UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4047

FRANKIE DARYL HOPKINS, SR., Plaintiff-Appellee,

versus

DOLPHIN TITAN INTERNATIONAL, INC., Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana

(October 20, 1992)

Before POLITZ, Chief Judge, JOHNSON and JOLLY, Circuit Judges.

POLITZ, Chief Judge:

Dolphin Titan International appeals the district court's order

remanding this case to state court. Concluding that we are without

jurisdiction, we dismiss the appeal.

Background

Frankie Daryl Hopkins, Sr. filed a petition in the Sixteenth

Judicial District Court, Parish of St. Mary, State of Louisiana,

raising claims under the Jones Act and the general maritime law, including claims for maintenance and cure. Dolphin Titan removed

the matter to federal court on the basis of diversity jurisdiction

and the claimed existence of admiralty claims separate and

independent from the Jones Act claim.1 Hopkins successfully moved

to remand; Dolphin Titan appealed.

Analysis

Our threshold consideration must be whether we have

jurisdiction to entertain this appeal. Generally, an order

remanding a case to the state court from which it was removed is

not reviewable on appeal or otherwise.2 In Thermtron Products,

Inc. v. Hermansdorfer,3 the Supreme Court limited the

(d) mandate against reviewing remand orders to remands based

upon section 1447(c).4 Accordingly, prior to the 1988 amendment to

section 1447(c), "improvident removal" and "lack of subject matter

jurisdiction" were not reviewable grounds for remand.5

1 See

(a), (c).

2

(d).

3

,

,

(1976).

4 At that time,

(c) read in pertinent part: If at any time before final judgment it appears that the case was removed improvidently and without juris- diction, the district court shall remand the case.

5 London v. United State Fire Ins. Co.,

(5th Cir. 1976).

2 As amended, section 1447(c) now provides:

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.6

We recently applied Thermtron to section 1447(c) as amended and

held that we have no jurisdiction "to vacate an order of remand

based upon a timely section 1447(c) motion raising a defect in the

removal procedure."7

The issue before us today is whether a motion to remand based

upon lack of removal jurisdiction under section 1441(c)8 raises a

defect in removal procedure. Dolphin Titan contends that because

the district court had to determine whether the Jones Act claim was

separate and independent from the general maritime law claims, the

remand was based on a review of the merits, not upon a defect in

6 P.L. 100-702, Title X, § 1016(c),

(1988).

7 In re Medscope Marine Limited,

(5th Cir. 1992).

8 Section 1441(c) provides:

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title, is joined with one or more otherwise non- removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which state law predominates.

3 removal procedure. Although the existence of removal jurisdiction

may depend upon substantive matters,9 the absence of removal

jurisdiction is a procedural defect for purposes of

section 1447(c).10 "Thus, when section 1447(c) speaks of 'any

defect in removal procedure,' it includes within its reach the

bringing of an action not within the court's removal jurisdiction

but that could have been brought originally in that court."11

There is no dispute that Hopkins' claims are within the

original subject matter jurisdiction of the federal district court.

A Jones Act claim filed in state court, however, generally is not

removable despite an independent basis of federal jurisdiction

unless the Jones Act claim is joined with a separate and

independent claim that is within our federal question

jurisdiction.12 On the other hand, maritime claims may be removed

to federal court by non-forum defendants when there is complete

diversity of citizenship.13 Dolphin Titan removed on the basis that

9 "The word 'procedural' in section 1447(c) refers to any defect that does not involve the inability of the federal district court to entertain the suit as a matter of its original jurisdiction." Baris v. Sulpicio Lines, Inc.,

(5th Cir.), cert. denied,

(1991).

10 In re Digicon Marine, Inc.,

(5th Cir. 1992).

11 Baris,

.

12

(c), 1445(a); Aquafaith Shipping, Ltd. v. Jarillas,

(5th Cir. 1992).

13

(b); In re Dutile,

(5th Cir. 1991).

4 the Jones Act claim and the general maritime claims are separate

and distinct and therefore removal was proper pursuant to

(c).14 Finding that the claims were not sufficiently separate

and distinct, the district court concluded that removal

jurisdiction was lacking.15

Thermtron "prohibits review of all remand orders issued

pursuant to § 1447(c) whether erroneous or not and whether review

is sought by appeal or by extraordinary writ."16 A remand order

upon a timely motion for lack of removal jurisdiction was issued

pursuant to section 1447(c). We have no jurisdiction to consider

this appeal.

DISMISSED FOR LACK OF APPELLATE JURISDICTION.

14 In the past we have pretermitted consideration of the potential conflict between sections 1445(a) and 1441(c), see In re Dutile; being without jurisdiction, we do so again.

15 We need not address whether the district court's conclusion is correct. Review is prohibited whether the district court rules erroneously or not. Medscope.

16

,

,

.

5