* 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that this opinion should not be published and is not precedent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

April 8, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60680

Summary Calendar

 

VIRGINIA H. JONES; SCOTT MCCAY; BETTYE MCCAY; RICHARD STAMM;

ROY JONES; LAURA JONES; JAMES CRAIG; ANITA CRAIG; JOEL DRUMMOND;

AMY DRUMMOND; JUDY STAMM,

Plaintiffs-Appellees,

versus

BELHAVEN COLLEGE; CITY OF JACKSON, MISSISSIPPI,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Southern District of Mississippi

USDC No. 3:03-CV-874

--------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Belhaven College (College) and the City of Jackson,

Mississippi (City), appeal the district court’s order extending a

temporary restraining order (TRO) until the district court could

hold a hearing on whether the court had subject-matter

jurisdiction over the case following removal. This court must

examine the basis of its jurisdiction on its own motion if

necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). 
No. 03-60680

-2-

The continuation of a TRO without the consent of the parties

beyond that twenty-day maximum in FED. R. CIV. P. 65 has the same

practical effect as a preliminary injunction and may be treated

as a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 86-

88 (1974). Because the district court’s extension of the TRO had

the same practical effect as the granting of a preliminary

injunction, it is immediately appealable under 28 U.S.C.

§ 1292(a)(1).

The City did not file a notice of appeal within 30 days

after the entry of the district court’s order as required by FED.

R. APP. P. 4(a). Because a timely notice of appeal is a

mandatory prerequisite to the exercise of appellate jurisdiction,

we do not have jurisdiction to consider the City’s appeal. See

United States v. Cooper, 135 F.3d 960, 961 (5th Cir. 1998).

The College argues that the district court abused its

discretion in extending the TRO without holding an evidentiary

hearing. The district court did not abuse its discretion

extending the TRO as the court had the inherent authority to

preserve the status quo until the question of its jurisdiction

could be resolved. See United States v. United Mine Workers of

America, 330 U.S. 258, 292-93 (1947); United States v. Hall, 472

F.2d 261, 265 (5th Cir. 1972).

The College argues that removal of the action was proper

because the homeowners alleged an equal protection claim which

created federal question jurisdiction. In this case, a federal
No. 03-60680

-3-

question was presented on the face of the homeowners’ complaint

and, therefore, removal was proper. See Sam v. Majors Jewelers

v. ABX, Inc., 117 F.3d 922, 924 (5th Cir. 1997). However, the

district court has discretion to remand the entire case, both

state and federal claims, if state law predominates. Metro Ford

Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 328 (5th Cir.

1998); 28 U.S.C. § 1441(c). Therefore, this case is remanded to

the district court for a determination whether it will exercise

its discretion to consider this case, or whether it will remand

the entire case if it determines that state law predominates. 

The Homeowners’ request for sanctions is DENIED.

AFFIRMED; REQUEST FOR SANCTIONS DENIED; REMANDED FOR FURTHER

PROCEEDINGS.