Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-17-2006

Stoe v. Flaherty
Precedential or Non-Precedential: Precedential

Docket No. 04-3947




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Recommended Citation
"Stoe v. Flaherty" (2006). 2006 Decisions. Paper 1344.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1344


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    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       NO. 04-3947


                    GEORGE P. STOE,
                       Appellant

                            v.

    WILLIAM E. FLAHERTY; DAVID CARPENTER;
      JAMES CARPENTER; WILLIAM SMELAS;
     ROBERT SUNDERMAN; RONALD STATILE


      On Appeal From the United States District Court
         For the Western District of Pennsylvania
           (D.C. Civil Action No. 04-cv-00489)
        District Judge: Hon. Donetta W. Ambrose


             Argued October 18, 2005
    BEFORE: SMITH, STAPLETON and NYGAARD,
                 Circuit Judges


                         ORDER

      IT IS ORDERED that the opinion of the Court entered
January 23, 2006, is hereby amended by deleting the last
sentence of Section III-C and substituting in lieu thereof a new
paragraph to read as follows:

               This argument has been waived.1 But
       even were we to consider it, our conclusion
       would be the same. We do not read section
       959(a) as creating federal jurisdiction that would
       exist independent of 28 U.S.C. § 1334.
       Accordingly, section 959(a) does not suggest that
       this state law action is anything other than “an
       action that could not have been commenced in a
       court of the United States absent jurisdiction
       under” 28 U.S.C. § 1334. 28 U.S.C. §
       1334(c)(2).

                            By the Court

                             /s/ Walter K. Stapleton
                            United States Circuit Judge

DATED: March 17, 2006




       1
         Mandatory abstention applies only “[u]pon timely
motion of a party” and does not implicate the Court’s subject
matter jurisdiction. 28 U.S.C. § 1334(c)(2); In re V&M Mgmt.,
Inc., 

, 8 (1st Cir. 2003) (“[T]he abstention provision,
which is waiveable by the parties, does not detract from the
district court’s subject matter jurisdiction.”).

                               2