Commercial Litigation and Arbitration

Waiver of Right to Remove

From Kosen v. Ruffing, 2009 U.S. Dist. LEXIS 659 (S.D. Cal. Jan. 5, 2009):

A defendant may waive their [sic] right to remove a case to federal court by "tak[ing] actions in state court that manifest his or her intention to have the matter adjudicated there, and to abandon his or her right to a federal forum." Resolution Trust Co. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994). However, "[i]t has been recognized on numerous occasions that actions which are preliminary and not conclusive in character and which do not actually submit the merits of a claim for a binding decision do not constitute a waiver of defendant's right to remove . . . ." Beasley v. Union Pac. R.R. Co., 497 F. Supp. 213, 216 (D. Neb. 1980). When "a party takes necessary defensive action to avoid a judgment being entered automatically against him, such action does not manifest an intent to litigation in state court, and accordingly, does not waive the right to remove." Resolution Trust, 43 F.3d at 1240 (citations omitted). Actions taken in state court to preserve the status quo are necessary defensive actions that do not cause a waiver of the right to remove.... Likewise, merely filing a pleading in response to the complaint will not result in waiver. Acosta v. Direct Merchants Bank, 207 F. Supp. 2d 1129, 1131 (S.D. Cal. 2002) (finding defendant waived removal by filing a cross-complaint, and thus, invoking the jurisdiction of the state court as a plaintiff).

Defendant Ruffing did not waive her right to remove the case to this Court by filing her answer and motion to strike punitive damage request in state court. Filing an answer and a motion to strike the punitive damage allegations does not demonstrate the "clear and unequivocal" desire to adjudicate the merits of the case in state court. See Acosta, 207 F. Supp. 2d at 1131 (citing Resolution Trust, 43 F.3d at 1240). In addition to the filing of the answer and motion to strike, Plaintiffs also assert that Mr. Beavers served numerous discovery requests. The Court notes that other than the bald assertion in Plaintiffs' moving papers, there is no evidence suggesting that discovery was in fact served. But even if Beavers did serve discovery on Ruffing's behalf, the Court does not believe this is sufficient to constitute a waiver. See Anderson v. Kaz, Inc., 2008 WL 2477559, at *2-3 (D. Or. June 12, 2008) (finding plaintiff who requested one set of discovery from defendant after removal to federal court did not waive his right to move for remand); Bolden v. Healthspring of Ala., Inc., 2007 WL 4403588, at *1 (S.D. Ala. Oct. 2, 2007) (finding the serving of deposition notices and written discovery requests was not substantial defensive action that would waive the right to remove case to federal court); Nixon v. Wheatley, 368 F. Supp. 2d 635, 641 (E.D. Tex. 2005) (same).

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