Kathleen Wood v. Crane Co , 764 F.3d 316 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1868
KATHLEEN R. WOOD, Personal Representative for the Estate of
James E. Joyner,
Plaintiff – Appellee,
v.
CRANE CO., individually and as successor to National−U.S.
Radiator, is a Delaware Corporation with its principal
place of business in Connecticut,
Defendant – Appellant,
and
A.C. & R INSULATION CO., INC.; ALLEN−BRADLEY COMPANY, INC.;
ALLIS−CHALMERS ENERGY, INC.; AIR & LIQUID SYSTEMS
CORPORATION, Successor by Merger to Buffalo Pumps, Inc.;
A.O. SMITH CORPORATION; ARMSTRONG INTERNATIONAL, INC.;
AQUA−CHEM, INC., d/b/a Clever−Brooks Division; AURORA PUMP,
CO; A.W. CHESTERTON, INC.; BW/IP, INC., and its wholly
owned subsidiaries as successor−in−interest to BW/IP;
CARRIER CORP.; CBS CORPORATION, f/k/a Viacom, Inc., as
successor to Westinghouse Electric Corp.; CERTAINEED
CORPORATION; CLEAVER−BROOKS COMPANY; COLUMBIA BOILER
COMPANY; CROWN CORK & SEAL COMPANY, INC.; EATON ELECTRICAL,
INC., f/k/a Cutler Hammer, Inc.; ELLIOTT COMPANY I, f/k/a
Elliott Turbomachinery Co. Inc.; FMC CORPORATION,
individually, on behalf of its Former Construction
Equipment Group & Former Peerless Pump Division;
FOSTER−WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION,
f/k/a Foster Wheeler Corporation; GARDNER DENVER, INC.;
GARDNER DENVER NASH, LLC, a/k/a Gardner Denver, Inc., f/k/a
Nash Elmo Industries, LLC; GENERAL ELECTRIC COMPANY;
GEORGIA−PACIFIC, LLC; THE GOODYEAR TIRE & RUBBER COMPANY,
individually and as successor−in−interest to Durabla
Manufacturing; GOULDS PUMPS, INC., a subsidiary of ITT
Industries, Inc.; THE GRISCOM−RUSSELL COMPANY, f/k/a The
Dial Corporation, a Delaware Corporation; H.B. FULLER
COMPANY, Successor/or parent of Benjamin Foster Division of
Amchem Products, Inc.; H.B. SMITH COMPANY, INC., a/k/a
Smith Cast Iron Boilers; HONEYWELL INTERNATIONAL, INC.;
HOPEMAN BROTHERS, INC.; IMO INDUSTRIES, INCORPORATED,
individually and on behalf of and successor to DeLaval;
DeLaval Stream Turbine Co., IMO DeLaval and Warren Pump
Co.; INGERSOLL−RAND COMPANY; INTERNATIONAL PAPER COMPANY,
INC.; JOHN CRANE, INC.; KAISER GYPSUM COMPANY, INC.;
MCNALLY INDUSTRIES, INC., individually and as
successor−in−interest to Northern Pump Company and Northern
Fire Apparatus Company; MCIC, INC., f/k/a McCormick
Asbestos Co.; METROPOLITAN LIFE INSURANCE CO.; NATIONAL
SERVICE INDUSTRIES, INC., f/k/a North Brothers, Inc.;
OWENS−ILLINOIS, INC.; RAPID−AMERICAN CORPORATION; RILEY
POWER, INC., f/k/a Babcock Borsig, Inc., f/k/a Riley Stoker
Corporation; SB DECKING, INC., f/k/a Selby, Battersby &
Company; SEALING EQUIPMENT PRODUCTS CO. INC.; SIEMANS DEMAG
DELAVAL TURBOMACHINERY, INC., f/k/a Demag Delaval
Turbomachinery, Inc.; SCHNEIDER ELECTRIC USA, INC., f/k/a
Square D Company; UNION CARBIDE CORPORATION; UNIROYAL,
INCORPORATED; VALEN VALVE CORPORATION; WALLACE & GALE
ASBESTOS SETTLEMENT TRUST; THE WALTER E. CAMPBELL COMPANY,
INC.; WARREN PUMPS, LLC, f/k/a Warren Pumps, Incorporated;
WEIL PUMP COMPANY INC.; WEIL−MCLAIN, INC.; YARWAY
CORPORATION; ROCKWELL AUTOMATION, INC., successor−in−
interest to Allen−Bradley Co.,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cv-02294-CCB)
Argued: March 19, 2014 Decided: August 15, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined. Judge Duncan concurred in the judgment
only.
2
ARGUED: Michael James Ross, K&L GATES LLP, Pittsburgh,
Pennsylvania, for Appellant. Jacqueline Gagne Badders,
RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for
Appellee. ON BRIEF: Nicholas P. Vari, Syed D. Ali, K&L GATES
LLP, Pittsburgh, Pennsylvania; Neil J. MacDonald, MACDONALD LAW
GROUP, LLC, Beltsville, Maryland, for Appellant. Jonathan
Ruckdeschel, Z. Stephen Horvat, RUCKDESCHEL LAW FIRM, LLC,
Ellicott City, Maryland, for Appellee.
3
DIAZ, Circuit Judge:
Crane Company, one of many defendants in this asbestos
litigation, removed this case to federal court, asserting a
federal defense to plaintiff James Joyner’s 1 state tort claims.
When Joyner amended his complaint, eliminating the claims
underlying that federal defense, the district court remanded to
state court. Crane now complains that it should have been given
the opportunity to assert a new basis for federal jurisdiction--
even though it had declined to do so in a timely fashion. We
affirm the district court’s decision to remand.
I.
A.
James Joyner was diagnosed with mesothelioma in March 2012.
His illness allegedly resulted from exposure to asbestos while
working as an electrician for the Coast Guard and then in the
private sector.
Joyner filed suit in Maryland state court, alleging (1)
strict liability for defective design and failure to warn; (2)
breach of implied warranty; (3) negligence products liability
claims; and (4) aiding and abetting and conspiracy to conceal
1
Joyner passed away during the course of these proceedings,
and his representative, Kathleen Wood, has been substituted in
the caption. We continue to refer to Joyner in our opinion.
4
information about the dangers of asbestos. Joyner named as
defendants a number of manufacturers who allegedly supplied
asbestos-containing materials with which he came into contact at
various points in his career. One of those defendants, Crane
Co., allegedly manufactured and supplied asbestos-containing
valves and gaskets to the Navy, 2 on whose ships Joyner worked
while employed by the Coast Guard.
Crane removed the case to federal court under the federal
officer removal statute. See 28 U.S.C. § 1442(a)(1). That
provision allows for removal of suits against “[t]he United
States or . . . any officer . . . in an official or individual
capacity, for or relating to any act under color of such
office.” Id. In support of its position, Crane averred that it
would assert the federal contractor defense, as it had supplied
the valves in conformance with military specifications. See
J.A. 42. Crane’s notice of removal did mention that the valves
included gaskets as internal component parts, but Crane did not
explicitly assert the defense as related to gaskets. See J.A.
42.
2
Joyner’s complaint did not identify the valves and gaskets
as the source of his injuries; this information became available
during the course of depositions, after which Crane filed its
notice of removal.
5
Joyner moved to remand to state court, arguing that Crane’s
evidence was insufficient to support its jurisdictional
allegations. In the alternative, Joyner moved to sever the
valve claims against Crane and to remand the claims against the
other defendants--as well as Joyner’s gasket claims against
Crane--to state court. At oral argument before the district
court, Crane explicitly refused to take a position as to whether
the federal contractor defense applied to any gaskets Crane
might have supplied. Rather, Crane apparently sought to
preserve its contention that the gaskets simply weren’t theirs.
See J.A. 2646 (“Crane has a different position with regard to
their gasket because it was never, never on the Navy’s QPL
[qualified products list] and should never have been used.”);
see also J.A. 2732 3 (“To be clear, it is Crane Co.’s position
that Mr. Joyner did not work with replacement Cranite gaskets on
Navy vessels because Cranite gaskets were not on any government
QPL list, and thus were not able to be ordered for use on Navy
vessels through the procurement process.”). Crane declined,
however, to make an argument in the alternative--that the
gaskets “would have been supplied pursuant to detailed
3
This citation is to Crane’s opposition to Joyner’s notice
of abandonment and request for remand, filed on April 11, 2013
in the district court.
6
government specifications”--until much later in the litigation.
J.A. 2732.
In a memorandum opinion and order issued March 7, 2013, the
district court found that Crane had sufficiently supported
removal pursuant to § 1442(a)(1), focusing on the valve claims.
See Joyner v. A.C. & R. Insulation Co., No. CCB-12-2294, 2013 WL
877125 (D. Md. Mar. 7, 2013). It did, however, grant in part
Joyner’s motion to sever the valve claims from all the others.
The court noted that it could exercise supplemental jurisdiction
over the other claims, but largely declined to do so. The court
found that state law claims predominated over the claims
implicating the federal defense and that Maryland had a strong
interest in adjudicating its own state law claims, leading the
court to sever the claims against the other defendants. But the
court also noted its interest in economy, which weighed against
forcing Crane to litigate claims regarding valves in one court
and gaskets in another. Thus, the court remanded the claims
against the other defendants back to Maryland state court, but
retained both claims against Crane.
Shortly thereafter, Joyner filed a “notice of abandonment
of claims regarding Crane Co. valves only and request for
remand.” J.A. 2722. The notice explained that Joyner was
abandoning his claims against Crane with respect to its valves,
retaining only his claims involving injuries caused by Crane’s
7
gaskets. See J.A. 2722–23, 2923. Joyner argued that because
Crane’s removal to federal court relied on the government
contractor defense as to the valves alone, the district court
had no subject matter jurisdiction without those claims.
Crane vociferously contested Joyner’s motion, arguing that
Joyner was manipulating his complaint to avoid federal
jurisdiction and that Federal Rule of Civil Procedure 15 does
not permit Joyner to amend his complaint with such precision.
Crane also argued that it could assert its federal defense in
relation to the gaskets.
The district court addressed these concerns in a memorandum
opinion and order on June 6, 2013. See Joyner v. A.C. & R.
Insulation Co., No. CCB-12-2294, 2013 WL 2460537 (D. Md. June 6,
2013). The court chose to construe Joyner’s notice of
abandonment as a motion to amend his complaint under Rule 15(a).
Finding that such an amendment would not prejudice Crane, the
district court granted leave to amend. The court found that
Crane had not asserted a federal defense with respect to gaskets
and that 28 U.S.C. § 1446(b) prevented Crane from asserting it
now, well beyond the thirty days that provision grants for
notice of removal. The court also explained that any cross-
claims for contribution would be irrelevant, as Joyner had
forfeited any damages related to the valves. Thus, the defense
would not apply as to potential cross-claims from co-defendants.
8
Accordingly, the court remanded Joyner’s remaining claims to
Maryland state court.
B.
Crane appeals both the March 7 and June 6 orders,
contending that all claims should have remained in federal
court. The case is calendared for trial in the Circuit Court
for Baltimore City, and we think it belongs there. Because the
district court did not err in remanding the Crane gasket claims
to state court, we need not evaluate the propriety of the
court’s earlier decision to remand the claims against the other
defendants, or whether we even have jurisdiction to consider
that question.
II.
As an initial matter, Joyner asserts that we have no
jurisdiction to review this appeal. We disagree.
Crane correctly observes that “[a]n order remanding a case
to the State court from which it was removed is not reviewable
on appeal or otherwise, except that an order remanding a case to
the State court from which it was removed pursuant to section
1442 or 1443 of this title shall be reviewable by appeal or
otherwise.” 28 U.S.C. § 1447(d). This case was originally
removed pursuant to § 1442(a)(1) and is thus reviewable.
9
Joyner argues that because he amended his complaint to
disclaim any cause of action regarding the valves, the part of
the case that was removed pursuant to § 1442 simply no longer
exists. As Joyner sees it, because the issues now before us
were in the district court pursuant to its supplemental
jurisdiction, they do not fall within the narrow exceptions of
§ 1447(d).
But Joyner ignores a basic proposition: that parties remove
cases, not claims. Section 1447(d) explicitly refers to a
“case” removed from state court. Because this case was
originally removed pursuant to the federal officer removal
statute, we have jurisdiction now.
III.
The district court remanded this case pursuant to 28 U.S.C.
§ 1447(c). 4 See J.A. 3007. That statute provides that “[i]f at
4
To be clear, we recognize that the district court could
certainly have chosen to exercise supplemental jurisdiction even
after the valve claims were gone. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988) (“[A] district court has
discretion to remand to state court a removed case involving
pendent claims upon a proper determination that retaining
jurisdiction over the case would be inappropriate. The
discretion to remand enables district courts to deal with cases
involving pendent claims in the manner that best serves the
principles of economy, convenience, fairness, and comity which
underlie the pendent jurisdiction doctrine.”). Our reading of
the March 7 and June 6 orders together suggests to us that the
district court declined to do so. See Mangold v. Analytic
(Continued)
10
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” Id. Crane contends that the district court never
“lack[ed] subject matter jurisdiction,” asserting that Joyner’s
disclaimer as to the valves was wholly ineffectual. And in the
alternative, Crane argues, it should be able to assert new
grounds for subject matter jurisdiction in response to Joyner’s
disclaimer. We address each argument in turn, and in so doing,
interpret the relevant statutes de novo. See Holland v. Pardee
Coal Co., 269 F.3d 424, 430 (4th Cir. 2001).
A.
Crane first asserts that Joyner’s disclaimer is a legal
nullity, devoid of real effect. Crane does not dispute that “a
federal district court has discretion under the doctrine of
pendent jurisdiction to remand a properly removed case to state
court when all federal-law claims in the action have been
eliminated and only pendent state-law claims remain.” Carnegie-
Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (noting our
“power--and responsibility--to look past contextually ambiguous
allusions and even specific citations to § 1447(c) to determine
by independent review of the record the actual grounds or basis
upon which the district court considered it was empowered to
remand” (emphasis omitted)). We simply understand the district
court to say that it no longer had an independent basis for
subject matter jurisdiction besides the supplemental
jurisdiction it declined to exercise.
11
Mellon Univ. v. Cohill, 484 U.S. 343, 345 (1988);
see also Appellant’s Br. at 16. But because the federal
question arose from the defense to the dismissed claims, rather
than the claims themselves, Crane thinks different rules apply.
In support of this assertion, Crane cites to one unreported
district court case from outside our circuit. That court held
that “[b]ecause removals pursuant to the federal officer removal
statute are premised on the existence of a federal defense,
rather than a plaintiff’s artfully constructed complaint,
neither Plaintiff’s disclaimer nor [his] characterizations of
[his] claims are determinative.” Brantley v. Borg-Warner Morse
Tec, Inc., No. 3:12cv540 AJB (JMA), 2012 WL 1571129, at *2 (S.D.
Cal. May 3, 2012) (internal quotation marks and citations
omitted).
Even if we were inclined to rest our decision on such
authority, the case is distinguishable. “[D]espite [his]
disclaimer” of any claims related to the “direction of an
officer of the United States Government,” Brantley “still
s[ought] damages arising out of his exposure to asbestos in and
around the Westinghouse turbines produced by Defendants while
serving in the United States Navy . . . .” Id. 5 But here,
5
Brantley apparently contended that Westinghouse supplied
turbines with little or no direction from the Navy as to product
specifications.
12
Joyner expressly disclaimed any damages--giving his disclaimer
real effect, unlike Brantley’s. As we have no reason to believe
that the state court will fail to hold Joyner to this
disclaimer, it effectively precludes any defense based on the
valves alone.
Crane also argues that Joyner’s amendment should be
disallowed as a “manipulative tactic[]” meant to evade federal
jurisdiction. See Carnegie-Mellon, 484 U.S. at 357. But there
is no “categorical prohibition” on such manipulation. Id.Instead, “[i]f the plaintiff has attempted to manipulate the
forum, the [district] court should take this behavior into
account in determining whether the balance of factors to be
considered under the pendent jurisdiction doctrine support a
remand in the case.” Id. Crane’s bare assertion that “even if
Crane Co.’s federal defense were somehow extinguished,
supplemental jurisdiction remained,” Appellant’s Br. at 14, is
insufficient to raise the issue of whether the district court
abused its discretion in declining to exercise supplemental
jurisdiction over the remaining claim. See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to
comply with the specific dictates of this rule [requiring the
reasons for contentions and citations to authorities and the
record] with respect to a particular claim triggers abandonment
of that claim on appeal.”).
13
B.
Accepting the disclaimer’s effect, we next consider whether
Crane may properly assert any other grounds of subject matter
jurisdiction. Crane primarily argues 6 that it should have been
able to assert a federal defense regarding the gasket claims
after Joyner amended his complaint. We think not.
As the district court noted, defendants have thirty days to
file a “short and plain statement of the grounds for removal”--a
window that had closed by the time Joyner amended his complaint.
28 U.S.C. § 1446(a). The court reasoned that Crane should have
asserted any and all federal defenses within those thirty days.
Instead, Crane explicitly refused to take a position as to
whether the federal officer defense applied to the gasket
claims.
1.
Crane first suggests that it should have been allowed to
amend its notice of removal, pursuant to 28 U.S.C. § 1653. 7 This
6
Crane also notes that the other defendants’ cross-claims
as to the valves remain in play, thus invoking the same defense.
But, as the district court explained, because Joyner disclaimed
any right to damages regarding the valves, any damages so
attributed would remain beyond his reach: Crane cannot be liable
to Joyner or any other defendant for that sum. The cross-claims
fall with the primary claim as a matter of course.
7
It is not clear to us that Crane made this argument before
the district court. But as we explain, the contention fails on
its merits.
14
argument at first seems plausible on the face of the statute,
which provides that “[d]efective allegations of jurisdiction may
be amended, upon terms, in the trial or appellate courts.” Id.But courts generally apply the thirty-day limit to this statute
as well, at least in cases where the amendment is something more
than a minor technical correction. See Nutter v. New Rents,
Inc., No. 90-2493, 1991 WL 193490, at *2 (4th Cir. Oct. 1, 1991)
(“We . . . apply the majority rule that an amendment which
merely perfects a technically defective jurisdictional
allegation in a timely filed removal petition may be allowed
after the 30-day removal period.”); see also Barrow Dev. Co. v.
Fulton Ins. Co. 418 F.2d 316, 317 (9th Cir. 1969) (“[S]ince
removal must be effected by a defendant within 30 days after
receiving a copy of the complaint, the removal petition cannot
be thereafter amended to add allegations of substance but solely
to clarify ‘defective’ allegations of jurisdiction previously
made.” (internal citations omitted)); 14C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3733 (4th ed.
2009) (“In most circumstances, . . . defendants may not add
completely new grounds for removal or furnish missing
allegations, even if the court rejects the first-proffered basis
of removal . . . .”). In short, “[t]he privilege of removal may
be lost if it is not asserted in time and in conformity with the
provisions of the statute.” Richard H. Fallon, Jr. et al., Hart
15
and Wechsler’s The Federal Courts and the Federal System 1433
(6th ed. 2009).
Our district courts have noted the tension between these
statutes, providing for a thirty-day window on the one hand and
amendment on the other. The confusion, they assert, has caused
a split among our circuit’s district courts. See, e.g., Covert
v. Auto. Credit Corp., 968 F. Supp. 2d 746, 750 (D. Md. 2013);
W. Va. v. Minn. Mining & Mfg. Co., 354 F. Supp. 2d 660, 668–69
(S.D.W. Va. 2005); Muhlenbeck v. KI, LLC, 304 F. Supp. 2d 797,
800–01 (E.D. Va. 2004).
The District of Maryland, for instance, has contrasted the
“strict constructionist” school with the “liberal approach.”
Covert, 968 F. Supp. 2d at 750. Under the former, “amendments
after § 1446(b)’s thirty-day period are allowed only for the
purpose of setting forth more specifically grounds that had been
imperfectly stated in the original petition; missing allegations
may not be supplied nor new allegations furnished.” Id.
(internal quotation marks omitted). Under the liberal approach,
it explains, supplemental allegations are permitted “where the
imperfection in the jurisdictional allegation is a mere defect.
However, even under this liberal approach if a ground for
removal was completely omitted as opposed to ‘imperfectly
stated,’ the court has no discretion to permit amendment under
16
§ 1653 and must remand the case to state court.” Id. (internal
quotation marks, citations, and alterations omitted).
In our view, these two schools differ only in verbiage.
The upshot is the same: after thirty days, district courts have
discretion to permit amendments that correct allegations already
present in the notice of removal. Courts have no discretion to
permit amendments furnishing new allegations of a jurisdictional
basis. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
831 (1989) (“But § 1653 speaks of amending ‘allegations of
jurisdiction,’ which suggests that it addresses only incorrect
statements about jurisdiction that actually exists, and not
defects in the jurisdictional facts themselves.”); id. at 832
(“[E]very Court of Appeals that has considered the scope of
§ 1653 has held that it allows appellate courts to remedy
inadequate jurisdictional allegations, but not defective
jurisdictional facts. We decline to reject this longstanding
interpretation of the statute.” (footnote omitted)). The trick
lies in placing a case within one of those two categories.
Our precedent indicates that amendment is appropriate for
technical changes, such as the exact grounds underlying
diversity jurisdiction. For instance, in Nutter, the original
notice of removal claimed that the defendant was a “Kentucky
corporation”; we permitted an amendment stating that Kentucky
was merely the party’s “principal place of business.” 1991 WL
17193490, at *2. Similarly, in Yarnevic v. Brink’s, Inc., 102
F.3d 753 (4th Cir. 1996), the original petition for removal
cited both federal question and diversity jurisdiction. See id.
at 754. The petition listed the plaintiff’s domicile as Ohio,
though he had moved to Pennsylvania after filing his complaint--
but either state would have supported diversity jurisdiction.
We held that “[w]hile it would have been prudent for Brink’s to
file a supplemental petition specifying the new basis for
diversity within 30 days . . . it was not required,” as the
“change of domicile information simply added new evidence to
rebut [the] motion to remand.” Id. at 755; see also Newman-
Green, 490 U.S. at 831 (explaining that Ҥ 1653 would apply if
[a party] were, in fact, domiciled in a State other than
Illinois or was, in fact, not a United States citizen, but the
complaint did not so allege,” but would not apply “where the
complaint is amended to drop a nondiverse party in order to
preserve statutory jurisdiction”).
One could argue, of course, that the difference between
valves and gaskets is no broader than the difference between
Ohio and Pennsylvania: both relate to the factual bases
underscoring the same source of jurisdiction. Here, however,
the district court made clear that the valves and gaskets were
being treated separately for purposes of removal. Crane
nonetheless chose to preserve its position that it had not
18
supplied the gaskets. That decision--made in open court--
suggests that Crane’s failure to include gaskets as a ground for
removal was no “mere inadvertence,” see Clephas v. Fagelson,
Shonberger, Payne & Arthur, 719 F.2d 92, 94 (4th Cir. 1983), nor
a clerical error, but instead a strategic choice. As a result,
the district court correctly denied as untimely Crane’s attempt
to amend its notice of removal to include the gasket claims.
2.
Crane also argues, in a final alternative, that no
amendment was necessary at all. Once the initial removal was
deemed appropriate, it posits, the notice of removal--and the
contents thereof--ceased to matter.
But federal jurisdiction, in such a case, is contingent on
removal. Indeed, the statute simply provides that such a suit
“may be removed by [the officer] to the district court,” 28
U.S.C. § 1442(a); it “does not enlarge the original jurisdiction
of the district courts,” Mir v. Fosburg, 646 F.2d 342, 345 (9th
Cir. 1980). Thus, having failed to assert the specific defense
it now invokes when it removed the action, Crane cannot rely on
§ 1442(a) as an independent jurisdictional hook. See Mesa v.
California, 489 U.S. 121, 136 (1989) (“Section 1442(a) . . .
cannot independently support Art. III ‘arising under’
jurisdiction. Rather, it is the raising of a federal question
in the officer’s removal petition that constitutes the federal
19
law under which the action against the federal officer arises
for Art. III purposes.”).
And none of the cases Crane puts forth require a different
outcome. Crane purports to rely primarily on Jamison v. Wiley,
14 F.3d 222 (4th Cir. 1994). That case, however, is inapposite
to the question at hand. In Jamison, the defendant--a federal
employee accused of sexual assault--removed the case to federal
court under the federal officer removal statute and the Westfall
Act, asserting that he had been acting within the scope of his
duties. At that time, the Department of Justice had agreed to
provide his defense. At some point thereafter, the DOJ changed
its mind. The district court decided, as a result, that the
defendant had not been acting within the scope of his duties and
that the federal officer defense was no longer meritorious, and
remanded to state court.
We reversed, explaining that “removal jurisdiction exists
whenever the defendant-official asserts, in his removal
petition, a ‘colorable’ federal defense to the action.” Id. at
239. Thus, Jamison stands for the innocuous proposition that
later evidence regarding the merits of a defense does not impact
the propriety of its pleading. Here, by contrast, we are
confronted with a defense that was never adequately asserted in
the first place.
20
Two other cases relied on by Crane warrant further
discussion. In Willingham v. Morgan, 395 U.S. 402 (1969), the
Supreme Court confronted a similar issue where defendants had
asserted the federal officer defense. In his motion for remand,
the plaintiff alleged that the defendants were not acting within
the scope of their official duties at the time in question. The
Court pointed out that “[t]he only facts in the record which in
any way respond to this allegation appear in [the defendants’]
affidavits in support of their motion for summary judgment.”
Id. at 407. In a footnote, the Court stated, “This material
should have appeared in the petition for removal. However, for
purposes of this review, it is proper to treat the removal
petition as if it had been amended to include the relevant
information contained in the later-filed affidavits.” Id. at
407 n.3. This language indicates that the notice of removal
itself--rather than any subsequent docket entry--is the document
to which the court must refer.
At first glance, Willingham appears to be in tension with
our explanation of the impropriety of belated amendment. But a
closer look reveals that the amendment permitted in Willingham
went to the merits of a previously raised ground for removal,
rather than the assertion of the ground itself. As the Third
Circuit agreed,
21
[t]he Supreme Court has upheld removal where
jurisdictional facts required to support the removal
were found in later-filed affidavits rather than in
the notice of removal. . . . . [W]e are satisfied that
sections 1446(a) and 1653, together with the Supreme
Court’s opinion in Willingham, permit a court to
consider jurisdictional facts contained in later-filed
affidavits as amendments to the removal petition
where, as here, those facts merely clarify (or correct
technical deficiencies in) the allegations already
contained in the original notice.
USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n.12 (3d Cir.
2003); see also Ruppel v. CBS Corp., 701 F.3d 1176, 1184 n.1
(7th Cir. 2012) (“CBS could also have amended its notice of
removal and added supporting exhibits under 28 U.S.C. § 1653. . . .” (citing Willingham)); cf. In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 129 (2d Cir.
2007) (noting that the defendants had not made a particular
allegation in the notice of removal, “[n]or do they cite any
later-filed affidavits which could provide the basis for us to
treat the removal petitions as amended to include those
allegations” (citing Willingham)). Thus, Willingham comports
with our understanding of the importance of--and limits to--
amending the notice of removal.
Williams v. Costco Wholesale Corp., 471 F.3d 975 (9th Cir.
2006), is also of no help to Crane. There, the defendant had
removed on the basis of federal question jurisdiction, and when
the plaintiff amended his complaint to remove the federal claim,
the district court remanded. The Ninth Circuit held that the
22
remand was inappropriate because the district court had
diversity jurisdiction as well--even though the defendant had
not asserted diversity in its notice of removal. The court
postulated that “post-removal amendments to the pleadings cannot
affect whether a case is removable, because the propriety of
removal is determined solely on the basis of the pleadings filed
in state court.” Id. at 976. The court then held that “[o]nce
a case has been properly removed, the district court has
jurisdiction over it on all grounds apparent from the complaint,
not just those cited in the removal notice”--grounds asserted
well before the thirty-day deadline. Id. at 977 (emphasis
added).
The Ninth Circuit’s approach, which mirrors that of the
Fifth Circuit, 8 has been criticized as contrary to well-settled
practice. See Jeannette Cox, Removed Cases and Uninvoked
Jurisdictional Grounds, 86 N.C. L. Rev. 937, 953–57 (2008)
(arguing that the Fifth and Ninth Circuits “have failed to
adequately explain their departure from the traditional approach
to uninvoked jurisdictional grounds”). But even were we to
8
See Buchner v. F.D.I.C., 981 F.2d 816, 818 (5th Cir. 1993)
(“The fact that the FDIC waived its right to remove the instant
case is irrelevant to the determination of whether the case
should have or could have been remanded once it had been
properly removed by another party who had not waived the right
to remove.”).
23
accept those principles, they do not control the result here.
Contrary to Crane’s view of things, we do not take the Ninth
Circuit’s language as carte blanche for defendants to assert new
grounds for removal at any time (as was the case here), but
rather an invitation for the court to look at those grounds
already before it.
Our litigation system typically operates on a raise-or-
waive 9 model: if a litigant fails to raise a claim in a
complaint, or a defense in an answer, or to preserve an
objection at trial, they are generally out of luck. This model
forces efficiency and discourages sandbagging. It is thus
reasonable to expect that a litigant would raise every ground
for removal in his initial filing. Such a rule prevents
precisely the incessant back-and-forth controversy we see here. 10
Crane made a strategic decision not to assert removal as to the
9
Though “raise-or-waive” is the usual nomenclature, in
reality, of course, courts--including us here--often mean
“raise-or-forfeit.” “Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (internal quotation marks and citation omitted).
10
The thirty-day window for asserting federal jurisdiction
runs from the moment the grounds for such jurisdiction become
apparent, rather than the filing of the complaint--thus
preventing the plaintiff from sandbagging by hiding
jurisdictional grounds in a first complaint and later amending
it to add them. See 28 U.S.C. § 1446(b)(3).
24
gasket claims. We usually hold parties to that sort of
strategic decision, and are unable to discern why this situation
would merit a departure from the general rule.
We hasten to underscore the narrowness of our holding. It
may seem unjust, at first glance, that Joyner was allowed to
amend his complaint to withdraw the relevant claims, but that
Crane may not respond by restructuring its defense. But there
is already a remedy in place for such a scenario: had the
district court thought that Joyner’s manipulative tactics were
too sharp, it had every opportunity to retain the case in
federal court as a matter of discretion. “The district courts
thus can guard against forum manipulation . . . .” Carnegie-
Mellon, 484 U.S. at 357 (explaining that a party’s manipulative
tactics are a factor the district court should weigh in deciding
whether to retain the case in federal court). We trust that
they will do so.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
25