The Third Circuit Court of Appeals has determined that it lacks jurisdiction to consider an appeal from a federal district court order denying reconsideration of an order remanding a matter to state court. Agostini v. Piper Aircraft Corp., No. 12-2098 (3d Cir., decided September 5, 2013). The issue arose in a case brought by the personal representatives for the estates of individuals killed in an airplane crash.

The defendants removed the action to federal court, but the district court granted the plaintiffs’ motion to remand on finding that one of the defendants, a Pennsylvania citizen, was not diverse from all the plaintiffs. The defendants moved for reconsideration, arguing that the court based its ruling on "unsubstantiated argument, unauthenticated documents and facts outside the record that had not been established by affidavit or testimony." The court denied the motion.

According to the appeals court, 28 U.S.C. § 1447(d) clearly bars review of a remand order. The defendants argued, however, that "a remand order is distinct from a motion to reconsider a remand order" and that the rule does not bar appellate court review of the latter. They argued that the motion to reconsider a remand order is a "collateral issue" over which the court retains jurisdiction. The court disagreed that such a motion "cannot affect" the progress of a case which has been returned to state court, saying "reversal of the District Court’s reconsideration order would necessarily affect the District Court’s decision to remand the case to state court." Thus, according to the court, "the very purpose of this appeal is to subvert the remand order by convincing this Court that diversity jurisdiction does, indeed, exist."

Still, even though it found its own jurisdiction lacking, the Third Circuit determined that the district court had jurisdiction to consider the motion to reconsider because the "jurisdiction-transferring" event of its remand order—that is, "the mailing of a certified copy of the remand order to state court"— had not yet occurred when the motion was filed. The court denied the plaintiffs’ request for attorney’s fees "for responding to what they claim is a baseless appeal," because the court had not previously "conclusively settled" the question presented. The court dismissed the appeal.