PR Group, LLC v. Windmill International, Ltd.
2015 U.S. App. LEXIS 12010
| 8th Cir. | 2015Background
- PR Group filed a complaint in Missouri state court in December 2011 but did not serve Windmill for over two years.
- Windmill moved in state court to dismiss for lack of prosecution based on PR Group’s failure to complete service.
- PR Group responded to that motion in state court; the state court had not ruled when Windmill filed a notice of removal to federal court.
- PR Group moved to remand, arguing Windmill waived removal by taking substantive action in state court (the dismissal motion).
- The district court granted remand; the court of appeals reversed, holding the dismissal motion did not constitute clear and unequivocal waiver of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing a motion to dismiss for lack of prosecution in state court waives the right to remove | PR Group: filing the dismissal motion was a substantive state-court act that waived removal | Windmill: the motion sought only dismissal for lack of prosecution, not merits, so did not waive removal | Filing a motion to dismiss for lack of prosecution is not a clear and unequivocal waiver of removal when it does not seek adjudication on the merits |
| Standard for waiver of removal by state-court actions | PR Group: actions in state court can show intent to litigate there and abandon federal forum | Windmill: only actions seeking merits adjudication or clearly manifesting intent to litigate in state court waive removal | Waiver requires clear and unequivocal manifestation of intent to litigate in state court or abandonment of federal forum; peripheral procedural steps short of merits adjudication do not suffice |
| Relevance of prior authority holding that motions to dismiss can waive removal | PR Group: relies on Scholz to argue dismissal motions always waive removal | Windmill: distinguishes Scholz because that motion addressed the merits | Scholz is inapposite where the state-court motion challenged the merits; waiver depends on the motion’s character |
| Whether participation short of merits determination preserves removal right | PR Group: participation may still evidence waiver depending on context | Windmill: participation not seeking merits does not forfeit removal right | Participation in state proceedings short of seeking a merits adjudication does not automatically waive removal right |
Key Cases Cited
- Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244 (11th Cir. 2004) (defendant waives removal by taking substantial offensive or defensive action in state court indicating willingness to litigate there)
- Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230 (9th Cir. 1994) (defendant may waive removal by actions manifesting intent to have matter adjudicated in state court)
- Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003) (right to removal not lost by participating in state proceedings short of seeking merits adjudication)
- Weltman v. Silna, 879 F.2d 425 (8th Cir. 1989) (waiver by agreement must be clear and unequivocal)
- Ward v. Resolution Trust Corp., 972 F.2d 196 (8th Cir. 1992) (procedural requests in state appellate court did not waive federal jurisdiction)
- Scholz v. RDV Sports, Inc., 821 F. Supp. 1469 (M.D. Fla. 1993) (motion to dismiss that addressed merits can support finding of waiver)