Victoria Palms v. City of Donna

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 30, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 06-40687
_______________________
VICTORIA PALMS RESORT INC.,
Plaintiff-Appellant,
versus
CITY OF DONNA, TEXAS,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, McAllen
No. 7:05-CV-287
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
EDITH H. JONES, Chief Judge:*
Appellee City of Donna, Texas (“City”), having spawned
costly, time-consuming, and dubious procedural complexity in the
extended course of litigation between these parties, moves to
dismiss this appeal for lack of our appellate jurisdiction. We
review de novo, and are constrained to agree for the following
reasons.
The City contends that it timely removed a case against
it filed by Victoria Palms into federal district court in the
Southern District of Texas. Notably, when the City filed its

-- 1 of 3 --

2
removal petition, the litigation between the City and Victoria
Palms was pending on appeal in the Texas state courts. Further,
Victoria Palms contended that the City’s removal was untimely under
the federal removal statute. The district court, however, denied
Victoria Palms’s motion to remand.
After receiving briefing from the parties concerning the
consequences of removal of a case pending on appeal in state court,
the district court entered an order transferring the removed case
to this court. For authority supporting its transfer, the district
court cited Meyerland Co. v. F.D.I.C., 848 S.W.2d 82, 83 (Tex.
1993), and Granny Goose Foods v. Brotherhood of Teamsters & Auto
Truck Drivers Local No.70 of Alameda County, 415 U.S. 423,
94 S. Ct. 1113 (1974).
The district court’s order has prompted further briefing
in this court by both parties. Contrary to the district court’s
decision, Fifth Circuit case law allowing removal of state cases on
appeal in state court applies only to removal of cases in which a
specific federal statute, 12 U.S.C. § 1819 (b)(2), afforded
particular removal jurisdiction to federal courts in cases under
the Federal Institutions Reform, Recovery, and Enforcement Act of
1989 (FIRREA), 12 U.S.C. § 1819 et seq. See F.D.I.C. v. Meyerland
Co., 960 F.2d 512 (5th Cir. 1992) (en banc). Meyerland furnishes
no support for the theory that this court can exercise jurisdiction
over a case removed in an appellate posture from the state courts.
For that matter, Meyerland furnishes no support for removal of any

-- 2 of 3 --

3
non-FIRREA cases to federal district courts while still on appeal
in the state court system. See id. at 515 n.5. The statute
interpreted in Granny Goose Foods governs only the post-removal
status of state court orders in federal courts. See 28 U.S.C.
§ 1450. That provision does not confer initial jurisdiction. This
court lacks a basis for exercising either final judgment or
interlocutory jurisdiction.
It is evident from the record that the City has contrived
to confound and confuse the litigation in the state court system
and now in this court. We trust the district court will try to
prevent further erroneous manipulation of the litigation process,
an effort that might commence with a reconsideration of the
district court’s order denying remand.
The district court’s “Order of Transfer” to this court
does not confer appellate jurisdiction. Motion to dismiss “appeal”
GRANTED.

-- 3 of 3 --