Barham v. Edwards Theaters Inc.

138 F. App'x 896

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2005
• Docket: No. 03-56364; D.C. No. CV-03-00801-TJW
• Status: Published

Opinion

MEMORANDUM

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Edwards Theaters appeals the district court’s sua sponte order remanding this action to California state court. We vacate the order and remand to the district court for further proceedings.

According to Kelton Arms Condo., Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1191-92 (9th Cir.2003), we have jurisdiction to review orders such as this that remand a case to state court on non-jurisdictional grounds. Kelton Arms, which was decided after the district court’s order in this case, held that a district court may not remand sua sponte because of non-jurisdietional procedural defects in the removal process. Id. at 1198. Here, unlike Kelton Arms, the district court did give specific reasons for its decision to remand, and it did so after notifying the parties and hearing from defendant Edwards; but the fact remains that the plaintiff did not register a motion to remand or object to the matter remaining in federal court. Non-jurisdictional defects in removal may be waived or forfeited. 28 U.S.C. § 1447(c); N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). Thus, without a motion to remand from the plaintiff, the district court’s order was sua sponte and improper under Kelton Arms.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.