74
Opinion of the Court
And Lewis, by timely moving for remand, did all that was required to preserve his objection to removal. An order denying a motion to remand, "standing alone," is "[o]bviously . . . not final and [immediately] appealable" as of right. Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574, 578 (1954). Nor is a plaintiff required to seek permission to take an interlocutory appeal pursuant to 28 U. S. C. § 1292(b) 10 in order
to avoid waiving whatever ultimate appeal right he may have.11 Indeed, if a party had to invoke § 1292(b) in order to preserve an objection to an interlocutory ruling, litigants would be obliged to seek § 1292(b) certifications constantly. Routine resort to § 1292(b) requests would hardly comport with Congress' design to reserve interlocutory review for " 'exceptional' " cases while generally retaining for the federal courts a firm final judgment rule. Coopers & Lybrand v. Livesay, 437 U. S. 463, 475 (1978) (quoting Fisons, Ltd. v. United States, 458 F. 2d 1241, 1248 (CA7), cert. denied, 405 U. S. 1041 (1972)).
Having preserved his objection to an improper removal,
Lewis urges that an "all's well that ends well" approach is inappropriate here. He maintains that ultimate satisfaction of the subject-matter jurisdiction requirement ought not swallow up antecedent statutory violations. The course Caterpillar advocates, Lewis observes, would disfavor diligent plaintiffs who timely, but unsuccessfully, move to check improper removals in district court. Further, that course would allow improperly removing defendants to profit from
10 Section 1292(b) provides for interlocutory appeals from otherwise not immediately appealable orders, if conditions specified in the section are met, the district court so certifies, and the court of appeals exercises its discretion to take up the request for review.
11 On brief, Caterpillar argued that "Lewis effectively waived his objection to removal by failing to seek an immediate appeal of the district court's refusal to remand." Brief for Petitioner 13. We reject this waiver argument, though we recognize that it has attracted some support in Court of Appeals opinions. See, e. g., Able v. Upjohn Co., 829 F. 2d 1330, 1333-1334 (CA4 1987), cert. denied, 485 U. S. 963 (1988).
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007