|
|
ATLANTIC NAT. TRUST LLC v. MT. HAWLEY INS. CO.
621 F.3d 931 (2010)
ATLANTIC NATIONAL TRUST LLC, a Florida limited liability company, Plaintiff-Appellee,
v.
MT. HAWLEY INSURANCE COMPANY, a Delaware corporation, Defendant-Appellant,
Lebanon Hardboard LLC, an Oregon limited liability company; Tritalent Funding Group, LLC, an Oregon limited liability company, Defendants-Appellees, and
Crump Insurance Services, Inc., a Texas corporation; Chamberlain Insurance Agency LLC, an Oregon limited liability company, Defendants.
No. 09-35716.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 7, 2010.
Filed September 2, 2010.
Brian E. Sims
, Morison Holden Derekwetzky & Prough, LLP, Walnut Creek, CA, for appellant Mt. Hawley Insurance Co.
John Folawn
, Folawn Alterman Richardson LLP, Portland, OR, for appellee Atlantic National Trust, LLC.
Paul G. Dodds
, Brownstein, Rask, Sweeney, Kerr, Grim, DeSylvia & Hay, LLP, Portland, OR, for appellee Tritalent Funding Group, LLC.
Dean D. DeChaine
, Miller Nash LLP, Portland, OR, for appellee Lebanon Hardboard, LLC.
Before ANDREW J. KLEINFELD, CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
OPINIONIKUTA, Circuit Judge: Today we hold that we lack appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a "defect" for purposes of 28 U.S.C. § 1447(c). See 28 U.S.C. § 1447(d); Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). IIn October 2008, a fire caused over $10 million in damage to buildings and property owned by Lebanon Hardboard, LLC. Atlantic National Trust, LLC ("Atlantic") had loaned money to Lebanon Hardboard secured by interests in the buildings and property. The loan agreements required Lebanon Hardboard to maintain fire insurance on the property for the benefit of Atlantic, and to assign all insurance proceeds to Atlantic. Tritalent Funding Group, LLC ("Tritalent") had also loaned
money to Lebanon Hardboard and had likewise obtained a security interest in the buildings and property. Before the fire, Lebanon Hardboard submitted an application for fire insurance to Crump Insurance Services, Inc. ("Crump") and Chamberlain Insurance Agency LLC ("Chamberlain"), both of which were agents of Mt. Hawley Insurance Company ("Mt.Hawley"). Mt. Hawley issued an insurance binder (the actual policy was not delivered until after the fire) to Lebanon Hardboard with a $4 million per occurrence limit, but the binder did not designate Atlantic or Tritalent as mortgagees or loss payees. After the fire, Atlantic demanded payment under the policy from Lebanon Hardboard and Mt. Hawley. Mt. Hawley denied that Atlantic was covered by the insurance policy or that it had any obligation to pay Atlantic. On February 20, 2009, Atlantic filed a complaint for damages and declaratory relief against Mt. Hawley, Crump, Chamberlain, Lebanon Hardboard, and Tritalent in Oregon state court. Atlantic sought, among other things, reformation of the contract and a declaration that Atlantic's rights to the insurance proceeds were superior to Tritalent's and Lebanon Hardboard's. Atlantic gave Lebanon Hardboard and Mt. Hawley courtesy copies of the complaint on February 25, 2009.
1. 28 U.S.C. § 1448 provides that after a case has been removed to federal court, the plaintiff may complete or perfect service on a defendant who had not been properly served before removal, but states that "[t]his section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case." 2. Because the district court adopted the magistrate's findings and recommendation in full, we use the term "district court" to refer to both the district court's and the magistrate's conclusions. 3. Section 1447(d) provides an exception to this prohibition on appellate review, for "an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title...." The cited section, 28 U.S.C. § 1443, refers to certain civil rights cases, and therefore does not apply in this case. 4. Because we decide on this ground, we do not reach appellees' argument that we lack subject matter jurisdiction because the parties are not completely diverse. See Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (holding that there is "no mandatory `sequencing of jurisdictional issues,'" and we have "leeway `to choose among threshold grounds for denying audience to a case on the merits.'" (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999))).
|
|