In Wilson v. Hearos, LLC, No. 23-12550 (11th Cir. Feb. 18, 2025), the Eleventh Circuit holds that a plaintiff who failed to challenge a non-party’s removal of an action to federal court under the general removal statute, 28 U.S.C. § 1441(a), within the 30 days provided by 28 U.S.C. § 1447(c) waived his objection. The Fifth Circuit had previously held that a purported non-party removal is a non-waivable jurisdictional defect.
Only a defendant to a lawsuit may remove a case from state to federal court under § 1441(a). But in this case, a products liability action filed by Wilson against a manufacturer of hearing protection named Hearos in Georgia state court, the defendant’s parent company named PIP removed the case to federal court based on diversity of citizenship. PIP and Hearos then moved to dismiss on a variety of procedural and merits grounds.
“Noting the irregularity of a non-party removing the case to federal court, the district court identified competing, nonbinding case law on whether to treat such an improper removal as an unwaivable, jurisdictional defect or a waivable, procedural one. Ultimately, the district court concluded that such a defect was waivable. As there was no dispute over original subject matter jurisdiction and neither party raised any objections within the 30-days limit under the remand statute, 28 U.S.C. § 1447(c), the district court maintained jurisdiction over the case.” On the merits, the district court dismissed the action as untimely.
The Eleventh Circuit affirms. It was unchallenged that the non-parties have no standing to remove a case, but that the case fell within the federal court’s diversity jurisdiction. “[I]f a non-party does file a notice of removal to federal court, and neither the plaintiff nor defendant raises an objection to remand the case within 30 days, as required under the remand statute § 1447(c), then the question becomes whether that improper removal is a non-waivable jurisdictional defect or whether it is a waivable procedural defect. On appeal, Wilson argues that an improper removal by a non-party strips the district court of subject matter jurisdiction and requires remand to state court at any time during the proceedings.”
The panel concludes that the purported removal by a non-party is a waivable procedural defect that must be raised in the thirty-day window. “When a district court could have exercised original subject matter jurisdiction had the case been initially filed in federal court, the only other basis for remand is a defect that is subject to the 30- days rule under § 1447(c).” Here, removal by a non-party “is a defect in the removal proceedings—they do not meet the legal requirement under § 1441(a). As such, that determination does not implicate subject matter jurisdiction and thus must be objected to within 30 days or else waived.”
“An apt analogy to the improper non-party removal is the improper forum-defendant removal. Section 1441(b)(2) prohibits removing a civil action to federal court based on diversity jurisdiction if any properly joined defendants are citizens of the state where the case is brought. Yet we have said, along with most of our sister circuits, that such an improper removal is a waivable defect.”
“We see no good reason not to extend the same treatment to the improper removal by a non-party where the case could have been originally filed in federal court. For the purposes of the removal statutes, there is no meaningful difference between a forum-defendant or a non-party removing a case—both have no statutory authority to do so. And the operative questions to determine waiver are identical in both situations—did the parties object within 30 days and does the federal court have subject matter jurisdiction. In essence, we respect Wilson’s and Hearos’s forum choice. If either party had wanted to return the case to state court, they could have filed a motion for remand within 30 days of removal. But because they chose not to, they have acquiesced to federal jurisdiction.”
The panel acknowledges that the Fifth Circuit holds that removal by a non-party is a jurisdictional rather than procedural defect, going back to Housing Authority of Atlanta v. Millwood, 472 F.2d 268 (5th Cir. 1973), and most recently to Valencia v. Allstate Texas Lloyd’s, 976 F.3d 593 (5th Cir. 2020). “[W]hile Millwood is binding precedent for this Court, subsequent decisions by the post-split Fifth Circuit are not. And Millwood is readily distinguishable from this case” because that action additionally failed to meet the standards of the federal-officer removal statute under § 1442(a). “That is different than here, when there is no dispute that, improper removal aside, there is diversity jurisdiction between Wilson and Hearos, and the district court has original subject matter jurisdiction over the dispute.”
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