I will sing this vict’ry song.  Woo, hoo, hoo.  Woo, hoo, hoo.

You see, it’s true that, under 28 USC § 1441(b)(2), an action that is otherwise removable on the basis of diversity jurisdiction can’t be removed if one of the defendants (here, the hospital) is a citizen of the forum state.  But this forum-defendant rule is procedural, not jurisdictional.  It can be waived, and it will be waived if it’s not raised within 30 days after removal.  Plaintiff’s remand motion was three and a half months later.  “Already gone.”

Plaintiff’s motion also asked the court to remand the case because not all defendants had consented to removal.  Again, it’s true that 28 U.S.C. § 1446 requires all defendants to consent to removal.  But that’s also a procedural, not jurisdictional, rule, so it is also waived if not raised in 30 days.  “Feelin’ strong.”Plaintiff also argued that defendant did not establish that the $75,000 jurisdiction limit was met. But this was an Infuse bone graft case, and the Court knew better.  The jurisdictional limit was met.  “Sing this vict’ry song.  Woo, hoo, hoo.  Woo, hoo, hoo.”

Setting aside that this case offered the opportunity to hum a great song, it allows us to reference a six-year-old post that considered whether the attorneys for a defendant that misses its 30-day removal deadline could ethically remove the case nonetheless in the hope that plaintiff would then miss his or her deadline to remand.

Now, in Cole, the situation was different.  Even though Medtronic knew that there was a forum defendant that could block removal, it also had a good faith argument that the case was still removable because that defendant had yet to be served.  So Cole didn’t pose the ethical question that we discussed six years ago.  But maybe it provides an answer.

It’s hard to ignore that the client in Cole, Medtronic, is in a better place, quite literally, than it would have been if its lawyers chose not to remove because of the presence of a forum defendant.  Even if Medtronic had lost its argument that plaintiff’s failure to yet serve the forum defendant allowed Medtronic to remove, Medtronic would still be standing safely in federal court because of plaintiffs’ waiver of its right to seek remand.  And, so, if Medtronic’s lawyers had chosen not to remove the case, the client would still be in state court, a less advantageous position.  Similarly, the 30-day deadline to remove is not a jurisdictional requirement.  It’s procedural, and it also can be waived.  With that possibility always present, it seems that a lawyer whose client has passed the 30-day removal deadline should still be able to assess the situation and make an ethical decision to remove the case, knowing full well that plaintiff could thereafter waive the procedural barrier – just like what happened in Cole.

Six years later, it’s still an interesting question.