En Banc Eighth Circuit Reverses Precedent and Holds Forum-Defendant Rule Is a Nonjurisdictional Defect Plaintiffs Can Waive

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As the new year loomed, the Eighth Circuit, sitting en banc, overruled its prior cases dealing with a specific application of the forum-defendant exception to removal on the basis of diversity jurisdiction. Under the forum-defendant rule, a defendant who is a citizen of the forum state cannot remove a lawsuit from state court to federal court if the removal is solely on the basis of diversity jurisdiction. Before this decision, the Eighth Circuit stood alone in holding that the forum-defendant rule was jurisdictional and could never be waived. The unanimous en banc court overruled its prior cases and aligned with all other federal circuits to consider the question, concluding that violation of the forum-defendant rule is not a jurisdictional defect and therefore must be raised as a basis for remanding a case back to state court within 30 days after removal or the argument is waived. Among other practical consequences of the decision, plaintiffs who believe a defendant has improperly removed a case in violation of the forum-defendant rule now must raise the violation in 30 days or risk waiving it.

Read the full article on the Faegre Drinker website.

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About the Author: Jeffrey P. Justman

Jeff Justman is a partner in Faegre Drinker’s Minneapolis office. He is a Chambers-recognized appellate litigator, and has litigated product-liability matters in appellate courts throughout the country. He also defends public companies and their officers and directors in shareholder and securities litigation.