from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CV-00099-JAP-WPL)
Bradley H. Bartlett and David M. Mirazo, Mounce, Green,
Myers, Safi, Paxson & Galatzan, P.C., El Paso, Texas, for
Christopher J. Tebo, Assistant City Attorney (Jessica M.
Hernandez, City Attorney, and Nicholas Bullock, Assistant
City Attorney, with him on the brief), City Attorney's
Office, Albuquerque, New Mexico, for Plaintiff-Appellee.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
PHILLIPS, Circuit Judge.
district court remanded this case after concluding that the
defendant had waived its right to remove by filing a motion
to dismiss in state court. We hold that we have appellate
jurisdiction over this appeal, and affirm.
City of Albuquerque ("the City") provides
public-bus services to Albuquerque residents. As part of
those services, the City charges a fare payable by cash or
coin. The City hired Soto Enterprises, Inc., d/b/a Miracle
Delivery Armored Services ("Soto") to count the
fare money, transport it by armored car to the City's
bank for deposit, and verify the daily deposit amount with
second half of 2014, the City noticed irregularities between
the amount of fare money that it internally recorded and the
amount Soto deposited. After investigating these
irregularities, on October 30, 2015, the City sued Soto in
New Mexico state court, alleging contract and tort claims. In
its complaint, the City pleaded that it was a New Mexico
municipal corporation and that Soto was a Texas corporation
transacting business in New Mexico. The City claimed damages
of $246, 057.54.
February 9, 2016, though the City had not yet served process
on Soto, Soto filed three documents in state court in
response to the complaint. At 2:18 p.m., Soto filed a partial
motion to dismiss (the "motion to dismiss"),
asserting that the City had failed to state a claim on its
tort claims. At 2:23 p.m., Soto filed an answer. And at 3:38
p.m., Soto filed a notice of removal under 28 U.S.C.
§§ 1441 and 1446, alleging diversity jurisdiction
under 28 U.S.C. § 1332. So an hour and twenty minutes
passed between Soto's motion to dismiss and its notice of
federal court, the City moved for a remand to state court,
arguing that Soto had waived its right to remove the case to
federal court after participating in the state court by
filing the motion to dismiss. The district court agreed with
the City's position and remanded the case. Soto now
that Congress has limited our appellate jurisdiction to
review remand orders, the City filed a motion to dismiss
Soto's appeal, arguing that we lack jurisdiction. So,
before we can address whether the district court erred in its
waiver ruling, we must determine whether we have appellate
jurisdiction to do so. W. Ins. Co. v. A & H Ins.,
Inc., 784 F.3d 725, 727-28 (10th Cir. 2015). We review
questions of our appellate jurisdiction de novo. Montez
v. Hickenlooper, 640 F.3d 1126, 1130 (10th Cir. 2011).
decide whether we have appellate jurisdiction to review the
district court's waiver ruling, we are guided by two
statutory subsections. The first is 28 U.S.C. § 1447(d),
which provides as follows:
An order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise, except
that an order remanding a case to the State court from which
it was removed pursuant to section 1442 or 1443 of this title
shall be reviewable by appeal or otherwise.
Soto removed the case under § 1441, neither 28 U.S.C.
§ 1442 (which governs federal-officer removal) nor 28
U.S.C. § 1443 (which governs removal of civil-rights
cases) applies here. On its face, § 1447(d) would lead
us to believe that we lack appellate jurisdiction to review
the district court's remand order, but we don't read
that subsection in isolation. Instead, we read § 1447(d)
in pari materia with its close neighbor, §
1447(c), and confine the reach of § 1447(d) to the two
remands mentioned in § 1447(c). In re Stone
Container Corp., 360 F.3d 1216, 1218 (10th Cir. 2004).
the second guiding statutory subsection is 28 U.S.C. §
1447(c), which provides in part as follows:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.
So § 1447(c) speaks to two bases of remand: (1) those
based on a lack of subject-matter jurisdiction, which have no
time limit, and (2) those based on "any defect other
than lack of subject matter jurisdiction, " which must
be filed within 30 days of removal. This means that under the
governing interpretation, § 1447(d) limits our
jurisdiction "only when the district court remands on
grounds permitted by § 1447(c)." In re
Stone, 360 F.3d at 1218 (quoting Dalrymple v. Grand
River Dam Auth., 145 F.3d 1180, 1184 (10th Cir.
1998)). When a district court remands on other
bases, we have appellate jurisdiction to review those remand
orders. Am. Soda, LLP v. U.S. Filter Wastewater Grp.,
Inc., 428 F.3d 921, 924 (10th Cir. 2005).
the district court remanded the case to state court on a
ground not expressly specified in § 1447(c), namely,
that Soto waived its removal right by filing a motion to
dismiss in state court (which we will refer to as
"waiver by participation"). Our sister circuits disagree
about whether waiver by participation falls within either of
§ 1447(c)'s two bases, and, until now, this court
has not "wade[d] into" that conflict. Harvey v.
Ute Indian Tribe of the Uintah & Ouray Reservation,
797 F.3d 800, 804 (10th Cir. 2015) (noting circuit split). To
determine whether § 1447(d) limits our jurisdiction, we
must determine whether waiver by participation falls within
either of the § 1447(c) bases-(1) lack of subject-matter
jurisdiction, or (2) any defect.