Rafael Usatorres and Lidia Usatorres, His Wife v. Marina Mercante Nicaraguenses, S.A. D/B/A Mamenic Line, a Foreign Corporation

The question in this appeal is whether a party removing an action to federal court waives defenses raised in a motion filed in the state court if that motion is not included in the removal petition. The district court summarily denied the appellant’s motion for dismissal for lack of proper service. After a jury trial and verdict for the plaintiff, the defendant appealed the denial of the motion to dismiss. We hold that the appellant did not waive the defense; therefore we reverse.

The plaintiff-appellee initially filed this action in Florida state court. The complaint alleged personal injuries…