Ninth Circuit Appeal of a Sua Sponte Remand

The matter

Three courts, one case, and a door that is normally shut.

A California plaintiff sued a New York defendant in Los Angeles Superior Court for breach of fiduciary duty, fraudulent and negligent misrepresentation, negligence and breach of contract. Service of process was defective.

The defendant removed the case to federal court. The district court then sent it back to state court on its own motion — the plaintiff never asked it to. That distinction is the whole case.

The Ninth Circuit itself raised the problem, ordering the appellant to show cause why the appeal should not be dismissed for want of jurisdiction. That order had to be answered before the merits could be reached at all. The court’s reasoning is in its orders, published below.

The result

The appeal was heard, and the district court was reversed.

• The show cause order was discharged and the Ninth Circuit retained jurisdiction over the appeal.

  Order discharging the order to show cause — published below

• The Ninth Circuit reversed the district court’s remand order and sent the case back to federal district court for further proceedings.

  Order of the Ninth Circuit, and the formal mandate under Rule 41(a) — both published below

• In the state court, over strenuous opposition and without a statute directly on point, the parallel action was stayed for the duration of the appeal — so the client was not paying to defend the same case twice.

  Motion to quash service, or in the alternative to stay or dismiss — published below

• After the appeal, the case was dismissed with prejudice.

  Subsequent proceedings — not in the record published here

The record

In the order it happened.

An appeal is a sequence, not a set of parallel motions, so the filings are listed in the order the court took them up. Reproduced as filed — not the full record.

First — whether the appeal could be heard at all

• Order to Show Cause Why the Appeal Should Not Be Dismissed

  289 KB

• Appellant’s Response to Order to Show Cause Why Appeal Should Not Be Dismissed

  444 KB

• Declaration of Evans in Support of Appellant’s Response to Order to Show Cause

  893 KB

• Order Discharging the Order to Show Cause and Retaining Appellate Jurisdiction

  275 KB

Then — the appeal itself

• Opening Brief of Appellant — Appeal from Remand Order of the U.S. District Court for the Central District of California

  1 MB

• Appellant’s Excerpts of Record

  9.5 MB

Then — the decision

• Order of the Ninth Circuit Granting the Appeal, Reversing the District Court and Remanding for Further Proceedings

  367 KB

• Formal Mandate of the Ninth Circuit Pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure

  195 KB

Alongside — holding the state court case still

• Motion and Memorandum of Points and Authorities to Quash Service of Plaintiff’s Complaint or, in the Alternative, to Stay or Dismiss for Forum Non Conveniens, or to Stay During Pendency of the Federal Appeal

  870 KB