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Media Alerts - Marco Antonio Corona-Contreras v. Steven F. Gruel
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August 24, 2017
  Marco Antonio Corona-Contreras v. Steven F. Gruel
Headline:
The Ninth Circuit panel held that the district court exceeded its authority under 28 U.S.C. ยง 1447(c) in ordering sua sponte a remand based on a procedural defect in the removal from state court of an action alleging breach of contract and legal malpractice.

Areas of Law:
Civil Procedure

Issues Presented:
Whether the district court has jurisdiction to remand a case sua sponte to state court when there is a procedural defect but no timely motion for remand.

Brief Summary:
Contreras sued his former lawyer, Gruel, for breach of contract and legal malpratice based on Gruel's unsuccessful representation of Contreras in his immigration cases. Gruel did not file his notice of removal to federal court until well past the required 30-day period. Although Contreras had not moved to remand, the district court, on its own, remanded the case to state court. Upon de novo review by the appellate court, the panel ruled that the 30-day requirement for filing a notice of removal is procedural, not jurisdictional, and may be waived by the plaintiff's failure to move to remand. Because Contreras did not move to remand, he waived the procedural defect and the district court lacked the authority to remand the case sua sponte to state court.

Significance:
Failure to file a notice of removal within the 30-day period required by 28 U.S.C. 1446(b) is merely a procedural, and not jurisdictional, defect which is waived by the plaintiff's failure to file a motion to remand. In the absence of a motion to remand, the district court lacks the authority to remand sua sponte the case to state court.

Extended Summary:
Gruel represented Contreras in unsuccessful appeals to the Board of Immigration Appeals and, subsequently to the Ninth Circuit. Contreras then retained new counsel and sued Gruel for breach of contract and legal malpractice. While the complaint stated Contreras's residence is in San Lorenzo, California, it did not state his immigration status or citizenship. Almost a year after the complaint was filed, Gruel filed a notice of removal to federal court based on diversity jurisdiction upon discovering Contreras was not a U.S. citizen and that damages exceeded $75,000. Contreras did not file a motion to remand and otherwise made no objection to removal. However, at the case management conference, the judge remanded the case to state court because removal did not occur until almost one year after the filing of the complaint, well past the required 30-day period.

The panel first addressed whether it had jurisdiction to hear the appeal. In order to determine its appellate jurisdiction, the panel held that it had to rule on the merits of the appeal since its appellate jurisdiction turned on whether the district court did or did not have the authority to remand the case. Reviewing de novo the district court's decision to remand sua sponte the case based on Gruel's failure to file the notice of removal by the 30-day deadline, the panel ruled that the time limits for removal under 28 U.S.C. section 1446(b) are procedural rather than jurisdictional and, therefore, may be waived. Although jurisdictional defects are not waivable, the panel found that the district court had original jurisdiction to hear this case between a citizen of a State and a citizen of a foreign state where the matter in controversy allegedly exceeded $75,000. Accordingly, the panel held: "Because the district court remanded for a procedural defect, and because procedural defects are waivable, the district court lacked authority to remand in the absence of a timely motion by Contreras. "

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...17/05/26/15-16783.pdf

Panel:
Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Ann D. Montgomery, * District Judge

Argument Date:
April 17, 2017

Date of Issued Opinion:
May 26, 2017

Docket Number:
15-16783

Decided:
Vacated and remanded.

Case Alert Author:
Krysta Maigue

Counsel:
Jason T. Campbell (argued), San Francisco, California; Paul H. Nathan, San Francisco, California for Defendant-Appellant.
Barry K. Tagawa (argued), San Francisco, California, for Plaintiff-Appellee

Author of Opinion:
Judge Ann. D. Montgomery

Case Alert Supervisor: Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 08/24/2017 06:57 PM     9th Circuit  

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