Tuesday, June 2, 2009

Timeliness of Removal Procedural Defect, Not Jurisdictional

In Kowallek v. Prestia (08-16872), the Eleventh Circuit affirmed the district court's dismissal, notwithstanding the fact that the Notice of Removal was improper.
In this case, the defendant untimely removed a case to the Southern District of Florida. Looking beyond the timeliness of the removal, the district court dismissed the action for failure to state a claim.
Timeliness of removal is a procedural defect and not a jurisdictional defect and, therefore, does not divest the district court of jurisdiction. Citing Ayres v. General Motors Corp., 234 F.3d 514, 519 (11th Cir. 2000) (“The untimeliness of a removal is a procedural, instead of a jurisdictional, defect.”). If the defect in removal had been jurisdictional, the dismissal would have been vacated. Citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 77, 117 S. Ct. 467, 477 (1996) (requiring that a judgment denying a motion to remand must be vacated when a “jurisdictional defect remains uncured”).
"Because Kowallek sued Prestia for refusing to divulge information she acquired as an employee of the Internal Revenue Service, the district court had removal jurisdiction. 28 U.S.C. § 1442(a)(1)." Therefore, the dismissal need not be vacated absent a jurisdictional defect in the notice of removal.
Further, the district court properly dismissed the action with prejudice because allowing the plaintiff to amend would have been futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004).


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