In re Cooper

Full title: In re: John COOPER; Carrie D. Boe, Petitioners

Court: United States Court of Appeals, Fifth Circuit

Date published: Dec 9, 2010

403 F. App'x 951 (5th Cir. 2010)

Opinion

No. 10-50941 Summary Calendar.

December 9, 2010.

Nathaniel Stuart Brignon, Terry Wayne Rhoads, Cotton, Bledsoe, Tighe Dawson, P.C., Midland, TX, for Petitioners.

Petition for a Writ of Mandamus to the United States District Court for the Western District of Texas.

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

John Cooper and Carrie Boe (Petitioners) seek a writ of mandamus to vacate a district court's order remanding a case to state court.¹ In subsequent briefing to the court, however, the Petitioners have suggested that their petition has been mooted by the filing of an amended complaint in state court. The Petitioners claim that they will file a new notice of removal as a result of this pleading. Specifically, the Petitioners "respectfully suggest their Petition for Writ of Mandamus is moot, but reserve the right to re-file same should the District Court remand the . . . claims pending in the underlying litigation in the future prior to a proper adjudication." We read this representation as a request by the Petitioners to withdraw the instant petition, and we dismiss the petition on that basis. We do not address at this time whether this court otherwise lacks jurisdiction to review the district court's remand order.²

1 See In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993) ("We may review a remand order on petition for writ of mandamus . . . provided that it was entered on grounds not authorized by [28 U.S.C] § 1447(c)."). But see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that remand orders are also appealable orders under 28 U.S.C. § 1291).

2 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or other-wise. . . ."); see also Carlsbad Tech., Inc. v. HIFBio, Inc., ___ U.S. ___, 129 S.Ct. 1862, 1865-66, 173 L.Ed.2d 843 (2009) ("This Court has consistently held that § 1447(d) must be read in pari materia with § 1447(c), thus limiting the remands barred from appellate review by § 1447(d) to those that are based on a ground specified in § 1447(c).").

DISMISSED.