National Paint & Coatings Ass'n v. South Coast Air Quality Management District (SCAQMD)

MEMORANDUM **

South Coast Air Quality Management District (“SCAQMD”) appeals the district court’s order remanding to state court a civil action brought against it by National Paint and Coatings Association, Inc. (“NPCA”). SCAQMD removed the case on the basis of diversity and federal officer removal jurisdiction, 28 U.S.C. §§ 1441 (a) and 1442(a). Although NPCA’s motion to remand was untimely, the district court remanded the case on the grounds that (i) it lacked diversity jurisdiction because SCAQMD, a citizen of the forum state, violated the forum defendant rule contained in 28 U.S.C. § 1441 (b), which constitutes a non-waivable jurisdictional defect; and (ii) it lacked federal officer removal jurisdiction because SCAQMD is not a “person” within the meaning of 28 U.S.C. § 1442 (a)(1). SCAQMD disputes both rulings.

Concurrent with the filing of this memorandum, we filed an opinion in Lively v. Wild Oats Market, Inc., No. 04-56682, which disposes of the forum defendant rule issue in this case. In Lively, we held that the forum defendant rule is procedural, or non-jurisdictional, and thus a violation of this rule is a waivable defect subject to the 30-day time limit of 28 U.S.C. §…