Rasmussen v. Alliance of Motion Picture & Television Producers

Full title: William RASMUSSEN, Plaintiff--Appellee, v. ALLIANCE OF MOTION PICTURE …

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 16, 2004

98 F. App'x 586 (9th Cir. 2004)

Opinion

Submitted April 12, 2004. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding. D.C. No. CV-03-02974-GHK.

Michael Sisson, Los Angeles, CA, for Plaintiff-Appellee.

Robert A. Cantore, Esq., Los Angeles, CA, for Defendant-Appellant.

Before: O'SCANNLAIN, RYMER and BEA, Circuit Judges.

MEMORANDUM ^**

** 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.

The Studio Transportation Drivers, Local # 399 of the International Brotherhood of Teamsters (the "Union") appeals the district court's order sua sponte remanding to state court a breach of contract action brought by William Rasmussen, and the district court's denial of the Union's motion for reconsideration of the remand order. Rasmussen originally brought the action in state court, and the Union removed the action to federal court as preempted by the Labor Management Relations Act. The district court remanded based on the Union'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,

Page 587.

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.