FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS July 25, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

CITY OF ALBUQUERQUE,

Plaintiff - Appellee,

v. No. 16-2065

SOTO ENTERPRISES, INC., d/b/a

Defendant - Appellant.
_________________________________

Appeal from the United States District Court

Bradley H. Bartlett and David M. Mirazo, Mounce, Green, Myers, Safi, Paxson &
Galatzan, P.C., El Paso, Texas, for Defendant-Appellant.

Christopher J. Tebo, Assistant City Attorney (Jessica M. Hernandez, City Attorney, and
Nicholas Bullock, Assistant City Attorney, with him on the brief), City Attorneys Office,
Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.

PHILLIPS, Circuit Judge.

waived its right to remove by filing a motion to dismiss in state court. We hold that

we have appellate jurisdiction over this appeal, and affirm.1

BACKGROUND

The City of Albuquerque (the City) provides public-bus services to

Albuquerque residents. As part of those services, the City charges a fare payable by

cash or coin. The City hired Soto Enterprises, Inc., d/b/a Miracle Delivery Armored

Services (Soto) to count the fare money, transport it by armored car to the Citys

bank for deposit, and verify the daily deposit amount with the City.

In the second half of 2014, the City noticed irregularities between the amount

of fare money that it internally recorded and the amount Soto deposited. After

investigating these irregularities, on October 30, 2015, the City sued Soto in New

Mexico state court, alleging contract and tort claims. In its complaint, the City

pleaded that it was a New Mexico municipal corporation and that Soto was a Texas

corporation transacting business in New Mexico. The City claimed damages of

$246,057.54.

On February 9, 2016, though the City had not yet served process on Soto, Soto

filed three documents in state court in response to the complaint. At 2:18 p.m., Soto

filed a partial motion to dismiss (the motion to dismiss), asserting that the City had

1
An order remanding a case to state court is a final or collateral order because
it puts the litigants effectively out of court. First Union Mortg. Corp. v. Smith,
229 F.3d 992, 994 (10th Cir. 2000) (quoting Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 714 (1996)).

2
failed to state a claim on its tort claims. At 2:23 p.m., Soto filed an answer. And at

3:38 p.m., Soto filed a notice of removal under 28 U.S.C. 1441 and 1446, alleging

diversity jurisdiction under 28 U.S.C. 1332. So an hour and twenty minutes passed

between Sotos motion to dismiss and its notice of removal.

In federal court, the City moved for a remand to state court, arguing that Soto

had waived its right to remove the case to federal court after participating in the state

court by filing the motion to dismiss. The district court agreed with the Citys

position and remanded the case. Soto now appeals.

DISCUSSION

Recognizing that Congress has limited our appellate jurisdiction to review

remand orders, the City filed a motion to dismiss Sotos appeal, arguing that we lack

jurisdiction. So, before we can address whether the district court erred in its waiver

ruling, we must determine whether we have appellate jurisdiction to do so. W. Ins.

Co. v. A & H Ins., Inc., 784 F.3d 725, 727-28 (10th Cir. 2015). We review questions

of our appellate jurisdiction de novo. Montez v. Hickenlooper, 640 F.3d 1126, 1130

(10th Cir. 2011).

I. Appellate Jurisdiction

To decide whether we have appellate jurisdiction to review the district courts

waiver ruling, we are guided by two statutory subsections. The first is 28 U.S.C.

1447(d), which provides as follows:

An order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise, except that an order
remanding a case to the State court from which it was removed pursuant

3
 to section 1442 or 1443 of this title shall be reviewable by appeal or
otherwise.

Because Soto removed the case under 1441, neither 28 U.S.C. 1442 (which

governs federal-officer removal) nor 28 U.S.C. 1443 (which governs removal of

civil-rights cases) applies here. On its face, 1447(d) would lead us to believe that

we lack appellate jurisdiction to review the district courts remand order, but we

dont read that subsection in isolation. Instead, we read 1447(d) in pari materia

with its close neighbor, 1447(c), and confine the reach of 1447(d) to the two

remands mentioned in 1447(c). In re Stone Container Corp., 360 F.3d 1216, 1218

(10th Cir. 2004).

Thus, the second guiding statutory subsection is 28 U.S.C. 1447(c), which

provides in part as follows:

A motion to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days after the
filing of the notice of removal under section 1446(a). If at any time
before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.

So 1447(c) speaks to two bases of remand: (1) those based on a lack of subject-

matter jurisdiction, which have no time limit, and (2) those based on any defect

other than lack of subject matter jurisdiction, which must be filed within 30 days of

removal. This means that under the governing interpretation, 1447(d) limits our

jurisdiction only when the district court remands on grounds permitted by

1447(c). In re Stone, 360 F.3d at 1218 (quoting Dalrymple v. Grand River Dam

Auth., 145 F.3d 1180, 1184 (10th Cir. 1998)). When a district court remands on other

4
bases, we have appellate jurisdiction to review those remand orders. Am. Soda, LLP

v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921, 924 (10th Cir. 2005).

Here, the district court remanded the case to state court on a ground not

expressly specified in 1447(c), namely, that Soto waived its removal right by filing

a motion to dismiss in state court (which we will refer to as waiver by

participation).2 Our sister circuits disagree about whether waiver by participation

falls within either of 1447(c)s two bases, and, until now, this court has not

wade[d] into that conflict. Harvey v. Ute Indian Tribe of the Uintah & Ouray

Reservation, 797 F.3d 800, 804 (10th Cir. 2015) (noting circuit split). To determine

whether 1447(d) limits our jurisdiction, we must determine whether waiver by

participation falls within either of the 1447(c) bases(1) lack of subject-matter

jurisdiction, or (2) any defect.

A. Subject-Matter Jurisdiction

Subject matter jurisdiction defines the courts authority to hear a given type

of case. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (quoting

United States v. Morton, 467 U.S. 822, 828 (1984)). [I]t represents the extent to

which a court can rule on the conduct of persons or the status of things. Id. (quoting

Blacks Law Dictionary 870 (8th ed. 2004)). And because parties cannot waive

2
The waiver in this case differs from other types of waiver, such as waiver by
a forum-selection clause in which a party contractually agrees to waive the federal
forum. Here, the district court found that Soto waived removal by filing a motion to
dismiss in state court, a form of waiver by participation during the state-court
proceedings rather than by agreement.

5
subject-matter jurisdiction, they can challenge it at any time prior to final

judgment. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004).

Moreover, the district courts have an independent obligation to address their own

subject-matter jurisdiction and can dismiss actions sua sponte for a lack of subject-

matter jurisdiction. United States v. Lugo, 170 F.3d 996, 1002 (10th Cir. 1999).

But procedural rules set by the Supreme Court and by common law do not

create or withdraw federal jurisdiction, Kontrick v. Ryan, 540 U.S. 443, 453 (2004)

(quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)), and a

courts subject-matter jurisdiction cannot be expanded to account for the parties

litigation conduct, id. at 456. This stems from a fundamental principle that [o]nly

Congress may determine a lower federal courts subject-matter jurisdiction. Id. at

452 (citing U.S. Const. art. III, 1).

Waiver by participation is a common-law creation. Rothner v. City of Chicago,

879 F.2d 1402, 1408 (7th Cir. 1989). It concerns the situation where a defendant has

participated in the state court before seeking removal. See 14B Charles Alan Wright

et al., Federal Practice and Procedure 3721 (4th ed. 2017) (A state court

defendant also may lose or waive the right to remove a case to a federal court by

taking some substantial offensive or defensive action in the state court action . . . .).

For instance, the defendant may have engaged in discovery, moved for summary

judgment, or argued at a hearing. See id. (collecting cases). As such, waiver by

participation functions as a procedural limitation. Harvey, 797 F.3d at 809 (Hartz, J.,

concurring) (stating that waiver by participation is a defect in removal procedure).

6
And as a procedural, common-law limitation, waiver by participation doesnt

implicate subject-matter jurisdiction. See Kontrick, 540 U.S. at 453 (explaining that

procedural rules established by courts dont create or withdraw federal jurisdiction).

Indeed, a court could not say otherwise without contradicting two of subject-

matter jurisdictions core characteristics(1) that only Congress can create or

destroy subject-matter jurisdiction, U.S. Const. art. III, 1, and (2) that a partys

litigation conduct cant affect subject-matter jurisdiction, Kontrick, 540 U.S. at 453.

Also, unlike jurisdictional defects (which cannot be waived and can be raised sua

sponte by the court), courts lack authority to remand sua sponte for procedural

defects, and the parties can waive such defects by failing to raise them in a timely

manner. See, e.g., Smith v. Mylan Inc., 761 F.3d 1042, 1044 (9th Cir. 2014) (holding

that a district court cannot remand sua sponte based on a non jurisdictional defect

because procedural deficiencies are waivable). So we cannot characterize a

procedural defect such as waiver by participation as jurisdictional.3

3
The City argues that waiver of the removal right can be colorably
characterized as evidencing a lack of federal jurisdiction. Appellee Response Br.
at 8-9. This misapplies the colorable-characterization standard, which applies when
the district court explicitly states one of the 1447(c) bases. In that instance, we
merely peek behind the district courts label to ensure that the district court did not
dress[] in jurisdictional clothing a patently nonjurisdictional ground or similarly
dress a non-defect ground in defect clothing. Hill v. Vanderbilt Capital Advisors,
LLC, 702 F.3d 1220, 1224 (10th Cir. 2012) (quoting Powerex Corp. v. Reliant
Energy Servs., 551 U.S. 224, 234 (2007)); see Harvey, 797 F.3d at 804, 807
(reviewing whether the district courts characterization of its remand as based on a
defect was colorable).

7
 The Eleventh Circuit also treats waiver by participation as nonjurisdictional.

Cogdell v. Wyeth, 366 F.3d 1245, 1248-49 (11th Cir. 2004). In Cogdell, the court

declared that [w]aiver may be a proper basis upon which to find lack of removal

jurisdiction; however, waiver does not divest the court of subject matter jurisdiction.

Id. at 1249. The court noted that removal jurisdiction not only requires subject-matter

jurisdiction over the removed case, but it also requires compliance with statutory

procedural requirements, e.g., timeliness in removal and consent of all defendants. Id.

at 1248; see 28 U.S.C. 1446. So when a court finds that it lacks removal

jurisdiction, that finding hardly means it lacks subject-matter jurisdictionit may or

may not. See Cogdell, 366 F.3d at 1248.4

We acknowledge that the Fifth Circuit has also examined this issue and

reached a different outcome. In re Weaver, 610 F.2d 335 (5th Cir. 1980). In Weaver,

the district court remanded a case to state court after determining that removal was

no longer available because of the defendants waiver by participation. Id. at 336.5

4
Though Cogdell preceded the Supreme Courts Carlsbad decision by five
years, it applied consistent logic. In Carlsbad, the Court analyzed supplemental
jurisdiction and subject-matter jurisdiction. 556 U.S. at 640. It determined that a
district court could decline to exercise supplemental jurisdiction over state-law
claims, yet still have had subject-matter jurisdiction over them. Id. This shows that
supplemental jurisdiction, like removal jurisdiction, requires more than subject-
matter jurisdiction. To exercise supplemental jurisdiction, a district court must have
subject-matter jurisdiction over the claims, and then choose to exercise that
jurisdiction. Id.
5
In Weaver, the defendants participated in the state-court proceedings by
seeking and obtaining dissolution of a temporary injunction. 610 F.2d at 336.

8
On appeal, the Fifth Circuit concluded that a district courts belief that removal was

no longer available led to the logical inference that [the district court] felt

jurisdiction was lacking. Id. at 337. The court never explained what made this

inference logical, and we can fathom no explanation. To us, the inference relies on

a mistaken premisethat a remand based on a defendants participation in state court

necessarily shows that the federal court had no subject-matter jurisdiction over the

state claims.6 In fact, the federal court could have kept and resolved the removed

case, except for the waiver of removal.

Because waiver by participation is independent from subject-matter

jurisdiction, it falls outside 1447(c)s subject-matter-jurisdiction basis. But before

we can address the cases merits, we must also examine the second 1447(c) basis

for remand, the any defect basis.

B. Any Defect

1. Meaning of Any Defect

Based on our circuits case law, we know that three grounds for remand

qualify within the meaning of any defects under 1447(c): (1) noncompliance with

6
In Rothner, the Seventh Circuit also exercised appellate jurisdiction to review
a remand order based on waiver by participation. 879 F.2d at 1416. It too considered
and rejected Weavers reasoning, finding it illogical, unpersuasive, and
unsound. Id. at 1417. Weavers reasoning is questionable even within the Fifth
Circuit. In Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543-44 (5th Cir. 1991), the
court admonished the plaintiffs for confusing improper removal with a lack of
subject-matter jurisdiction and stated that this court has had little difficulty in
distinguishing between removal jurisdiction, on the one hand, and original or subject
matter jurisdiction, on the other hand.

9
the time limits provided in 1446(b); (2) noncompliance with the unanimity

requirements in 1446(b)(2)(A); and (3) noncompliance with the forum-defendant

rule in 1441(b), which forbids removal when a defendant is a citizen of the forum

state. Huffman v. Saul Holdings Ltd. Pship, 194 F.3d 1072, 1077 (10th Cir. 1999)

(timing requirements); Harvey, 797 F.3d at 805 (unanimity requirements); Am. Oil

Co. v. McMullin, 433 F.2d 1091, 1095 (10th Cir. 1970) (forum-defendant rule).7

Because these three grounds are defects under 1447(c), 1447(d) limits our

jurisdiction to review remands based on them.8

By contrast, the following grounds fall outside the any defect group: (1) the

district courts discretionary decision not to exercise supplemental jurisdiction;

(2) the district courts discretionary remand of pendent claims; (3) abstention; (4)

waiver of the federal forum in a forum-selection clause; and (5) the district courts

crowded docket. Carlsbad, 556 U.S. at 640-41 (supplemental jurisdiction);

Westinghouse Credit Corp. v. Thompson, 987 F.2d 682, 684 (10th Cir. 1993)

(pendent claims); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996)

7
In addition to these grounds, the Fourth, Fifth, and Ninth Circuits have held
that violations of 1445, which prohibits removing workers compensation claims,
are also defects under 1447(c). In re Norfolk S. Ry. Co., 756 F.3d 282, 292 (4th Cir.
2014); Kamm v. ITEX Corp., 568 F.3d 752, 756 (9th Cir. 2009); Albarado v. S. Pac.
Transp. Co., 199 F.3d 762, 766 (5th Cir. 1999).
8
When a district court bases its remand order on one of these statutory defects,
1447(d) limits our jurisdiction to reviewing only whether the remand order is
colorably characterized as based on the statutory defect, e.g., a lack of unanimity.
Harvey, 797 F.3d at 807. But 1447(d) prohibits us from reviewing whether the
district court correctly determined that a statutory defect existed. Id.

10
(abstention); Am. Soda, LLP, 428 F.3d at 924; Thermtron Prods., Inc. v.

Hermansdorfer, 423 U.S. 336, 352 (1976), abrogated in part by Quackenbush, 517

U.S. 706 (crowded docket). Because these grounds fall outside 1447(c), they are

free from 1447(d)s limitation on our jurisdiction.

Knowing which grounds fall within or outside of the any defect group helps

us define their characteristics. As seen above, all members of the defect group share a

defining characteristicthey involve remands based on the failure to comply with

the legal requisites of the removal statutes. Snapper, Inc. v. Redan, 171 F.3d 1249,

1253 (11th Cir. 1999). The same cannot be said of the non-defect grounds. When a

district court remands based on supplemental jurisdiction or abstention, it exercises

its discretionary authority. Carlsbad, 556 U.S. at 640-41; Quackenbush, 517 U.S.

at 712. When a district court remands because the defendant waived removal in a

forum-selection clause, it makes a decision based on the substantive merits. SBKC

Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 581 (10th Cir. 1997). But

see Harvey, 797 F.3d at 806 (doubting whether 1447(d) allows review of merits

determinations that precede the remand (quoting Powerex, 551 U.S. at 235)). And

when a district court remands because its docket is too crowded, it exceeds its

authority and the remand is ultra vires. Thermtron, 423 U.S. at 351.

Thus, we hold that any defect applies solely to failures to comply with the

statutory requirements for removal. We agree with the Seventh Circuits sensible

conclusion:

11
 It would be unreasonable to assume that Congress would create a
statutory right of removal, and in so doing go to the trouble of laying
out specific and detailed requirements for exercising that right, and
thenby means of the single word improvidentlyextend carte
blanche authority to the district courts to revise the congressional
scheme by remanding cases on any grounds that seem justifiable to
them.

Rothner, 879 F.2d at 1410.9

The historical interpretation of 1447(c) supports this view.10 See Snapper,

171 F.3d at 1254 (analyzing the statutory revisions effect). In 1996, Congress

amended 1447(c). That section now states that [a] motion to remand the case on

the basis of any defect other than lack of subject matter jurisdiction must be made

within 30 days after the filing of the notice of removal under section 1446(a).

1447(c). In Snapper, the Eleventh Circuit analyzed this subsections amended

language. 171 F.3d at 1254. As the court explained, an early version of the statute

(referred to here as the 1948 version) directed district courts to remand [i]f at any

time before final judgment it appears that the case was removed improvidently and

without jurisdiction. Id. (quoting 28 U.S.C. 1447(c) (1946)). Under this 1948

version, courts found that parties had improvidently removed cases when one of the

9
When the Seventh Circuit decided Rothner, the court interpreted an older
version of 28 U.S.C. 1447(c) that used the term improvidently rather than
defects. 879 F.2d at 1411. As the discussion illustrates, this change doesnt affect
our analysis.
10
Within this circuit, until now, it was unnecessary to analyze the statutory
changes that 1447(c) has undergone. See Harvey, 797 F.3d at 808-09 (Hartz, J.,
concurring) (assuming that the 1996 amendment was immaterial for that cases
purpose).

12
statutory, non-jurisdictional requirements for removal ha[d] not been satisfied. In re

Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 647 n.8 (5th Cir. 1978); see also

Rothner, 879 F.2d at 1411 (stating it is logical and reasonable to interpret

[improvidently] to mean noncompliance with Congress specific and detailed

statutory provisions).

Though most courts interpreted the 1948 version narrowly, the term

improvident[ly] . . . was obviously vulnerable to a much broader interpretation,

causing some uncertainty to develop. Snapper, 171 F.3d at 1255. Because of this

uncertainty, and specifically endorsing the narrow interpretation of improvidence,

Congress amended the statute in 1988 by removing improvidently and replacing it

with any defect in removal procedure. Id. at 1256 (quoting 28 U.S.C. 1447(c)

(1994)). After this amendment, courts continued to interpret the subsection narrowly.

Id. at 1256-57. But eventually a circuit split developed when it came to classifying

remands based on 1441(b), the forum-defendant rule.11 Id. at 1257-58. The Fifth

Circuit characterized this rule as a procedural defect, and thus a defect within

1447(c), while the Eighth Circuit characterized it as jurisdictional, and thus not a

defect within 1447(c). LaMotte v. Roundys, Inc., 27 F.3d 314, 316 n.3 (7th Cir.

1994) (describing the circuit split).

11
The forum-defendant rule prohibits removal when a case is removed for
diversity jurisdiction and the defendant is a citizen of the State in which such action
is brought. 28 U.S.C. 1441(b)(2).

13
 To resolve this confusion, in 1996, Congress amended the statute to its current

version by eliminating the words in removal procedure. 28 U.S.C. 1447(c)

(1998). Based on this background, it appears that Congress intended to broaden the

meaning of any defect to include all statutory-based defects but never intended to

broaden the meaning beyond this. See Snapper, 171 F.3d at 1258. Instead, Congress

amended the language to resolve inconsistent interpretations. Id. We agree with

Snapper and other circuits that this statutory history shows that any defect is

limited to a failure to comply with the statutory requirements for removal. See, e.g.,

In re Norfolk S. Ry. Co., 756 F.3d 282, 292 (4th Cir. 2014) ([D]efect refers to a

failure to comply with the statutory requirements for removal . . . .); Kamm v. ITEX

Corp., 568 F.3d 752, 755 (9th Cir. 2009) (same); Holmstrom v. Peterson, 492 F.3d

833, 837 (7th Cir. 2007) (explaining that the legislative history reflects a

congressional fine-tuning of 1447(c) in an attempt to identify motions to remand

that are grounded in the precise directions that Congress has placed in the Judicial

Code to govern removal); Autoridad de Energa Elctrica de Puerto Rico v.

Ericsson Inc., 201 F.3d 15, 17 (1st Cir. 2000) (defining defect as the failure to

comply with the various requirements for a successful removal, as set forth in

1446(a) and (b)); see also Graphic Commcns Local 1 B Health & Welfare Fund

A v. CVS Caremark Corp., 636 F.3d 971, 974-76 (8th Cir. 2011) (declining to

broaden defects meaning).

14
 2. Waiver

Now that weve concluded that any defect means a failure to comply with

the statutory requirements for removal, we must determine whether waiver by

participation fits within this definition. We conclude that, because waiver is a

common-law creation not included in the removal statutes, it does not qualify as any

defect under 1447(c). Rothner, 879 F.2d at 1407-08.

We acknowledge that some others judges would rule otherwise, relying on the

similarities between waiver by participation and the statutory-timing requirements

found in 1446(b)(1). Under 1446(b)(1), a removing party must file a notice of

removal within 30 days of receiving service or . . . a copy of the initial pleading.

In his Rothner dissent, Judge Easterbrook asserted that a waiver by participation is a

finding that the defendant waited too long in light of events taking place in state

court, even though the defendants time ran out in advance of the limit in the

statute. 879 F.2d at 1422 (emphasis in original). And, as Judge Hartz explained in

his Harvey concurrence, 1446(b)(1)s 30-day-timing requirement and waiver by

participation both aim to prevent similar behavior: defendants delaying removal.

797 F.3d at 809 (Hartz, J., concurring). In Judge Hartzs words the remover lingers

too long in state court by removing beyond 1446(b)(1)s 30-day requirement; and

by participating in the state-court proceedings, the remover lingers too lovingly. Id.

Though we agree that waiver of removal by participation and untimely

removal under 1446(b)(1) have some similarities, their application differs. The

timing requirements of 1446(b)(1) are certain and easily calculated. But issues

15
about whether a defendant has sufficiently participated in a state court before

removal are subject to differences of opinion and inconsistent application. Cf.

Rothner, 879 F.2d at 1404 (noting that because the district court believed that the

removing party had an improper motive for removing the case, it decided not to

follow a long-settled common law rule that opposing a motion for a temporary

restraining order does not waive the right to remove). And perhaps the most difficult

aspect of the waiver doctrine is that it depends on state procedural rules. See, e.g.,

Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246

(11th Cir. 2004) (finding that Floridas 20-day requirement for filing motions to

dismiss resulted in a quandary for defendants who filed for removal in a timely

manner but found themselves back in state court with no time left to file a motion to

dismiss).

In addition, we note that Congress could have broadened 1447(c)s language

to capture concepts such as waiver by participation but chose to use narrower

language. For instance, in the bankruptcy-removal statute, 28 U.S.C. 1452,

Congress authorized district courts to remand on any equitable ground. Had

Congress included any equitable ground in 1447(d), it might well have reached

all delays instead of just the timing delay identified in 1446. Things Remembered,

Inc. v. Petrarca, 516 U.S. 124, 134 (1995) (Ginsburg, J., concurring). And the City

could perhaps have fit waiver by participation within the equitable doctrine of laches,

which stems from the principle that equity aids the vigilant and not those who

slumber on their rights. Biodiversity Conservation All. v. Jiron, 762 F.3d 1036,

16
1090-91 (10th Cir. 2014) (quoting Kansas v. Colorado, 514 U.S. 673, 687 (1995)).

Thus, because waiver by participation lies outside of 1447(c)s any defect

and subject-matter-jurisdiction bases, 1447(d) doesnt limit our jurisdiction to

review the cases merits.12

II. Merits

The issue here is whether Soto waived its removal right by filing a motion to

dismiss in state court. In holding that Soto waived removal, the district court made a

legal determination that motions to dismiss alone are sufficient to constitute waiver;

and thus, we review that determination de novo. OToole v. Northrop Grumman

Corp., 499 F.3d 1218, 1221 (10th Cir. 2007). But see Grubb v. Donegal Mut. Ins.

Co., 935 F.2d 57, 59 (4th Cir. 1991) (reviewing the factual findings underlying

waiver of removal rights for clear error).

Generally, a defendant waives removal 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. PR Grp., LLC v.

Windmill Intl, Ltd., 792 F.3d 1025, 1026-27 (8th Cir. 2015) (quoting Yusefzadeh,

365 F.3d at 1246). This waiver must be clear and unequivocal, meaning that short of

[the defendant] seeking an adjudication on the merits, the right to removal is not

12
Similar to remands based on waiver by forum-selection clauses, remands
based on waiver by participation dont fall within either 1447(c) ground; but these
remands based on waiver by participation still remain lawful through a district
courts inherent power to remand. Snapper, 171 F.3d at 1263 n.26.

17
lost . . . . Windmill, 792 F.3d at 1026 (quoting Tedford v. Warner-Lambert Co., 327

F.3d 423, 428 (5th Cir. 2003)); Am. Soda, LLP, 428 F.3d at 927.

Here, though Soto could file an answer in state court without waiving removal,

see Fed. R. Civ. P. 81(c)(2), we conclude that Soto waived removal by also filing a

motion to dismiss in state court. We acknowledge that a mere hour and twenty

minutes passed between Sotos filing the motion to dismiss and its answer, and that

Soto never requested a hearing on its motion to dismiss. These actions may show

Sotos subjective intent to remove; but Soto showed its objective intent to remain in

state court by filing a motion to dismiss, which submitted the cases merits to the

state court for adjudication. See Alwert v. Cox Commcns, Inc. (In re Cox Enters.,

Inc. Set-top Cable Television Box Antitrust Litig.), 835 F.3d 1195, 1205 (10th Cir.

2016) (distinguishing subjective and objective waiver of arbitration rights). And

regardless of its intent, Sotos conduct in state court foreclosed its removal right.

Id. This is because the waiver rules aim to prevent defendants from seeking an

adjudication on the merits, which means that a state defendant can waive removal

even before the state court actually adjudicates the merits. Windmill, 792 F.3d

at 1026 (emphasis added) (quoting Tedford, 327 F.3d at 428). Soto sought the state

courts adjudication by addressing the substantive merits of the Citys tort claims.

See Styskal v. Weld Cty. Bd. of Cty. Commrs, 365 F.3d 855, 858 (10th Cir. 2004)

(explaining that an on the merits adjudication means one that passes directly on the

substance of a particular claim).

18
 We hold that when a defendant files a motion to dismiss seeking disposition,

in whole or in part, on the merits in state court before removing the case to federal

court, it manifests a clear and unequivocal intent to submit the case to the state

courts jurisdiction, and thus waives removal. We favor a bright-line rule to avoid

piecemeal litigation that would distinguish cases based on the length of delay

between motions to dismiss and motions to remove and based on any number of like

considerations.13 Yet we also recognize that in limited circumstances, this bright-line

rule can lead to unfair results, so we fashion an exception as well.

We will not find waiver of the right to remove when a states procedural rules

compel a defendants state-court participation. For this exception to apply, we look

for potential harm to defendants.14 For instance, upon remand, would a defendant lose

its opportunity to file a motion to dismiss because it failed to comply with a states

procedural rule?

13
Unlike motions to dismiss for failure to state a claim, motions to dismiss for
defenses such as lack of jurisdiction, improper venue, or insufficient process make it
unnecessary for a court to adjudicate the cases merits. Styskal, 365 F.3d at 858.
Because of this, such motions dont implicate waivers goal of promoting judicial
economy and preventing piecemeal and duplicative litigation.
14
Soto argues that this standard is inflexible and creates inconsistencies within
this circuit. Yet, Soto failed to present cases from this court to show what
inconsistencies this rule creates. To the flexibility issue, an inflexible standard brings
certainty to litigants, which outweighs our concern with the potential for harsh
results. We note that the district court case cited by Soto, May v. Board of County
Commissioners, 945 F. Supp. 2d 1277 (D.N.M. 2013), aligns with todays opinion.
Because the defendant in that case filed a motion to dismiss in state court based on
improper venue, it did not seek a final determination on the merits of the case before
removal, and thus retained its right to remove. Id. at 1297-98.

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 In Yusefzadeh, the Eleventh Circuit faced such a state procedural rule. The

Florida rule required defendants to file motions to dismiss within 20 days of service.

Yusefzadeh, 365 F.3d at 1246. When combined with the federal 30-day removal

period, this 20-day time limit created a quandary for state defendants. Id. (citing 28

U.S.C. 1446(b)). A defendant in Florida might have filed for timely removal only

to find itself back in state court where the time to file a motion to dismiss had run.

See id. But unlike the 20-day filing requirement in Yusefzadeh, New Mexicos

procedural rules didnt compel Soto to file a state motion to dismiss before its 30-day

removal period had expired. Further, when Soto filed its state motion to dismiss, the

City had not served process, meaning that the clock had not started running on either

removal or filing a motion to dismiss. So, absent Sotos participating in the state case

by filing a motion to dismiss, on remand, it would have had 30 days in which to file

its state motion to dismiss.15 Soto jumped the gun, unlike the defendants in

Yusefzadeh.

Still, Soto argues that state and federal rules of civil procedure allowed it to

file the motion to dismiss. In support, Soto cites Federal Rule of Civil Procedure

81(c) to show that defendants can file an answer in state court before removing a case

to federal court. Soto then combines this with New Mexico Rule of Civil Procedure

1-012(B), which requires parties to file their motions to dismiss before pleading, to

15
This hypothetical assumes that Soto removed on Day 1 of the removal
period.

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show that, upon remand, it would have lost its opportunity to file a motion to dismiss

had it answered the complaint first before removing to federal court. From this, Soto

deduces that it could file the motion to dismiss without waiving its right to remove.

But Soto misses the point. For the exception to apply, we dont examine whether

procedural rules allowed the participation, we examine whether the procedural rules

compelled the participation. New Mexicos rule didnt compel Soto to answer the

Citys complaint and, consequently, didnt compel Soto to file its motion to dismiss

for two reasons: (1) the City never served Soto; and (2) Soto could have removed the

case to federal court before filing an answer.

Because Soto participated in the state case by filing a motion to dismiss

without needing to do so, we conclude that Soto waived its right to remove.

CONCLUSION

For the reasons stated above, we DENY the Citys motion to dismiss this

appeal and AFFIRM the district courts order of remand.

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