Case: 16-20646      Document: 00513727347         Page: 1    Date Filed: 10/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                  ___________________
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 20, 2016
                                     No. 16-20646
                                  ___________________                      Lyle W. Cayce
                                                                                Clerk
PRESTON MARSHALL; RUSK CAPITAL MANAGEMENT, L.L.C.,

              Plaintiffs - Appellees

v.

EDWIN K. HUNTER; HUNTER, HUNTER & SONNIER, L.L.C.,

              Defendants - Appellants

                               _______________________

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2731
                             _______________________

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*
       IT IS ORDERED that Appellees’ opposed motion to dismiss the appeal
for lack of subject matter jurisdiction is GRANTED for the following reasons.
       Defendants–Appellants in this case appealed the state trial court’s
decision that they were subject to personal jurisdiction in Texas. While this
appeal was pending, Plaintiffs–Appellees added a federal claim; Defendants–


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-20646

Appellants then removed to federal court. Upon removal, Defendants–
Appellants appealed the same state trial court decision they previously
appealed in state court. In arguing for subject matter jurisdiction, Defendants–
Appellants note that the state court order finding personal jurisdiction is still
in place under 28 U.S.C. § 1450. In addition, Defendants–Appellants cite the
Matter of 5300 Memorial Investors, Ltd., 

(5th Cir. 1992), for the
proposition that “the Court must accept the case in its current posture”—i.e.,
as on appeal.
      The jurisdictional problem with this case, however, is that there is no
federal district court order to appeal. Under 28 U.S.C. §§ 1291 and 1292(b),
this Court has jurisdiction over decisions by the district court. However,
Defendants–Appellants are asking us to review a state trial court order that
the district court has not adopted as its own. This procedural posture is at odds
with our decision in FDIC v. Meyerland Co., 

(5th Cir. 1992) (en
banc). There, we permitted a party in a removed case to appeal a state court
judgment, but only after the district court adopted the judgment. 

Likewise, we reviewed the state court judgment in the Matter of 5300 Memorial
Investors only after the district court adopted the judgment as its 

–63. As we stated in Adams v. Georgia Gulf Corp., 

(5th Cir. 2000), “while state court orders and rulings remain in effect
upon removal, they do not become appealable orders of the district court until
the district court adopts them as its own.” 

(citing 

); accord Concordia Partners, LLC v. Pick, 

, 280 (1st Cir.
2015 (“[W]e see no reason to adopt a rule that would require us to review a
state court order as if it had been entered by a federal district court when in
actual fact it was not.”).



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                                  No. 16-20646

      Moreover, this Court has made clear that the district court is free to
reconsider an interlocutory decision upon removal. See Nissho–Iwai Am. Corp.
v. Kline, 

, 1303 (5th Cir. 1988) (“[W]here as in the present case
the state court’s ruling is purely interlocutory, it remains subject to
reconsideration just as it had been prior to removal.”). The district court is not
obligated to rubber-stamp the state court’s order, as Defendants–Appellants
seem to suggest. For these reasons, we DISMISS this appeal for lack of
appellate jurisdiction.




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