Kris Kenny v. Wal-Mart Associates - Ninth Circuit

Headline: District Court order remanding class action to California state court vacated because the district court lacked authority under 28 U.S.C. §1447(c) to remand the case back to State court sua sponte based on a non-jurisdictional defect, and Wal-Mart did not waive its right to remove by filing a demurrer in state court when the First Amended Complaint did not reveal a basis for removal pursuant to the Class Action Fairness Act.

Areas of Law: Civil Procedure; Class Actions.

Issues Presented: (1) Whether the District Court lacked authority under 28 U.S.C. §1447(c) to remand the case back to state court sua sponte based on a non-jurisdictional defect, and (2) whether Wal-Mart waived its right to remove the case by filing a demurrer in response to plaintiff’s First Amended Complaint (“FAC”) in state court.

Brief Summary: Plaintiff-Appellee, Kris Kenny, filed a putative class action complaint against Defendants-Appellant Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. Wal-Mart filed a demurrer in state court to Kenny’s FAC and subsequently removed the case to Federal Court. The district court remanded the case sua sponte to state court stating summarily that Wal-Mart waived its right to remove the case by filing a demurrer in response to the FAC. The panel held the district court did not have the authority to remand the case sua sponte; additionally, the panel concluded Wal-Mart did not waive its right to remove the case by filing a demurrer in response to the FAC when its right to remove was not ascertainable from Kenny’s complaint because it was indeterminate as to amount in controversy.

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