On Appeal from the United States District Court for the District of New Jersey.
Seitz, Gibbons, and Sloviter, Circuit Judges.
Herbert Bloom, in October 1983, commenced in a Florida state court a suit charging American Honda Motor Co., Inc. (Honda) with breach of warranty. The claim also sought relief pursuant to the Magnuson-Moss Warranty Act. Under that statute there is no United States District Court federal question jurisdiction unless the amount in controversy exceeds $50,000. 15 U.S.C. § 2310(d)(3)(B) (1982).
On December 5, 1983, Honda filed a verified petition pursuant to 28 U.S.C. § 144(a) (1982) and 28 U.S.C. § 1332 (1982) alleging that there was diversity of citizenship between the parties and that the amount in controversy exceeded $10,000, thereby removing the cases to the United States District Court for the Southern District of Florida. Simultaneously Honda moved the federal court to transfer the case to the District of New Jersey pursuant to 28 U.S.C. § 1404(a) (1982). Bloom opposed the transfer motion with an affidavit and a memorandum of law, both dated December 19, 1983. However, prior to that date, by an order dated December 15, 1983 and filed December 16, 1983, the District Court for the Southern District of Florida transferred the case to the District of New Jersey. After the transfer, Honda moved to dismiss the complaint on the ground that the federal court lacked subject matter jurisdiction. Honda pointed out that the federal court lacked jurisdiction over the Magnuson-Moss Warranty Act claim because it was for less that $50,000, and that the state law warranty claim to a legal certainty could not result in a judgment in excess of $10,000. The district court did not dismiss the action. Instead, on June 26, 1984, it ordered "that the motion [to dismiss] is denied, and the case is remanded to the Superior Court of New Jersey, Middlesex County." Bloom now petitions this court, pursuant to 28 U.S.C. § 1651 (1982), for a writ of mandamus directing the district court to vacate the June 26, 1984 order. We hold that the district court lacked authority to enter that order.
If the trial court had granted the motion to dismiss the action pursuant to Fed. R. Civ.P. 12(b)(l) for lack of subject matter jurisdiction because it determined to a legal certainty that the plaintiff could not satisfy a statutory jurisdictional amount requirement, that order would be reviewable as a final judgment. 28 U.S.C. § 1291 (1982). Instead, the court denied that motion, but "remanded to the Superior Court of New Jersey, Middlesex County." Since the order is denominated as a "remand," we must consider the effect of 28 U.S.C. § 1447(d) (1982), which in relevant part provides that "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . ." The quoted prohibition on review does not apply to the order by which Bloom is aggrieved, however, because that order does not remand the case "to the State court form which it was removed." The case was never lodged in the Superior Court of New Jersey.*fn1 Thus the prohibition on review is by its terms inapplicable.
There remains the question whether the order in question is one which may be reviewed in a prerogative writ proceeding under 28 U.S.C. § 1651 (1982). We hold that it is. Thermtron Products, Inc. v. Hermansdorfer, U.S. District Judge, 423 U.S. 336, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976), holds that mandamus is available to review a remand order made in excess of a district court's statutory authority. In Hermansdorfer the remand was to the court from which the case had been removed, but for reasons not specified in the removal statute. The instant case is an a fortiori case, for the "remand" is not a remand at all, but a transfer to a court which is a stranger to the case. The order we review, moreover, is closely akin to an order transferring to a venue to which it cannot legally be transferred. Such an order is reviewable by mandamus. Hoffman, U.S. District Judge v. Blaski, 363 U.S. 335, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960). See also Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir. 1982) (mandamus to prevent retransfer).
Since review pursuant to 28 U.S.C. § 1651 is proper, we need not consider whether, because the case has been effectively confined to limbo, pending neither in a federal nor a state court, review would also be available under 28 U.S.C. § 1291 as a final order.
On the merits, it is clear that the trial court lacked authority to "remand" to a New Jersey court. Following the change of venue the District of New Jersey had the same authority with respect to disposition of the case as had the District Court for the Southern District of Florida. It was even obliged to apply the same law as that court must have applied. Van Dusen, United States District Judge v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). The power of the Florida District Court with respect to claimed jurisdictional defects is specified in 28 U.S.C. § 1447(c), which provides that "if at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just ...