The Ninth Circuit Court of Appeals recently held that since authorization for removal to Federal Court is provided by ? 1441(a) that the 30 day removal periods in ?? 1446 (b)(1) and (b)(3) are merely procedural limitations on removal, if they are triggered. Roth v. CHA Hollywood Medical Center, L.LC 2013 WL 3214941 Defendants in a class action filed a Notice of Removal on the basis of diversity and jurisdictional amount. The plaintiffs moved to remand on the basis that the notice was filed after the 30 day removal period. In opposing the motion defendants submitted a declaration of a woman who qualified as a member of the would-be plaintiff’s class and she stated that she was a Nevada resident. In considering the removal issues the Court of Appeals noted that although the case before it involved a class action the question arises in removal cases generally.
The court held that a defendant who has not lost the right to remove a state action to federal court because of a failure to timely file a notice of removal under 28 U.S.C. ?? 1445(b)(1) or (b)(3) may be removed to the federal court when it discovers, based on its own investigation, that a case is removable. The defendants removed on the basis of a declaration obtained after the 30 day removal periods in the statute had run and the court concluded that the removal of the case was not barred by those removal provisions.