Wood v. Crane Co., No. 13-1868 (4th Cir. 2014)
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Crane, one of the many defendants in this asbestos litigation, removed this case to federal court, asserting a federal defense to plaintiff's state tort claims. Plaintiff amended his complaint, eliminating the claims underlying that federal defense, and the district court remanded to state court. Crane appealed. The court concluded that it had jurisdiction over the appeal because this case was originally removed under the federal officer removal statute. The court affirmed the district court's decision to remand where Crane complained that it should have been given the opportunity to assert a new basis for federal jurisdiction but it had declined to do so in a timely fashion.
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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 removed this litigation, of many case to defendants federal in this court, asbestos 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 defendants about a the number dangers of of asbestos. manufacturers who Joyner allegedly named as supplied asbestos-containing materials with which he came into contact at various points in his career. Co., allegedly manufactured One of those defendants, Crane 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 provision statute. allows for See removal 28 of U.S.C. suits § 1442(a)(1). against [t]he That United States or . . . any officer . . . in an official or individual capacity, office. for Id. or relating to any act under color of such 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. J.A. 42. See 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 allegations. insufficient In the to support alternative, its Joyner jurisdictional moved to sever the valve claims against Crane and to remand the claims against the other defendants--as well Crane--to state court. as Joyner s gasket claims against At oral argument before the district court, Crane explicitly refused to take a position as to whether the federal might have contractor defense supplied. Rather, applied Crane to any gaskets apparently Crane 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 however, to gaskets would the make an have procurement argument been process. ). in the supplied 3 Crane declined, alternative--that pursuant to the detailed 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. found that state law claims predominated over The court 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 remand. regarding J.A. 2722. Crane The Co. valves notice only explained and that request for Joyner was abandoning his claims against Crane with respect to its valves, retaining only his claims involving injuries caused by Crane s 7 gaskets. Crane s See J.A. 2722 23, 2923. removal to federal court Joyner argued that because 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 notice of removal. claims for the thirty days that provision grants for The court also explained that any cross- contribution would be irrelevant, forfeited any damages related to the valves. as Joyner had 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 contending court. that all both the claims March should 7 and 6 orders, remained have June in federal 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 jurisdiction to review this appeal. asserts that we have no 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. were As Joyner sees it, because the issues now before us 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 case removed originally claims. Section from removed state pursuant 1447(d) court. to the explicitly Because federal refers this case officer to a was 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 court before lacks remanded. final subject Id. judgment matter it appears jurisdiction, that the the case district shall be 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, assert Crane argues, it should be able to 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. federal district court has Crane does not dispute that a discretion under the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law claims in the action eliminated and only pendent state-law claims remain. have been 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 see Univ. also v. Cohill, 484 U.S. Br. 16. But Appellant s at 343, 345 because (1988); 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 rather than neither Plaintiff s a on the of artfully plaintiff s existence constructed disclaimer nor [his] claims are determinative. [his] a federal defense, complaint, characterizations of 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 authority, the disclaimer of officer the of were case any inclined is rest our distinguishable. claims United to related States to the Government, decision on [D]espite direction Brantley such [his] of an 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 . . . . 5 Id. 5 But here, 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. that the state court As we have no reason to believe 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. is no See Carnegie-Mellon, 484 U.S. at 357. categorical prohibition on such But there manipulation. Id. Instead, [i]f the plaintiff has attempted to manipulate the forum, the [district] court account in determining whether considered under the remand in the case. Crane Co. s federal pendent Id. should the take this balance jurisdiction of behavior factors doctrine into to support be a Crane s bare assertion that even if 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 jurisdiction over the remaining claim. to exercise supplemental 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 Crane primarily argues 6 that it should have been jurisdiction. 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, whether Crane the explicitly federal refused officer to defense take a applied position as to gasket the to 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 . . . merely apply perfects the a majority rule technically that an amendment defective which 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 completely most circumstances, . . . new grounds removal for defendants or may furnish not add 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 Covert, 968 F. Supp. 2d at 750. with the liberal approach. 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 (internal quotation marks omitted). furnished. Id. Under the liberal approach, it explains, supplemental allegations are permitted where the imperfection in the jurisdictional allegation is a mere defect. However, removal even was under this completely liberal omitted approach as opposed if to a ground for 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. 831 See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, (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 § 1653 Court has inadequate held of Appeals that it jurisdictional jurisdictional facts. that has allows considered appellate allegations, the scope courts but to not of remedy defective 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 diversity jurisdiction. as the exact grounds underlying 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. 17 1991 WL 193490, at *2. F.3d 753 (4th Similarly, in Yarnevic v. Brink s, Inc., 102 Cir. 1996), the original petition for removal cited both federal question and diversity jurisdiction. at 754. See id. 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 § 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 underscoring the same source of jurisdiction. factual bases Here, however, the district court made clear that the valves and gaskets were being treated nonetheless separately chose to for preserve purposes its 18 of position removal. that it Crane had not 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 amendment was necessary at all. final alternative, that no 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 jurisdiction. support Art. III arising under 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). to the question at hand. That case, however, is inapposite 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. its mind. At some point thereafter, the DOJ changed 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 petition, a colorable federal defense to the action. 239. removal Id. at 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 discussion. cases relied on by Crane warrant further 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 the petition as if had it been is proper amended to to treat include removal the relevant information contained in the later-filed affidavits. Id. at 407 n.3. it review, 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. Circuit agreed, 21 As the Third [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 allegations removal (citing petitions as amended Willingham)). Thus, to include Willingham those 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. a case has Id. at 976. been properly The court then held that [o]nce 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 Jurisdictional Grounds, (arguing the that Fifth Cox, 86 N.C. and Removed L. Ninth Cases Rev. 937, Circuits and Uninvoked 953 57 have (2008) failed to adequately explain their departure from the traditional approach to uninvoked jurisdictional grounds ). 8 But even were we to 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 waive 9 litigation model: complaint, system if a a defense or typically litigant in fails an operates to on raise answer, or a to efficiency and discourages sandbagging. raise-or- claim in preserve objection at trial, they are generally out of luck. forces a a an This model 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. is already a remedy in place for such a scenario: But there had the district court thought that Joyner s manipulative tactics were too sharp, it had every opportunity to federal court as a matter of discretion. retain the case in 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
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