PR Group, LLC v. Windmill International, Ltd.
792 F.3d 1025
8th Cir.
2015
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PR GROUP, LLC, Plaintiff-Appellee v. WINDMILL INTERNATIONAL, LTD., a Virginia corporation; Douglas Combs, Defendants-Appellants.

No. 14-3021

United States Court of Appeals, Eighth Circuit

July 13, 2015

793 F.3d 956

Submitted: April 14, 2015. R. Cameron Garrison, Lathrop & Gage LLP, Kansas City, MO, argued (Landon W. Magnuson, on the brief), for appellants. Travis W. (Wes) Shumate, Davis, Bethune & Jones, L.L.C., Kansas City, MO, argued (Scott S. Bethune, Jarrett Leiker, on the brief), for appellee.

tion did not have supporting evidence to establish prejudice, but only indicated in a footnote that such evidence could be provided at a later date. The district court went on to reach and deny Lee‘s claim on the merits. The subsequent denial of Lee‘s Rule 59(e) motion did not involve a procedural default of the type discussed in

and
. Rather, in denying the motion the district court relied upon our circuit rule that ”Rule 59(e) motions cannot be used to introduce new evidence ... which could have been offered or raised prior to the entry of judgment,”
. It also denied a certificate of appealability as did our court.

No evidentiary omission by counsel in Lee‘s first § 2255 petition amounted to a procedural defect in the integrity of his habeas proceeding, see

, and any attempt to relitigate the merits denial of the petition would count as a second or successive petition subject to AEDPA‘s precertification demands, 28 U.S.C. § 2255(h). For all these reasons, the judgment of the district court is affirmed.

Before WOLLMAN and GRUENDER, Circuit Judges, and DOTY,1 District Judge.

WOLLMAN, Circuit Judge.

PR Group, LLC (PR Group) filed suit against Windmill International, Ltd. (Windmill) in Missouri state court in December 2011, but it did not serve Windmill with the complaint. More than two years later, Windmill filed a motion to dismiss for lack of prosecution. After PR Group responded to the motion but before the state court had ruled on it, Windmill filed a notice of removal. Once in federal court, PR Group moved to remand, arguing that Windmill had waived its right to remove when it filed the motion to dismiss for lack of prosecution in state court. The district court granted PR Group‘s motion. We reverse.

Under 28 U.S.C. § 1446, a defendant may remove a case filed in state court to federal court based on diversity jurisdiction. This right can be waived, however, by agreement or by actions taken by the defendant in state court. A defendant waives the right to remove “by taking some substantial offensive or defensive action in the state court action indicating a willingness to litigate in that tribunal before filing a notice of removal with the federal court.”

(per curiam) (quoting 14B Charles A. Wright, et al., Federal Practice & Procedure § 3721 (2003)); see also
(holding that the defendant may waive the right to remove when “the defendant takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum“). Such waiver must be clear and unequivocal.
;
; cf.
(holding that waiver by agreement must be “clear and unequivocal” (quoting 1A J. Moore, B. Ringle & J. Wicker, Moore‘s Federal Practice ¶ 0.157[9] (2d ed.1987))). “[T]he right to removal is not lost by participating in state court proceedings short of seeking an adjudication on the merits.”
; see also
; cf.
(holding that the defendants did not waive federal jurisdiction by requesting a release of the record in state appellate court, noting that their motion “did not request a ruling on the merits of the appeal or an abandonment of federal jurisdiction“).

Windmill argues that filing a motion to dismiss for lack of prosecution does not constitute clear and unequivocal waiver of its right to remove. We agree. Windmill‘s motion to dismiss was based on PR Group‘s two-year-plus failure to complete service on Windmill. Because it neither addressed the merits of PR Group‘s complaint nor sought an adjudication on the merits, the motion did not clearly and unequivocally demonstrate any willingness on Windmill‘s part to litigate in state court.

PR Group relies on

, for the proposition that a motion to dismiss filed in state court always waives the right to remove. In that case, however, the defendant‘s motion to dismiss addressed the merits of the plaintiff‘s claims, and thus we conclude that the decision has no application to the circumstances of the present case.

The district court‘s order remanding the case to state court is reversed, and the case is remanded to the district court for further proceedings.

Notes

1
The Honorable David S. Doty, United States District Judge for the District of Minnesota, sitting by designation.
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