Unpublished Dispositionjack R. Hughes, Merle A. Pettit, Plaintiffs-appellees, v. General Motors Corporation, a Delaware Corporation,defendant-appellant.in Re General Motors Corporation, a Delaware Corporation, Petitioner, 934 F.2d 322 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 934 F.2d 322 (6th Cir. 1991)

May 31, 1991


Before NATHANIEL R. JONES and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


ORDER

General Motors Corporation ("GM") appeals from the order of the district court remanding Counts I and II of plaintiffs' complaint to the state court (Case No. 91-1414). GM also seeks a petition for a writ of mandamus directing the district court to set aside the remand order and to enter an order denying plaintiffs' motion to remand (Case No. 91-1424). Plaintiffs have not responded to the petition for writ of mandamus, but they have filed a motion to dismiss the appeal for lack of jurisdiction, or to remand to the district court.

Although 28 U.S.C. § 1447(d) might appear to preclude any review of a remand order, the Supreme Court held that "only remand orders issued under Sec. 1447(c) and involving the grounds specified therein--that removal was improvident and without jurisdiction--are immune from review under Sec. 1447(d)." Thermtron Products, Inc. v. Hermandorfer, 423 U.S. 336, 346 (1976). This case was removed from the state court on the basis that the federal court has jurisdiction over claims premised on state law, but preempted by the Employee Retirement Income Security Act of 1974 ("ERISA") and within the scope of 29 U.S.C. § 1132(c). See Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58 (1987). After dismissing the state law claim found to be preempted by ERISA, the district court remanded the remaining claims. Review of such a remand order is not prohibited by 28 U.S.C. § 1447(d). See Thermtron Products, Inc. v. Hermandorfer, supra; In re: Romulus Community Schools, 729 F.2d 431, 435 (6th Cir. 1984).

The order, however, is not a final order reviewable on a direct appeal to this court. Rather, it is reviewable solely by way of a petition for writ of mandamus. Thermtron Products, Inc. v. Hermandorfer, supra; Beard v. Carrollton R.R., 893 F.2d 117, 120-21 (6th Cir. 1989); In re: Romulus Community Schools, 729 F.2d at 435. Consequently, GM's appeal (Case No. 91-1414) must be dismissed.

The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations where the petitioner can show a clear and indisputable right to the relief sought. Will v. Calvert Fire Insurance Co., 437 U.S. 655, 661-62 (1978); Kerr v. United States District Court, 426 U.S. 394, 402-03 (1976); In re: King World Productions, Inc., 898 F.2d 56, 58 (6th Cir. 1990). There must be a demonstration of a clear abuse of discretion or conduct amounting to usurpation of judicial power in order to grant such a writ. Mallard v. United States District Court, 490 U.S. 296, 309 (1989).

Upon review of the voluminous petition filed by GM, we conclude that GM has failed to demonstrate that the remand order was clearly erroneous or a clear abuse of discretion by the district court. GM has, therefore, failed to demonstrate a clear and indisputable right to the relief sought.

It is ORDERED that plaintiffs' motion to dismiss the appeal in Case No. 91-1414 is granted and GM's petition for a writ of mandamus in Case No. 91-1424 is denied.