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Motions to Remand: Class Action Defense Issues

28 U.S.C. S 1447 – 30 day Time Limit

Defendants in class actions often remove their case to federal court whenever possible. Plaintiffs invariably seek to remand class actions to state court. Thus, once a class action has been removed to federal court, it can be expected that plaintiff’s counsel will file a motion to remand the matter to state court. Remand of cases to state court is governed by 28 U.S.C. S 1447(c). “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal,” 28 U.S.C. S 1447(c). However, “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.

Thus, like its removal counterpart (28 U.S.C. S 1446(b), which requires removal within 30 days of receipt of the necessary pleading or other paper), Section 1447(c) requires that any motion to remand – except one based on lack of subject matter jurisdiction – “must be made within 30 days after the filing of the notice of removal.” The United States Supreme Court summarized the requirement this way:

Once a defendant has filed a notice of removal in the federal district court, a plaintiff objecting to removal “on the basis of any defect in removal procedure” may, within 30 days, file a motion asking the district court to remand the case to state court. S 1447(c). This 30-day limit does not apply, however, to jurisdictional defects: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Ibid.

Caterpillar Inc. v. Lewis, 519 U.S. 61, 69, 117 S.Ct. 467, 473 (1996).

The exception for subject-matter jurisdiction cases simply reflects the general rule that jurisdictional defects may be asserted at any time and cannot be waived. See, Regents of University of California v. Bakke, 438 U.S. 265, 380 n.1, 98 S.Ct. 2733, 2794 n.1 (1978) (“lack of jurisdiction . . . touching the subject matter of the litigation cannot be waived by the parties”) (quoting United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 602, 82 L.Ed. 764 (1938)). See also, United States v. Meyer, 439 F.3d 855, 863 (8th Cir. 2006) (“[l]ack of subject matter jurisdiction cannot be waived by the parties or ignored by the court”) (quoting In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir.2005)).

This raises the question of whether a notice of removal filed more than one year after the complaint was filed raises a “jurisdictional” or “procedural” deficiency in the notice. The answer is unclear.

Courts have split as to whether the one-year rule imposes a jurisdictional limitation. Some courts have concluded that it does, and therefore must be strictly observed. See Whisenant v. Roach, 868 F. Supp. 177, 178 (S.D. W.Va. 1994); see also Brock v. Syntex Laboratories, 1993 WL 389946 (6th Cir.1993) (unpublished disposition). Others have concluded that the rule involves a procedural question which may be waived. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.), cert. denied, 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 536 (1992).

Zumas v. Owens-Corning Fiberglas Corp., 907 F. Supp. 131, 134 (D. Md. 1995).

While the 30-day time limitation for seeking remand is not to be taken lightly, it is not jurisdictional. The district court may, in its discretion, consider a late-filed motion for remand. See e.g., Phoenix Global Ventures, LLC v. Phoenix Hotel Assoc., Ltd., 422 F.3d 72 (2d Cir. 2005) (affirming remand of action to state court even though motion was untimely because plaintiff’s counsel had made good faith efforts to file motion timely but the electronic case filing system rejected the motion). Nonetheless, a plaintiff should not count on receiving the grace of the district court if the motion for remand is untimely. See,Washburn v. Santa Fe Tow, 164 Fed.Appx. 740, 742 (10th Cir. 2006) (holding “plaintiffs waived any alleged procedural defects by not timely filing a motion for remand”); Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 566 (5th Cir. 1995) (“Furthermore, a district court has no discretion to remand to state court when a motion to do so is grounded on improper removal procedures and that motion is not made within thirty days following filing: Under such circumstances, the objection to remove jurisdiction resulting from a defect in the removal procedure is waived.”).