Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786 (9th Cir. 2018)

Kris Kenny filed a putative class action in California state court, challenging Wal-Mart’s policy requiring employees who have suffered workplace-related injuries to submit to drug and/or urine testing. Wal-Mart filed a demurrer in response to the complaint, but before the hearing date on the demurrer, Wal-Mart removed the action to federal court pursuant to the Class Action Fairness Act. Shortly thereafter, the district court (the Hon. Judge Manuel L. Real), acting sua sponte, issued an order remanding the action to state court based on the court’s conclusion that Wal-Mart had waived its right to remove the case by filing a demurrer in state court. Wal-Mart successfully petitioned the Ninth Circuit for permission to appeal the district court’s remand order. In this opinion, the Court of Appeals vacated the district court’s order and held the lower court had erred by remanding the action to state court sua sponte on a non-jurisdictional ground: “Wal-Mart removed the case before Kenny opposed Wal-Mart’s demurrer, and before any hearing was held, let alone any ruling was issued [in state court].”