It may not always be apparent whether a potential basis for remand is procedural or impacts subject matter jurisdiction. As a recent federal case from Kentucky demonstrates, identifying issues and classifying them early is critical to avoid waiver of procedural issues.

In Cole v. Medtronic, Inc., No. 3:14–cv–381–DJH, 2015 WL 1638439 (W.D. Ky. Apr. 13, 2015), the plaintiff filed a products liability action in state court against a medical device manufacturer and a hospital in connection with injuries sustained purportedly as a result of spinal implant surgery. Three and a half months after the case was removed, the plaintiff moved to remand arguing, among other things, that the court lacked diversity jurisdiction based on the forum-defendant rule, 28 U.S.C. § 1441(b)(2), because the hospital was located within the court’s jurisdiction. The court held that the plaintiff could not seek remand on this ground because the forum-defendant rule was procedural, and it should have been raised within 30 days of the filing of the notice of removal in accordance with 28 U.S.C. § 1447(c). Accordingly, the case remained in federal court.

Preservation Issue: Failing to timely raise procedural objections to removal may result in waiver of the right to remand

Tips: Removal often occurs before the attorneys have a chance to fully become acquainted with all of the potentially important issues. Therefore, as soon as a defendant removes, it is important to determine through research and a careful review of the case whether the argument(s) and ground(s) you will assert in support of a motion to remand are procedural, and thus must be raised immediately, or potentially impact subject matter jurisdiction. If the latter, the failure to raise within 30 days would likely not be deemed a waiver since jurisdictional defects can be asserted at any time. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

Nonetheless, it remains counsel’s obligation to bring jurisdictional defects to the court’s attention at the earliest possible time. See, e.g., Katerinos v. U.S. Dep’t of Treasury, 368 F.3d 733 (7th Cir. 2004) (“[T]his sort of jurisdictional defect, [a premature notice of appeal], should be identified as early as possible—ideally before a case proceedings to briefing….”). So, to the extent that you determine that there is an issue impacting subject matter jurisdiction, you should bring it to the court’s attention notwithstanding the fact that a waiver might not technically occur.