The Court of Appeals for the Ninth Circuit found that the district court improperly remanded on the grounds that the defendants waited too long to have a suit removed to federal court. In Smith v. Mylan, Inc., ____ F3d _____ (9th Cir. 2014) 2014 WL 3805443 plaintiffs filed a wrongful death action in state court suing a number of defendants. The matter could not be removed because the parties were not completely diverse. More than one year after filing the case, the state court dismissed the last remaining non-diverse defendant and two weeks later the remaining defendants removed the matter to federal court, invoking diversity jurisdiction. The plaintiffs did not file a motion to remand or otherwise object to removal and the parties filed a joint report pursuant to Rule 26(f). A few weeks later the district sua sponte remanded the case finding that it was improperly removed more than one year after it commenced in state court.
The Court of Appeals first held that the one year time limitation for removal of diversity cases is a procedural requirement rather than jurisdictional. The Appellate Court pointed out that the trial court may remand for defects other than a lack of subject matter jurisdiction only upon a timely motion to remand. The court held that because procedural defects are waivable, a district court lacks authority to remand based on the defendants’ violation of 1446(b)’s one-year time limitation absent a timely filed motion to remand. The Appellate Court noted that plaintiffs raised no objection to removal and joined defendants in filing a Rule 26 report and therefore implicitly waived any procedural defect in removal. Since the district court acted in excess of its statutory authority remand order was vacated.