The Court of Appeals for the First Circuit held that a motion to remand in an improperly removed case can be waived if the removal was by an in-forum defendant. In Samaan v. St. Joseph Hospital, et al, ____ F.3d. ____ (1st Cir. 2012) 2012 WL 34262 the two defendants, a doctor and a hospital were both citizens of Maine and improperly removed a case filed in the state court in Maine. The removal was clearly improper because it is permissible only if “none of the…defendants is a citizen of the state in which such action is brought.” 28 U.S.C. ? 1441(b) The Court noted that a motion to remand on the basis of any defect other than a lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal or else it is waived. 28 U.S.C. ? 1447(c) The question before the court was whether the prohibition against removal by in-forum defendant is jurisdictional in nature or merely a procedural defect that may be waived.
The court held that removal in contravention of the prohibition against removal by an in-forum defendant creates a procedural defect that is subject to waiver. In this case it was waived because of the plaintiffs continued prosecution in the federal court for approximately 1 year and his failure to object to removal until after a summary judgment had been rendered, constituting an implicit consent to federal court jurisdiction and a waiver of the right to object to removal.