USCA1 Opinion

November 24, 1993

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 93-1252

DATCOM, INC.,
Plaintiff, Appellee,
v.
INTEGRATED TECHNOLOGY, INC.,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
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___________________

Kevin E. Sharkey and Kenna, Johnston, & Sharkey on brief for

________________
__________________________
appellant.
Lawrence R. Opert, Opert & Shandler on brief for appellee.
_________________ ________________

__________________
__________________

Per Curiam.
__________

The question

before

us is

whether

the

district court order granting defendant's motion to dismiss a

petition for removal

is appealable.

We conclude

that it is

not.
In

October 1992,

plaintiff-appellee,

Massachusetts corporation, filed

Court

in

appellant,

Cambridge,

corporation, with its

New Hampshire.
for tortious

suit in Middlesex

Massachusetts,

Integrated

Datcom, Inc.,

Technology,

against
Inc.,

Superior
defendant-

Delaware

principal place of business

in Salem,

The suit sought in excess of $300,000 damages

interference

with

contractual

relations

and

unfair
1993,

and deceptive
a

default

business practices.

order

was

issued

Technology pursuant to Mass. R.

failure to plead

filed a

against

20,

Integrated

Civ. P. 55(a) because of its

or otherwise defend

Mass. R. Civ. P. 12(a).

On January

itself as required

by

On January 22, Integrated Technology

petition to remove

the matter to the

United States

District Court for the District of Massachusetts on the basis

of diversity jurisdiction.
motion

In response, Datcom, Inc. filed a

to dismiss contending

that the petition

for removal

had not been timely filed since a default had already entered
in state

court prior to

the filing of the

On

February 10, 1993, the district

to

dismiss, noting

court

when

the

that the

petition

remand petition.

court allowed the motion

case was

for removal

in default
was

filed.

in state
Datcom

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appeals the

district court's

order dismissing

for removal.

Discussion
Discussion

its petition

Integrated Technology contends

the district court
dismissal of

that

the word "remand" was never used

mailed to the

order is

Integrated

Technology

expressly called
for removal

court

docket

the case to

the docket sheet

indicates

on June

Integrated

to

required by 28
further asserts

have been
U.S.C.
that

the

final order pursuant

such, the
in

order dismissing

effect

indicates

a remand.
an

of the Middlesex
a

case

is

now

Sup[erior]

The record also

proceeding

Technology's contention

12, 1993.

Superior Court

"[r]etransfer to

District Court of Mass."

The

"intradistrict

state court on February

3, 1993,

C[ou]rt from U.S.

the

was

sheet

Moreover,

that

in the order

1291.

petition

transfer" of

shows

order appears

thus directly appealable as a

While not

district

remand

state court clerk as

to 28 U.S.C.

the

dismissing its petition for removal was a

no certified

1447(c).

order of

its action and not a remand to the state court.

It notes that
and

first that the

in

that the

state court.
district court

order was a dismissal rather than a remand is without merit.

Given that the

district court order

next question is whether the

was a remand,

the

order was issued pursuant to 28

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U.S.C.

1447(c).

If it were, 28 U.S.C.

appellate review of

1447(d)

the order "whether erroneous

precludes
or not and

whether review is sought by appeal or by extraordinary writ."

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343
________________________
_____________
(1976).
Section 1447(c) provides
to state

that a court may remand a case

court either "on the basis of any defect in removal

procedures" or if "it

appears that the district court

subject matter jurisdiction."

not refer to section 1447(c)
was

either

a defect

in

The order in

lacks

this case does

nor does it indicate that there

removal

procedure

or a

lack

of

jurisdiction.1
While the district court did not make explicit the basis
for its remand order, it
of a perceived
to

defect in removal procedure.

dismiss the petition

claim that,

for removal

basis

Datcom's motion

was predicated

on its

because the petition was filed after the default

order had issued

was not

appears to have acted on the

in state court,

timely filed."

the "Petition for

"[A]n untimely

notice of

Removal
removal"

qualifies as a procedural defect under section 1447(c).

v. Cabral, 989 F.2d 525, 525 (1st
______
court

is precluded

from

Cir. 1992).

considering

FDIC
____

As such, this

whether the

district

court was correct in its remand decision.

Id.
__

____________________
1. The order simply states that the "Motion to Dismiss is
allowed, as case was in default in State Court when Petition
_______
for Removal was filed."
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Moreover,
court

even if

remand was

we were

not on

to

the basis

find that

the district

of section

1447(c), we

still would not disturb the remand order.

An order remanding a removed case is not appealable as a
final judgment.
1853,

Garcia v. Island Program Designers,

______
________________________

slip op. at 6-8 (1st

No. 92-

Cir. Sept. 14, 1993); Doughty v.

_______

Underwriters at Lloyds, London, et al, Nos. 93-1174, slip op.

_____________________________________
at 7-11 (1st Cir. Oct. 18, 1993).
Nor

does

the

remand order

in

this

case qualify

appealable under the collateral doctrine order.

Beneficial Industrial Loan Corp., 337
_______________________________

as

See Cohen v.
___ _____

U.S. 541, 546 (1949).

To qualify under
alia, decide a
____
and

apart

the Cohen test, a remand

_____
"salient legal question that

from the

merits

'collateral' issue."
the

order must, inter

_____

in

th[e]

stands separate

case, that

Doughty, slip op. at 12.

_______

"collateral" issue

is which

forum

is,

[a]

In this case,

should resolve

the

dispute.

However, "[d]etermining whether a state or federal

court

to

is

resolution

resolve an
of

circumstances

issue

collateral

exist."

Id.
__

constitutes
matter
at

the definitive

only

13.

No

when

special

such

special

circumstances exist in the present case.

Finally, this is not a proper case for the issuance of a
writ

of mandamus requiring the district

court to vacate the

remand order and to accept jurisdiction of the case.

thing, appellant

has

not asked

us to

issue a

For one

prerogative

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writ.
with

For another
this

thing, mandamus relief

court, Kerr
____

v.

is discretionary

United States Dist. Court for

________________________________

Northern Dist.,
_____________

426 U.S. 394,

granted when the

403 (1975), and will

challenged order is palpably

only be

erroneous and
___

when the petitioner has shown that he faces a special risk of

irreparable harm, In re Pearson, 990 F.2d 653, 656 & n.4 (1st
_____________
Cir.

1993) (collecting

orders .

. .

rarely will

mandamus relief."
1006

(1st Cir.

prefer

likelihood

cases).
satisfy

"Interlocutory

procedural

th[e] preconditions

for

In re Recticel Foam Corp., 859 F.2d 1000,

_________________________
1988).

federal

The mere

forum

that petitioner

is

fact that

insufficient

petitioner may
to

will suffer irreparable

having its case litigated in the state system.

op. at 22.
Appeal dismissed.
_________

establish

harm by

Doughty, slip
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