Waiver of Removal Requires “Clear and Unequivocal” Submission to State Merits; Filing a TCPA Motion and Discovery Stay Do Not Suffice

Introduction

In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. Sept. 11, 2025), the Fifth Circuit—freed by a recent en banc decision from a prior bar on reviewing certain remand orders—clarifies the demanding standard for finding waiver of the federal removal right based on state-court participation. The dispute arose after a Texas law firm sued a former associate in state court and obtained a temporary restraining order and expedited discovery. The defendant, Edward Festeryga, filed a motion under the Texas Citizens Participation Act (TCPA), Texas’s anti-SLAPP statute, which automatically stayed discovery. Seventeen days after service, and before any hearing or merits ruling on his TCPA motion, he removed to federal court on diversity grounds.

The district court remanded, holding Festeryga had waived removal by “invoking” the state court through his TCPA motion and resulting discovery stay, and declined to reach the dispute over subject-matter jurisdiction. On a prior appeal, a panel dismissed for lack of appellate jurisdiction under then-controlling Fifth Circuit precedent that categorically insulated waiver-based remand orders from review. The full court subsequently overruled that rule, vacated the dismissal, and returned the case to the panel.

On remand from the en banc court, the panel (Judge Willett, joined by Judges Dennis and Duncan) reverses. It holds that the district court abused its discretion by misapplying waiver doctrine: filing a TCPA motion that triggers an automatic discovery stay—without setting a hearing or seeking a ruling—does not “clearly and unequivocally” evince an intent to have the state court decide the merits, which is the Fifth Circuit’s exacting standard for waiver. The court then remands for the district court to determine, in the first instance, whether diversity jurisdiction exists.

Summary of the Opinion

Appellate jurisdiction: Following the Fifth Circuit’s en banc decision overruling the prior categorical bar, the panel may review a remand order premised on waiver.
Standard of review: Waiver-based remand is a discretionary ground reviewed for abuse of discretion, but a district court abuses its discretion when it rests on an erroneous view of the law.
Waiver standard and application: Waiver of removal requires a “clear and unequivocal” manifestation of intent to have the state court decide the case on the merits; actions “short of proceeding to an adjudication on the merits” are insufficient. Festeryga’s only substantive step—filing a TCPA motion that automatically stayed discovery—did not constitute waiver because he never set a hearing, never sought or obtained a ruling, and removed promptly.
Protective order: Agreeing to a protective order was procedural and did not amount to waiver.
Subject-matter jurisdiction: The panel declines to resolve disputed factual issues about Festeryga’s citizenship on appeal and remands for the district court to decide diversity jurisdiction on a full record.

Detailed Analysis

Procedural Posture and Appellate Jurisdiction

The panel recounts that it initially dismissed the appeal for lack of jurisdiction based on circuit precedent treating waiver-based remand orders as unreviewable. The panel flagged that rule as unsound and invited en banc reconsideration. The Fifth Circuit sitting en banc overruled the categorical nonreviewability rule, vacated the dismissal, and returned the case to the panel to resolve the merits. As a result, the panel reaches (1) whether Festeryga waived removal and (2) whether subject-matter jurisdiction (diversity) exists—ultimately deciding the first and remanding the second.

Precedents and Authorities Cited and Their Role

Tedford v. Warner-Lambert Co., 327 F.3d 423, 428 (5th Cir. 2003): Establishes the Fifth Circuit’s core waiver standard—intent to remain in state court must be “clear and unequivocal,” and removal is not lost by actions “short of proceeding to an adjudication on the merits.” The panel repeatedly invokes this as the controlling rule setting a “high bar” for waiver.
Beighley v. FDIC, 868 F.2d 776, 782 (5th Cir. 1989): Quoted for the proposition that the right of removal is not lost by action in state court short of adjudicating the merits, reinforcing the demanding waiver standard.
Johnson v. Heublein, Inc., 227 F.3d 236, 244 (5th Cir. 2000): The district court read Johnson as establishing that filing any motion to dismiss in state court effects waiver. The panel corrects that misreading: Johnson’s waiver remark was dicta and involved defendants who also missed the removal deadline and filed both a motion to dismiss and a motion for summary judgment. It does not create a bright-line “any motion to dismiss = waiver” rule.
Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986): Suggests waiver in “extreme situations,” such as extensive, years-long participation in state court. The panel notes Tedford later characterized Brown’s waiver discussion as dicta.
Strong v. Green Tree Servicing, LLC, 716 F. App’x 259, 263 (5th Cir. 2017): Indicates that even “extensive discovery in state court” does not necessarily waive removal, underscoring that discovery activity alone is not enough.
Adair v. Lease Partners, Inc., 587 F.3d 238, 240 (5th Cir. 2009); Smith v. Travelers Cas. Ins. Co. of Am., 932 F.3d 302, 308 (5th Cir. 2019): Support that waiver-based remand is a discretionary ground reviewed for abuse of discretion, fitting the panel’s standard of review framework.
United States v. Johnson, 94 F.4th 434, 440 (5th Cir. 2024): A court abuses its discretion when it applies an erroneous legal standard; used to frame the district court’s misapplication of waiver doctrine as reversible error.
City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1098 (10th Cir. 2017): Cited to show other courts reviewing de novo a legal determination that motions to dismiss alone suffice for waiver—bolstering the Fifth Circuit’s refusal to adopt such a rule.
Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791–92 (9th Cir. 2018); Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004): Dispositive motions, without a hearing or ruling, do not trigger waiver—cited to align the Fifth Circuit with sister circuits on this narrow point.
Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004): Confirms that waiver assessments are case-specific, not governed by bright lines—resonating with the Fifth Circuit’s “no bright-line” approach.
Rothner v. City of Chicago, 879 F.2d 1402, 1416 (7th Cir. 1989); Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 58 (4th Cir. 1991): Waiver, if it exists, should be found only in “extreme situations”—used to demonstrate cross-circuit caution in finding waiver.
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 344 (1976); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988); Buchner v. FDIC, 981 F.2d 816, 820 (5th Cir. 1993): The Supreme Court forbids nonstatutory discretionary remands, with a narrow exception for pendent state-law claims; the panel notes the Supreme Court has never recognized waiver as an exception. The panel reserves, but flags, the argument that waiver-based remands may be inconsistent with Thermtron.
Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 679 (2014): In the face of congressional statutes of limitations, equitable doctrines like laches cannot bar legal relief; cited by analogy to suggest that Congress’s 30-day removal rule may leave no room for a judge-made waiver bar. The panel again flags but does not decide this issue.
Leach v. Schwartz, 645 S.W.3d 906, 911 (Tex. App.—El Paso 2022, no pet.); Tex. Civ. Prac. & Rem. Code § 27.003(d): Under the TCPA, the movant must set a hearing; without one, no merits disposition occurs. This state-law procedural backdrop is central to the panel’s holding.
Rosenthal v. Coates, 148 U.S. 142, 147 (1893): The purpose of waiver in the removal context is to prevent “experimenting” in state court before transferring to federal court. The panel’s timeline analysis (seventeen days, no hearing or ruling) shows no such forum “experiment.”
Gilmore v. Mississippi, 905 F.3d 781 (5th Cir. 2018): Distinguished as involving a mandatory remand for lack of subject-matter jurisdiction, not a discretionary waiver-based remand.
Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 100 (5th Cir. 2018); Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 468 (5th Cir. 2020); Delaughter v. Woodall, 909 F.3d 130, 134 n.3 (5th Cir. 2018); Alaska Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 235 (5th Cir. 2009): These decisions collectively support (1) flexibility in sequencing threshold issues and (2) the principle that appellate courts should not resolve disputed facts in the first instance, which guides the panel’s remand for a district-court determination of diversity.

Legal Reasoning and Application

The Fifth Circuit applies a two-step framework: identify the proper standard of review and then assess waiver under the correct legal test.

First, the court agrees with the plaintiff that waiver-based remand is a discretionary decision reviewed for abuse of discretion (Adair). But the label does not shield errors of law: a district court abuses its discretion when it misstates or misapplies controlling legal standards (United States v. Johnson).

Second, turning to the merits, the panel reaffirms the Fifth Circuit’s exacting waiver standard drawn from Tedford and Beighley: the defendant must “clearly and unequivocally” express an intent to have the state court resolve the case on the merits; removal is not waived by state-court “procedural skirmishing” or other steps short of submitting the merits for adjudication.

The district court committed two legal errors:

Misreading Johnson v. Heublein: Johnson does not create a bright-line rule that filing a motion to dismiss equals waiver. Its waiver comment was dicta and involved additional factors (missed removal deadline and a motion for summary judgment). Here, by contrast, the TCPA motion was never set for hearing, never decided, and could not be decided without a hearing the movant had to set; a motion that “sits idle” is not submission of the cause for merits adjudication.
Treating the TCPA’s automatic discovery stay as evidence of waiver: Pausing discovery is a preservative, procedural step to maintain the status quo, not an invocation of state-court merits jurisdiction. If “extensive discovery” does not waive removal (Strong), then halting discovery certainly does not.

The panel also emphasizes the compressed timeline: seventeen days total from suit to removal; only eight days between the complaint and the TCPA filing, and nine days thereafter to removal. Such swift action, coupled with the absence of any hearing or merits ruling, defeats any suggestion the defendant “experimented” in state court.

Finally, the panel rejects the notion that negotiating a protective order effected waiver, labeling it a routine, procedural accommodation consistent with Tedford’s “no waiver for procedural steps” principle.

Subject-Matter Jurisdiction Reserved for the District Court

The parties dispute diversity. The law firm points to a prior sworn trademark filing in which Festeryga represented he is a U.S. citizen. Festeryga responds with materials asserting Canadian citizenship (affidavit, Canadian passport, temporary work visa, Form I-9). The district court did not reach this question; the panel concludes that resolving such evidentiary disputes is for the trial court in the first instance. While appellate courts must always satisfy themselves of jurisdiction, they should not resolve contested facts on appeal. The panel therefore remands so the district court can determine whether diversity jurisdiction exists on a full factual record.

Doctrinal Signals About the Viability of “Waiver” as a Remand Ground

Although not necessary to decide the case, the panel pointedly notes serious questions about whether a judge-made “waiver” doctrine can survive Congress’s “bright-line” 30-day removal deadline (28 U.S.C. § 1446(b)(1)) and the Supreme Court’s prohibition on nonstatutory discretionary remands (Thermtron), with a narrow, explicit exception for pendent state-law claims (Carnegie-Mellon). By analogy to Petrella’s laches holding, the panel observes that equitable doctrines typically yield to legislative timing rules. The Fifth Circuit does not resolve the issue here but signals caution and invites future clarification.

Potential Impact and Practice Implications

Anti-SLAPP and removal: Defendants sued in Texas state court can file a TCPA motion to obtain the statute’s automatic discovery stay without forfeiting removal—so long as they do not seek or obtain a merits hearing or ruling before removing. This permits defendants to preserve the status quo while evaluating federal options within the 30-day window.
No bright-line “motion to dismiss = waiver”: District courts should not treat state-court dispositive motions as per se waiver; what matters is whether the defendant clearly seeks state-court merits adjudication (e.g., setting and pursuing a hearing, obtaining a ruling), not merely filing a motion.
Procedural steps are safe harbor: Actions like seeking protective orders, pauses in discovery, venue transfers, or other non-merits procedural measures generally do not constitute waiver. This aligns with Tedford and similar Fifth Circuit cases, and with other circuits’ caution to reserve waiver for “extreme situations.”
Appellate review restored: After the en banc course correction, parties can now obtain appellate review of waiver-based remand orders in the Fifth Circuit. Expect more uniformity and fewer district-by-district divergences regarding what state-court actions forfeit removal.
Jurisdictional diligence: Litigants should be prepared to substantiate citizenship with competent evidence early, recognizing that appellate courts will remand to develop factual records rather than resolve competing affidavits and documents themselves.
Thermtron caution: The panel’s discussion foreshadows a possible future tightening (or even elimination) of judge-made “waiver” in removal, in favor of Congress’s statutory timelines and grounds. Parties should track developments closely.

Complex Concepts Simplified

Removal and remand: Removal allows a defendant to shift a case from state to federal court if statutory conditions (like diversity or federal question) are met. Remand sends the case back to state court. Section 1446(b)(1) gives defendants 30 days from service to remove.
Waiver of removal: Even if timely, a defendant can forfeit removal by litigating in state court—but only if the defendant “clearly and unequivocally” manifests an intent for the state court to decide the merits. Procedural moves short of a merits submission do not waive removal.
TCPA (Texas anti-SLAPP): Filing a TCPA motion automatically stays discovery. Critically, the movant must set a hearing; without it, no merits ruling issues. Using the stay to pause discovery, without pressing for a hearing or ruling, is procedural—not a merits submission.
Nonstatutory discretionary remands (Thermtron): Federal courts generally cannot remand on grounds Congress did not authorize. The Supreme Court recognized a narrow exception (Carnegie-Mellon) for pendent state-law claims. Whether “waiver” fits within any exception is unsettled; the Fifth Circuit does not decide that question here.
Diversity jurisdiction basics: Federal diversity jurisdiction generally requires complete diversity between plaintiffs and defendants and an amount in controversy exceeding the statutory threshold. For natural persons, “citizenship” typically depends on domicile. Disputes may arise over a person’s nationality, domicile, or both—matters resolved by the district court on evidence.

Conclusion

The Fifth Circuit’s decision reaffirms a stringent, defendant-protective approach to waiver of removal: only a “clear and unequivocal” submission of the case to state-court merits adjudication will do. In practical terms, filing a TCPA motion that halts discovery—without setting a hearing or seeking a ruling—and removing within the statutory 30-day window is not waiver. The court corrects a misreading of Johnson v. Heublein and resists bright-line rules that equate state-court dispositive filings with waiver.

Beyond the immediate holding, the opinion has two broader consequences. First, it operationalizes the Fifth Circuit’s en banc restoration of appellate review over waiver-based remands, promoting consistency across district courts. Second, it signals skepticism about the doctrinal foundations of waiver as a nonstatutory remand ground in light of Thermtron and Congress’s removal deadlines—an issue for another day, but one that may shape future litigation strategy.

The case is remanded for the district court to resolve disputed facts concerning diversity. For now, the key takeaway is clear: procedural maneuvering in state court, including anti-SLAPP filings that pause discovery, does not, without more, forfeit a defendant’s removal right in the Fifth Circuit.