PR Grp., LLC v. Windmill Int'l, Ltd., No. 14-3021 (8th Cir. 2015)
Annotate this CasePR sued Windmill in Missouri state court, but did not serve Windmill with the complaint. More than two years later, Windmill moved to dismiss for lack of prosecution. After PR responded to the motion but before the state court ruled on it, Windmill filed a notice of removal. In federal court, PR moved to remand, arguing that Windmill had waived its right to remove when it filed the state court motion to dismiss. The district court granted PR’s motion. The Eighth Circuit reversed. The 28 U.S.C. 1446 right to remove a case filed in state court to federal court based on diversity jurisdiction can be waived by actions the defendant takes in state court. A defendant waives the right “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.” The right to removal is not lost by participating in state court proceedings short of seeking adjudication on the merits. Windmill’s motion was based on PR’s failure to complete service; it neither addressed nor sought adjudication on the merits and did not clearly and unequivocally demonstrate willingness to litigate in state court.
Court Description: Wollman, Author, with Gruender, Circuit Judge, and Doty, District Judge] Civil case - Civil Procedure. Filing of a motion to dismiss for lack of prosecution in the state court proceeding did not constitute a clear and unequivocal waiver of defendant's right to remove the case to federal court, and the district court erred in remanding the matter to state court.
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