United States Court of Appeals For the First Circuit

No. 20-1784

FORTY SIX HUNDRED LLC,

Plaintiff, Appellee,

v.

CADENCE EDUCATION, LLC, d/b/a NEXT GENERATION CHILDREN'S CENTERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Thompson, Selya, and Hawkins,* Circuit Judges.

Paul B. Lewis, with whom Bruce E. Falby and DLA Piper LLP were on brief, for appellant. Douglas T. Radigan, with whom Jared A. Fiore and Bowditch & Dewey LLP were on brief, for appellee.

September 30, 2021

* Of the Ninth Circuit, sitting by designation. SELYA, Circuit Judge. This appeal, which rises like the

mythical phoenix from the ashes of an eviction action removed from

a Massachusetts state court, poses a series of gnarly questions

related to the propriety of the district court's abstention-based

remand order and the premature return of the underlying action to

the state court. After sifting through the parties' arguments, we

conclude that the district court erred in ordering the remand. We

further conclude that the court's premature return of the case to

the state court does not constrain our ability to remedy this

error. Accordingly, we reverse the remand order and direct the

district court to retrieve the removed action and resume

jurisdiction over it. We also offer some guidance to district

courts generally, aimed at avoiding the unnecessary shuttling of

removed cases back and forth between state and federal courts.

I

We start by rehearsing the relevant facts and travel of

the case. In 1997, defendant-appellant Cadence Education, LLC

(Cadence) and plaintiff-appellee Forty Six Hundred LLC (FSH)

executed a lease through which Cadence, as lessee, rented a

property in Westborough, Massachusetts from FSH, as lessor. The

lease arrangement was uneventful for more than two decades. The

relationship soured, though, when (according to FSH) Cadence

failed to pay the rent due for the months of April, May, and June

2020.

- 2 - On June 10, 2020, FSH served Cadence with a pleading

styled as a "Summary Process (Eviction) Summons and Complaint."

The original complaint was filed in a Massachusetts state court

(the Westborough District Court), where it would have been governed

by the Massachusetts Trial Court Uniform Summary Process Rules

(the Uniform Rules) and the provisions of chapter 239 of the

Massachusetts General Laws. The action sought both to evict

Cadence for nonpayment of rent and to recover $83,553.90 in damages

(for rent arrearages).

On July 9, Cadence seasonably removed the action to the

federal district court, alleging the existence of diversity

jurisdiction.1 See

, 1441(b). FSH countered by

moving to remand the action to the state court. In its motion

papers, FSH did not dispute that the action satisfied the statutory

imperatives for federal diversity jurisdiction but, rather, argued

(as pertinent here) that the federal district court was entitled

to abstain from adjudicating the action under Burford abstention

principles. See Burford v. Sun Oil Co.,

(1943).

Cadence opposed this motion.

1 Cadence is a Delaware limited liability company, and FSH is a Massachusetts limited liability company. Cadence has represented that there is no overlap between the state(s) of which its members are citizens and the state(s) of which FSH's members are citizens, and FSH has not challenged this representation. Money damages are sought, and the amount in controversy exceeds $75,000.

- 3 - On August 10, 2020, the district court granted FSH's

motion to remand. See Forty Six Hundred LLC v. Cadence Educ.,

LLC,

, 87 (D. Mass. 2020). Although the court

acknowledged that federal courts may have original jurisdiction

over removed summary eviction proceedings, it concluded that "this

is the rare ca[s]e where abstention is appropriate."

.

In order "to preserve the state statutory scheme" — a reference to

the applicable Massachusetts rules of summary process for eviction

cases — the court declined to exercise jurisdiction over the

action.

.

On the same day that the district court entered its

remand order, Cadence appealed that order. See Quackenbush v.

Allstate Ins. Co.,

(1996) (holding that an

abstention-based remand order is appealable under

). Cadence also asked the district court to stay its remand

order. The district court denied Cadence's motion to stay without

explanation and proceeded immediately to execute the remand,

returning the action to the state court.2 The action remains

pending in the state-court system.

2 Once the district court denied its stay motion, Cadence filed an emergency motion in this court to stay the remand order pending appeal. After it learned that the district court had remitted the action to the state court, however, it voluntarily withdrew its motion because there was nothing left for this court to stay.

- 4 - II

To begin, Cadence takes aim at the district court's

decision to refrain from exercising jurisdiction over the action.

Its challenge rests primarily on the contention that the Burford

abstention doctrine is inapplicable here. Thus, Cadence says, the

district court's allowance of FSH's motion to remand must be

reversed.

Before grappling with Cadence's argument, we pause to

note an oddity. Although both parties have proceeded in this court

on the understanding that the Burford abstention doctrine lies at

the heart of the matter, the district court never explicitly

mentioned Burford. It falls to us, then, to determine at the

outset whether the district court's decision to abstain was

actually grounded on Burford principles.

A close review of the proceedings below, including the

district court's stated reasoning, reveals that the court did

indulge in Burford abstention. For one thing, the Burford doctrine

was the only basis for abstention put forward by FSH. For another

thing, the district court — in choosing to abstain — relied on the

decision in Glen 6 Associates, Inc. v. Dedaj,

(S.D.N.Y. 1991). That court, in turn, supported its abstention

decision by citation to case law applying the Burford abstention

doctrine. See

. This case law included, for example,

Alabama Public Service Commission v. Southern Railway Co., 341

- 5 - U.S. 341, 345 (1951) (explaining that question sub judice is one

"framed by the Court in Burford"), and Tonwal Realties, Inc. v.

Beame,

(S.D.N.Y. 1976) (relying on Burford

as basis for abstention). See Glen 6 Assocs., Inc.,

. To cinch the matter, the district court's stated concern

about potential interference with a "comprehensive [state]

legislative scheme," Forty Six Hundred, 478 F. Supp. at 87, tracks

the language we have used to articulate the purpose of the Burford

abstention doctrine, see Sevigny v. Emps. Ins. of Wausau,

(1st Cir. 2005) (noting that "Burford['s] central concern

[is] protecting state-agency schemes"). Given these telltale

signs, the only plausible reading of the district court's rescript

is that it abstained on the basis of the Burford abstention

doctrine.

Having dispelled any uncertainty about the doctrinal

underpinnings of the district court's abstention-based remand

order, we turn to the supportability of that order. A district

court's decision to abstain has two elements. The court first

must determine whether certain preconditions for abstention are

met and, if so, must then determine whether abstention is

appropriate. See DeMauro v. DeMauro,

(1st Cir.

1997). We review de novo the district court's threshold

determination as to "whether the requirements for [Burford]

abstention have been met." Chico Serv. Station, Inc. v. Sol P.R.

- 6 - Ltd.,

(1st Cir. 2011) (quoting Guillemard-Ginorio

v. Contreras-Gómez,

(1st Cir. 2009)). If the

decision passes through that screen, we then review the court's

bottom-line decision to abstain for abuse of discretion. See id.;

Vaquería Tres Monjitas, Inc. v. Irizarry,

(1st

Cir. 2009); Sevigny,

.

Cadence argues that Burford abstention is inapposite

here. We tee up its arguments by tracing the legal contours of

the Burford abstention doctrine. The baseline rule, of course, is

that "federal courts have a strict duty to exercise the

jurisdiction that is conferred upon them by Congress."

Quackenbush,

; see Colo. River Water Conservation

Dist. v. United States,

(1976) (noting the

"virtually unflagging obligation of the federal courts to exercise

the jurisdiction given them"); Chico Serv. Station,

(explaining that the "all but unyielding duty to exercise

jurisdiction rests on 'the undisputed constitutional principle

that Congress, and not the Judiciary, defines the scope of federal

jurisdiction within the constitutionally permissible bounds'"

(quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans

(NOPSI),

(1989))).

Though strict, this duty is not absolute. See

Quackenbush,

. The Supreme Court has carved out

certain "exceptional circumstances" — circumstances in which

- 7 - "denying a federal forum would clearly serve an important

countervailing interest" — that may warrant a federal court's

eschewal of jurisdiction.

(first quoting Colo. River Water

Conservation Dist.,

). Even so, "[t]he

circumstances that fit this mold are rare." Chico Serv. Station,

. And "because abstention runs so firmly against

the jurisprudential grain," we treat abstention as "the exception,

not the rule."

(quoting Fragoso v. Lopez,

(1st Cir. 1993)).

The Burford Court identified one such exception to a

federal court's duty to exercise jurisdiction. See

. There, the plaintiff asked a federal court to invalidate,

under state law, an order issued by the Texas Railroad Commission

(the Commission), which had granted the defendant a permit to drill

for oil in a field where hundreds of other producers also had

wells. See

. At the time, the power to decide

who could extract what oil from a commonly drilled field rested

with the Commission. See

. The Commission's judgments

entailed consideration of a multitude of factors, including the

oil supply, market demand, protection of the individual operators

and the public interest, spacing of the wells, as well as highly

technical geologic data. See

. To achieve

consistency in judgments, to avoid "interminable confusion,"

at 326 (quoting Tex. Steel Co. v. Fort Worth & Denver City Ry.

- 8 - Co.,

(Tex. 1931)), and to develop "specialized

knowledge . . . useful in shaping the policy of regulation of the

ever-changing demands in this field," a state statute centralized

direct judicial review in the state district courts of a particular

Texas county, id. at 326-27. Because the intervention of the lower

federal courts "threatened to frustrate the purpose of the complex

administrative system that Texas had established," the Supreme

Court deemed abstention proper. Quackenbush,

(discussing Burford).

The Court later emphasized that Burford permits a

federal court to abstain "only in extraordinary circumstances."

. "Burford allows a federal court to dismiss a case

only if it presents difficult questions of state law bearing on

policy problems of substantial public import whose importance

transcends the result in the case then at bar, or if its

adjudication in a federal forum would be disruptive of state

efforts to establish a coherent policy with respect to a matter of

substantial public concern."

(internal quotations

omitted).

Mindful of these admonitions, we have read Burford and

its progeny narrowly. We have said that "abstention in the Burford

line of cases rested upon . . . the threat . . . that the federal

court might, in the context of the state regulatory scheme, create

a parallel, additional, federal, 'regulatory review' mechanism,

- 9 - the existence of which would significantly increase the difficulty

of administering the state regulatory scheme." Bath Mem'l Hosp.

v. Maine Health Care Fin. Comm'n,

, 1013 (1st Cir.

1988); see Pub. Serv. Co. of N.H. v. Patch,

(1st

Cir. 1998) ("The fundamental concern in Burford is to prevent

federal courts from bypassing a state administrative scheme and

resolving issues of state law and policy that are committed in the

first instance to expert administrative resolution."). That a

case implicates "important state regulatory policies," Chico Serv.

Station,

(quoting Vaquería Tres Monjitas,

), or that "federal action may impair operation of a state

administrative scheme or overturn state policy" does not alone

justify Burford abstention, id.; see NOPSI,

(explaining that "[w]hile Burford is concerned with protecting

complex state administrative processes from undue federal

interference, it does not require abstention whenever there exists

such a process, or even in all cases where there is a 'potential

for conflict' with state regulatory law or policy" (quoting Colo.

River Water Conservation Dist.,

)). Instead,

Burford abstention applies only in "unusual circumstances," where

the federal court risks usurping the state's role as the

"regulatory decision-making center." Vaquería Tres Monjitas,

(quoting Bath Mem'l Hosp., 853 F.2d at 1012-13); see

Fragoso,

(noting that Burford abstention is limited

- 10 - to "narrowly circumscribed situations where deference to a state's

administrative processes for the determination of complex, policy-

laden, state-law issues would serve a significant local interest

and would render federal-court review inappropriate").

It is against this backdrop that we measure the fit

between Burford and the case at hand. Cadence asserts that the

Uniform Rules and Massachusetts General Laws chapter 239 do not

constitute the kind of complex state administrative scheme that

engenders protection under Burford. See NOPSI,

(explaining Burford's concern with protection of "complex state

administrative processes"); Patch,

(expressing

similar view with respect to "state administrative scheme[s]");

Cnty. of Suffolk v. Long Island Lighting Co.,

, 1309

(2d Cir. 1990) (explaining that "intricate state administrative

scheme" is the "sine qua non" of Burford abstention). In arguing

against this assertion, FSH unwittingly makes Cadence's case. We

explain briefly.

The rules and statutes that FSH identifies are merely

rules of procedure designed to expedite summary process eviction

proceedings. See Uniform Rule 1 ("These rules govern procedure in

all summary process actions in the Trial Court of the

Commonwealth."); see also FDIC v. Sweeney,

(1st

Cir. 1998) (describing Massachusetts summary process rules as

"abbreviated procedures"). As FSH points out, the Uniform Rules

- 11 - specify such things as the physical form that must be used to

initiate a summary process action, see Uniform Rule 2(a); the

timing of service of process, see Uniform Rule 2(b) (mandating

service of summons and complaint "no later than the seventh day

nor earlier than the thirtieth day before the entry day," subject

to certain conditions); entry dates, see Uniform Rule 2(c)

(requiring entry dates to be "each Monday"); and the format and

content of a defendant's answer, see Uniform Rule 3 (requiring

that defendant "prepare a written answer containing . . . the

caption 'Summary Process Answer' with the trial date set forth

below the caption[,] . . . deny[ing] every statement in the

complaint which is in dispute[,] . . . [and] stating . . . any

affirmative defense"). These rules also confirm the applicability

of some state procedural imperatives, which apply both to the

Massachusetts summary process scheme and outside that scheme. See,

e.g., Uniform Rule 8 (applying Mass. R. Civ. P. 38); Uniform Rule

13 (applying relevant parts of Mass. R. Civ. P. 60, 62). Even the

court below acknowledged that these summary process rules were,

for the most part, comparable to those applicable in plenary civil

litigation. See Forty Six Hundred, 478 F. Supp. 3d at 86. Simply

put, the Uniform Rules, with their statutory gloss, are no more

than stereotypical rules of procedure, including directives about

when to file and what to title a filing. They do not amount to

"the sort of complex administrative scheme at issue in Burford."

- 12 - Sweeney,

. It follows that, in this instance, there

is no plausible threat of "disrupt[ing] state efforts to establish

coherent policy with respect to a matter of substantial public

concern." NOPSI,

(quoting Colo. River Water

Conservation Dist.,

). Substitution of procedural

rules, which do not themselves amount to a complex administrative

scheme, prevents neither the development of substantive state

policies nor application of those policies by a federal court.

FSH's argument to the contrary rests heavily on the

notion that the summary process rules are "complex." But for that

proposition, FSH relies on the decision in Adjartey v. Central

Division of Housing Court Department,

(Mass. 2019).

This reliance is misplaced. Although the Massachusetts Supreme

Judicial Court (the SJC) did use the adjective "complex" in

describing the summary process scheme,

, Adjartey hardly

can be said to support federal abstention. There, the SJC

described summary process cases as "complex," particularly for pro

se tenants confronted by "landlords who are represented by

attorneys."

. The SJC did not deem the procedure

"complex" as compared to the wide universe of state administrative

schemes. Moreover, it is apparent to us that the summary process

rules and the scheme that they elaborate are straightforward, and

Adjartey does not undercut this assessment.

- 13 - In a variation on the same theme, FSH contends that the

summary process rules constitute a "specialized procedure," which

would be "unavailable in the federal court." This contention

proves too much: all removed actions are subject to the Federal

Rules of Civil Procedure. See Fed. R. Civ. P. 81(c)(1); Rinsky v.

Cushman & Wakefield, Inc.,

(1st Cir.), cert. denied,

(2019). Those rules invariably displace the

procedural rules that would have governed the removed action had

that action remained in the state-court system. We do not think

that this rule-displacement mechanism is capable of

transmogrifying previously applicable state procedural rules into

state administrative schemes worthy of Burford protection. Any

other conclusion would make the act of removal alone sufficient to

trigger abstention — a result wholly inconsistent with the Supreme

Court's cabining of Burford abstention to "extraordinary

circumstances." Quackenbush,

.

What is more, the substance of summary process cases

independently shows that there is no threat of interference with

state policymaking sufficient to warrant Burford abstention. The

Burford doctrine guards against federal interference with a

state's resolution of "difficult and consequential questions of

state law or policy." Chico Serv. Station,

n.9

(citing NOPSI,

); see Sweeney,

(requiring "difficult, complex questions of state law"); Fragoso,

- 14 -

(declining to abstain when appeal "frame[d] no

difficult question of state law bearing on significant public

policy issues" (quotations omitted)). The adjudication of an

eviction action does not involve the kinds of difficult and

unsettled questions of state substantive law that can suffice to

trigger abstention.

As we explained nearly two decades ago, "there [is]

nothing unusual about the federal court . . . appl[ying]

Massachusetts law regulating the possession of real property."

Sweeney,

. Unlike in Burford — where the state

specifically sought to develop and apply a state agency's technical

expertise in evaluating complex issues of geology and economics,

see

-27 — real property rights, though derived

mainly from state law, are routinely enforced in federal as well

as state courts. Especially in light of this historical pattern,

we discern no principled reason for concluding that the state's

interests would be jeopardized by allowing a federal court to

resolve a garden-variety eviction action.3 Sweeney,

.

The incidence of the ongoing COVID-19 pandemic does not 3

alter this conclusion. "In a variety of ways, federal courts enforce rights created by state law," Sweeney,

, and there is no reason to believe that federal courts cannot apply whatever eviction-related policies may have evolved in response to the COVID-19 pandemic. We add, moreover, that the district court's concern over the difficulty of "anticipat[ing]" state-court exceptions to eviction proceedings is wide of the mark. Forty Six

- 15 - We add a coda. A centerpiece of FSH's argument in

support of abstention is the decision in Federal Home Loan Mortgage

Corporation v. Briggs,

(8th Cir. 2014) (per

curiam). Briggs, however, is too flimsy to support the weight

that FSH loads upon it.

In Briggs, a panel of the Eighth Circuit upheld a

district court's decision to abstain — on Burford grounds — from

adjudicating an eviction action controlled by state procedures

similar to those at issue here. See

. The Briggs court,

though, did not have the benefit of briefing on the complexity or

lack of complexity of the state procedural scheme and relied only

on the lower court's analysis, see

, and we have found

the lack of such complexity to be dispositive. In all events,

Briggs is not controlling precedent even in the circuit of its

birth, see 8th Cir. R. 32.1A, and we decline to follow it.

To say more about the abstention question would be to

paint the lily. We conclude, without serious question, that the

Massachusetts summary process scheme is not the kind of state

administrative scheme that demands the protective shield of

Hundred, 478 F. Supp. at 87. Presumably, eviction cases heard in state court will outnumber those removed to federal court, and state law will develop with only negligible interruption. Besides, the very nature of those few eviction cases that may satisfy the statutory prerequisites for removal — such as this commercial eviction dispute — makes them less likely to implicate those questions.

- 16 - Burford abstention. As we have said, it is not an intricate or

complex state administrative scheme, nor does it pose difficult

and unsettled questions of state law. Given these conclusions and

given the undisputed fact that FSH's suit against Cadence satisfied

all the prerequisites for federal diversity jurisdiction, the

district court was not entitled to shirk its duty to exercise

jurisdiction over that suit. See Quackenbush,

-

27; Chico Serv. Station,

.

III

Our reversal of the remand order ordinarily would

require nothing more than a simple instruction to the district

court to exercise its jurisdiction and adjudicate the action that

FSH has brought against Cadence. Here, however, there is a

possible wrench in the works: because the district court already

has returned the action to the state court and the case has

progressed (albeit modestly) in that forum, a question arises as

to whether the ordinary remedy is still available. Some background

helps to put this question in perspective.

In In re La Providencia Development Corp.,

(1st Cir. 1969), we said that, in removal proceedings, "the state

court proceedings are to be interfered with once" and only once.

. We subsequently reiterated this admonition in FDIC v.

Santiago Plaza,

(1st Cir. 1979) (per curiam), stating

that "once a district court has decided to remand a case and has

- 17 - so notified the state court, the district judge is without power

to take any further action."

. These prescriptive

statements — which also give us pause to consider our authority to

review the remand order — are context-specific. As we explain

below, they do not apply in this case.

The quoted statements were made in, and applied only to,

cases that fall within the compass of

(d) — a

provision that forbids appellate review of certain remand orders.4

Once the state court has resumed jurisdiction in such a case, a

defendant is barred even from bringing a motion for

reconsideration. See

That one-shot rule, see In re La Providencia Dev.,

, does not inform our inquiry in this case. After all,

where section 1447(d) is not in play, following the one-shot rule

would make little sense. So it is here: while section 1447(d)

generally bars appellate review of remand orders "premised on a

lack of subject matter jurisdiction or a defect in removal

procedure," BP P.L.C. v. Mayor of Balt.,

(2021) (explaining Court's holdings in Carlsbad Technology, Inc.

v. HIF Bio, Inc.,

(2009), and Thermtron Products,

Section 1447(d) provides, with limited exceptions, that 4

"[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . ."

(d); see BP P.L.C. v. Mayor of Balt.,

(2021).

- 18 - Inc. v. Hermansdorfer,

(1976)), the Supreme

Court (in reviewing the history of section 1447) has determined

that "[t]here is no indication whatsoever that Congress intended

to extend the prohibition against review to reach remand orders

entered on grounds not provided by the statute," Thermtron,

; see BP P.L.C.,

(noting that Court

precedent "permitted rather than foreclosed appellate review of

certain remand orders"). The Court's "strong statement" that

remand orders beyond the reach of section 1447 are reviewable

"suggests that it would not countenance a district court evading

review by immediately transmitting its remand order to the state

court." Acad. of Country Music v. Cont'l Cas. Co.,

(9th Cir. 2021).

The Quackenbush Court determined that abstention-based

remand orders were not only beyond the reach of section 1447(d)

but also immediately appealable under section 1291. See

. In such cases, allowing a district court to render the

permitted appeal nugatory by prematurely returning the case to the

state court would defeat the very purpose of permitting an appeal

and leave a defendant who prevails on appeal holding an empty bag.

Neither Supreme Court precedent nor our own case law demands so

illogical a result.

We are mindful that some modest proceedings have taken

place in state court. Given the inapplicability of the one-shot

- 19 - rule, however, we do not think that this fact alone should either

defenestrate Cadence's entitlement to be heard in federal court or

alter the outcome of this appeal. And although FSH argues that

Cadence has "taken advantage" of the state court's jurisdiction,

that argument comprises more cry than wool.

Importantly, there is no question of waiver or estoppel

here. Cadence has at all times acted expeditiously to preserve

its right to a federal forum. For instance, Cadence promptly asked

the district court to stay its remand order and — when that stay

was denied — promptly asked this court for a stay. That no stay

was ordered by this court was not a function of any lack of

diligence on Cadence's part but, rather, was a function of the

district court's premature return of the action to the state court.

Nor do general considerations of comity seem adequate to override

Cadence's entitlement to a federal forum, especially since the

state-court proceedings are still in their early stages and no

judgment has yet been entered.

Even though we are confident that this case's uneventful

time in state court neither affects the merits of Cadence's appeal

nor the remedy we invoke, we have been unable to identify any

formal procedural mechanism for the retrieval of a removed case

erroneously returned to a state court. We see no reason, though,

why general principles of comity, cooperation, and communication

- 20 - between state and federal courts are inadequate to bridge this

procedural gap.

The case law abounds with examples of federal courts

using informal processes to retrieve improvidently remanded cases

from state courts. An example can be gleaned from our decision in

Connolly v. H.D. Goodall Hospital, Inc.,

(1st Cir.

2005). There, the district court ordered a remand, which the clerk

of court then executed. See

. But when the removing

defendant filed a notice of appeal, the district court "issued a

procedural order vacating its already-effectuated remand as

'premature.'"

In addition, the court "direct[ed] its clerk

to recall the case from the state court."

Acting on that

directive, "[t]he clerk complied and the state court cooperated,"

and the case was re-docketed in the district court.

So, too, in a case in which a district court had already

transmitted its sua sponte remand order to a state court, the Ninth

Circuit determined both that federal jurisdiction was not

forfeited and that review of the order was not pretermitted by

section 1447(d). See Acad. of Country Music,

.

It subsequently held that the district court's decision to remand

based on section 1447(c) exceeded the scope of such statutory

authority and vacated the remand order. See

. The

court did not deem the retrieval of the case to be an

insurmountable obstacle but, rather, concluded its opinion by

- 21 - directing that "[t]he district court shall enter an order recalling

the remand and shall notify the [state court] that the district

court has resumed jurisdiction over the action."

; see

Reddam v. KPMG LLP,

(9th Cir. 2006) (entering

similar direction upon reversal of remand order in case prematurely

returned to state court).

Our decision in Alstom Caribe, Inc. v. Geo. P. Reintjes

Co.,

(1st Cir. 2007), involved the possible need for

retrieval of funds improvidently transferred from one federal

district court to another. Although not involving the retrieval

of a case from a state court, this decision furnishes a compelling

analogy. There, the district court ordered the deposit of disputed

funds into its registry and then transferred the funds — but not

the case — to a district court in a different circuit. See

. By the time we heard the appeal, the funds had been

"physically transferred to the Western District of Missouri" and

"that court ha[d] assumed control over them."

. We

acknowledged that "we [had] no authority to order a district court

in another circuit" to return previously transferred funds but —

because a party's rights were at stake — "we fe[lt] confident that

we c[ould] rely on the district courts in the two affected

districts to act cooperatively so that the ends of justice w[ould]

be served."

We left it up to the district court — should a

retransfer of the funds prove necessary — "to advise the transferee

- 22 - court that the deposited funds were transferred improvidently and

request their return."

These examples point the way toward the appropriate

remedy in this case. As we already have determined, the district

court's remand order was in error. See supra Part II. Thus,

Cadence is entitled to defend against FSH's action in the federal

district court. There is a long and storied history of comity and

cooperation between state and federal courts in this circuit.

Given that history, we are confident that the district court can

enlist the state court's cooperation and restore the action to its

own docket (where the case belongs). In the exercise of our

supervisory authority, we direct the district court to undertake

this retrieval forthwith.

IV

We offer some guidance to district courts to help prevent

a removed case from becoming a shuttlecock, batted back and forth

between a state court and a federal court.

If a motion to remand is granted by the district court

in a removed case and the remand order is appealable, the district

court may wish to avoid immediately certifying the remand order

and returning the case file to the state court until it believes

the specter of shuttling has abated. A district court would be

well-advised, for example, to hold the matter in abeyance for a

brief period or to direct the clerk of court to delay transmittal

- 23 - of the certified remand order. Either course of action would give

the removing party an opportunity to move for a stay, to seek

reconsideration, and/or to appeal the order and request a stay

from the court of appeals.

The variety of approaches in the federal court system

dealing with similar issues illustrates that, although there may

not be a single best method, an important common denominator is

that counsel be made aware of these temporal constraints. The

court may do so either formally (say, by adoption of a local rule

or publicly available operating procedure) or informally (by

acquainting counsel, on an ad hoc case-by-case basis, with its

timeline). The United States District Court for the Eastern

District of Texas, for instance, requires that its clerk of court

wait at least twenty days following entry of a remand order before

returning the case file. See Eastern District of Texas Local Civil

Rule 83(b); see also Gunter v. Jay Ayers, Inc., No. 10-354,

, at *1 n.1 (E.D. Tex. Mar. 8, 2011) (acknowledging

that rule helps avoid a snafu where parties may like to object to

a magistrate judge's ruling on a motion to remand within the time

period allotted for filing objections). Another district court

has promulgated a local rule requiring that its clerk of court

wait fourteen days before transmitting a certified copy of a remand

order pursuant to section 1447(c). See Northern District of

Illinois Local Rule 81.2. Other district courts have devised more

- 24 - informal approaches tailored to the circumstances of particular

cases. See, e.g., Reiber v. Cnty. of Gage, No. 15-3023,

, at *2 n.2 (D. Neb. May 5, 2016) (noting "for the parties'

convenience, that [the] remand order is appealable" and advising

that the court "will, unless notified by all remaining parties

that they wish to expedite remand to state court, stay its

transmittal of the case for 30 business days to permit sufficient

time for an appeal"). In the end, it is the district court's

province to manage its dockets. See United States v. Ottens,

(1st Cir. 1996). And it is that court's charge to

do so fairly and efficiently.

V

We need go no further. For the reasons elucidated above,

we reverse the district court's remand order and remand the matter

to the district court with directions to resume jurisdiction,

retrieve the action forthwith from the state court, and thereafter

to proceed in the ordinary course. Costs shall be taxed in favor

of Cadence.

So Ordered.

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