Healy v. MCI Worldcom Network Services, Inc.

80 F. App'x 597

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 2003
• Docket: No. 02-16881, 02-73163; D.C. No. CV-02-01575-LKK, CV-02-1575-LKK
• Status: Published

Opinion

MEMORANDUM

**

EDS brings this consolidated appeal and petition for writ of mandamus to challenge a sua sponte remand by the Eastern District of California. The underlying case involves breach of an employment separation agreement. In July 2002, EDS sought removal to federal court on diversity grounds. Upon finding that not all defendants had joined in the notice of removal as required by 28 U.S.C. § 1446(b), the district court issued a sua sponte remand to Sacramento Superior Court.

Our recent opinion in Kelton Arms Condominium Ass’n v. Homestead Ins. Co., 346 F.3d 1190 (9th Cir.2003), controls. Kelton Arms holds that under 28 U.S.C. § 1447(c) the district court lacks authority to make a sua sponte remand to state court based on a non-jurisdictional defect in removal. Slip op. at 15035. Failure of all defendants to join in the notice of removal is a procedural defect. Parrino v. FHP, 146 F.3d 699, 703 (9th Cir.1998).

We therefore vacate the district court’s remand order and remand the case to district court for further proceedings.

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.