When you’re hit with a complaint, one box on your pre-response checklist likely reminds you to think about removing the case to federal court. But what if the complaint is so short and plain that you can’t figure out if a federal court would have jurisdiction? You don’t want to file a removal just to have the case quickly bounced back to state court—you would be unhappy; your client would be unhappy; and not one, but two judges would be unhappy. But the response deadline is looming. A default judgment will make (almost) everyone even unhappier than an ill-taken removal. So what do you do?

The Ninth Circuit has some good news for you: A defendant’s right to remove to federal court can’t be waived without voluntary litigation on the merits.

Kris Kenny sued Wal-Mart in California state court, challenging the store’s policy that employees who are hurt on the job must submit to drug tests. Wal-Mart filed a demurrer then removed the case to the Central District of California under the Class Action Fairness Act.* But the district court sua sponte remanded the case back to state court, holding Wal-Mart had waived its right to removal by filing the demurrer. The Ninth Circuit reversed, holding that Wal-Mart had not waived its right.

To begin with, a defendant can only waive the right to removal by showing a “clear and unequivocal” intent to litigate in state court. When a defendant “takes necessary defensive action to avoid a judgment being entered automatically . . . such action does not manifest an intent to litigate in state court.” It would also be hard for Wal-Mart to wave a right before it knew it had one. The complaint didn’t state what damages Kenny was seeking, and CAFA only allows removal when damages exceed $5 million. Because the complaint didn’t give Wal-Mart notice that it could remove the case, Wal-Mart could “in effect . . . remove at any time.”

The Ninth Circuit’s opinion is here.

* A demurrer is a pre-FRCP pleading similar to a motion to dismiss for failure to state a claim. The FRCP (and 35 states) don’t allow them.