The Court of Appeals for the Fourth Circuit has upheld a lower court’s ruling that granted a plaintiff’s motion to remand a case back to state court, agreeing with the District Court judge that the defendant showed an intent to defend the case in state court before remanding it to federal court and thus waived its right to have the case moved.
A copy of the ruling in the case of Redman v. Javitch Block can be accessed by clicking here.
The defendant filed a wage garnishment order against the plaintiff after a default judgment was obtained when the plaintiff stopped making payments on a credit card debt. A state court judge — Judge R. Steven Redding — granted a motion from the plaintiff to set aside the default judgment, and a settlement was reached. The plaintiff then filed and amended a class-action lawsuit against the defendant in the same state court, alleging it violated the Fair Debt Collection Practices Act. Two weeks after the amended complaint was filed — within the 30-day window to have the case removed — the defendant filed a motion to dismiss. The judge in the FDCPA case recused himself and the case was subsequently assigned to Judge Redding. A few hours later, the defendant removed the case to federal court. The plaintiff filed a motion to remand, which a District Court granted, leading to the appeal.
Ultimately, the Appeals Court noted, the “district court was not clearly erroneous in determining that Javitch waived its right to remove.” Filing a motion to dismiss is equivalent to adjudication on the merits of the case, which — along with the other actions taken by the defendant — constituted “actively” engaging in defending the litigation in state court. The defendant “sought to use the state court proceedings to its advantage several times over, and only changed its mind once Judge Redding was assigned to the case,” the Appeals Court wrote. “Under these circumstances, the district court was not clearly erroneous in finding Javitch waived its right to removal.”
