly before th e cou rt and from whom total recovery ma y be had for plaintiffs’ claim. 3. A defendant may move for d ismissal und er this section within the time fo r filing an answer or other responsiv e pleading unless permitted by the cour t at later time shown. 4. The parties shall have sixty days in which to conduct discovery on th e issues raised in the motion an d aff idavit. The court for good caus e shown, may extend the time fo r discovery, and may enter a protectiv e ord er pursuant to the rules of civi l pro cedure regarding the scope o f discovery on other issues. 5. Any party may move for a hearin g on a motion to dismiss under thi s section. If the requirements o f subsections 2 a nd 3 of this section are met, and no par ty comes forward at such hearing with evidence of facts whic h wou ld render the defendant seekin g dismissal under this section liable o n som e basis other than his status as a sel ler in the stream of commerce, th e court shall dismiss without prejudic e the claim as to that defendant.
-3- On January 11, 1995, Massie filed a motion seeking dismissal fro m plaintiffs’ complaint pursuant to Mo. Rev. Stat. § 537.762 (1987). A s 2

### 6. No order of dismissal under thi s section shall o perate to divest a court of venue or jurisdiction otherwis e pro per at the time the action wa s commenced. A defendant dismisse d pursuant to this section shall b e con sidered to remain a party to suc h action only for such purposes. 7. An order of dismissal under thi s sec tion shall be interlocutory unti l fin al disposition of plaintiff’s clai m by settlement or judgment and may b e set aside for good cause shown a t anytime prior to such disposition. Mo. Rev. Stat. § 537.762 (1987) (emphasis added).
-4- 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 st ream of commerce. On February 23, 1995, plaintiffs and Massi e entered into a stipulation of dismissal, which p rovided that Massie “shall remain a party to this action only for the purposes of venue an d jurisdiction as provided in. . . § 537.762(6) (1987).” App. 71.

### BIC also fi led a petition for writ of mandamus on August 21, 3 

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

-6- On March 3, 1995, BI C removed the present case to the United States District Court for the Eastern District of Missouri, alleging that th e stipulated dismissal of Massie had created diversity of citizenship betwee n the p arties. Upon motion by plaintiffs, the district court entered a n order remanding the c ase 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 ord er was appropriate in the present case because the dismissal of Massie did not create remova l jurisdiction based upon the diversity of the parties. In reaching thi s conclu sion, the district court noted that the stipulation of dismissa l expressly stated that Massie would remain a party to the action for th e purpose of venue and jurisdiction, in accordance with § 537.762(6). The district court also held that § 537.762 was not, as BIC argued, a n “impermissible attempt by state law to defeat re moval jurisdiction.” Slip op. at 2.

On appeal, BIC contends that the district court erred in remanding the present action to Missouri state court, beca use (1) § 537.762 does not apply where a co-defendant is dismissed by stipulation rather than by orde r
an d (2) § 537.762 was never intended to affect federal diversit y jurisdiction, or alte rnatively, the statute is invalid to the extent that it limits diversity jurisdiction. We may not ad dress the merits, however, unle ss we determine that we have jurisdiction to review the distric t 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 Cou rt decided Thermtron , however, § 1447(c) stated that “[i]f a t any time before final judgment it appears that the case was removed im providently and without jurisdiction, the district court shal l remand the case.”
-7- remanding a case to the State court from which it was removed is no t reviewable on appeal or otherwise.” In Thermtron Products, Inc. v

. Herman sdorfer , 423 U.S. 336, 346 (1976) ( Thermtron ), the Supreme Cour t 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 prope r diversity action solely because of its crowded docket. Concluding that th e district court had exceeded its statutorily defi ned power by remanding the case on a basis not s pecified 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 co ntends that the present case falls within the Thermtro n 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 matte r jurisdiction -- but rather, was premised upon Mo . Rev. Stat. § 537.762(6), which provides that retailers who have been dismissed from product s liability actions on the basis that their liability stems solely from thei r status as sellers in the stream of commerce shall remain defendants fo r purposes of venue and jurisdiction. In addition to Thermtron , BIC relies

on Karl K och Erecting Co. v. New York Convention Center Dev. Corp. , 83 8 F.2d 656 , 658-59 (2d Cir. 1988) ( Karl Koch ). In Karl Koch , the Secon d Circui t held that a remand order based on the district court’ s interp retation of a forum selection clause was reviewable because th e 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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-- p reventing protracted litigation of jurisdictional questions -- wa s inapplicable to remand orders based upon interpr etation 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 res ponse, plaintiffs argue that 28 U.S.C. § 1447(d) foreclose s 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), i t lacked removal jurisdiction to entertain plaintiffs’ action. Plaintiffs also maintain that th e 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 Cir cuit held unreviewable a remand order based upon the dis trict court’s determination that the insurance plan at issue was no t 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 bein g apart from the question of subject matter jurisdiction, was necessary to determine whether suc h jurisdiction existed.” Id . Plaintiffs argue that the rea soning of Hansen also applies in the present case. We agree an d hold that the district court’s remand order is not reviewable on appeal.

We are bound by the general rule of non-reviewability of reman d orders set forth in 2 8 U.S.C. § 1447(d). The remand order in the present case does not come within the Thermtron exceptio n, because it was based on

a ground specified in 28 U.S.C. § 1447(c) -- the district court’ s determ ination that it lacked subject matter jurisdiction to hear th e action. After noting that the stipulated dismissal provided that, i n 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 c reate removal jurisdiction

### Thu s, we do not reach the merits of BIC’s challenge to th e 5 

### remand order.
-9- base d upon diversity of citizenship and remanded the present case t o Missouri state court. Thus, the remand order was based solely upon th e di strict court’s conclusion that removal jurisdiction did not exist

. Although the district court applied Mo. Rev. Stat. § 537.762(6) in reachin g this conclusion, its consideration of § 537.762(6) was in no way separate from t he jurisdictional determination. Therefore, the present case i s disti nguishable from Karl Koch , in which the remand order at issue wa s based u pon a matter affecting the merits of the case. By contrast, th e 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 Cir cuit 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 lac k of jurisdiction.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.