The “Order or Other Paper” Exception to the 30-Day Period to Remove a State Court Action to Federal Court is not Satisfied By New Appellate Law
We have discussed that class action defense often benefits from removal of the case to federal court, and that the Class Action Fairness Act of 2005 (CAFA) greatly expanded access to federal courts in class action cases, in separate articles. If CAFA does not apply, then removal of cases to federal court generally is governed by 28 U.S.C. § 1446, also discussed in prior articles related to class action defense. Broadly speaking, the defense must remove a case to federal court within 30 days of receipt of the complaint or “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable,” 28 U.S.C. § 1446(b) (italics added). This 30-day time period is “mandatory” but not “jurisdictional.” Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980); Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1046 (2d Cir. 1991). On May 9, 2006, an Illinois federal district court considered whether a recent Seventh Circuit opinion constituted an “order or other paper” from which federal jurisdiction “may first be ascertained.” G.M. Sign, Inc. v. Global Shop Solutions, Inc., 430 F.Supp.2d 826 (N.D. Ill. 2006).
Plaintiff filed suit a putative class action against Global Shop Solutions in Illinois state court for alleged violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), which the then-existing weight of authority held “vests exclusive jurisdiction in state courts for private actions under the TCPA,” though the Seventh Circuit Court of Appeal had not yet addressed the issue. G.M. Sign, at 827-28 and n.1. In fact, a week Global Shop had been served, an Illinois federal district court remanded a similar TCPA action to state court “holding that the TCPA conferred exclusive [jurisdiction] on the state courts.” Id., at 827 (citing Brill v. Countrywide Home Loans, Inc., 2005 WL 2230193 (N.D. Ill. 2005)). After the time for removal had passed, the Seventh Circuit reversed Brill and held that TCPA claims may be brought in federal court both under federal question jurisdiction and under diversity jurisdiction. Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th Cir. 2005). Global Shop removed its class action lawsuit to federal court 32 days after the issuance of Brill.
In response to the motion to remand, Global Shop argued that prior to Brill, removing the class action to federal court would have been deemed an act of “bad faith” and would have exposed it to “the imposition of sanctions,” and so it properly waited until issuance of the Seventh Circuit opinion before filing its notice of removal. G.M. Sign, at 828-29. The district court disagreed, explaining that “all the requirements for diversity jurisdiction . . . existed at the time of the initial pleading,” and that because TCPA is a federal statute claims under it “ordinarily . . . would ‘arise under’ the laws of the United States.” Id., at 829. Also, because the Seventh Circuit had not yet ruled on the question, “there was no binding precedent contrary to removal.” Id. Accordingly, the class action was remanded to state court. Id., at 830.
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