Submitted: June 11, 2019
from United States District Court for the Western District of
Missouri - Springfield
GRUENDER, ARNOLD, and STRAS, Circuit Judges.
GRUENDER, CIRCUIT JUDGE.
Construction Services, Inc. ("TEI") appeals the
district court's order remanding the case to state court
based on a lack of subject-matter jurisdiction. We dismiss
the appeal for lack of appellate jurisdiction.
2014, Adam Vasseur sued various defendants in Missouri state
court alleging injuries sustained in a car accident. Vasseur
filed an amended petition naming TEI as an additional
defendant on November 17, 2017. TEI removed to the United
States District Court for the Western District of Missouri on
January 9, 2018 based on diversity jurisdiction under 28
U.S.C. § 1332. Vasseur filed a motion to remand on June
13, 2018, arguing that the removal had violated the one-year
time limit of 28 U.S.C. § 1446(c), which provides that
"[a] case may not be removed . . . on the basis of
jurisdiction conferred by section 1332 more than 1 year after
commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent
a defendant from removing the action." The district
court granted Vasseur's motion, holding that §
1446(c) is jurisdictional, that the failure to remove the
case within one year of the commencement of the original
action had therefore deprived the district court of
subject-matter jurisdiction, and that the case should be
remanded to Missouri state court pursuant to 28 U.S.C. §
1447(c). TEI appeals.
argues that the remand order was "erroneous"
because, under Missouri law, an action commences against a
particular party when that party is added to the lawsuit, not
when the original action was filed against other defendants.
But under 28 U.S.C. § 1447(d), "[w]hen a district
court remands a case based on a lack of subject matter
jurisdiction under section 1447(c), a court of appeals lacks
jurisdiction to entertain an appeal of the remand order"
and "the remand order must stand whether erroneous or
not and whether review is sought by appeal or by
extraordinary writ." Roberts v. BJC Health
Sys., 452 F.3d 737, 739 (8th Cir. 2006) (internal
quotation marks omitted). With this rule, "Congress has
decided that in the ordinary case the federal district court
should have the final word on removal since at some point
litigation over the choice of a courtroom must end."
Arnold Crossroads, L.L.C. v. Gander Mountain Co.,
751 F.3d 935, 939 (8th Cir. 2014) (internal quotation marks
omitted). "This congressional judgment makes perfect
sense for [t]he only thing that is at stake is the forum that
will hear a claim, and this issue is not so fundamental that
a second or third layer of judges must test its
correctness." Id. (internal quotation marks
verify whether we lack appellate jurisdiction under §
1447(d), "[w]e are required to determine by independent
review the actual grounds for the district court's remand
order." Id. For this analysis, a district
court's own characterization of its remand as based on a
lack of subject-matter jurisdiction "is not
dispositive" but "remains influential."
Id. (internal quotation marks omitted). After all, a
district court's remand order may "dress in
jurisdictional clothing a patently nonjurisdictional
ground" such as "docket congestion."
Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224, 234 (2007). But such minimal review is
"limited to confirming" that the district
court's "characterization of its remand as resting
upon lack of subject-matter jurisdiction" was at least
Vasseur admits that the district court characterized its
remand as based on a lack of subject-matter jurisdiction. He
also conceded during oral argument that the district
court's interpretation of § 1446(c)'s one-year
limitation as jurisdictional was "colorable." After
an independent review, we agree. In 2012,  § 1446(c)
was amended to add a "bad faith" exception to the
one-year time limit. A reasonable argument can be made that
it would only be necessary to add a "bad faith"
exception to the statute if § 1446(c)'s one-year
limitation is jurisdictional. If the one-year time limit of
§ 1446(c) is nonjurisdictional, it would already be
"presumptively subject to equitable tolling,"
see United States v. Kwai Fun Wong, 135 S.Ct. 1625,
1630 (2015) (emphasis removed), and the "bad faith"
exception would be largely superfluous. We are
"reluctant to treat statutory terms as surplusage in any
setting." TRW Inc. v. Andrews, 534 U.S. 19, 31
several courts disagree that the one-year limitation in the
2012 version of § 1446(c) is jurisdictional. See,
e.g., Ehrenreich v. Black, 994 F.Supp.2d 284,
288 (E.D.N.Y. 2014); Bank of Am., N.A. v. Lebreton,
No. 14-0319, 2015 WL 2226266, at *23 (D.N.M. Apr. 20, 2015);
Deutsch Bank Nat'l Co. v. Brader, No. 4:15-600,
2015 WL 9872070, n.11 (D.S.C. Oct. 28, 2015). We need not,
however, resolve this issue; it is "at least
debatable." See Powerex Corp. v. Reliant Energy
Servs., Inc., 551 U.S. 224, 234 (2007). We therefore
cannot review the merits of this remand order, colorably
characterized as based on a lack of subject-matter
jurisdiction, and it must stand "whether erroneous or
not." BJC Health Sys., 452 F.3d at 739.
foregoing reasons, we dismiss the appeal for lack of
The Honorable Roseann A. Ketchmark,
United States District Judge for the Western District of