You know the “review of remand order” story, because we wrote about it earlier this month:

28 U.S.C. Sec. 1447(c) authorizes a federal trial court to remand a case to state court for either (1) lack of subject matter jurisdiction or (2) defects “other than lack of subject matter jurisdiction.” Objections to subject matter jurisdiction can of course be raised at any time. But motions to remand “on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal.”

Section 1447(d) then says that a remand order “is not reviewable on appeal or otherwise.” Courts have interpreted section 1447(d) to apply only to remand orders issued under section 1447(c). Thus, if a trial court remands a case on a ground not specified in 1447(c), the remand order may be reviewable.

We’re simple guys, and our heads spin easily. We thus keep trying to simplify our world, so we can understand it and explain it to our clients.

We figure there are three kinds of motions to remand: (1) Motions to remand based on lack of subject matter jurisdiction (i.e., a lack of diversity or less than $75,000 in controversy, or the absence of a federal question), (2) motions to remand based on defects in the removal procedure (e.g., the defendant blew the deadline for removing the case or all defendants didn’t join in the notice of removal), and (3) motions to remand that involve decisions on substantive questions of law apart from subject matter jurisdiction or the removal process (e.g., a motion to remand based on an abstention doctrine).

The first kind of motion to remand — for lack of jurisdction — can be made at any time. The second kind of motion — for a defect in the removal process — must be made within 30 days or is waived. The third kind of motion — based on substantive law unrelated to jurisdiction or the removal process — is not governed by section 1447 at all.

And — take a deep breath — the first two types of motions are not reviewable by appellate courts, but the third type may be.

Turns out this is exactly right.

But what a mess it is.

Kamm v. ITEX Corp., No. CV-06-00943-AJB, slip op. (9th Cir. June 15, 2009) (link here), involved a contract dispute. The contract contained a forum selection clause saying that any action for breach of contract would “be filed . . . in the courts of the State of Oregon.” Id. at 7108. Kamm filed a complaint in state court. ITEX removed. Kamm moved to remand thirty-one days later. Id. The trial court granted the motion to remand, and ITEX appealed.

What result?

The facts seem so easy, but somehow it feels like we’re in our first year of law school all over again.

The case turns on how the court categorizes a motion to remand based on a forum selection clause.

That kind of motion ain’t jurisdictional. A forum selection clause does not deprive a federal court of subject matter jurisdiction. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972).

So is removal in violation of a forum selection clause a “defect other than lack of subject matter jurisdiction”? If it is, then Kamm had to move to remand within 30 days, which he had failed to do (and thus had waived his objection to removal). Also, if a forum-selection-motion-to-remand involves a “defect other than lack of subject matter jurisdiction,” then that motion falls within section 1447(c) and the corresponding bar on appellate review contained in section 1447(d). If appellate review were barred, then the Ninth Circuit would have had to dismiss ITEX’s appeal.

Judge William Fletcher spied all the issues and wrestled with this nicely.

He concluded that a motion to remand to enforce a forum selection clause does not involve a “defect” in the removal process, but rather involves an independent legal question. Id. at 7112-14. Thus, Kamm was not required to bring that motion to remand within 30 days, and the Ninth Circuit had jurisdiction to hear the appeal. The Ninth Circuit thus reached the merits and affirmed the trial court’s remand order. Id. at 7115.

In one sense, we’re happy: We generally root for defendants at this blog, but we’ll get over that here. The Ninth Circuit reached a reasonable result, and the court grappled with this issue comprehensively.

In another sense, however, we’re sad: As practicing lawyers, we have to live in this crazy, mixed up world, and we have to explain it to our clients, and we have to provide legal services at a fair price.

And here’s the state of play: Whenever a plaintiff moves to remand on a non-jurisdictional ground, we must figure out whether the non-jurisdictional ground qualifies as a “defect” within the meaning of section 1447. If it does, then the plaintiff must move to remand within 30 days, and there will be no appellate review of a remand order. But, if the motion does not involve a “defect,” then the motion need not be made within 30 days (although it must still be made “on a timely basis,” id. at 7114), and appellate review will be available.

And remember: That’s just in the Ninth Circuit!

Other circuits may classify “defects” differently or may solve this entire riddle in some other way.

And all of that is just to decide which court will hear your case! Only after we decide that can we start to worry about who should actually win on the merits.

We’re not really here to cry on your shoulder.

But we will anyway.

Please don’t blame us for the high cost of providing legal services. Sometimes it’s the law itself that inflicts these things on us.