FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO CORONA- No. 15-16783
CONTRERAS,
Plaintiff-Appellee, D.C. No.
3:15-cv-02143-
v. JD
STEVEN F. GRUEL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Argued and Submitted April 17, 2017
San Francisco, California
Filed May 26, 2017
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit
Judges, and Ann D. Montgomery, * District Judge.
Opinion by Judge Montgomery
*
The Honorable Ann D. Montgomery, United States District Judge
for the District of Minnesota, sitting by designation.
2 CORONA-CONTRERAS V. GRUEL
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CORONA-CONTRERAS V. GRUEL 3
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.
COUNSEL
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.
4 CORONA-CONTRERAS V. GRUEL
OPINION
MONTGOMERY, District Judge:
Plaintiff-Appellee Marco Antonio Corona-Contreras
(“Contreras”) sued Defendant-Appellant Steven Gruel
(“Gruel”) in California state court for, among other things,
breach of contract and legal malpractice. Eleven months
later, Gruel removed the case to federal court on the basis of
diversity and federal question jurisdiction. Contreras did not
object to the removal or file a motion to remand. More than
three months after the case had been removed, the district
court sua sponte found the removal to be untimely and
remanded the case back to state court. Gruel appeals,
arguing that the district court lacked authority to remand
under 28 U.S.C. § 1447(c) 1 based on a procedural defect to
which Contreras failed to object. We agree and therefore
vacate and remand.
BACKGROUND
Contreras retained Gruel, an immigration attorney, to
appeal an order that required him to depart from the United
States. After the appeal to the Board of Immigration
Appeals was unsuccessful, Gruel appealed to this court, also
without success.
On June 27, 2014, Contreras, acting through new
counsel, sued Gruel in San Francisco Superior Court
alleging, among other things, breach of contract and legal
malpractice. The complaint averred Contreras “is an
individual currently residing in San Lorenzo, CA,” but did
1
All references to the U.S. Code are to the 2012 edition.
CORONA-CONTRERAS V. GRUEL 5
not state his citizenship or whether he was lawfully admitted
for permanent residence in the United States.
On May 12, 2015, nearly eleven months after the state
court action had been filed, Gruel filed a notice of removal
to the District Court for the Northern District of California
pursuant to 28 U.S.C. §§ 1441 and 1446, asserting diversity
jurisdiction under 28 U.S.C. § 1332(a). 2 The notice of
removal stated that removal on the basis of diversity
jurisdiction was timely because the grounds for removal
were not apparent from the face of the complaint, and
because Gruel’s receipt of papers from which diversity
jurisdiction could be ascertained occurred no sooner than
April 14, 2015. Specifically, Gruel stated that he learned on
April 14, 2015 that Contreras had not been successful in his
continued efforts to attain lawful status in the United States,
and learned the following week that the amount of damages
in the controversy would exceed the $75,000 amount
required for establishing diversity jurisdiction.
Contreras did not file a motion to remand or otherwise
object to removal. Approximately three months after
removal, the parties filed a joint case management statement
in preparation for a case management conference with the
district court. The case management statement related: “The
parties do not presently believe there are any outstanding
issues as to jurisdiction or service.”
On August 31, 2015, the district court issued an order
directing the parties to “bring evidence to [a] September 2,
2015 Case Management Conference that demonstrates the
2
Gruel also asserted that federal question jurisdiction was present
as a result of a discovery dispute, but this alternate basis for removal is
not at issue on appeal.
6 CORONA-CONTRERAS V. GRUEL
existence of diversity jurisdiction in this case, specifically in
the form of evidence demonstrating plaintiff’s foreign
citizenship and any other evidence needed to establish
diversity jurisdiction under 28 U.S.C. Sec. 1332(a)(2).”
The case management conference was held on
September 2, 2015. At the conference, the district court
judge began by stating that he was “puzzled about why this
is coming to me so late.” Noting that the case was filed in
state court in June 2014 and not removed until May 2015,
the judge stated: “I don’t understand what it is you found
out a year after it was filed that you think entitles you to let
it be removed.” The judge further stated that Gruel “did not
remove within the 30-day period [that] he’s required to do.
And you need to address that and tell me why that is not
dispositive and why this case should not be remanded right
now.” Gruel’s counsel stated that the complaint was unclear
as to Contreras’ citizenship and lawful permanent resident
status in the United States. The court disagreed and stated
that counsel’s removal of the case nearly a year after it had
been filed was not timely.
The district judge concluded the case management
conference by orally stating, “I find that the case was
removed improvidently and without jurisdiction. I’m
remanding it to San Francisco Superior Court.” Later that
day, the court entered a summary order similarly stating “the
case was removed improvidently and without jurisdiction”
and remanding the case to state court “pursuant to 28 U.S.C.
§ 1447(c).” Gruel timely appealed.
CORONA-CONTRERAS V. GRUEL 7
DISCUSSION
Jurisdiction
We first address our jurisdiction to hear this appeal.
Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to
the State court from which it was removed is not reviewable
on appeal or otherwise.” However, if the district court
lacked authority to remand under § 1447(c), appellate
review is not precluded. Smith v. Mylan Inc., 761 F.3d 1042,
1044 (9th Cir. 2014) (“Despite this broad language,
§ 1447(d) does not preclude review if the district court
lacked authority to remand under § 1447(c) in the first
instance.”); Lively v. Wild Oats Mkts., Inc., 456 F.3d 933,
937 (9th Cir. 2006) (“[T]aken together, §§ 1447(c) and (d)
bar appellate review of a remand order only if the district
court had authority to remand under § 1447(c).”).
Conversely, if the district court did have authority to
remand sua sponte under § 1447(c), then § 1447(d) applies
and we do not have jurisdiction to review the remand order.
Lively, 456 F.3d at 937. Accordingly, this is “one of those
rare cases in which we must decide the merits to decide
jurisdiction. We, of course, have jurisdiction to decide
jurisdiction.” Kelton Arms Condo. Owners Ass’n, Inc. v.
Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003).
Standard of Review
“We review de novo a district court’s decision to remand
a removed case and its determination that it lacks subject
matter jurisdiction.” Lively, 456 F.3d at 938.
8 CORONA-CONTRERAS V. GRUEL
Analysis
The question raised on appeal is whether the district
court had authority under § 1447(c) to remand sua sponte
based on a procedural defect to which Contreras did not
object. Section 1447(c) provides in relevant part:
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 under
section 1446(a). If at any time before final
judgment it appears that the district court
lacks subject matter jurisdiction, the case
shall be remanded.
28 U.S.C. § 1447(c). “The first sentence of § 1447(c)
‘consigns procedural formalities to the care of the parties,’”
whereas “[t]he second sentence ‘assigns to the court concern
for its jurisdictional prerequisites.’” Kelton, 346 F.3d at
1192 (quoting In re Allstate Ins., 8 F.3d 219, 223 (5th Cir.
1993)). “[P]rocedural requirements exist primarily for the
protection of the parties” and “can be waived.” Id.
Therefore, a district court lacks the authority to remand a
case sua sponte for procedural defects. Id. at 1192–93; see
also Smith, 761 F.3d at 1044 (“[T]he court may remand for
defects other than lack of subject matter jurisdiction only
upon a timely motion to remand.”).
The time limits for removal specified in 28 U.S.C.
§ 1446(b) 3 are procedural rather than jurisdictional. Fristoe
3
Section 1446(b) “provides two thirty-day windows during which a
case may be removed—during the first thirty days after the defendant
receives the initial pleading or during the first thirty days after the
CORONA-CONTRERAS V. GRUEL 9
v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980)
(“The statutory time limit for removal petitions is merely a
formal and modal requirement and is not jurisdictional.”);
see also Smith, 761 F.3d at 1045 (holding that the one-year
time limitation formerly located in § 1446(b) 4 is like the
thirty-day time limit in that both are procedural, non-
jurisdictional requirements). Therefore, even if a defendant
fails to satisfy the time requirements of § 1446(b), the
district court may not remand on that basis unless the
plaintiff files a timely motion to remand. Smith, 761 F.3d at
1045 (“Because procedural defects are waivable, a district
court lacks authority to remand based on the defendant’s
violation of § 1446(b)’s . . . time limitation absent a timely
filed motion to remand.”).
The present case was remanded based on the district
court’s understanding that the time limits for removal under
§ 1446(b) had not been satisfied. The district court was
focused at the case management conference on the
timeliness of the notice of removal. The court stated that
Gruel “did not remove within the 30-day period [that] he’s
required to do. And you need to address that and tell me why
that is not dispositive and why this case should not be
remanded right now.” The court also stated, “I don’t know
why you [ ] all waited a year before you decided it was time
to try to get to Federal Court. That is not timely.”
Although the district court concluded at the case
management conference and in the remand order that the
defendant receives a paper ‘from which it may first be ascertained that
the case is one which is or has become removable.’” Harris v. Bankers
Life & Cas. Co., 425 F.3d 689, 692 (9th Cir. 2005) (quoting 28 U.S.C.
§ 1446(b)).
4
The one-year time limitation is now located in 28 U.S.C. § 1446(c).
10 CORONA-CONTRERAS V. GRUEL
case was “removed improvidently and without jurisdiction,”
there was no discussion or finding of any missing element of
federal subject matter jurisdiction under 28 U.S.C.
§ 1332(a). A district court has original jurisdiction under
§ 1332(a) if the matter in controversy exceeds $75,000 and
the matter is between “citizens of a State and citizens or
subjects of a foreign state.” 28 U.S.C. § 1332(a). Rather
than finding the absence of an element of subject matter
jurisdiction, the district court focused exclusively on the
timing of the removal to federal court. Federal subject
matter jurisdiction is satisfied here. The joint case
management statement filed on August 26, 2015 states that
Contreras is seeking at least $90,200 in damages, and
Contreras’ counsel confirmed at the case management
conference that diversity of citizenship exists. Thus, remand
was based on a procedural defect, not a lack of subject matter
jurisdiction.
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 Contreras. Smith, 761 F.3d at 1045;
Kelton, 346 F.3d at 1192–93. Contreras did not file a motion
to remand, timely or otherwise. Therefore, the district court
exceeded its authority under § 1447(c) by remanding sua
sponte based on a non-jurisdictional defect.
Contreras argues that the district court properly
remanded the case because the existence of diversity
jurisdiction was evident from the face of the complaint and
Gruel did not remove the case within 30 days of receiving
the complaint, as required under § 1446(b)(1). This
argument ignores Contreras’ failure to file a motion to
remand, as required by § 1447(c). Because Contreras did not
file a motion to remand, he waived any procedural defect in
CORONA-CONTRERAS V. GRUEL 11
the removal, and the district court lacked the authority to
remand sua sponte. See Fristoe, 615 F.2d at 1212
(“Although the time limit [under § 1446(b)] is mandatory
and a timely objection to a late petition will defeat removal,
a party may waive the defect or be estopped from objecting
to the untimeliness by sitting on his rights.”); see also Smith,
761 F.3d at 1044 (“[T]he court may remand for defects other
than lack of subject matter jurisdiction only upon a timely
motion to remand.”); Kelton, 346 F.3d at 1193 (“[T]he
district court cannot remand sua sponte for defects in
removal procedure.”). Thus, we need not decide whether the
removal was untimely under § 1446(b) because even if it
was, the district court lacked the authority to remand on this
basis absent a timely motion to remand by Contreras.
CONCLUSION
We hold that the district court exceeded its authority
under § 1447(c) in sua sponte ordering a remand based on a
procedural defect in the removal from state court. The
district court’s remand order is VACATED, and the case is
REMANDED to the district court for further proceedings
consistent with this opinion.
VACATED AND REMANDED.