IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02562-CMA-BNB

KRISTEN WOODARD, an individual, and

KEVIN WOODARD, an individual,

Plaintiff,

v.

ICON HEALTH & FITNESS, INC., a Delaware corporation,

Defendant.

SUA SPONTE ORDER REMANDING CASE TO STATE COURT

This matter is before the Court sua sponte on Defendant’s Notice of Removal. 

(Doc. # 1.) For the following reasons, the Court REMANDS the case to the District Court,

City and County of Denver.

I. BACKGROUND

Plaintiffs, Kristen and Kevin Woodard, filed a Complaint against Defendant, ICON

Health & Fitness, Inc., in Colorado State court on August 2, 2011. (Doc. # 2.) Defendant

was served with the Complaint on August 8, 2011. (Doc. # 3.) Defendant filed its Notice

of Removal on September 29, 2011 (Doc. # 1), claiming diversity jurisdiction under 28

U.S.C. § 1332. 

Case 1:11-cv-02562-CMA Document 6 Filed 10/06/11 USDC Colorado Page 1 of 5
1

 Because the Court remands this case for failure to file a timely Notice of Removal,

as discussed below, it needs not reach the jurisdictional question. See, e.g., Glendening

v. Genuine Parts Co., Inc., 960 F. Supp. 243, 244 (D. Colo. 1997) (remanding procedurally

defective case, and therefore not addressing jurisdictional issue).

2

II. DISCUSSION

A. UNTIMELY REMOVAL

A defendant may remove a state civil action “to the district court of the United

States for the district and division embracing the place where such action is pending”

when the federal district court has original jurisdiction over the matter. 28 U.S.C.

§ 1441(a).1 However, “[t]he notice of removal of a civil action or proceeding shall be filed

within thirty days after the receipt by the defendant, through service or otherwise, of a

copy of the initial pleading setting forth the claim for relief upon which such action or

proceeding is based . . . .” 28 U.S.C. § 1446(b) (emphasis added). This thirty-day period

is mandatory, and the parties cannot extend it by consent or stipulation. See, e.g., DialIn, Inc., v. ARO Corp., 620 F. Supp. 27, 29 (N.D. Ill. 1985); cf. Casey v. Williams

Production RMT Co., 599 F. Supp. 2d 1250, 1252 (D. Colo. 2008) (noting that

requirements of § 1446(b) are not affected by state court granting defendant additional

time to respond to complaint).

Here, Defendant failed to file its Notice of Removal on time. Having been served

with the Complaint on August 8, 2011, Defendant had through September 7, 2011, to

request removal of the case. Thus, its filing on September 29, 2011, was twenty-two

days late. Nevertheless, Defendant asserts that Plaintiffs’ counsel granted it an extension

Case 1:11-cv-02562-CMA Document 6 Filed 10/06/11 USDC Colorado Page 2 of 5
3

of time to file its “responsive pleading.” (Doc. # 1, ¶ 5.) Defendant does not assert that

Plaintiffs’ counsel agreed to extend the time for filing its removal notice and, in any event,

as already indicated such an assertion would be unavailing. See, e.g., Dial-In, Inc., 620

F. Supp. at 29. 

B. AUTHORITY TO ISSUE ORDER SUA SPONTE

The remand of cases removed to federal court is governed by 28 U.S.C. § 1447(c).

 See, e.g., Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006). Section 1447(c) states,

in pertinent part, “A motion to remand the case on the basis of any defect other than lack

of subject matter jurisdiction must be made within 30 days after the filing of the notice of

removal . . . . If at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.” Thus, remand of a removed

case can be caused by jurisdictional or non-jurisdictional defects. 

Non-jurisdictional defects are commonly referred to as “procedural” defects. 

16 James WM. Moore et al., Moore’s Federal Practice ¶ 107.41[1][c][ii][A] (3d ed. 2011)

(procedural defect “refers to any defect that does not go to the question of whether the

case could originally have been filed in federal district court”). Accordingly, “[a] notice

of removal that is filed after the 30-day time period is procedurally defective.” Id.,

¶ 107.41[1][c][ii][B]; see, e.g., Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212

(9th Cir. 1980) (“The statutory time limit for removal petitions is merely a formal and

modal requirement and is not jurisdictional.”).

Case 1:11-cv-02562-CMA Document 6 Filed 10/06/11 USDC Colorado Page 3 of 5
4

Jurisdictionally defective cases must be remanded, including by the court sua

sponte. See, e.g., United States Catholic Conference v. Abortion Rights Mobilization,

Inc., 487 U.S. 72, 79 (1988) (explaining importance of rule requiring courts to notice

jurisdictional defects at any time). However, there is a split in authority over whether

procedurally defective cases can be remanded sua sponte. Compare, e.g., Cassara

v. Ralston, 832 F. Supp. 752, 753-54 (S.D.N.Y. 1993) (district court may sua sponte

remand procedurally defective case), with, e.g., F.D.I.C. v. Loyd, 955 F.2d 316, 321

(5th Cir. 1992) (district court may not sua sponte remand procedurally defective case). 

The Court is unaware of any Tenth Circuit precedent deciding this issue. 

Of the courts that do not permit sua sponte remands, many reason that the “motion

to remand” requirement in 28 U.S.C. § 1447(c) refers to a motion by a party

and, therefore, prohibits the court from acting sua sponte–that is, on its own motion. 

See, e.g., In re Allstate Ins. Co., 8 F.3d 219, 223 (5th Cir. 1993) (holding that § 1447(c)

“precludes the existence of discretion in the district court to remand for procedural defects

on its own motion”).

Although mindful of this contrary authority, the Court finds more persuasive the

reasoning of those courts that allow sua sponte remands of procedurally defective cases. 

Because 28 U.S.C. § 1447(c)’s “motion to remand” requirement immediately precedes

discussion of the thirty-day period in which the plaintiff must move for such relief, the

Court determines that the statutory provision does not limit its own sua sponte actions. 

See, e.g., Heaney v. Costigan, No. 09-cv-01006, 2009 WL 1605889, at *1 (D. Colo. June

Case 1:11-cv-02562-CMA Document 6 Filed 10/06/11 USDC Colorado Page 4 of 5
5

8, 2009) (“[T]he Court is not persuaded that a proper reading of 28 U.S.C. § 1447(c)

prevents a court from sua sponte remanding an action for a procedural defect . . . .”);

Averdick v. Republic Financial Services, Inc., 803 F. Supp. 37, 41 (E.D. Ky. 1992) (“To

this court, the plain language of the statute, in referring to a ‘motion to remand,’ applies

to the litigants but not to the court.”). 

The Court also agrees with Judge Krieger’s reasoning in Costigan that prohibiting

sua sponte remands of procedurally defective cases “fail[s] to pay due heed to the wellestablished proposition that removal statutes are to be strictly construed and all doubts

resolved against permitting removal.” 2009 WL 1605889, at *1; see also Laughlin

v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995) (“[T]here is a presumption against

removal jurisdiction.”). 

III. CONCLUSION 

Accordingly, it is ORDERED that this case is REMANDED to the District Court,

City and County of Denver.

DATED: October 06 , 2011

BY THE COURT:

________________________________

CHRISTINE M. ARGUELLO

United States District Judge

Case 1:11-cv-02562-CMA Document 6 Filed 10/06/11 USDC Colorado Page 5 of 5