Case: 14-12958 Date Filed: 08/07/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12958
Non-Argument Calendar
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D.C. Docket No. 2:14-cv-00148-SPC-DNF
GARY WOODROFFE,
Plaintiff-Appellant,
versus
STATE OF FLORIDA,
LIZABETH LYNN LOTSEY,
LEE HAWORTH,
12th Circuit Judge,
DEBORAH JOHNES RIVA,
12th Circuit Judge,
MALINDA PARKER OTTINGER,
Attorney General, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 7, 2015)
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Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Gary Woodroffe appeals pro se the dismissal of his case following his
removal of a domestic relations action from a Florida court. The district court
dismissed Woodroffe’s case based on improper venue and his failure to attach
pleadings that were served on him in state court. Because those defects are
procedural and the district court lacked the authority to dismiss Woodroffe’s notice
of removal sua sponte, we vacate the order of dismissal and remand for further
proceedings.
The district court adopted the recommendations of the magistrate judge to
deny Woodroffe’s application to proceed as an indigent and to dismiss his case.
The district court determined that Woodroffe “failed to cure the deficiencies” in his
notice of removal; he had “failed to show why the Court should dispense with the
geographical requirement,” 28 U.S.C. § 1441(a); and he had “failed to file a copy
of process, pleadings, and other orders served on him in the state action,” id.
§ 1446(a), M.D. Fla. R. 4.02(b). The district court “examined the exhibits
[Woodroffe] filed with his original Notice of Removal,” but without a copy of the
“underlying complaint” in the state action, the district court could not “make any
determination whether the removal of [the] case [was] proper.”
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We review de novo issues involving the jurisdiction of the district court.
Hollis v. Florida State Univ., 259 F.3d 1295, 1298 (11th Cir. 2001).
Woodroffe’s notice of removal was procedurally defective. “[T]o remove
any civil action from a State court[, a defendant] shall file in the district court of
the United States for the district and division within which such action is pending a
notice of removal . . . together with a copy of all process, pleadings, and orders
served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a).
Woodroffe filed his notice of removal in an improper venue, and he failed to attach
any pleadings that were served on him in state court. Those defects are procedural,
but do not deprive a district court of subject matter jurisdiction. See Peterson v.
BMI Refractories, 124 F.3d 1386, 1394 (11th Cir. 1997) (“[F]ailure to comply with
the geographic requirements of § 1441(a) is a procedural defect that does not
deprive a district court of subject matter jurisdiction in a removed case.”); Cook v.
Randolph Cnty., Ga., 573 F.3d 1143, 1150 (11th Cir. 2009) (“[T]he failure to
include all state court pleadings and process with the notice of removal is
procedurally incorrect but is not a jurisdictional defect.”). Improper venue can be
waived, see Manley v. Engram, 755 F.2d 1463, 1468 (11th Cir. 1985) (“[T]he right
to object to improper venue may be waived.”), and the district court can remedy a
scarcity of supporting documents, see 28 U.S.C. § 1447(b) (providing that the
district court “may require the removing party to file . . . copies of all records and
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proceedings in such State court or may cause the same to be brought before it by
writ of certiorari issued to [the] State court”).
The district court erred when it dismissed Woodroffe’s case sua sponte for
procedural defects in his notice of removal. See Hollis, 259 F.3d at 1299–1300.
When a notice of removal contains “any defect other than lack of subject matter
jurisdiction,” the district court may remand the action to state court based on a
timely motion to remand. 28 U.S.C. § 1447(c). But the district court may not act
sua sponte; “the district court must wait for a party’s motion before remanding a
case based on [a] procedural defect.” Whole Health Chiropractic & Wellness, Inc.
v. Humana Med. Plan, Inc., 254 F.3d 1317, 1321 (11th Cir. 2001). Because the
district court exceeded its authority, we vacate the order that dismissed
Woodroffe’s notice of removal and remand for further proceedings. We express no
opinion on whether the district court has subject matter jurisdiction over this case.
VACATED AND REMANDED.
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