F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N D R E W S M I T H , individually

and as successor-in-interest to J ennifer Roberts (deceased); A. S., by and throug h her Guardian Ad L item, Tera Harden Esq.; individually and as successor-in-interest to J ennifer Roberts (deceased); S. N ., by and throug h her Guardian Ad L item, Sherry Kinnison; individually

and as successor-in-interest to J ennifer Roberts (deceased),

Plaintiffs-Appellees
,

v

.

M Y L A N I N C .; M Y L

A N P H A R M A C E U T I C A L S , I

N C .; M Y L

A N T E C H N O L O G I E S I

N C .; M Y L

A N I N S T I T U T I O N

A L I N C

. , Defendants-Appellants

. N o. 12-56028

D.C. No. 5:12-cv-00216- ODW

- SP

OPI NI ON

A ppeal from the United States District Court for the Central District of California Otis D. W rig ht I I , District J u dg e, PresidingS M I T H V

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Submitted F ebruary 10, 2014 * Pasadena, California

F iled Aug ust 4, 2014

B efore: Dorothy

W . Nelson, Richard A. Paez
, and J acqueline H. Ng

uy en, Circuit J u d g es.
Opinion by J udg e Ng uy en

SUMMARY * *

Diversity Jurisdiction / Rem oval

The panel vacated the district court’s dismissal based on lack of subject matter jurisdiction of a wrong ful death c ase, and remanded to the district court.

Defendants invoked diversity jurisdiction and filed a notice of removal fourteen months after the lawsuit w as filed in state court. The d istrict court sua sponte remanded on the
gr o u n d t hat Defendants had removed the case too late, a nd pursuant to 28 U.S.C. § 1447(c) f o u n d that it lacked subject matter jurisdiction.

* T h e p a n e l u na n im o u sly co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S M I T H V

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T h e p a nel held that it had jurisdiction to review t h e district cou r t ’ s remand order. T he panel also held that the district c ourt acted in ex cess of its statutory authority because the one-y ear time limitation f or removal of diversity cases under 28 U.S.C. § 1446(b) ( c u r r e n t version at 28 U .S.C. § 1446( c ) ) w as a procedural requirement rather than jurisdictional. The panel held that the district c ourt c ould not remand sua sponte based o n a non-jurisdictional defect because procedural d eficienc i e s were waivable. The panel concluded that Plaintiffs’ f ailure to object con s t i tuted a waiver of any r ig ht to contest the removal.

COUNSEL

Clem C. Trischler and J ason M. Reefer, Pie t r a ga l lo Gordon Alfano, Pittsburg h, Pennsy lvania; J u lian G. Senior, Spe n c e r L L P, Manhattan B each, California, for Defen d antsAppellants.

Patricia A. L aw, L aw Offices of Patricia A. L aw, Riverside, California, for Plaintiffs-Appellees.

OP INION

NGUYEN, Circuit J u dg e:

A state c ourt action may

not be removed to federal court

on the basis o f diversity jurisdiction more than one y ear a fter the a ct i on was filed. S ee 28 U.S.C. § 1446(b) (current version at 28 U.S.C. § 1 446(c)). Defendants in this wrong f ul death case invoked diversity jurisdiction and filed a notice o f removal fourteen months after the lawsuit was f i led in stateS M I T H V

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court. The district court sua sponte remanded on the g r ound
t h a t D efendants had removed the case too late. The cour t , relying o n 28 U.S.C. § 1447(c), found that it lacked subject matter jurisdiction.

W e hold th at the district court acted in ex c ess o f its statutory a

uthority because the one-y e ar time l i m i t ation for removal of d iversity cases under § 1446(b) is a pr o c e d u ral requirement r ather than jurisdictional. W hile the district
court may r e mand at any time prior to final judg ment for lack of subj e c t matter jurisdiction, it cannot remand sua sponte based o n a non-jurisdictional defect because procedural deficiencies a r e w aivable. Here, Plaintiffs’ failure to object constitutes a waiver of any rig ht to contest the removal. W e therefore vacate and remand.

F ACTUAL BACK G ROUND

Plaintiffs A ndrew Smith
, A l ex andra Smith, a nd Sarah Nevitt (collectively
, “Plaintiffs”), indiv i d ually a nd a s successors-in-interest to their mother, filed a wrong ful death action in state court on D ecember 22, 2010. I n October 2011, P l a i n t i f f s s e r v e d D e f

e n d a n t s M yl a n I n c

. , M yl a n Pharmaceuticals, I

nc., My lan Technolog ies, I nc., and My lan I nstitutional, I nc. ( c o llectively
, “Defendants”) with an amended complaint. At that point, however
, D efendants could not have removed the case because there was no federal question jurisdiction and the parties were not c o mpletely diverse. See 2 8 U.S.C. §§ 1331, 1332, 1441. On J anuary 30, 2012, more than one y ear after the filing of the case, the state court dismissed the last remaining non-diverse defendant. Two weeks later, on F ebruary 9, 2012, D efendants removed the matter to federal court, invoking diversity jurisdiction.S M I T H V

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Plainti ff s did not file a motion to remand or otherwise object to removal. To the contrary , shortly after removal, the parties filed a joint r eport pursuant to Rule 26(f) of the F ederal Rules of Civil Pr o c ed u re in preparation for a scheduling conference with the court. Nonetheless, a few weeks later, on May 3, 2012, the district court sua sponte remanded the case p u r s uant to § 1447(c) for lack of subject
matter jurisdiction, findin g that the case w as improperly removed more than one y ear afte r it commenced in state court. Defendants timely appealed.

D ISCUSSION

A.

As a threshold matter, w e m u s t decide whether we have jurisdiction to review the district c o urt’s r emand order. A side from certain ex ceptions not relevant here, § 1 447(d) states that a remand order “ is not reviewable o n a ppeal o r otherwise.” Despite this broad lang uag e, § 1447(d) does not preclude review if the district court lacked authority to remand under § 1447(c) in the f irst i n stance. Kelton Arms Condo. Owners Ass’n v. Homestead Ins. Co.
, 346 F .3d 1190, 1191 (9th Cir. 2003). “I f, on the o ther hand, the district court had the power to r emand sua sponte under sec t ion 1447(c), section 1447(d) would app l y , and w e would have no jurisdiction to review e ven if the remand was erroneous.” Id.

Thus, our resolution of the merits he re determines whether w e have jurisdiction. As discussed below, the district court lacked authority under § 1447(c) to remand sua sponte based o n Defend a n t s ’ failure to remove within the
one-y ear time limitation prescribed in § 1446(b). W eS M I T H V

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t h e refore conclude that w e have jurisdiction to review th e district court’s remand order.

B.

W e now turn to the merits. Under § 1447(c), the district
court must remand “[ i] f a t any time before fina l j u d g ment it
appears that the district c ourt lacks subject m a tter jurisdiction[ .] ” However, the court may remand for defects other than lack of subject matter jurisdiction o nly u pon a timely motion to remand. See § 144 7 (c) (“A motion to remand the case on the basis of any defect other than lack o f subject matter jurisdiction must be made within 30 day s a fter the filing of the notice of r emoval under section 1446(a).”); Kelton
, 346 F .3d at 1193 (holding that “the district court cannot remand sua sponte f o r d e f ects in r e moval procedure”).

Therefore, the q

uestion that we must dec i d e i s whether § 1446(b)’s o ne-y ear time limitation for removal of diversity

cases is jurisdictional, rather than p r o cedural in nature. Section 1446(b) provides in relevant part:

The notic e o f r emoval of a civil action o r proceeding shall be filed w ithin thirty day s after the receipt by the d efendant

. . . o f a copy of the initial pleadi n g setting forth the claim for rel i e f u

pon which such action o r proceeding

is based . . . .

I f the case stated by

the initial pleading is not removable, a notice of removal may b e filed within thirt y d ay s after receipt by the defendant

. . . of a copy of an amended pleading

. . . from whi c h i t may first beS M I T H V

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ascertained that the case is o ne which is or has become removable, except that a case may not be removed on the basis of juri s d i c tion conferred by s e c t i o n 1332 of this title more than 1 year after commencement of the action.

(emphasis added). 1

W e have never specific a lly considered whether § 1446(b)’s one-y ear time l i m itation is procedural o r jurisdictional. However, we have e x amined § 1 4 4 6(b)’s thirty -day time limit w i t h in which the defendant must file a notice of removal after receipt of the complaint, and we have found it to be merely procedural. I n F r i stoe v. Reynolds Metals Co.
, we observed that “ the [ thirty -day ] statutory time limit for removal petitions is m e r e l y a formal and modal requirement and is not jurisdictional.” 6 15 F .2d 1209, 1212 (9th Cir. 1980). W e further ex p lained that “ [ a ] l t h o ug h the time limit is mandatory and a timely ob j ection to a late petition will defeat removal, a party may waive the defect or be estopped from o bjecting to the untimeliness by sitting on his rig hts.” I

d. ; see also Maniar v. FDIC
, 979 F

. 2d 782, 784 (9t h Cir. 1 992) (holding that “untimely removal is a

1 On Decem

b er 7
, 2 0 1 1, Co n g ress en acte d t h e Fed eral Co u rts J u risd ictio n an d Ven u e C larif icatio n A ct o f 20 1 1, P u

b

. L

. No

. 11 2

- 6 3
, 1 2 5 Stat. 75 8 (2 0 1 1) (“ th e A ct”), w h ich am en d ed certain po rtio n s o f T itle 2 8

o f th e Un ited States Co d e, i n clu d in g § 1 4 4 6 (b ). T h e A ct’ s am en d m en t s to o k ef f ect o n J an u ary 6
, 2 0 1 2 an d ap p l i e d o n l y to : (1 ) cases th at w ere

co m m en ced in a d istrict co u rt o n or af ter th e A ct’ s ef

fe c t i v e d ate an d (2 ) cases th at w ere rem ov ed f ro m a state co u rt to a d istrict co u rt an d th at h ad b een co m

m en ced o n o r af

ter th e Act’ s ef

f ectiv e d ate. S

ee P u b

. L

. 1 1 2

- 6 3. B ecau se th is case w as co m m en ced in Decem

b er 2 0 1 0, b ef

ore th e A ct’ s ef f ectiv e d ate, th e v ersio n o f § 1 4 4 6 (b ) th at is cited h erein is th e on e in ef f ect at th e tim e th i s case w as rem o v ed

.S M I T H V

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procedural defect a

nd n ot jurisdictional”); Kelton
, 3 46 F .3d at 1192–93 (same).

W e see n o reason to construe § 1446(b)’s one-y ear t i m e limitation any differentl y from its thirty -day requirement. According ly
, we hold that the one-y ear time limitati o n f o r removal of diversity cases is a p rocedural, non-jurisdictional requirement r ather than jurisdictional. B ecause procedural defects are waivable, a dist r i c t court lacks authority to remand based o n the d efendant’s violation of § 1446(b)’s o ne y ear-time limitation a

b sent a timely filed motion to remand. See Kelton
, 346 F .3d at 1192 (stating that p r o ce dural requirements, like personal jurisdiction, may be waived).

Our conclusion is c o nsistent with those of our sister circuits that have addresse d t h e one-y ear time limit in § 1446(b). S

ee Music v. Arrowood Indem. Co.
, 632 F .3d 284, 288 (6th Cir. 2011) (“[ W ] e hold that the o n e -y ear time limitation r u l e f

or removal, 28 U .S.C. § 1446(b), is procedural, not jurisdictional, and theref o re subject to forfeiture.”); Ariel Land Owners, Inc. v. Dring
, 351 F .3d 611, 616 (3d Cir. 2003) (“B ecause failure to r e move within the
one-y ear time limit established by § 1446(b) is not a jurisdictional defect, a district court h as no authority to order remand on that ba s i s without a timely filed motion.”); In re Unir o y a l Goodrich Tire Co.
, 104 F .3d 322, 324 ( 11th Cir. 1997) (“The untimeliness of a r emoval is a proced u r a l
, instead of a jurisdictional, d efect.”); Barnes v. W estinghouse Electric Corp.
, 962 F .2d 513, 5 1 6 ( 5 t h Cir. 1992) (“W e a re not p ersuaded by [ the plaintiff’s] arg uments that s ection 1446(b) is jurisdictional in nature . . . .”).

F urther, as the T hird Cir cu i t observed, a finding that the time limit requirements in § 1446(b) are pro ce d u ral isS M I T H V

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s u p p orted by both the lang uag e of the statute and i t s leg islative h istory

. “F irst, nothing in the tex t of t h e statute sug g ests that the one-y ear limit o perates differently from the 30 -day limit. Neither provision ex pressly purports to limit federal jurisdiction[

. ] ” Ariel
, 351 F .3d at 614. And, the leg islative history indicates that Cong ress passed the o n e-y e ar time limit “simply to close a p rocedural g ap that had arisen in the application of the 30-day time limit[ .] ” Id. at 615.

C.

Plaintiffs in this case did not file a motion to r emand. “A plaintiff may wish to remain in federal court even thoug h he

or she o rig inally filed in state court. F or ex ample, a p laintiff mig ht do this simply to ex pedite the litig a t i o n.” Kelton
, 346 F .3d at 1 192. That may h ave been the ca se here, since Plaintiffs raised no objection to removal and instead joi n ed Defendants in filing a Rule 26 report in a n ticipation of a scheduling conference with the court. Therefor e, Plaintiffs have implicitly waived any procedural defect in removal. B y remanding sua sponte on the basis of Defendants’ violation of the one-y e ar time limitation in § 1446(b), the district court acted in ex cess of its statutory authority

. The parties shall bear their own costs on appeal.

VACATED AND REMANDED.