Friday, December 14, 2018
Page 4
Ninth Circuit:
Judge Acted in Excess of Jurisdiction in Remanding Case Sua Sponte
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a judge of the District Court for the Central District of California exceeded his authority in bouncing a case back to the San Bernardino Superior Court on his own motion, absent a jurisdictional defect.
A three-judge panel, in a brief memorandum opinion, vacated an Aug. 7, 2017 order by Judge S. James Otero remanding an employment discrimination case brought against WalMart.
That action by Otero marked the second time a district court rejected the case. The action was brought by Gina Taylor in state court on July 6, 2016; WalMart removed the case to the U.S. District Court for the Eastern District of California on July 28 of that year, based on diversity jurisdiction; the court remanded it on Oct. 26, 2016 because it did not appear from the pleading that the amount of money in controversy met the jurisdictional minimum.
On May 1, 2017, Taylor filed a statement of damages in San Bernardino Superior Court claiming the loss of $1 million in past and future lost earnings, $500,000 for emotional distress damages, and more than $100,000 in attorneys fees. On the basis of that statement, Wal Mart again removed the case to the Eastern District and, in an administrative shuffling of cases, it wound up in Otero’s court.
Timeliness Argued
Wal Mart argued that its removal was timely based on a provision in 28 U.S.C. §1446 that if a case is not removeable based on allegations in the initial complaint, “a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”
The statement of damages, it maintain ed, was such “other paper” as to render the case removable. Otero said in his remand order:
“…Defendant first attempted to remove the action despite a lack of subject matter jurisdiction; permitting Defendant to remain in federal court notwithstanding its own procedural shortfall runs contrary to the rules and policy governing removal and would invite the defense bar to seek to remove state court actions at the earliest suggestion that a case might be removable (whether or not the suggestion is accurate). One need not strain to imagine how such a rule would lead to a “cottage industry of removal litigation.”
No Opposition
Yesterday’s Ninth Circuit opinion declares:
“The district court remanded this action sua sponte based upon a perceived procedural shortfall, despite the fact that the court acknowledged it had diversity jurisdiction, the amount in controversy exceeded the jurisdictional amount, and Plaintiff did not file a motion to remand. Plaintiff does not challenge the appeal of the district court order.”
This, the court held, was an action in excess of jurisdiction, requiring reversal.
The case is Taylor v. Wal Mart Associates, Inc., 17-56218.
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