IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JANET KOMACKO, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 2:12-CV-495

)

AMERICAN ERECTORS, INC., )

et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Admiral Insurance Company’s

Motion to Reconsider Court’s Order of June 25, 2013, filed by

Garnishee-Defendant, Admiral Insurance Company (“Admiral”), on July

2, 2013 (DE #20). For the reasons set forth below, the Motion to

Reconsider is DENIED for lack of jurisdiction.

BACKGROUND

Following a jury trial in the Circuit Court of Lake County,

Indiana, on June 29, 2012, Janet Komacko obtained a judgment

against Defendant American Erectors, Inc., for the wrongful death

of her husband, in the amount of $4.93 million. On October 16,

2012, Komacko filed a Verified Motion to Enforce Judgment by

Proceedings Supplemental to Execution under Ind. Trial R. 69(E). 

Komacko served Admiral Insurance Company (“Admiral”) and Secura,
American Erectors’ putative insurers, as garnishee defendants. 

On November 28, 2012, Secura removed the proceedings

supplemental to federal district court based upon diversity

jurisdiction. The notice of removal failed to specify whether all

other defendants consented to removal and it was not signed by any

other defendant. Komacko opposed the removal, and filed a Motion

to Remand on December 14, 2012 (DE #4), arguing removal was

procedurally and substantively improper. American Erectors filed

a notice of joinder in the motion to remand. (DE #16.) Admiral

filed a response to Komacko’s motion to remand, simply stating

Admiral “joins in the Response of Secura Insurance Company to

Komacko’s Motion to Remand.” (DE #13.) On June 25, 2013, this

Court granted the motion to remand and remanded the case back to

the Lake Circuit Court in Crown Point, Indiana. (DE #19.) 

Specifically, the Court found there was a procedural defect in the

removal procedure because Admiral never timely filed its consent to

the removal. Id.

DISCUSSION

This district court lacks jurisdiction to reconsider its

earlier order remanding the case back to state Court. The removal

statute provides that “[a]n order remanding a case to the State

court from which it was removed is not reviewable on appeal or

otherwise” except for certain inapplicable exceptions. 28 U.S.C.

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§ 1447(d) (emphasis added). A district court ordinarily may not

reconsider an order remanding an action, 28 U.S.C. § 1447(d), and

that prohibition “applies only to cases remanded, pursuant to 28

U.S.C. § 1447(c), for lack of subject matter jurisdiction or

defects in the removal procedure.” First Union Nat’l Bank of

Florida v. Hall, 123 F.3d 1374, 1377 (11th Cir. 1997). “This

nonreviewability extends to the power of a district court to

reconsider its own remand order.” Id. (quotation omitted). 

In this case, the Court clearly remanded the case based upon

a defect in the removal procedure. Albeit in a slightly different

context, the Seventh Circuit has recognized that cases “hold []

that section 1447(d) strips the district court of jurisdiction to

reconsider an order of remand issued by it.” Midlock v. Apple

Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005).

This Court concurs with the analysis in Pennier v. Morton

Int’l Inc., reasoning:

[A]s 1447(d) expressly states a remand order is not

reviewable on appeal or otherwise, this Court

believes the same analysis employed by the

appellate courts should be employed by the district

court when asked to review a remand order. . . this

Court believes it does not have jurisdiction to

entertain the motion for reconsideration, [and]

this Court believes it does not have jurisdiction

to consider the merits of the motion for

reconsideration.

Pennier v. Morton Int’l Inc., No. 1-1111, 2011 WL 3240476, at *1

(W.D. La. July 28, 2011) (emphasis in original). Similarly, the

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Court in Faulk v. Swan found that it lacked jurisdiction to grant

defendants’ motion to reconsider a grant of remand - the language

under 28 U.S.C. § 1447(d) stating remand is unreviewable on appeal

“or otherwise” precluded further review by a district court

following a determination that the case be remanded to state court. 

Faulk v. Swan, No. 4:10-cv 0397, 2010 WL 2609551, at *1 (E.D. Ark.

June 28, 2010). Because this Court lacks jurisdiction, it must

deny Admiral’s motion for reconsideration.

CONCLUSION

For the reasons set forth above, Admiral Insurance Company’s

Motion to Reconsider Court’s Order of June 25, 2013, filed by

Garnishee-Defendant, Admiral Insurance Company (“Admiral”), on July

2, 2013 (DE #20), is DENIED for lack of jurisdiction.

DATED: July 10, 2013 /s/ RUDY LOZANO, Judge

United States District Court

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