Unpublished Disposition, 904 F.2d 710 (9th Cir. 1989)

MEMORANDUM^** 

We are asked to decide whether a plaintiff may challenge the timeliness of a petition for removal from state court when she fails to appeal from the order denying her motion to remand until after summary judgment has been entered.

* Appellee Western Digital Corporation ("Western") laid off appellant Beth Rafnel in August 1985, and did not rehire her. Rafnel thereafter filed a complaint against Western on July 1, 1986, alleging the following causes of action: (1) wrongful discharge in violation of public policy; (2) breach of implied contract; (3) breach of the covenant of good faith and fair dealing; and (4) intentional infliction of emotional distress. In stating her first cause of action, Rafnel asserted that several laws, both state and federal, expressed the alleged "public policy." Western answered the complaint and alleged nine affirmative defenses.

After Rafnel stated in deposition her belief that the sole reason she had been laid off and denied rehire was her gender, Western filed a motion for summary judgment asserting that California does not recognize a common-law cause of action for gender discrimination. The state court granted Western's motion for summary judgment on all claims, but granted Rafnel leave to amend her complaint in order to allege a claim under the California Fair Employment and Housing Act ("FEHA"). See Cal.Gov.Code Sec. 12940.

Rafnel then filed an amended complaint on June 13, 1988. In this complaint, Rafnel alleged violation of FEHA and argued that "defendant's actions constituted sex discrimination pursuant to the provision of 42 U.S.C. § 2000 et seq.; 29 Code of Federal Regulations, Section 1604.3 et seq."

On July 7, 1988, Western petitioned for removal from state court to United States District Court, alleging federal question jurisdiction under Title VII as a basis for removal. The petition for removal stated that the first time Western had been able to ascertain that the case was removable was upon receipt of the first amended complaint.

The district court granted Western's petition for removal. Rafnel attended a status conference before the district court and filed a late demand for a jury trial.

On January 4, 1989 (six months after Western had removed), Rafnel filed a motion to remand to state court. Rafnel argued that remand was appropriate because Western's removal petition was untimely. As in this appeal, Rafnel contended that Western could have ascertained a basis for removal from her initial complaint. By waiting until after she had filed her first amended complaint, Rafnel argued, Western waived its right to seek removal.

The district court denied Rafnel's motion to remand on February 6, 1989. The court found that Rafnel did not raise a federal question until she filed her amended complaint and that Western therefore had made a timely request for removal.

Rafnel did not then file an interlocutory appeal. She filed a motion to amend her complaint and remand. The proposed amendment would have eliminated allegations of federal law violations. Rafnel also filed a motion for reconsideration of the order denying her previous motion to remand.

On March 15, 1989, Western filed a motion for summary judgment. On the same day, the district court ordered Western's summary judgment motion removed from the calendar for failure to comply with an earlier court order setting February 28, 1989 as the last day to file summary judgment motions.

On March 28, 1989, the district court denied Rafnel's motion for reconsideration, and removed from the calendar her motion to amend and remand for failure to comply with a local rule.

On April 3, 1989, Western filed an ex parte application requesting that the court hear the motion for summary judgment which the court had previously removed from calendar. On April 17, 1989, the court granted Rafnel's motion to hear her motion to amend and remand which had earlier been taken off calendar.

On May 1, 1989, the court heard arguments on both Western's motion for summary judgment and Rafnel's motion to amend and remand. The court then issued a minute order denying Rafnel's motion for amendment and remand and granting Western's motion for summary judgment.

Rafnel timely filed an amended notice of appeal from the judgment on May 31, 1989.

II

Under 28 U.S.C. § 1446(b), a defendant must file any petition for removal within thirty days of receiving a copy of the initial pleading setting forth the claim for relief. If, however, the case stated by the initial pleading is not removable, the defendant may file a petition for removal within thirty days of receiving a copy of an amended pleading from which it may first be ascertained that the case is removable. 28 U.S.C. § 1446(b).

Rafnel contends that Western could have ascertained from her initial, 1986 complaint that there was a basis for federal jurisdiction. Accordingly, she argues, Western should have petitioned for removal within thirty days of receiving that complaint. By failing to remove within thirty days of receiving the 1986 complaint, Rafnel's argument continues, Western waived its right to remove and the district court was without subject-matter jurisdiction over the case.¹ 

Western argues that Rafnel has waived her right to allege any error in the removal process. Western contends that Rafnel should have brought an interlocutory appeal from the denial of her motion to remand. Rafnel's failure to do so, Western argues, constituted a waiver of her right to challenge the removal.

We agree that Rafnel waived her right to challenge the removal.

[W]here after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal court would have had original jurisdiction of the case had it been filed in that court.

Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702 (1972). This rule applies when, as in the instant case, the merits are reached and determined on a motion for summary judgment. Sorosky v. Burroughs Corp., 826 F.2d 794, 798 (9th Cir. 1987).

Rafnel did not preserve any objection to removal through her unsuccessful motion to remand the action to state court. A plaintiff challenging removal must seek an interlocutory appeal from the district court's order denying the motion to remand in order to preserve an objection. See, e.g., Sorosky, 826 F.2d at 798. Because Rafnel failed to bring such an interlocutory appeal from the February 6, 1989 order denying her motion to remand, she is now foreclosed from challenging the removal procedure.

Rafnel would have us carve out an exception to the interlocutory appeal rule. She argues that she could not have brought such an interlocutory appeal because the district court decided simultaneously both Western's motion for summary judgment and her motion to amend and remand. Appellant's Reply Brief at 4-5. Under these circumstances, Rafnel continues, "the sequence of events effectively foreclosed and precluded an interlocutory appeal."

We disagree. Rafnel's original motion to remand was based upon Western's alleged untimeliness in seeking removal and was unrelated to the later motion to amend and remove. Rafnel could have brought an interlocutory appeal from the denial of her motion to remand on February 6, 1989 or, at the latest, when the district court denied her motion for reconsideration of the order denying her motion for remand on March 28, 1989. Instead, Rafnel waited until May 16, 1989 to enter her first notice of appeal. By that time, the district court had already granted Western's motion for summary judgment.

III

Because Rafnel failed to file an interlocutory appeal to preserve her objection to the removal, we need only decide if the district court would have had jurisdiction if the first amended complaint originally had been filed in that court. See Sorosky, 826 F.2d at 799. We hold that the district court would have had jurisdiction in such circumstances. Rafnel's removed complaint states a claim for violation of Title VII. She alleges that she was laid off and denied rehire because of alleged gender discrimination in violation of federal law. Accordingly, the district court would have had subject matter jurisdiction over the case under 42 U.S.C. § 2000.

AFFIRMED.