Chapter 27-6 Remand

• Jurisdiction: United States

27-6 Remand

A motion to remand the case based on any defect other than lack of subject matter jurisdiction must be made within 30 days of the filing of the notice of removal.⁹⁴ Failure to file the motion within 30 days waives all procedural defects in removal. The prudent plaintiff will assume that procedural defects include the presence of a forum state (but not diversity destroying) defendant, removal to the wrong district or division, untimely removal, and lack of unanimity of consent amongst the defendants.⁹⁵ A motion to remand based on a lack of subject matter jurisdiction may be made at any time before final judgment.⁹⁶

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Notes:

^[94] 28 U.S.C. § 1447(c).

^[95] In re Shell Oil Co., 932 F.2d 1518 (5th Cir. 1991) (holding that the presence of a forum state defendant is a waivable procedural defect in removal and saying "we are persuaded by the language of the House report and the commentators that 'any defect in removal procedure' includes all non-jurisdictional defects existing at the time of removal").

^[96] 28 U.S.C. § 1447(c).