Andrew Smith v. Mylan Inc., 2014 U.S. App. LEXIS 14978

Plaintiffs filed a wrongful-death suit in California state court on December 22, 2010.
Defendants were served with an amended complaint in October 2011; at that time complete diversity did not exist, so removal was not available.
On January 30, 2012 the last non-diverse defendant was dismissed; defendants removed to federal court on February 9, 2012 (14 months after commencement).
Plaintiffs did not move to remand or otherwise object; parties exchanged a Rule 26(f) report and proceeded toward scheduling.
The district court sua sponte remanded under 28 U.S.C. § 1447(c), finding removal untimely under § 1446(b)’s one-year limit and concluding it lacked subject-matter jurisdiction.
The Ninth Circuit vacated the remand and remanded, holding the one-year limit is procedural (waivable), so a sua sponte remand on that basis exceeded the district court’s authority.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1446(b)’s one-year limit for diversity removal is jurisdictional or procedural	Removal more than one year after commencement is jurisdictionally barred; district court must remand regardless of waiver	The one-year limit is a procedural, waivable rule; without a timely remand motion plaintiff forfeited the objection	The one-year limit is procedural, not jurisdictional; plaintiffs waived the defect by not moving to remand, so sua sponte remand was improper
Whether the appellate court can review the remand order under § 1447(d)	Remand order is not reviewable; appeal should be dismissed	If the district court lacked authority to remand under § 1447(c), the remand is reviewable	Court had jurisdiction to review because the district court exceeded its § 1447(c) authority by remanding for a non-jurisdictional defect

Kelton Arms Condo. Owners Ass'n v. Homestead Ins. Co., 346 F.3d 1190 (9th Cir.) (district court cannot remand sua sponte for procedural removal defects)
Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir.) (thirty-day removal time limit is procedural, not jurisdictional)
Maniar v. FDIC, 979 F.2d 782 (9th Cir.) (untimely removal is a procedural defect)
Music v. Arrowood Indem. Co., 632 F.3d 284 (6th Cir.) (one-year removal limit is procedural and subject to forfeiture)
Ariel Land Owners, Inc. v. Dring, 351 F.3d 611 (3d Cir.) (failure to remove within one year is not jurisdictional; district court may not remand on that basis without timely motion)
In re Uniroyal Goodrich Tire Co., 104 F.3d 322 (11th Cir.) (untimeliness of removal is procedural)
Barnes v. Westinghouse Elec. Corp., 962 F.2d 513 (5th Cir.) (section 1446(b) is not jurisdictional)