Posted by: David Schuette on Sep 1, 2020

Journal Issue Date: Sept./Oct. 2020

Journal Name: Vol. 56 No. 8


While a plaintiff decides where to initially file its case, the defendant is not always subject to those whims — or strategic choices — of a plaintiff. One such opportunity for defendants to weigh in on the forum choice is the federal doctrine of removal. There are a variety of reasons why a defendant may want to remove a state case to federal court (a perceived potential juror bias in state court, rules governing expert testimony, or consolidation of mass litigation through multidistrict litigation procedures, etc.). This article focuses on the mechanics of removal, and recent developments in the area of federal removal.

WHAT IS REMOVAL?

Removal is the process of transferring a case from state court to federal court. It is provided for by federal statute.1 State courts play no role in the removal process — a “defendant” can remove a case if (a) he elects to do so, and (b) the case could have been filed in federal court in the first place (with some exceptions). 

Once a case has been removed from state court to federal court, the state court no longer has jurisdiction over the matter, but the federal court may remand the action back to state court. Cases may be remanded for a variety of reasons if the federal court does not find that the defendant established federal jurisdiction. For example, where the basis for federal jurisdiction is “federal question” jurisdiction (where a claim is based on federal law) and that claim is later dismissed, leaving only state law claims, the federal court may decline to exercise jurisdiction over the remaining state law claims, which would then be re-filed in state court.

Only a “defendant” can remove a case to federal court. If a plaintiff has filed in state court, then the plaintiff has selected that forum and cannot change it to federal court.

RIGHT TO REMOVE, GENERALLY

In order to remove a case to federal court, the federal court must have subject matter jurisdiction. Federal subject matter jurisdiction, generally, comes in two different varieties2: Federal Question Jurisdiction and Diversity Jurisdiction. 

Federal Question Jurisdiction – 28 U.S.C. § 1331

Federal question jurisdiction exists when a claim arises pursuant to a federal law. For example, if a plaintiff alleges a claim pursuant to the Defend Trade Secrets Act, the Civil Rights Act, etc., then the case presents a “federal question” and may be removed to federal court. Certain state claims that present a “substantial federal question” may be removed on the basis of federal question jurisdiction, and certain state court-claims are pre-empted by federal law, which also presents a federal question.

Diversity Jurisdiction – § 28 U.S.C. 1332(a) 

Diversity jurisdiction is now broken down into two categories:

  • Standard diversity jurisdiction: exists when there is complete diversity of citizenship among the parties and the amount in controversy exceeds $75,000.
  • Complete Diversity

— For “complete diversity” to exist, no plaintiff can be a citizen of the same state of any defendant.
— Corporate Citizenship: corporations are citizens of (a) the state of its incorporation and (b) its principal place of business
— LLC Citizenship: LLCs are citizens of every state in which its members are citizens. As discussed below, this can be a complex maze of individuals and entities, so it is crucial to determine member citizenship as soon as possible.
— Limited Partnership Citizenship: same as LLCs, Limited Partnerships are citizens of every state in which any of its partners, limited or general, are citizens.
— National Bank Citizenship: national banks are citizens of their “main office” as specified in their articles of association.3 

  • Amount in Controversy

— In diversity cases: amount in controversy exceeds $75,000
— In CAFA cases: amount in controversy exceeds $5 million
-— Standard: preponderance of the evidence – not “legal certainty”
— Pleading and Proof Standards: Dart Cherokee Basin Operating Co. v. Owens, 547 U.S. 81 (2014).
Halsey v. AGCO Corp., 755 F.App’x 524, 527 (6th Cir. 2018) (“this is not a ‘daunting burden’ that requires the defendants to ‘research, state and prove the plaintiff’s claim for damages.’ … Instead, the defendants need only ‘show that it is more likely than not’ that the plaintiff’s claims exceed $75,000. … We calculate this amount at the time of removal.”)
— If state law does not permit plaintiff to assert a damages amount, then the defendant may assert an amount in controversy in the Notice of Removal if the initial pleading seeks non-monetary relief or a money judgment. 28 U.S.C. § 1446(c)(2)
— If a defendant lacks the information with which to appropriately plead an amount in controversy to remove within the 30-day window, then the defendant may take discovery in state court to establish the facts necessary to establish a sufficient amount in controversy. 

  • Class Action Fairness Act of 2005 (CAFA) jurisdiction4 — applicable in putative class action cases.

REMOVAL TIMELINE

A defendant must remove within 30 days of receiving summons and complaint. In other words, the trigger is the receipt of formal legal process.5 There are certain situations where other “papers” like motions, discovery responses or other documents are received that contain sufficient notice to demonstrate a removable case. Those circumstances merit their own article, but suffice it to say that defendants must be vigilant as the information they receive may impact cases filed and/or pending.  

There was a previous circuit split concerning the “earlier served” defendant versus the “later served” defendant’s ability to remove.

  • “First-served” jurisdiction: the deadline runs from the date of service on the first defendant served.
  • “Last-served” jurisdiction: each defendant gets a full 30 days to decide whether to remove the case

This circuit split was resolved by the Act, which abrogated the minority “first-served” rule, and codified a version of the “last-served” rule stating that “each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons … to file the notice of removal.6

If a case becomes removable later (e.g., all of the federal claims are dismissed in a federal question removal scenario), the defendant has 30 days from the receipt of the amended complaint or pleading that makes the case removable. In no event, however, can a case be removed more than one year after filing unless it is a class action removable pursuant to CAFA. 

These deadlines are jurisdictional and cannot be extended by agreement of the parties or even by order of the court.

CO-DEFENDANT CONSENT

All co-defendants who have been served with the summons and complaint must consent to the removal of a case before it can be removed. Circuit courts differ in the level of consent they require.

The Fifth and Seventh Circuit Courts require formal filings by each of the co-defendants, which acknowledge their consent.7 All other Circuit Courts, including the Sixth Circuit, simply require that such consent is acknowledged in the Notice of Removal.8 This is an important step and a removing defendant’s failure to properly notify the court of all
co-defendants’ consent is grounds for sua sponte remand, even on appeal.

NOTICE OF REMOVAL

The key document to removal from state court is the Notice of Removal. It should be drafted as if it were a motion seeking to establish federal jurisdiction. It should be supported by evidence, including any necessary affidavit(s) and documents supporting the factual allegations. The Notice should cite to the state court complaint to the extent the complaint contains allegations that bear on federal jurisdiction. All of the pleadings filed in the state court must be attached to the notice of removal.

Once the Notice has been filed, the removing defendant must inform the state court that the case has been transferred. This is done through filing a “Notice of Filing of Removal” in the state court. In certain situations, discussed below, the timing of these filings versus the time of service can make the difference between successful removal and remand.

PLAINTIFF’S POTENTIAL MOTION TO REMAND

A motion to remand is the mechanism for the plaintiff to return his case to state court. Such motion can be based on an argument that the federal court lacks jurisdiction (e.g., the parties are not diverse, the complaint does not pose a federal question, the amount in controversy is less than $75,000), or that the removal was procedurally inadequate (e.g., untimely, a co-defendant does not consent, etc.). 

  • The plaintiff has 30 days to file a motion to remand based on a problem with the procedure of removal.9
  • Lack of subject matter jurisdiction can be raised at any time!
  • Federal courts strictly construe the removal statute in favor of remand and against removal.
  • The removal statute contains a fee shifting provision. If there was no “objectively reasonable basis” for the removal, the court can award fees and costs to the plaintiff for seeking remand.
  • Orders remanding cases to state court are generally not reviewable.
  • There is an exception for cases removed pursuant to CAFA. An order remanding such case may be appealed.10

POST-REMOVAL DEADLINES

Once the case is removed to federal court, the response (motion to dismiss, answer or other pleading) deadline for a defendant who did not answer in state court is the longer of (a) 21 days after receiving — through service or otherwise — a copy of the initial pleading stating the claim for relief, (b) 21 days after being served with the summons for an initial pleading on file at the time of service, or (c) 7 days after the notice of removal is filed.11

FORUM DEFENDANT RULE

While diversity jurisdiction is primarily intended to protect out-of-state defendants, diversity jurisdiction is not limited to lawsuits against defendants from other states. 28 U.S.C. 1332(a)(1) grants federal courts diversity jurisdiction over cases between “citizens of different States” where the $75,000 amount-in-controversy is met. So, a lawsuit between an out-of-state plaintiff and an in-state defendant can also fall within the federal courts’ diversity jurisdiction.

Just because the federal court may possess jurisdiction over a diversity case against an in-state defendant, however, does not necessarily mean that an in-state defendant may remove that case to federal court. Herein lies the “forum defendant rule,” which is codified at 28 U.S.C. § 1441(b)(2), and prohibits a defendant from removing a diversity case “if any of the parties in interest properly joined and served as defendants” in the case “is a citizen of the State in which the action is brought.” Courts have justified this “forum defendant rule” on grounds that when at least one defendant is a citizen of the forum state, there is less reason to think that the state court may treat that defendant less favorably.

To demonstrate how the forum defendant rule works, consider a Kentuckian sues a Tennessean in Tennessee state court for $100,000. A federal district court in Tennessee would likely have diversity jurisdiction over the lawsuit because the parties are citizens of different states and the amount in controversy exceeds $75,000. Nevertheless, unless the federal court had some other jurisdictional basis (e.g., federal question) to hear the matter other than diversity jurisdiction, the “forum defendant rule” would typically bar the Tennessee defendant from removing the case to federal court because he is a “citizen of the state in which” the Kentuckian filed his state court lawsuit, Tennessee. Under these circumstances, the case would proceed in the Tennessee state court instead of federal court, even though the Kentuckian could have filed his lawsuit in a federal district court in Tennessee if he so chose.  

‘SNAP’ REMOVAL

Interestingly, however, 28 U.S.C. § 1441(b)(2) only bars removal when any of the parties “properly joined and served as defendants is a citizen of the State in which such action is brought.” Here, the “and served” language refers to formal service of process. Courts have generally viewed 28 U.S.C. 1441(b)(2)’s “properly joined and served language” as Congress’ attempt to prevent plaintiffs from defeating removal by suing additional, nominal in-state defendants that the plaintiff does not intend to actually serve or pursue in litigation.

In recent years, however, an increasing number of defendants — particularly pharmaceutical and medical device manufacturers named defendants in products liability cases — have used this “properly joined and served” language for a different purpose, avoiding application of the forum defendant rule by removing these diversity cases before the plaintiff has formally served the in-state defendants. This practice is referred to in various opinions as snap removal, pre-service removal, and my personal favorite — jack rabbit removal. Multiple commentators have attributed this recent acceleration in snap removals to the expansions of electronic filing and internet access to state court dockets, which allow potential defendants to constantly monitor state court dockets and remove to federal court before they have been physically and formally served with process.

Not all courts have agreed that 28 U.S.C. § 1441(b)(2) allows defendants to remove diversity cases before the plaintiff serves the in-state defendants. Courts considering this issue have typically taken one of two competing interpretive approaches. Courts allowing snap removal usually reason that the “properly joined and served” language unambiguously permits defendants to remove diversity cases where the plaintiff has not yet “properly … served” any of the in-state defendants. Courts not permitting snap removal, by contrast, have typically focused on the policy purposes behind the forum defendant rule. According to those courts, snap removal improperly allows defendants to reliably “avoid the imposition of the forum defendant rule so long as they monitor the state docket and remove the action before they are served by the plaintiff.”12 Because, in at least some jurisdictions, effectively serving a lawsuit takes longer than satisfying the procedural requirements for removing a case, these courts reason that permitting snap removal empowers in-state defendants to ensure all diversity cases brought by out-of-state plaintiffs end up in federal court. Those courts further reason that such a result encourages forum shopping and does not advance the primary policy underlying diversity jurisdiction — providing a neutral forum for suits against out-of-state defendants.

Procedural Considerations for Snap Removal

Several recent district court decisions address the procedural steps necessary to execute a successful snap removal. Of note, they hold that removal is not complete until the Notice of Removal (NOR) is filed in both federal and state courts. These opinions focus on 28 U.S.C. § 1446, which sets forth the procedural requirements for removal.13 

  • Hardman v. Bristol-Myers Squibb Co., 2019 WL 1714600 (S.D.N.Y. Apr. 17, 2019) (remanding case after out-of-state defendant filed NOR in federal court at 2:24 p.m., plaintiff served forum defendants at 3:51 p.m., but defendant did not file NOR in state court until 7:05 p.m.).
  • Doe v. Valley Forge Military Academy and College, 2019 WL 3208178 (E.D. Penn. July 15, 2019) (remanding case after defendant filed federal NOR on April 19, plaintiff served defendant on May 1, and defendant filed NOR in state court on May 10).
  • Dotton v. Ethicon, 423 F.Supp.3d 81 (D.N.J. 2019) (noting forum defendants removed various cases filed by multiple out-of-state plaintiffs, and the court grouped these cases for rulings on motions for remand. Court held “by language alone,” § 1446 requires three steps for effectuating removal to federal court: defendant must file the notice of removal in federal court, provide written notice to all adverse parties, and file a copy of the notice with the clerk of the state clerk. In cases where defendant met all three steps, the cases were removed, where it did not, they were remanded).
  • Brown v. Teva Pharmaceuticals, 414 F.Supp.3d 738 (E.D. Penn. 2019) (remanding case after plaintiff filed complaint at 10:06 a.m.; defendants file NOR in federal court at 1:55 p.m.; plaintiff served defendants at 2:15 p.m.; defendants file NOR in state court at 4:11 p.m. Court stated “[t]iming was everything, and plaintiff has won the race”).  

Snap removal decisions by Circuit14

  • Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019) (permitting snap removal).
  • Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018) (permitting snap removal).
  • Blankenship v. Napolitano, 2019 WL 3226909 (S.D. W. Va. July 17, 2019) (Permitting snap removal but noting split between Northern and Southern Districts of West Virginia).
  • Texas Brine Company, LLC v. American Arbitration Assoc. et al., 2020 WL 1682777 (5th Cir. Apr. 7, 2020) (permitting snap removal).
  • Little Wyndham Worldwide Operations Inc., 251 F. Supp. 3d 1215 (M.D. Tenn. 2017) (noting snap removal improper and would eliminate the forum defendant rule in certain states).
  • D.C. by and through Cheatham v. Abbott Laboratories Inc., 323 F.Supp.3d 991 (N.D. Ill 2018) (permitting snap removal).
  • Heinzen v. Monsanto Company, 2018 WL 1397533 (E.D. Mo. 2018) (noting snap removal improper).
  • Zirkin v. Shandy Media, Inc., 2019 WL 626138 (C.D. Cal. Feb. 14, 2019) (permitting snap removal); but see, Mass. Mut Life Ins. Co. v. Mozilo, 2012 WL 11047336, at *2 (C.D. Cal. June 28, 2012) (permitting snap removal “would eviscerate the purpose of the forum defendant rule” by allowing “removability to turn on the timing of service rather than the diversity of the parties”).
  • Woods v. Dr. Pepper Snapple Group Inc., 2020 WL 917284 (W.D. Okla. Feb 26, 2020) (noting that snap removal is prohibited unless plaintiff has had a reasonable opportunity to serve the defendant). 
  • Bowman v. PHH Mortgage Corp., 423 F.Supp.3d 1286 (N.D. Ala. 2019) (noting that snap removal is inappropriate), appeal docketed, No. 19-14041 (11th Cir. Apr. 8, 2020).

FRAUDULENT JOINDER/MISJOINDER

Fraudulent joinder has long been recognized as an exception to the complete diversity rule. This occurs when a plaintiff includes a frivolous claim against a non-diverse party for the sole purpose of defeating a defendant’s removal efforts. The standard to determine whether a party has been fraudulently joined is whether there is any reasonable basis in fact or law to support a claim against a nondiverse defendant.15 

A more recent exception to the complete diversity rule is the fraudulent misjoinder doctrine, which has been adopted by some courts.16 This occurs when a plaintiff sues a diverse defendant in state court and joins a viable claim involving a nondiverse party, or resident defendant, even though the plaintiff has no reasonable procedural basis to join such defendant because the claims bear no relation to one another.17 In this procedural posture, some courts have concluded that diversity is not defeated where the claim that destroys diversity has “no real connection with the controversy.”18

In the latest Tennessee federal district decision to address fraudulent misjoinder, the court denied the opportunity to adopt that doctrine noting that the Sixth Circuit not adopted fraudulent misjoinder and that the doctrine was ambiguous with unclear standards.19 Specifically, the Spence, Sr. court questioned whether the misjoinder must be “egregious” or just something more than “mere misjoinder.”20

THIRD-PARTY COUNTERCLAIM DEFENDANTS CANNOT REMOVE CASES TO FEDERAL COURT

A recent Supreme Court decision clarified the definition of “defendant” in the removal statutes. In a 5-4 decision, Justices Ginsburg, Breyer, Sotamayor and Kagan joined Justice
Thomas’s opinion holding that two removal statutes — the general removal provision and the removal provision in the Class Action Fairness Act of 2005 (CAFA) do not permit third-party defendants from removing a suit from state to federal court. The court held that only original defendants named in the complaint are able to remove under either statute, even in the circumstance where a third-party defendant who was previously uninvolved in the case and had no role in selecting the forum was added to the lawsuit.

Background

Citibank brought a debt-collection suit in North Carolina state court against a consumer for charges incurred on a Home Depot credit card.21 The consumer then answered the complaint and filed (a) a counterclaim against Citibank, and (b) a third-party class action claims against Home Depot and Carolina Water Systems for an alleged scheme between Home Depot and Carolina Water System to induce homebuyers to buy water treatment equipment at inflated prices.22

After Citibank dismissed its claims against the consumer, Home Depot filed a notice of removal to federal court.23 The consumer, however, moved to remand to state court arguing that precedent barred removal by a “third-party/additional counter defendant like Home Depot.”24 The District Court granted the motion to remand and the Fourth Circuit affirmed, holding that neither the general removal provision, 28 U.S.C. § 1441(a), nor the removal provision in CAFA, 28 U.S.C. § 1453 allowed Home Depot to remove the class-action claims filed against it.25

Supreme Court Analysis

The Supreme Court considered whether either 28 U.S.C. §§ 1441(a) or 1453(b) allows a third-party counterclaim defendant to remove a lawsuit to federal court or whether removal authority is limited to the original defendant under those statutes.26

28 U.S.C. § 1441(a). As in all statutory construction cases, the Court analyzed the plain language of the statute along with the statutes structure and context. The statute allows “the defendant or the defendants” to remove “any civil action” from state court to federal court when the federal district court has “original jurisdiction” over the action.27 Notably, the court held that “the defendant” is limited to the defendant in the original complaint, not a party named as a defendant in a counterclaim.28 The court then identified several bases for its interpretation that the term “defendant” had this limited purpose. 

  • First, the Federal Rules of Civil Procedure distinguish between defendants, third-party defendants, and counterclaim defendants.29
  • Second, in other removal statutes, Congress explicitly extended removal authority to parties other than the original defendant, but not in § 1441(a).30
  • Third, the Court previously held in Shamrock Oil & Gas Corp. v. Sheets that a counterclaim defendant who was the original plaintiff is not one of “the defendants” for the purposes of § 1441(a), and therefore there was no reason to reach a different conclusion for a counterclaim defendant who was not originally part of the suit.31
  • Fourth, the court also held that any broader interpretation would make little sense in the context of other removal provisions like §§ 1446(b)(2)(A); 1446(c)(1).32

28 U.S.C. § 1453(b). Likewise, the court held that the Class Action Fairness Act’s (CAFA) removal provision, 28 U.S.C. § 1453(b), does not permit a third-party counterclaim defendant to remove. CAFA “provides district courts with jurisdiction over ‘class action[s]’ in which the matter in controversy exceeds $5 million and at least one class member is a citizen of a State different than the defendant.”33 That statute states that “[a] class action may be removed … without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.”34 The court held that this statue only alters two rules concerning removal:

  • If at least one defendant is a citizen of the forum state, the action cannot be removed; and;35
  •  All defendants must consent to removal.36

But, the court noted, 28 U.S.C. § 1453(b) does not alter § 1441(a)’s limitation on which parties can remove to federal court. The court opined that this omission suggested congressional intent to retain the scope of § 1441(a) in its current state.37

In the final calculation, the court, acknowledging the four-justice dissent that this interpretation permits savvy defendants/counterclaim plaintiffs to tactically prevent removal by third-party defendants, placed the onus on Congress to amend this statute.38

LIMITED LIABILITY COMPANIES – DIVERSITY JURISDICTION – MEMBER CITIZENSHIP

When removing to federal court based on diversity jurisdiction, the state of incorporation is irrelevant; instead, the citizenship of each individual member is what counts.39 This is often problematic in potential removal scenarios because an initial pleading might not set forth the LLC members or their citizenship.

When a party seeks to remove based on diversity jurisdiction, it must show that: (1) the amount in controversy exceeds $75,000; and (b) the parties’ citizenship is completely diverse (no plaintiff is a citizen of any state where a defendant is a citizen). The party removing a case to federal court has the burden of demonstrating diversity of citizenship.

This burden to prove complete diversity can become complicated when an LLC is a party. “For purposes of diversity, a limited liability company holds the citizenship of every member, sub-member, and sub-submember.”40 Thus, to determine the citizenship of an LLC (or other unincorporated entity), a party must look to the citizenship of each member of the LLC. LLC member information and/or citizenship is often not fully described in an initial complaint or other pleadings. Further complicating the matter, this information is not always readily available from various secretary of state information portals.

The failure to thoroughly investigate the citizenship of each LLC member can have disastrous consequences. Thermoset Corp. v. Bldg. Materials Corp of Am. is a case in point.41 Thermoset illustrates any litigator’s (and client’s) worst nightmare — successfully litigating a case to conclusion only to have the judgment tossed out over a jurisdictional technicality. 

Thermoset involved a dispute arising from the alleged failure of a roofing system in the Bahamas. Thermoset, the roofing contractor, filed suit in a Florida state court against the manufacturer and distributor, alleging several Florida state law claims. The manufacturer, Building Materials Corp. of America (BM), removed the case to federal court on the basis of diversity jurisdiction. BM alleged that Thermoset was a citizen of Florida; BM was incorporated in Delaware, with its principal place of business in New Jersey; and the distributor, Roofing Supply Group Orlando (RSGO) was incorporated in Delaware with its principal place of business in Texas. Almost a year of litigation ensued: the defendant moved for and won summary judgment.

Thermoset appealed, but did not raise any jurisdictional issue. The Eleventh Circuit, however, sua sponte raised a jurisdictional question and asked whether diversity jurisdiction was present because the parties did not identify or provide the citizenship of each member of RSGO, an LLC. As it turned out, diversity jurisdiction did not exist at the time of removal because one of RSGO’s members was a Florida citizen (same as the plaintiff). Defendants tried to save their judgment arguing that RSGO was a nominal party and should be dismissed under Fed. R, Civ. P. 21 to preserve diversity jurisdiction. The Eleventh Circuit, however, rejected that claim, stating that permitting the case to continue without RSGO would “unfairly reward BM for the jurisdictional defect it created and should have known about all along.” The case was vacated and remanded to state court.

The Thermoset decision is a grim reminder for litigators to thoroughly research and properly plead the citizenship (not residence!) of each and every member of the LLC when considering whether to and filing to remove a case to federal court.

D. GIL SCHUETTE is a trial lawyer with Sims Funk PLC in Nashville, whose practice includes a wide range of commercial disputes in state and federal courts, administrative agencies, and all forms of alternative dispute resolution. He graduated cum laude from the University of Tennessee College of Law where he served on the Editorial Board of Transactions: The Tennessee Journal of Business Law. Before law school, he served in the United States Marine Corps as a Reconnaissance Platoon Commander and a Military Transition Advisor to the Iraqi Army. He currently serves as the Nashville Bar Association Young Lawyers Division president.

 

 

NOTES

1. 28 U.S.C. 1441-1453; Fed. R. Civ. P. 81(c).
2. The Federal Courts Jurisdiction and Venue Clarification Act of 2011 (the “Act”) (effective January 6, 2012) provided an update to several of the removal statutes, so keep in mind this date when searching for relevant decisions on removal. Not all past decisions are irrelevant, but some are.  
3. Wachovia Bank v. Schmidt, III, 546 U.S. 303 (2006). There are a few district court decisions holding that a national bank is a citizen of both the state in which its “main office” is located and the state of its principal place of business. The majority of decisions, however, hold that a national bank is only the citizen of one state – the state in which its “main office” is identified in the articles of association.
4. 28 U.S.C. § 1332(d)
5. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
6. 28 U.S.C. § 1446(b)(2)(B) (emphasis added).
7. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir. 1988) and Roe v. O’Donohue, 38 F.3d 298 (7th Cir. 1994).
8. See e.g., Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195 (6th Cir. 2004); Mayo v. Bd. Of Educ., 713 F.3d 735 (4th Cir. 2013); Griffioen v. Cedar Rapids & Iowa City R.R. Co., 785 F.3d 1182 (8th Cir. 2015); Proctor v. Vishay Intertechnology, Inc., 584 F.3d 1208 (9th Cir. 2009).
9. 28 U.S.C. § 1447(c).
10. See 28 U.S.C. §1453(c)(1).
11. Fed. R. Civ. P. 81(c)(2)
12. Darvocet, Darvon and Propoxyphene Products Liability Litigation v. Eli Lilly and Co., 2012 WL 2913219, at *3 (E.D. Ky. July 17, 2012) (quoting Allen v. Glaxosmithkline, PLC, 2008 WL 2247067, at 4 (E.D. Pa. May 30, 2008).
13. §1446(d) states: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal an the State Court shall proceed no further unless and until the case is remanded.
14. No reported decisions were located for the First, D.C., or Federal Circuits.
15. See e.g., Walker v. Philip Morris USA Inc., 443 Fed. Appx. 946 (6th Cir. 2011).
16. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996) – Case in which the doctrine of fraudulent misjoinder was created.
17. Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996).
18. Id. at 594.
19. Spence, Sr. v. Dexcom, Inc., 2019 WL 302504 (M.D. Tenn 2019) (citing Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012); Staubus v. Purdue Pharma, L.P., 2017 WL 4767688, *5 (E.D. Tenn Oct. 20, 2017)).
20. Id. at n. 10.
21. Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (2019).
22. Id.
23. Id.
24. Id.
25. Id. (citing Jackson v. Home Depot U.S.A., Inc., 880 F.3d 165, 167-171 (4th Cir. 2018).
26. See Home Depot, 139 S. Ct. 1743, at *1747.
27. Id. at *1746 (quoting 28 U.S.C. § 1441(a)).
28. Id. at *1748.
29. See Fed. R. Civ. P. 14, 12(a)(1)(A)-(B).
30. See Home Depot, 139 S. Ct. 1743, at *1749.
31. Id. (citing 313 U.S. 100 (1941)).
32. Id. at *1749 Section 1446(b)(2)(A) provides that “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”
33. See Home Depot, 139 S. Ct. 1743, at *1746.
34. Id. at *1763 n.4 (quoting 11 U.S.C. §1453(b)).
35. Id. at *1750.
36. Id.
37. Id.
38. Id. The dissent opined that the majority read an irrational distinction into both removal statutes, ignoring their plain meaning and the greater context. Home Depot, 2019 WL 2257158, at *7 (Alito, J., dissenting). Justice Alito wrote that the CAFA allows removal by third-party defendants because they fall within the scope of “any defendant.”
39. Citizenship is not the same as residence!
40. Delay v. Rosenthal Collinsgroup LLC, 585 F.3d 1003, 1005 (6th Cir. 2009).
41. 849 F.3d 1313 (11th Cir. 2017).