SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit in Northern California has vacated a decision by a lower court in a malpractice lawsuit, saying the district court lacked the authority to remand the case.   

According to the opinion written by Ann D. Montgomery, United States district judge for the district of Minnesota, the case stems from a lawsuit filed by Marco Antonio Corona-Contreras against Steven Gruel in California state court, alleging breach of contract and legal malpractice, among other things. 

Corona-Contreras retained Gruel, an immigration attorney, to appeal an order that required him to depart from the United States. After the appeal to the Board of Immigration Appeals was unsuccessful, Gruel appealed to the U.S. Court of Appeals for the Ninth Circuit, also without success.

On June 27, 2014, Corona-Contreras, acting through new counsel, sued Gruel in San Francisco Superior Court.

Eleven months into the case, Gruel removed the case to federal court on the basis of diversity and federal jurisdiction. At the time, Corona-Contreras did not object to the removal or file a motion to remand. 

After the district court found the removal untimely three months later, the case was remanded back to the district court. The decision prompted Gruel to appeal the decision, arguing that the district court lacked authority to remand under federal statute based on a procedural defect to which Corona-Contreras failed to object. 

The appellate court agreed.

The panel concluded that the remand was based on a procedural defect and not a lack of subject matter jurisdiction, according to Montgomery, who added that the district court remanded for a procedural defect. Because procedural defects are waivable, the district court lacked authority to remand in the absence of a timely motion by the plaintiff.

"[T]he district court lacked the authority to remand on this basis absent a timely motion to remand by Contreras,” Montgomery wrote in the opinion. "We hold that the district court exceeded its authority... [by] ordering a remand based on a procedural defect in the removal from state court."

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