FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRIS KENNY, on behalf of himself 

and all others similarly situated,

Plaintiff-Appellee,

v.

WAL-MART STORES, INC., a 

Delaware Corporation; WAL-MART 

ASSOCIATES, INC., a Delaware 

Corporation,

Defendants-Appellants.

No. 17-56809

D.C. No.

5:17-cv-00967-

R-KK

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted January 9, 2018

Pasadena, California

Filed February 1, 2018
2 KENNY V. WAL-MART STORES

Before: MILAN D. SMITH, JR. and MICHELLE T. 

FRIEDLAND, Circuit Judges, and JED S. RAKOFF,

*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY**

Remand / Removal

The panel vacated the district court’s order remanding a 

putative class action to California state court because the 

district court exceeded its statutory authority in remanding 

sua sponte based on a non-jurisdictional defect, and because 

Wal-Mart did not waive its right to remove the action to 

federal court; and remanded to the district court for further 

proceedings.

Plaintiff filed the putative class action in California state 

court, challenging Wal-Mart’s policy requiring employees 

who have suffered workplace-related injuries to submit to 

drug and/or urine testing. Wal-Mart removed the case to 

federal court based on jurisdiction under the Class Action 

Fairness Act (“CAFA”). The district court sua sponte

remanded the action to state court, concluding that Wal-Mart 

had waived its right to remove the case by filing a demurrer 

 * The Honorable Jed S. Rakoff, Senior United States District Judge 

for the Southern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KENNY V. WAL-MART STORES 3

in response to plaintiff’s First Amended Complaint (“FAC”) 

in state court.

The panel held that the district court lacked authority 

under 28 U.S.C. § 1447(c) to remand sua sponte based on a 

non-jurisdictional defect.

The panel noted that a defendant “may waive the right to 

remove to federal court where, after it is apparent that the 

case is removable, the defendant takes actions in state court 

that manifest his or her intent to have the matter adjudicated 

there, and to abandon his or her right to a federal forum.” 

Resolution Tr. Corp. v. Bayside Developers, 43 F.3d 1230, 

1240 (9th Cir. 1994). The panel held that the district court 

erred in concluding that Wal-Mart waived its right to remove 

the case when the FAC did not reveal a basis for removal 

pursuant to CAFA. The panel also held that Wal-Mart’s 

choice to file a demurrer, rather than another form of 

responsive pleading, to plaintiff’s indeterminate FAC did 

not amount to a waiver of its right to remove. The panel 

further held that where Wal-Mart removed the case before 

plaintiff opposed the demurrer and before any hearing was 

held, clearly Wal-Mart did not manifest an intent to litigate 

in state court.
4 KENNY V. WAL-MART STORES

COUNSEL

Mark D. Kemple (argued) and Ashley Farrell-Picket,

Greenberg Traurig LLP, Los Angeles, California, for 

Defendants-Appellants.

David M. deRubertis (argued) and Jeff D. Neiderman, The 

deRubertis Law Firm APC, Studio City, California; Ellen R. 

Serbin, Todd H. Harrison, and Brennan S. Kahn, Perona 

Langer Beck Serbin Mendoza & Harrison APC, Long 

Beach, California; for Plaintiff-Appellee.

OPINION

M. SMITH, Circuit Judge:

Defendants Wal-Mart Stores, Inc. and Wal-Mart 

Associates, Inc. (collectively, Wal-Mart) appeal from the 

district court’s order remanding Plaintiff Kris Kenny’s 

(Kenny) putative class action to California state court. In a 

four-sentence minute order, the district court remanded the 

case sua sponte, stating summarily that Wal-Mart waived its 

right to remove by filing a demurrer in state court prior to 

removal.

We disagree, and hold that the district court erred on two 

grounds. First, the district court exceeded its statutory 

authority in remanding sua sponte based on a nonjurisdictional defect. Second, Wal-Mart did not waive its 

right to remove by filing a demurrer in state court, when its 

right to remove pursuant to the Class Action Fairness Act 

(CAFA), 28 U.S.C. § 1332(d), was not ascertainable from 

Kenny’s pleading. We therefore vacate the district court’s 

remand order, and remand to that court for further 

proceedings.
KENNY V. WAL-MART STORES 5

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2017, Plaintiff Kris Kenny filed a 

putative class action Complaint against Defendants WalMart Stores, Inc., Wal-Mart Associates, Inc., and U.S. 

Healthworks Medical Group,1 in California state court, 

challenging Wal-Mart’s policy requiring employees who 

have suffered workplace-related injuries to submit to drug 

and/or urine testing. Kenny did not serve the Complaint on 

any of the Defendants.

On February 17, 2017, Kenny filed a First Amended 

Complaint (FAC), and served the FAC on Wal-Mart. 

Generally, a defendant in a California state court must 

respond to the complaint within thirty days after service, or 

risk default. See Cal. Civ. Proc. Code § 471.5. Wal-Mart 

obtained a fifteen-day extension to respond to the FAC, 

resulting in a deadline of April 4, 2017.

On April 4, 2017, Wal-Mart filed a demurrer and a 

motion to strike the FAC. Wal-Mart set the hearing on the 

demurrer for June 15, 2017. Kenny’s deadline to oppose the 

demurrer was June 2, 2017, nine court days before the 

hearing. See id. § 1005(b).

On May 17, 2017, nearly a month before the hearing, 

Wal-Mart removed the case to federal court, asserting that 

the district court had jurisdiction over the case pursuant to 

CAFA. At the time of removal, Kenny had not yet opposed 

 1 U.S. Healthworks Medical Group (U.S. Healthworks) is not a party 

to this appeal. U.S. Healthworks is alleged to have performed the drug 

and urine tests at issue in the lawsuit.
6 KENNY V. WAL-MART STORES

the demurrer, discovery had not begun, and the state court 

had issued no rulings.

On June 8, 2017, the district court, acting sua sponte, 

issued a four-sentence minute order remanding the action to 

state court. The district court concluded, without 

explanation, that Wal-Mart had waived its right to remove 

the case by filing a demurrer in response to Kenny’s FAC in 

state court.

Wal-Mart timely petitioned this court for permission to 

appeal the district court’s remand order. We granted the 

petition on December 4, 2017.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the district court’s sua 

sponte remand order pursuant to 28 U.S.C. § 1453(c)(1). See 

Watkins v. Vital Pharm., Inc., 720 F.3d 1179, 1180–81 (9th 

Cir. 2013) (per curiam). We review the district court’s 

remand order de novo. Brinkley v. Monterey Fin. Servs., 

Inc., 873 F.3d 1118, 1121 (9th Cir. 2017).

ANALYSIS

I. The District Court Erred in Remanding Sua Sponte 

Based on a Non-Jurisdictional Defect.

A district court lacks authority under 28 U.S.C. 

§ 1447(c) to remand sua sponte based on a non-jurisdictional 

defect.2 Corona-Contreras v. Gruel, 857 F.3d 1025, 1030 

 2 Section 1447(c) provides, in pertinent part:

A motion to remand the case on the basis of any defect

other than lack of subject matter jurisdiction must be
KENNY V. WAL-MART STORES 7

(9th Cir. 2017); see Smith v. Mylan Inc., 761 F.3d 1042, 1044 

(9th Cir. 2014). Whereas a “district court must remand ‘if at 

any time before final judgment it appears that the district 

court lacks subject matter jurisdiction,’” it “may remand for 

defects other than lack of subject matter jurisdiction only 

upon a timely motion to remand.” Smith, 761 F.3d at 1044 

(alteration omitted) (quoting 28 U.S.C. § 1447(c)). In 

essence, subject matter jurisdiction is the touchstone for a 

district court’s authority to remand sua sponte.

Here, the district court erred by remanding sua sponte on 

a non-jurisdictional ground. Neither the district court nor 

Kenny questioned the court’s subject matter jurisdiction 

under CAFA.3 Instead, the district court stated, without 

explanation, that Wal-Mart waived its right to remove by 

filing a demurrer to Kenny’s FAC in state court. Plainly, 

waiver, a common-law doctrine, does not implicate the 

court’s original jurisdiction over the action. See City of 

Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1093 (10th 

 made within 30 days after the filing of the notice of

removal under section 1446(a). If at any time before

final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c). “The first sentence of § 1447(c) ‘consigns 

procedural formalities to the care of the parties,’” while “[t]he second 

sentence ‘assigns to the court concern for its jurisdictional 

prerequisites.’” Corona-Contreras v. Gruel, 857 F.3d 1025, 1028 (9th

Cir. 2017) (quoting Kelton Arms Condo. Owners Ass’n, Inc. v. 

Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)). Whereas the 

former may be waived, the latter may not. See id. at 1028–29.

3 Nor is there any indication at this juncture that subject matter 

jurisdiction is lacking. Wal-Mart’s notice of removal alleges compliance 

with the requisite elements for CAFA jurisdiction.
8 KENNY V. WAL-MART STORES

Cir. 2017); cf. Resolution Tr. Corp. v. Bayside Developers, 

43 F.3d 1230, 1239 (9th Cir. 1994) (“[T]he jurisdiction 

exercised by the district court on removal is ‘original’ 

jurisdiction, without regard to the status of the proceedings 

in state court prior to removal.”).4 Thus, the district court 

exceeded its statutory authority in remanding sua sponte on 

a non-jurisdictional ground, and its order warrants reversal 

for this reason alone.

II. The District Court Erred in Concluding that WalMart Waived its Right to Remove the Action.

We have observed that a defendant “may waive the right 

to remove to federal court where, after it is apparent that the 

case is removable, the defendant takes actions in state court 

that manifest his or her intent to have the matter adjudicated 

there, and to abandon his or her right to a federal forum.” 

Resolution Tr., 43 F.3d at 1240. Such a waiver “must be 

clear and unequivocal,” however. Id. (quoting Beighley v. 

FDIC, 868 F.2d 776, 782 (5th Cir. 1989)). For example, 

when “a party takes necessary defensive action to avoid a 

judgment being entered automatically against him, such 

action does not manifest an intent to litigate in state court, 

and accordingly, does not waive the right to remove.” Id. 

Generally speaking, “the right of removal is not lost by 

action in the state court short of proceeding to an 

 4 Kenny’s reliance on Soto Enterprises is misplaced. The district

court’s authority to remand sua sponte was not at issue in Soto 

Enterprises. See 864 F.3d at 1091 (noting that the plaintiff filed a motion

to remand). Furthermore, Soto Enterprises does not conclude that 

waiver is a jurisdictional defect—indeed, it concludes to the contrary. 

See id. at 1092–94.
KENNY V. WAL-MART STORES 9

adjudication on the merits.” Id. (quoting Beighley, 868 F.2d 

at 782).

The district court erred in concluding that Wal-Mart 

waived its right to remove this case when the FAC did not 

reveal a basis for removal pursuant to CAFA. It is 

undisputed that the FAC is indeterminate as to the amount in 

controversy.5 Thus, Wal-Mart could not have waived its 

right to remove by taking actions in state court “after it [was] 

apparent that the case [was] removable,” id. (emphasis 

added), when its right to remove was not apparent from the 

FAC.

A finding of waiver on the facts of this case would run 

contrary to our case law on removal. We have made clear 

that we will not “charge defendants with notice of 

removability until [they have] received a paper that gives 

them enough information to remove.” Kuxhausen v. BMW 

Fin. Servs. NA LLC, 707 F.3d 1136, 1141 (9th Cir. 2013) 

(quoting Durham v. Lockheed Martin Corp., 445 F.3d 1247, 

1251 (9th Cir. 2006)). “[A]s long as the complaint or ‘an 

amended pleading, motion, order or other paper’ does not 

reveal that the case is removable,” a defendant, in effect, 

“may remove at any time.” Rea v. Michaels Stores Inc., 

742 F.3d 1234, 1238 (9th Cir. 2014) (per curiam) (quoting 

28 U.S.C. § 1446(b)(3)).

 5 “CAFA gives federal district courts original jurisdiction over class

actions in which the class members number at least 100, at least one

plaintiff is diverse in citizenship from any defendant, and the aggregate

amount in controversy exceeds $5 million, exclusive of interest and

costs.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir.

2015) (citing 28 U.S.C. § 1332(d)). Kenny did not specify an amount in 

controversy in the FAC.
10 KENNY V. WAL-MART STORES

We have also emphasized that “a defendant does not 

have a duty of inquiry if the initial pleading or other 

document is ‘indeterminate’ with respect to removability.” 

Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 

1125 (9th Cir. 2013) (citing Harris v. Bankers Life & Cas. 

Co., 425 F.3d 689, 693–94 (9th Cir. 2005)). Accordingly, 

“even if a defendant could have discovered grounds for 

removability through investigation, it does not lose the right 

to remove because it did not conduct such an investigation 

and then file a notice of removal within thirty days of 

receiving the indeterminate document.” Id.

These general removal principles apply equally in the

context of removals premised upon CAFA. See, e.g., Jordan 

v. Nationstar Mortg. LLC, 781 F.3d 1178, 1180 (9th Cir. 

2015) (holding that “a defendant may remove a case from 

state court within thirty days of ascertaining that the action 

is removable under CAFA, even if an earlier pleading, 

document, motion, order, or other paper revealed an 

alternative basis for federal jurisdiction”). In line with these 

principles, we held in Roth that “a defendant who has not 

lost the right to remove because of a failure to timely file a 

notice of removal under [28 U.S.C.] § 1446(b)(1) or (b)(3) 

may remove to federal court when it discovers, based on its 

own investigation, that a case is removable” pursuant to 

CAFA. 720 F.3d at 1123. In short, “[a] CAFA case may be 

removed at any time, provided that neither of the two thirtyday periods under [28 U.S.C.] § 1446(b)(1) and (b)(3) has 

been triggered.” Id. at 1126 (citing 28 U.S.C. § 1453(b)).

Here, nothing on the face of the FAC put Wal-Mart on 

notice of the case’s removability, and Kenny has not pointed 

to any other paper that would have done so. Under these 

circumstances, Wal-Mart could not have “clear[ly] and 

unequivocal[ly]” waived its right to remove by responding 
KENNY V. WAL-MART STORES 11

to the FAC. Resolution Tr., 43 F.3d at 1240 (quoting 

Beighley, 868 F.2d at 782).6

Two additional points lend further support for our 

conclusion. First, Wal-Mart filed a demurrer on the last day 

to respond to Kenny’s FAC. See Cal. Civ. Proc. Code 

§ 471.5. While Kenny faults Wal-Mart for filing a response 

addressing the merits of the FAC, Kenny cannot dispute the 

fact that Wal-Mart had to respond in some manner to the 

FAC, or risk entry of a default judgment. See id. Wal-Mart’s 

choice to file a demurrer, rather than another form of 

responsive pleading, to Kenny’s indeterminate FAC did not 

amount to a waiver of its right to remove.

Second, Wal-Mart removed the case before Kenny 

opposed Wal-Mart’s demurrer, and before any hearing was 

held, let alone any ruling issued. Clearly, Wal-Mart did not 

“manifest an intent to litigate in state court,” much less an 

intent to affirmatively “abandon [its] right to a federal 

forum.” Resolution Tr., 43 F.3d at 1240.

For the foregoing reasons, we hold that the district court 

erred in concluding that Wal-Mart waived its right to 

remove.

 6 We need not decide whether “abusive gamesmanship” by a 

defendant, Roth, 720 F.3d at 1126, may result in waiver of the right to 

remove. This case does not present such a scenario. There is no 

indication, for example, that Wal-Mart failed to “promptly investigate[] 

to determine whether the case was removable,” or “promptly file[] a 

notice of removal” upon learning, from its own investigation, that the 

case was removable. Id.
12 KENNY V. WAL-MART STORES

CONCLUSION

We vacate the district court’s order remanding this action 

to California state court, and remand this action to the district 

court for further proceedings.

Appellee shall bear the costs on appeal.

VACATED AND REMANDED.