* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 5, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

NO. 03-30531

_______________________

LEOLA CELESTINE, on behalf of Sylvia Green,

Joseph Broussard, Lameka Broussard,

Plaintiff-Appellee,

versus

NATIONAL UNION FIRE INSURANCE COMPANY OF

PITTSBURGH, PENNSYLVANIA, ET AL.,

Defendants.

NATIONAL UNION FIRE INSURANCE COMPANY OF

PITTSBURGH, PENNSYLVANIA, AMERICAN

INTERNATIONAL GROUP, INC.,

Defendants-Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

Civil Action No. 02-CV-2611

Before JOLLY, DAVIS and JONES, Circuit Judges.

PER CURIAM: *

This cas e arises from the district court’s remand of a

declaratory judgment action in light of an underlying liability

case pending in Louisiana state court. Because the district court

abused its discretion in remanding, we vacate the order and remand

for further proceedings.2 I. Background

In February 1998, Sylvia Green was injured while shopping

at a K-Mart store in New Iberia, Louisiana. Leola Celestine, as

curatrix of Green, filed suit against K-Mart. In October 2000, a

jury found K-Mart 95% liable and Grandella Hamilton, an assistant

manager, 5% liable for Green’s injuries. The jury awarded Green a

$1.4. million judgment. K-Mart appealed to the Louisiana Court of

Appeals and filed for bankruptcy.

As required by bankruptcy procedures, K-Mart disclosed to

its insurers, National Union Fire Insurance Company and American

International Group, Inc. (collectively “the insurers”). In

October 2002, Celes tine filed an action in Louisiana state court

against the insurers seeking a declaratory judgment on their

liability for the underlying state court judgment against K-Mart.

In November 2002, the Louisia na Court of Appeals vacated the

judgment against Hamilton but increased the judgment against K-Mart

to $4.4 million. K-Mart appealed to the Louisiana Supreme Court,

which accepted certiorari in March 2004 and has yet to rule.

On December 20, 2002, the insurers removed the action to

district court pursuant to 28 U.S.C. § 1446 (removal statute),

asser ting subject matter jurisdiction under 28 U.S.C. § 1332

(diversity jurisdiction) and 28 U.S. C. § 1334(b) (non-exclusive

Title 11 bankruptcy jurisdiction) . Upon Celestine’s motion, the

district court remanded the action back to the state court pursuant3

to 28 U.S .C. § 2201 (Declaratory Judgment Act), while reserving

jurisdiction and timeliness issues. Finding that Celestine’s

request for declaratory judgment “centers around the previously

rendered state court judgment,” the district court determined that

the state court would be the most effic ient forum to resolve the

insurance liability issue.

The issues before this court are our appellate jurisdiction to review the remand order, and whether the district court

abused its discretion in remanding the case. For the reasons

stated below, we resolve both issues affirmatively.

II. Discussion

First, this court’s jurisdiction to review a remand order

depends upon the district court’s stated grounds for remand.

Tillman v. CSX Transp., Inc.

, 929 F.2d 1023, 1026 (5th Cir. 1991).

Whereas appellate review of a remand order for lack of subject

matter jurisdic tion is proscribed by 28 U.S.C. § 1447(d), an

appellate court may review a remand order issued as a matter of

discretion pursuant to the De claratory Judgment Act, 28 U.S.C.

§ 2201. S ee Quackenbush v. Allstate Ins. Co.

, 517 U.S. 706, 711-12

(1996) (holdi ng that an “abstention-based” remand is reviewable

under 28 U.S.C. § 1291 as a discretionary “refusal to adjudicate”).

Here, the district co urt’s discretionary remand under the

Declaratory Judgment Act for reasons of judicial economy fits

within the narrow class of remand orders which this court may4

review. As such, this court has jurisdiction over the instant

appeal.

Second, we address whether the district court abused its

discretion by remanding the case back to the state court.

Generally, federal courts have a “strict duty to exercise the

jurisdiction that is conferred upon them by Congress.”

Quackenbush

, 517 U.S. at 716. However, federal courts should

forego jurisdiction in declaratory judgment actions when

considerations of judicial economy ove rwhelm. A gora Syndicate,

Inc. v. Robinson Janitorial Specialists, Inc

., 149 F.3d 3 71, 372

(5th Cir. 1998) (citing Wilton v. S even Falls Co. , 515 U.S. 277,

288, 115 S.Ct. 2137, 2143, 132 L.Ed.2d 214 (1995)). In cases where

judicial economy is not an issue, a district court’s decision to

forego the exercise of its jurisdiction is an abuse of discretion.

Agora Syndicate , 149 F.3d at 373.

Here, the distr ict court’s sole rationale for remand —

the efficiency of litigating th e personal injury judgment appeal

with the insurance liability action in the state court

— is

inapposite. The request for declaratory judgment on the insurers’

liability inquires whether the insurers are liable if the judgment

against K-Mart is affirmed and is legally and factually distinct

from K-Mart’s liability in the underlying personal injury action.

Cf. Brillhart v. Excess Ins. Co. of America

, 316 U.S. 491, 494-94,

62 S. Ct. 1173, 1175-76, 86 L. Ed. 1620 (1942). Moreover, neither

insurance company is a party to the underlying personal injury5

suit, which is now closed to new claims, additional evidence, and

joinder. I d. While the instant case presents no basis for a

judicial economy-based remand to the state court, it does afford an

opportunity for the district court’s efficient litigation of the

insurers’ liabilities if the $4.4 million dollar judgment against

K-Mart is affirmed. Therefore, the district court’s remand was an

abuse of discretion.

III. CONCLUSION

The distr ict court’s remand order is VACATED, and the

case is REMANDED for further proceedings consistent with this

opinion.

VACATED and REMANDED

.