Waiving Removal, Waiving Remand–The Hidden and Unequal Dangers of Participating in Litigation

The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of cases between state and federal courts. Moreover, it disadvantages plaintiffs for no good reason, and without providing adequate notice.

The absence of statutory provisions governing conduct-based waivers raises the question whether courts unilaterally should be recognizing such waivers at all, as a matter of separation of powers, and if so, under what circumstances waiver should be found. This Article addresses those questions. It surveys the case law, and takes on the underlying policy questions. The doctrines that the courts have molded in these domains are not even close to even-handed.

Under them, defendants are held to have waived their right to remove far less frequently than plaintiffs are held to have waived their right to remand. The need for litigants to clearly know in advance what conduct will constitute a waiver, the realities of litigation, and the policy reasons for equalizing treatment of the parties and bringing symmetry to the law, all argue for substantial changes in the common law, especially with respect to waiver of the right to remand. Because the courts are unlikely to change what they have been doing without a push from Congress, this Article proposes statutory language and advisory notes to indicate Congressional intent. Such additions to the law would illuminate the very existence of judge-made waiver doctrines concerning removal and the right to remand, and should spur the development of case law that will be more coherent, defensible, and fair than that which now exists.

The proposed statute and advisory notes crystallize how the law of conduct-based waiver should be improved for the many lawyers and litigants who find themselves seeking to avoid a waiver and for the judges who must confront whether a waiver should be held to have occurred.