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Corona-Contreras v. Gruel

United States Court of Appeals, Ninth Circuit

May 26, 2017

Marco Antonio Corona-Contreras, Plaintiff-Appellee,
v.
Steven F. Gruel, Defendant-Appellant.

          Argued and Submitted April 17, 2017 San Francisco, California.

         Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding D.C. No. 3:15-cv-02143-JD

          Jason T. Campbell (argued), San Francisco, California; Paul H. Nathan, San Francisco, California; for Defendant-Appellant.

          Barry K. Tagawa (argued), San Francisco, California, for Plaintiff-Appellee.

          Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Ann D. Montgomery, [*] District Judge.

         SUMMARY [**]

         Remand / Removal

         The panel held that the district court exceeded its authority under 28 U.S.C. § 1447(c) in sua sponte ordering a remand based on a procedural defect in the removal from state court of an action alleging breach of contract and legal malpractice, vacated the district court's remand order, and remanded to the district court for further proceedings.

         The district court remanded the case based on the court's understanding that the time limits for removal under 28 U.S.C. § 1446(b) had not been satisfied.

         The panel held that it had jurisdiction to hear the appeal because this was one of the rare cases where the panel needed to decide the merits to decide jurisdiction. The panel held that if the district court lacked authority to remand under 28 U.S.C. § 1447(c), appellate review was not precluded under 28 U.S.C. § 1447(d).

         The panel held that federal subject matter jurisdiction was satisfied under 28 U.S.C. § 1332(a) where the amount in controversy exceeded $75, 000, and the citizenship of the parties was diverse. The panel concluded that remand was based on a procedural defect, not a lack of subject matter jurisdiction.

         The panel held that because the district court remanded for a procedural defect, and because procedural defects are waivable, the district court lacked authority to remand in the absence of a timely motion by the plaintiff. The panel concluded that because the plaintiff did not file any motion to remand, the district court exceeded its authority under 28 U.S.C. § 1447(c) by remanding sua sponte based on a non-jurisdictional defect.

         The panel held that it need not decide whether removal was untimely under 28 U.S.C. § 1446(b) because even if it was, the district court lacked authority to remand on this basis absent a timely motion to remand by the plaintiff.

          OPINION

          MONTGOMERY, ...


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