The Court of Appeals for the Eleventh Circuit held that it could review a remand order because the matter was remanded sua sponte based on a procedural defect. In Corporate Management ADV v. Artjen Complexus _____ F.3d _____ (11th Cir. 2009) 2009 WL 606455 (C.A.11(Fla.)), 21 Fla. L. Weekly Fed. C 1635. The defendants filed a notice of removal on the basis of diversity jurisdiction, however, they only alleged the residency of one of the parties, rather than his citizenship. Since residency is not the equivalent of citizenship for diversity purposes, the district court concluded that it lacked subject matter jurisdiction and sua sponte remanded the case to state court. Defendants then filed an amended notice of removal to cure the defect, however, the district court again remanded the case to state court concluding that it lacked jurisdiction to review a remand order.
The Court of Appeals pointed out that a district court may remand a case sua sponte for lack of subject matter jurisdiction at any time and that such a remand order is not reviewable. The Court of Appeals concluded that the failure to establish a party’s citizenship at the time of filing the removal notice is a procedural, rather than a jurisdictional, defect. The Court then said:
“Here, the Artjen parties appeal the district court’s refusal to allow them to amend their notice of removal, pursuant to 28 U.S.C. ?1447(d)’s prohibition on review of a remand order “on appeal or otherwise.” Because we hold that the district court erred by remanding this case on jurisdictional grounds when faced solely with a procedural defect in the removal process, we direct the district court to permit Artjen leave to amend its notice of removal, pursuant to 28 U.S.C. ?1653.”