Groves v. Darlington South Carolina, The City Of, 4th Cir. (2009)
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Scribd Government DocsGroves v. Darlington South Carolina, The City Of, 4th Cir. (2009)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1191
NATHAN ANDREW GROVES; JOEL FLAKE STROUD,
Plaintiffs - Appellants,
v.
DARLINGTON SOUTH CAROLINA, THE CITY OF,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:08-cv-00402-TLW-TER)
Submitted:
September 25, 2009
Decided:
October 14, 2009
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Joel F. Stroud, JOEL F. STROUD, ATTORNEY PLLC, Chesterfield,
South Carolina, for Appellants. J. Scott Kozacki, WILLCOX, BUYCK
& WILLIAMS, P.A., Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellants,
Stroud,
appeal
recommendation
Nathan
the
of
Andrew
district
the
Groves
courts
magistrate
judge
and
orders
and
Joel
Flake
accepting
dismissing
the
their
complaint with leave to file an amended complaint, affirming the
magistrate judges order of remand, and denying reconsideration
of that order.
We dismiss in part and affirm in part.
With respect to the district courts order dismissing
the
complaint
with
leave
to
amend,
this
court
may
exercise
jurisdiction only over final orders, 28 U.S.C. 1291 (2006),
and
certain
interlocutory
and
collateral
orders,
28
U.S.C.
1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 544-47 (1949).
An order granting
leave to amend is interlocutory as it leaves the case open for
either amendment of the complaint or entry of final judgment.
Jung v. K. & D. Mining Co., 356 U.S. 335 (1958); see also Domino
Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064,
1066-67 (4th Cir. 1993) (a dismissal without prejudice is not
generally appealable).
the
district
courts
Accordingly, we lack jurisdiction over
order
to
the
extent
it
dismissed
the
complaint with leave to amend.
With respect to the district courts order of remand,
we
find
that
the
order
is
not
reviewable.
See
28
U.S.C.
1447(d) (2006); Thermtron Prods., Inc. v. Hermansdorfer, 423
2
U.S.
336,
342
(1976)
(holding
limited
on
other
grounds,
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-15 (1996));
Kolibash v. Comm. on Legal Ethics, 872 F.2d 571, 573 (4th Cir.
1989).
The
Supreme
Court
has
specifically
recognized
that
1447(d) prohibits review of all remand orders issued pursuant
to [28 U.S.C.] 1447(c) [(2006)] whether erroneous or not.
Thermtron Prods., 423 U.S. at 342; see also In re Lowe, 102 F.3d
731, 734 (4th Cir. 1996) (holding that once an order of remand
is entered, the federal courts no longer have jurisdiction over
the case).
lack
of
remand,
Here, the district courts order of remand cites its
subject
and
matter
jurisdiction
therefore
the
order
as
the
was
reason
entered
for
pursuant
the
to
1447(c).
With
respect
to
the
district
courts
order
denying
reconsideration of these orders, the Appellants have failed to
challenge
that
order
appellate
review
of
on
appeal
that
order.
and,
therefore,
4th
See
Cir.
forfeited
R.
34(b).
Accordingly, we dismiss the appeal from the district courts
order
remanding
dismissing
the
jurisdiction,
portion
complaint
and
affirm
of
the
with
the
case
leave
district
to
to
state
amend
courts
court
for
lack
order
and
of
denying
reconsideration of that order.
We dispense with oral argument because the facts and
legal
contentions
are
adequately
3
presented
in
the
materials
before the court and argument would not aid in the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
