Opinion
Case No. 01-4173-SAC
February 21, 2002
MEMORANDUM AND ORDER
This case comes before the court on the magistrate's show cause order why this case should not be remanded to state court. The magistrate sua sponte noted the fact that fewer than all defendants had joined in the notice of removal, filed November 19, 2001, and that the failure to join all proper defendants rendered the removal procedurally defective. See McShares, Inc. v. Barry, 979 F. Supp. 1338, 1342 (D.Kan. 1997); Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D.Kan. 1996).
Defendant County of Shawnee has responded to the show cause order, asserting that the court has original jurisdiction of the federal claims asserted in the petition, and that the court lacks authority to remand sua sponte under the circumstances presented here. The court agrees.
Although the Tenth Circuit has not addressed the issue whether, absent a timely objection, a district court is empowered to remand an action sua sponte for a procedural or nonjurisdictional defect under § 1447(c), those circuits which have considered that issue have held that a district court lacks this power. See Whole Health Chiropractic Wellness, Inc. v. Humana Medical Plan, Inc., 254 F.3d 1317, 1320 (11th Cir. 2001); In re: FMC Corp. Packaging Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000); Page v. City of Southfield, 45 F.3d 128, 132-33 (6th Cir. 1995); In the Matter of Continental Cas. Co., 29 F.3d 292, 294-95 (7th Cir. 1994); In re Allstate Ins. Co., 8 F.3d 219, 223-24 (5th Cir. 1993). See also, Archuleta v. Lacuesta, 131 F.3d 1359, 1366 (10th Cir. 1997), J. Baldock, dissenting on other issue (citing cases so holding).
Other circuits have held that a district court cannot remand a case sua sponte based on procedural defects after the 30-day period to remand under § 1447(c) has expired. Maniar v. F.D.I.C., 979 F.2d 782, 786 (9th Cir. 1992), citing F.D.I.C. v. Loyd, 955 F.2d 316 (5th Cir. 1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir. 1989). In short, the reasoning of such cases is that the plain language of 28 U.S.C. § 1447(c) restricts a district court from remanding a case sua sponte for a procedural defect more than 30 days after the case has been removed to a federal court. The court is persuaded by the reasoning of these cases and those in this district. See Green Tree Financial Corp. v. Arndt, 72 F. Supp.2d 1278, 1283 (D.Kan. 1999); Gorman v. Best Western International, Inc., 1996 WL 459818 (D.Kan. July 23, 1996) ; Townsell v. City of Kansas City, Kansas, 1996 WL 225194 (D.Kan. April 12, 1996). To sua sponte remand the case after the 30-day period has run would exceed the court's authority under the statute.
The first sentence of this subsection provides that "a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal." Id.
The court thus finds that it lacks the authority to remand the case sua sponte, based on procedural defects, after expiration of the 30-day period provided by 28 U.S.C. § 1447(c). The court does not reach the issue whether the court lacks such authority within that 30-day period. See Reynolds v. Kansas Dept. of Corrections, 1999 WL 156242 (D.Kan. Mar. 17, 1999).
IT IS THEREFORE ORDERED that defendant's response to the show cause order is sufficient, and that this court shall retain jurisdiction of the case instead of remanding it to state court.