IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-40500

Summary Calendar

In The Matter Of: EAGLE BUS MANUFACTURING INC.; GREYHOUND LINES INC.; TRAILWAYS COMMUTER TRANSIT INC.; BUSLEASE INC.; GLI BUS OPERATION HOLDING CO.; GLI FOOD SERVICES; SOUTHERN GREYHOUND LINES COMPANY; GLI HOLDING COMPANY; GREYHOUND TRAVEL SERVICES INC.; EASTERN GREYHOUND; WESTERN GREYHOUND LINES CO.; CENTRAL GREYHOUND LINES COMPANY, Debtors.

LARRY D. MIELL, Appellant,

versus

EAGLE BUS MANUFACTURING INC.; GREYHOUND LINES INC.; TRAILWAYS COMMUTER TRANSIT INC.; BUSLEASE INC.; GLI BUS OPERATION HOLDING CO.; GLI FOOD SERVICES; SOUTHERN GREYHOUND LINES COMPANY; GLI HOLDING COMPANY; GREYHOUND TRAVEL SERVICES INC.; EASTERN GREYHOUND; WESTERN GREYHOUND LINES CO.; CENTRAL GREYHOUND LINES COMPANY, Appellees.

Appeal from the United States District Court For the Southern District of Texas (B-97-CV-251)

October 27, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except The debtors in this case filed for Chapter 11 reorganization

on June 4, 1990. The bankruptcy court confirmed their plan, which

became effective October 31, 1991. The Confirmation Order

discharged the debtors from any debt that arose before the

confirmation date.

In 1994, appellant Miell commenced a class action in Minnesota

state court against Greyhound, alleging breach of contract,

misrepresentation, and promissory estoppel. The complaint alleged

that in August 1990, Greyhound made known to its drivers (including

Miell) that changes in its wage system would become effective in

September 1990. Although these events occurred pre-confirmation,

neither Miell nor any member of his class filed a proof of claim.

After a voluntary dismissal, Miell re-filed the action in 1995,

seeking only damages incurred post-confirmation. Greyhound removed

the case to federal court.

At this point, Greyhound filed a motion in the bankruptcy

court to enforce the injunctions contained in the Confirmation

Order. The bankruptcy court granted the motion and enjoined the

lawsuit. (The bankruptcy court’s enforcement order has since become

final.) Miell then moved the bankruptcy court for relief from the

confirmation injunction. In his motion for relief he argued that he

“does not have the financial resources to litigate his claims in

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 any foreign forum.” The bankruptcy court denied the motion, and the

district court affirmed.

Miell appeals to this court, making three arguments. First, he

claims that the bankruptcy court lacks subject matter jurisdiction

over his class action claims. Second, he argues that “equity in

this matter weighs heavily in favor of ordering a remand to the

State Court in Minnesota.” Third, he argues that abstention by the

bankruptcy court is appropriate because his claims arise under

state law.

Regarding subject matter jurisdiction, Greyhound argues that

Miell cannot challenge the jurisdiction of the bankruptcy court for

two reasons: (1) the now-final bankruptcy court enforcement order

held that jurisdiction exists, and this holding acts as res

judicata, and (2) Miell consented to bankruptcy court jurisdiction

by filing the motion for relief. We address only Greyhound’s first

argument. Although subject matter jurisdiction can be raised at any

time in a proceeding, once it has been litigated and judgment

becomes final, the determination of subject matter jurisdiction has

res judicata effect. 1 Thus, Miell cannot challenge the bankruptcy

court’s subject matter jurisdiction to enter the enforcement order.

1 See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,

, 702 n.9 (1982), citing Chicot County Drainage Dist. v. Baxter State Bank,

(1940), and Stoll v. Gottlieb,

(1938).

3 Miell’s request for remand to Minnesota state court is

addressed to the wrong court. This court has no power over the

removal of actions from Minnesota courts. This issue should be

raised with the appropriate district court in Minnesota and, if

necessary, appealed to the Eighth Circuit.

Finally, abstention was not raised by Miell in the bankruptcy

court; Miell requested relief on the basis of the financial cost of

an inconvenient forum. This argument cannot be made for the first

time on appeal. In any case, section

(d) does not

allow appeal from a refusal to abstain by the bankruptcy court

under

(c)(1).2

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

2

(d) (2000). The exception in section 1334(d) for abstention under section 1334(c)(2) does not apply in this case, because diversity of the parties provides an independent basis for federal jurisdiction.

4