Summary
Defendants waived their right to remove a cable-access easement dispute to federal court by actively participating in state-court litigation before removal, including filing motions and a counterclaim. The Tenth Circuit affirmed the district court's remand order, applying the waiver standard from *City of Albuquerque v. Soto Enterprises, Inc.*, 864 F.3d 1089 (10th Cir. 2017). Additionally, the court declined to review the remand order because the appellants' opening brief failed to challenge it, resulting in forfeiture of the issue. The court also denied the appellants' motion to proceed without prepayment of costs and fees for lack of a nonfrivolous argument.
Topics
Practice areas
Questions Presented
- Whether the district court erred in remanding the action to state court on the ground that defendants waived their right to remove by actively participating in state court litigation.
Holdings
- Because defendants failed to raise any argument challenging the remand order in their opening brief, the issue is forfeited and we decline to review it.
Key quotations
“We routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief. . . . Stated differently, the omission of an issue in an opening brief generally forfeits appellate consideration of that issue.” (2-3)
“Because Defendants have not advanced 'a reasoned, nonfrivolous argument' that the district court erred, we also DENY their motion to proceed without prepayment of costs and fees.” (3)
Factual background
Defendants refused Comcast access to a public utility easement on their property. Comcast sued in state court for injunctive and declaratory relief under the Cable Communications Policy Act. The state court granted a TRO and set a preliminary injunction hearing. Defendants removed the action to federal court hours before the hearing. Comcast moved to remand for waiver of removal.
Procedural history
Comcast filed action in Colorado state court; defendants removed to federal court; district court granted Comcast's motion to remand based on waiver of removal; defendants appealed.