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Smith v. Mylan Inc.

United States Court of Appeals, Ninth Circuit

August 4, 2014

ANDREW SMITH, individually and as successor-in-interest to Jennifer Roberts (deceased); A. S., by and through her Guardian Ad Litem, Tera Harden Esq.; individually and as successor-in-interest to Jennifer Roberts (deceased); S. N., by and through her Guardian Ad Litem, Sherry Kinnison; individually and as successor-in-interest to Jennifer Roberts (deceased), Plaintiffs-Appellees,
v.
MYLAN INC.; MYLAN PHARMACEUTICALS, INC.; MYLAN TECHNOLOGIES INC.; MYLAN INSTITUTIONAL INC., Defendants-Appellants

Submitted, Pasadena, California: February 10, 2014. [*]

Appeal from the United States District Court for the Central District of California. D.C. No. 5:12-cv-00216-ODW-SP. Otis D. Wright II, District Judge, Presiding.

Diversity Jurisdiction / Removal

The panel vacated the district court's dismissal based on lack of subject matter jurisdiction of a wrongful death case, and remanded to the district court.

Defendants invoked diversity jurisdiction and filed a notice of removal fourteen months after the lawsuit was filed in state court. The district court sua sponte remanded on the ground that Defendants had removed the case too late, and pursuant to 28 U.S.C. § 1447(c) found that it lacked subject matter jurisdiction.

The panel held that it had jurisdiction to review the district court's remand order. The panel also held that the district court acted in excess of its statutory authority because the one-year time limitation for removal of diversity cases under 28 U.S.C. § 1446(b) (current version at 28 U.S.C. § 1446(c)) was a procedural requirement rather than jurisdictional. The panel held that the district court could not remand sua sponte based on a non-jurisdictional defect because procedural deficiencies were waivable. The panel concluded that Plaintiffs' failure to object constituted a waiver of any right to contest the removal.

Clem C. Trischler and Jason M. Reefer, Pietragallo Gordon Alfano, Pittsburgh, Pennsylvania; Julian G. Senior, Spencer LLP, Manhattan Beach, California, for Defendants-Appellants.

Patricia A. Law, Law Offices of Patricia A. Law, Riverside, California, for Plaintiffs-Appellees.

Before: Dorothy W. Nelson, Richard A. Paez, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen.

OPINION

Page 1043

NGUYEN, Circuit Judge:

A state court action may not be removed to federal court on the basis of diversity jurisdiction more than one year after the action was filed. See 28 U.S.C. § 1446(b) (current version at 28 U.S.C. § 1446(c)). Defendants in this wrongful death case invoked diversity jurisdiction and filed a notice of removal fourteen months after the lawsuit was filed in state court. The district court sua sponte remanded on the ground that Defendants had removed the case too late. The court, relying on 28 U.S.C. § 1447(c), found that it lacked subject matter jurisdiction.

We hold that the district court acted in excess of its statutory authority because the one-year time limitation for removal of diversity cases under ยง 1446(b) is a procedural requirement rather than jurisdictional. While the district court may remand at any time prior to final judgment for lack of subject matter jurisdiction, it cannot remand sua sponte based on a non-jurisdictional defect because procedural deficiencies are waivable. Here, ...


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