Ursua v. Miller Brewing Co.

95 F. App'x 235

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2004
• Docket: No. 03-55791; D.C. No. CV-03-02486-GHK
• Status: Published

Opinion

MEMORANDUM

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Miller Brewing Company and Miller employees Susan Gray and Vicki Pratt (collectively “Miller”) appeal the district court’s order sua sponte remanding to state court an employment discrimination action brought by former Miller employee Karri Ursua. Ursua originally brought the action in state court, and Miller removed the action to federal court on the ground that federal question issues were raised under the Employee Retirement Income Security Act and the Family Medical Leave Act. The district court remanded based on Miller’s failure to provide copies of all process, pleadings, and orders that were served upon each of the removing defendants, as required by 28 U.S.C. § 1446(a).

At the time of the remand, this Circuit had not yet decided whether a district court had authority to make a sua sponte remand based on a non-jurisdictional procedural defect. In our recent decision, Kelton Arms Condominium Owners Association, Inc. v. Homestead Insurance Co., 346 F.3d 1190, 1192-93 (9th Cir.2003), we held that a district court lacks the authority to make such a remand. Because the district court’s remand was based on a procedural defect, the district court did not have the authority to make a sua sponte remand. We therefore vacate the district court’s remand order, and remand the case to the 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.