PR Group, LLC v. Windmill International, Ltd., a Virginia corporation; Douglas Combs

United States Court of Appeals
For the Eighth Circuit
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No. 14-3021
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PR Group, LLC
lllllllllllllllllllll Plaintiff - Appellee
v.
Windmill International, Ltd., a Virginia corporation; Douglas Combs
lllllllllllllllllllll Defendants - Appellants
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 14, 2015
Filed: July 13, 2015
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Before WOLLMAN and GRUENDER, Circuit Judges, and DOTY, 1 District Judge.
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WOLLMAN, Circuit Judge.
PR Group, LLC (PR Group) filed suit against Windmill International, Ltd.
(Windmill) in Missouri state court in December 2011, but it did not serve Windmill
with the complaint. More than two years later, Windmill filed a motion to dismiss for
1The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.

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lack of prosecution. After PR Group responded to the motion but before the state
court had ruled on it, Windmill filed a notice of removal. Once in federal court, PR
Group moved to remand, arguing that Windmill had waived its right to remove when
it filed the motion to dismiss for lack of prosecution in state court. The district court
granted PR Group’s motion. We reverse.
Under 28 U.S.C. § 1446, a defendant may remove a case filed in state court to
federal court based on diversity jurisdiction. This right can be waived, however, by
agreement or by actions taken by the defendant in state court. A defendant waives the
right to remove “by taking some substantial offensive or defensive action in the state
court action indicating a willingness to litigate in that tribunal before filing a notice
of removal with the federal court.” Yusefzadeh v. Nelson, Mullins, Riley &
Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004) (per curiam) (quoting 14B
Charles A. Wright, et al., Federal Practice & Procedure § 3721 (2003)); see also
Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994)
(holding that the defendant may waive the right to remove when “the defendant takes
actions in state court that manifest his or her intent to have the matter adjudicated
there, and to abandon his or her right to a federal forum”). Such waiver must be clear
and unequivocal. Bayside Developers, 43 F.3d at 1240; Tedford v. Warner-Lambert
Co., 327 F.3d 423, 428 (5th Cir. 2003); cf. Weltman v. Silna, 879 F.2d 425, 427 (8th
Cir. 1989) (holding that waiver by agreement must be “clear and unequivocal”
(quoting 1A J. Moore, B. Ringle & J. Wicker, Moore’s Federal Practice ¶ 0.157[9] (2d
ed. 1987))). “[T]he right to removal is not lost by participating in state court
proceedings short of seeking an adjudication on the merits.” Tedford, 327 F.3d at
428; see also Bayside Developers, 43 F.3d at 1240; cf. Ward v. Resolution Trust
Corp., 972 F.2d 196, 198 (8th Cir. 1992) (holding that the defendants did not waive
federal jurisdiction by requesting a release of the record in state appellate court, noting
that their motion “did not request a ruling on the merits of the appeal or an
abandonment of federal jurisdiction”).
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Windmill argues that filing a motion to dismiss for lack of prosecution does not
constitute clear and unequivocal waiver of its right to remove. We agree. Windmill’s
motion to dismiss was based on PR Group’s two-year-plus failure to complete service
on Windmill. Because it neither addressed the merits of PR Group’s complaint nor
sought an adjudication on the merits, the motion did not clearly and unequivocally
demonstrate any willingness on Windmill’s part to litigate in state court.
PR Group relies on Scholz v. RDV Sports, Inc., 821 F. Supp. 1469 (M.D. Fla.
1993), for the proposition that a motion to dismiss filed in state court always waives
the right to remove. In that case, however, the defendant’s motion to dismiss
addressed the merits of the plaintiff’s claims, and thus we conclude that the decision
has no application to the circumstances of the present case.
The district court’s order remanding the case to state court is reversed, and the
case is remanded to the district court for further proceedings.
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