Smith v. Mylan, Inc.

Pursuant to 8 U.S.C. § 1446, a state court action may be removed to federal court over one year after the initial action was filed if diversity jurisdiction is present and no party objects to the removal.

Plaintiffs filed a wrongful death lawsuit for their mother in December, 2010 in state court. At that time the Defendants would not be able to remove the suit to federal court because there was no federal question or diversity. In January, 2012 the state court dismissed the last remaining non-diverse party in the suit and Defendants were able to remove to federal court under diversity jurisdiction. Plaintiffs did not reject to the removal and filed no motion to remand. Nevertheless, the court sua sponte remanded the case, invoking lack of subject matter jurisdiction. The Defendants appealed. On appeal the panel first determined whether it had jurisdiction to review the remand order. The statute that gave the federal court jurisdiction to remand, 28 U.S.C. § 1447(c), was broad and the panel interpreted it to mean that even if the district court was erroneous in its remand, it would still not preclude the panel to review it. Therefore, the panel concluded it did have jurisdiction to hear the case. The panel next turned to the merits of the case. Under § 1447(c), “the district court must remand ‘[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction[.]’ However, the court may remand for defects other than lack of subject matter jurisdiction only upon a timely motion to remand.” The panel 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 was a procedural requirement rather than jurisdictional. Therefore, because the plaintiff’s did not object to removal, the district court could not remand the case to state court. VACATED AND REMANDED.