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


6-6-2006

Citifinancial v. Gimbi
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5052




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Recommended Citation
"Citifinancial v. Gimbi" (2006). 2006 Decisions. Paper 947.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/947


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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-5052
                                     ___________

                                   CITIFINANCIAL

                                           v.

                                 CLARISSA GIMBI,
                                         Appellant
                               _____________________

                     Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civil No. 05-cv-1230)
                     District Judge: Honorable Thomas I. Vanaskie
                              ________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 12, 2006

              Before: RENDELL, AMBRO and *ROTH, Circuit Judges.

                                  (Filed June 6, 2006)
                                  ________________

                              OPINION OF THE COURT
                                 ________________

PER CURIAM

      Clarissa Gimbi appeals the District Court’s order granting appellee CitiFinancial’s




*Effective May 31, 2006 Judge Roth assumed senior status.
motion to dismiss or remand. The procedural history of this case is well-known to the

parties, set forth in the District Court’s opinion, and need not be discussed at length.

Briefly, appellee filed an action against Gimbi in state court. After judgment was entered

against her, Gimbi filed a notice of removal in the District Court for the Middle District

of Pennsylvania. The District Court found that it did not have subject-matter jurisdiction

and dismissed the action. Gimbi filed a timely notice of appeal.

       Appellee argues that we lack jurisdiction over the appeal because an order

remanding a case to the state court from which it was removed is generally not

appealable. 28 U.S.C. § 1447(d). However, here the District Court did not remand the

case; it dismissed the action. Appellee cites to Com. of Pa. ex rel. Gittman v. Gittman,

451 F.2d 155 (3d Cir. 1971), to support its argument that such a dismissal is also not

appealable. However, in Gittman, we did not dismiss the appeal for lack of jurisdiction;

rather, we affirmed the District Court’s decision that the appellant had not made out a

case for removal pursuant to § 1443. Moreover, we noted that although the District Court

stated that the petition to remove the case was denied, we deemed that the effect of the

order was to remand the case to the state court. Id. at 157. Here, however, the District

Court explicitly chose to dismiss the case instead of remanding it. Thus, we conclude that

we have jurisdiction over the appeal.

       For the reasons given by the District Court, we agree that removal was improper.

The District Court determined that there was no state court to which to remand the matter



                                              2
because Gimbi had not appealed the judgment of the Magistrate Court to the Court of

Common Pleas. However, we believe the better course is to remand the case rather than

dismiss it. See Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 214 (3d Cir.

1997)(“[W]hen a federal court has no jurisdiction of a case removed from a state court, it

must remand and not dismiss on the ground of futility.”)

       Accordingly, we will vacate the District Court’s order and remand the matter with

instructions to remand the case to the state court from which it was removed.




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