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State Farm Mutual Automobile Insurance Co. v. Baasch

decided: March 12, 1981.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AS SUBROGEE OF MYRON POCHYNOK AND MYRON POCHYNOK, PLAINTIFFS-APPELLEES,
v.
THOMAS L. BAASCH, DEFENDANT-APPELLANT.



Appeal from an order of the District Court for the Eastern District of New York, Mark A. Costantino, Judge, remanding a removed action to a New York state court. A portion of the appeal is dismissed for want of appellate jurisdiction; as to the remaining portion the order is affirmed.

Before Friendly, Mulligan and Timbers, Circuit Judges.

Author: Per Curiam

This is an appeal from an order of the District Court for the Eastern District of New York remanding to a New York state court an action wherein State Farm Mutual Automobile Insurance Company as subrogee of its insured Myron Pochynok and Pochynok himself sought to recover $1400 from defendant Thomas L. Baasch by reason of Baasch's negligently operating a motor vehicle so as to damage Pochynok's motor vehicle in that amount. The summons and complaint were served in the state court on April 21, 1980. The petition for removal, filed on July 7, 1980, made no claim of the existence of diverse citizenship or of a federal question presented on the face of the complaint. It relied rather on the fact that although both parties had demanded a jury trial, the court clerk had refused to accept this and had sent the action to an arbitration board pursuant to N.Y.C.P.L.R. 3405,*fn1 which Baasch contends to be unconstitutional as here applied. Baasch claims not to have received the undated notice of arbitration issued by the arbitration panel until June 11, 1980.

On motion of the plaintiff the district court denied the petition for removal and directed a remand.*fn2 Viewing the service of the summons and complaint as the critical date, the court held the removal was not effected within the 30-day period provided by the first sentence of 28 U.S.C. § 1446(b);*fn3 it failed to consider Baasch's contention that his receipt of the notice of arbitration triggered the second paragraph of that section. The court added that even if the removal petition had been timely, the case would not be removable since Baasch's attack on the constitutionality of N.Y.C.P.L.R. 3405 was not a question appearing on the face of the complaint. See Tennessee v. Union and Planters' Bank, 152 U.S. 454, 14 S. Ct. 654, 38 L. Ed. 511 (1894); Gully v. First National Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936).

Review of the remand order is sharply curtailed by 28 U.S.C. § 1447(d) which provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

The judicial exception engrafted on the general prohibition by Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976), is limited to cases where the judge predicates a remand order on a ground not authorized by the removal statutes (in that case, the crowded condition of his own docket) and does not extend to cases where he rests on grounds that are appropriate for his consideration, even though he has erred in his result, see 423 U.S. at 343, 96 S. Ct. at 589. See Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S. Ct. 1439, 52 L. Ed. 2d 1 (1977) (per curiam); In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5 Cir. 1978). The case likewise would not come within another judicial exception developed in In re Carter, 618 F.2d 1093 (5 Cir. 1980), cert. denied, 49 U.S.L.W. 3614, 450 U.S. 949, 101 S. Ct. 1410, 67 L. Ed. 2d 378 (1981), for a remand after final judgment, even if we were disposed to accept that decision. It follows that insofar as the appeal challenges the court's rulings that the action was not one "of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States" or that, even if it were, removal was untimely, the appeal must be dismissed for want of appellate jurisdiction.

However, this does not end the matter. The text of 28 U.S.C. § 1447(d), set out above, reflects a 1964 amendment, 78 Stat. 266, which added the language excepting from the prohibition of review of removal orders "an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title"*fn4 and expressly making such orders reviewable. Although Baasch's pro se brief did not mention § 1447(d) at all, we generously assume he claims that his case comes within this exception and that for purposes of § 1443 the 30-day period for removal began, as provided in the second paragraph of § 1446(b), only on his receipt of the notice of the arbitration hearing, allegedly June 11, 1980. Even if we accept the latter point arguendo,*fn5 Baasch's appeal fails in light of the Supreme Court's ruling that the phrase in § 1443, "any law providing for the equal civil rights of citizens of the United States", "must be construed to mean any law providing for specific civil rights stated in terms of racial equality." Georgia v. Rachel, 384 U.S. 780, 792, 86 S. Ct. 1783, 1790, 16 L. Ed. 2d 925 (1966); see also City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966); Johnson v. Mississippi, 421 U.S. 213, 95 S. Ct. 1591, 44 L. Ed. 2d 121 (1975); People v. Davis, 411 F.2d 750 (2 Cir.), cert. denied, 396 U.S. 856, 90 S. Ct. 119, 24 L. Ed. 2d 105 (1969). For the most part, Baasch is not relying on any federal law protecting racial equality but rather on the Seventh Amendment's guarantee of civil jury trial, which is "phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands." Rachel v. Georgia, supra, 384 U.S. at 792, 86 S. Ct. at 1790. Beyond the point that Baasch's case does not come near to meeting the Supreme Court's limited criteria for invoking the civil rights removal statute, the Seventh Amendment was ruled not to be applicable to the states in Minneapolis & St. Louis R. R. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961 (1916), and the Supreme Court has not included it among the provisions of the Bill of Rights which it has held to have been made applicable by the Fourteenth Amendment.*fn6

Insofar as the appeal challenges denial of removal under 28 U.S.C. § 1441(a), it is dismissed for want of appellate jurisdiction. Insofar as it can be read as objecting to denial of ...


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