| <text> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument first this morning in Case 17-1471, Home Depot versus Jackson. Mr. Barnette.</u> | |
| <p id="ORAL ARGUMENT OF WILLIAM P. BARNETTE ON BEHALF OF THE PETITIONER"> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Mr. Chief Justice, and may it please the Court: Home Depot is a defendant under any reasonable construction of that term and, in fact, <w>that</w><w>'s</w> our only role in this case. We're just a defendant. Home Depot is not a counterclaim defendant. We <w>did</w><w>n't</w> sue anyone in this case. Home Depot is not a third-party defendant. We're not being sued for indemnity or contribution. Home Depot is simply a defendant, the original defendant, to a consumer fraud class action filed in state court by Mr. Jackson. As such, we're within the plain terms of Section 1441(a), are entitled to remove this class action under the Class Action Fairness Act to federal court, and the Fourth Circuit erred in holding otherwise. Because Home Depot is simply a defendant, this Court's holding in Shamrock Oil does not govern. As the Court is aware, Shamrock Oil is an original plaintiff case, not an original defendant case. The lower courts have erred in extending the holding of Shamrock Oil to say that, basically, you have to be an original defendant to be able to remove. The plain text of Section 1441(a)...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm not quite sure, putting this outside the class action setting, generally, all defendants have to agree to removal and with some other limitations. If <w>you</w><w>'re</w> now an additional defendant to the action, why do you... why <w>do</w><w>n't</w> you need Jackson's approval to remove? And he's not approving because he's opposing you.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I <w>do</w><w>n't</w> expect he would, Your Honor. That's correct. Under 1441(a) and traditional diversity jurisdiction, 1332(a), <w>you</w><w>'re</w> correct that all defendants have to remove as a part of the procedure under 1446. Here, though, in Shamrock Oil, the Court went through the history of removal and diversity, understood that it was very important to the framers that diversity jurisdiction was in the original constitution, Article III, Section 2. Removal was in the original Judiciary Act of 1789, so it was important to the framers that each side have one shot at a... at a federal forum.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But <w>that</w><w>'s</w> not true.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Presume...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All defendants <w>do</w><w>n't</w> have a shot at removal. Only if everybody agrees, in an original action, all defendants have to agree to removal, correct?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> That is correct, Your Honor.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So not every defendant individually has a right to removal.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, in Shamrock Oil, the Court looked at that history, looked at... basically, Congress had said plaintiffs <w>can</w><w>'t</w> remove. We know that. Originally, the right to removal was given to defendants only. For about 20 years after the Civil War, it was given to both plaintiffs and defendants. And then, in 1887, again, it was given back to only defendants. So this Court in Shamrock Oil...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> My point still remains that the statute by its own form <w>does</w><w>n't</w> guarantee the power to every defendant to remove.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> So, in Shamrock Oil, the Court, Your Honor, held because of this binary selection that Congress has made, <w>you</w><w>'re</w> either a plaintiff or a defendant.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well, how about in a... how about...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> If <w>you</w><w>'re</w> the plaintiff, then <w>you</w><w>'re</w> not the defendant.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> If your theory is this right of removal, how about an involuntary plaintiff? Under Federal Rule 19(a)(2), some people can be made involuntary plaintiffs. Do they have a right to remove?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> No, Your Honor. The right to removal...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Would there be...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> ... is given to the defendant or the defendants...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> They never had a chance...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> ... under 1441(a).</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> They never had a chance to pick a forum. That's the main support for your theory.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> So the Shamrock...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Which is that everybody should have one opportunity to choose their forum, correct?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> A defendant... the defendant or the defendants is entitled to remove under 1441(a). In Shamrock Oil, this Court held, because the original plaintiff is not solely the defendant, they <w>do</w><w>n't</w> have that right. Therefore, also, you <w>would</w><w>n't</w> need their right to consent to removal by other defendants. In the same scenario, the original defendant that files an additional claim bringing in a new party defendant, <w>they</w><w>'re</w> a plaintiff at that point.</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> This Court in Merchant Heat & Light said you step into the role of the plaintiff.</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So, counsel, if I understand your answer to Justice Sotomayor, <w>it</w><w>'s</w> that counterclaim defendants count as defendants for purposes of 1441, but plaintiffs <w>do</w><w>n't</w>, even though they... counterclaim defendant... plaintiffs <w>do</w><w>n't</w>, even though <w>they</w><w>'re</w> the original defendant.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> It... it...</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Now how can it be that the word "defendant" expands and contracts like that? I... I could understand an argument that everybody <w>who</w><w>'s</w> a defendant in any claim in the case might count as a defendant for purposes of 1441, but what I <w>can</w><w>'t</w> abide or understand at least is how the word "defendant" could... could be so Procrustean as to just happen to fit you.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, just to briefly adjust what you said in your question, if I may, we're not saying counterclaim defendants. We're saying the parties that are solely defendants. A counterclaim defendant <w>that</w><w>'s</w> an original plaintiff, we're... we <w>do</w><w>n't</w> say has the right to remove under Shamrock Oil. We take the Court's holding there as a given. But we're not within that holding. We're saying, if <w>you</w><w>'re</w> solely a defendant, <w>that</w><w>'s</w> your only role. On the binary choice Congress has established, <w>you</w><w>'re</w> either a plaintiff or a defendant.</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> But... but... but that <w>does</w><w>n't</w>...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> If <w>you</w><w>'re</w> not a plaintiff of any sort, you have to be a defendant.</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel, that still just... I got it, but that <w>does</w><w>n't</w> answer the question, though, all right? You're saying that the plaintiff here is no longer... <w>does</w><w>n't</w> qualify as a defendant...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Correct.</u> | |
| <u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... even though the plaintiff in this claim was the original defendant. How could that be? How come <w>they</w><w>'re</w> not a defendant too for purposes of 24 1441?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Again, because, as this Court said in Merchant Heats &... Merchants Heat & Light, excuse me, once you file that additional claim, third-party claim, you then... that original defendant steps into the role of plaintiff. And just like any other plaintiff, like the original plaintiff, like this defendant-plaintiff, those parties just go along with the removal. Plaintiffs <w>do</w><w>n't</w> consent to the removal, as the justice pointed out.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Does your theory fall apart if we <w>do</w><w>n't</w> accept your claim-by-claim analysis? You approach this claim by claim. I'm not quite sure how we can... you can do that since the statute speaks about a civil action and it talks about removal of an action, not a removal of a claim. But, assuming we <w>do</w><w>n't</w> accept your theory that removal's claim by claim, where does that leave you?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, <w>you</w><w>'re</w> correct, 1441 and 1453 talk about... I'm sorry, talk about removing the civil action... and 1446... but the point here is this Court held very clearly in Exxon... Exxon versus Allapattah you have to look at the claims within the civil action to determine jurisdiction. Rule 8 is a short and plain...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That's different than...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> ... statement of a claim entitling you to relief. It's not the civil action that entitles a party to relief. It's the claim. You have to look at the claim to determine the amount in controversy. So once... and once one... one...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> The removal... the removal statutes say you look at the cost... you look at the action, not the claim.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Well, 1446(b) says that once <w>there</w><w>'s</w> a claim that establishes jurisdiction, <w>that</w><w>'s</w> when you have 30 days to remove. That... the claim is key here. The civil action is just...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But <w>it</w><w>'s</w> so...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> ... the overarching matter or lawsuit.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> You <w>do</w><w>n't</w> have a right under your theory to... well, you have a right that you <w>do</w><w>n't</w> have normally. If you have a claim as a counterclaim defendant to... <w>that</w><w>'s</w> not based on original jurisdiction, <w>you</w><w>'re</w> still claiming you have a right to remove? You were never entitled to a federal forum to start with.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, this case is a qualifying class action under CAFA that, by definition, is within the original jurisdiction of the district courts. We...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No. Now <w>you</w><w>'re</w> looking at the overall claim. You're not saying to us look at the claim that makes you a defendant.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> The claim we removed is the class action. We <w>were</w><w>n't</w> in the case before the class action.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well, that is true, but...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> So we're not a counterclaim defendant, if I could point that out.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But, under your theory, if <w>there</w><w>'s</w> a counterclaim defendant and <w>it</w><w>'s</w> not filing an original action, you could still remove?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I'm sorry, could you repeat that, Your Honor?</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Is it... if <w>you</w><w>'re</w> looking at the claim, if <w>you</w><w>'re</w> a counterclaim defendant, are you looking at the original action or are you looking at your action or your...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> We're looking at the claim <w>that</w><w>'s</w> being removed. But, just to be clear, we are not a counterclaim defendant. Rule 13 is specific on what counterclaims are. That's a... a claim a party has against an opposing party. We were not in that original case. That's absolutely correct. But 1441 does not say only the original defendant can remove. It does not say only claims brought by the original plaintiff can be removed. It <w>does</w><w>n't</w> say only claims by the original plaintiff against the original defendant can be removed.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But, Mr. Barnette, as... as Justice Sotomayor was saying, 1441(a), which is the principal removal statute, says that a civil action, not claims, but a civil action can be removed where the district courts have original jurisdiction. And what I've always taken that to mean is that to look for original jurisdiction, you look to the plaintiff's complaint, the original plaintiff. It gives you original jurisdiction. So, there, the plaintiff's complaint <w>does</w><w>n't</w> have any claims that belong in federal court. So where do you get the authority to remove under 1441(a)?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Again, Your Honor, this class action qualifies under CAFA, which establishes that <w>it</w><w>'s</w> within the original jurisdiction of the district courts. I could...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, your claim might be under the original jurisdiction of the district courts if it had... or not your claim but the claim to which you are defendant, if that had started the lawsuit. But that <w>did</w><w>n't</w> start the lawsuit. The lawsuit, the civil action, was started by a claim <w>that</w><w>'s</w> completely non-federal in nature. And you look to the original claim to decide whether the courts have original jurisdiction, <w>do</w><w>n't</w> you?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, this is a somewhat unusual situation, although <w>it</w><w>'s</w> becoming increasingly less unusual because these class actions keep getting filed. But, to your point, Mr. Jackson essentially filed a new civil action in the existing case. Rule 3 says a civil action commences with the filing of a complaint in court.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, it might be unusual, and it might be that the rules <w>were</w><w>n't</w> contemplating this situation, although I <w>do</w><w>n't</w> really think that <w>that</w><w>'s</w> true, because the rules contemplate very liberal joinder and of all parties. But, regardless, the rule is the rule. And the rule says, when you try to figure out removal, you look to whether the court, the federal court, would have original jurisdiction of the case. And to do that, I mean, I have to say <w>there</w><w>'s</w> only one... one place to look to decide whether original jurisdiction exists, and <w>that</w><w>'s</w> to the plaintiff's original complaint.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Respectfully, Your Honor, I <w>do</w><w>n't</w> believe <w>that</w><w>'s</w> what the statute says. That's not what 1441(a) says and <w>that</w><w>'s</w> not what 1332(d)(2) says as far as CAFA removals. Again, a defendant or defendant can remove a civil action <w>that</w><w>'s</w> within the original jurisdiction of the district courts. We are squarely within that language. We are a defendant. All we are in this case is a defendant. We're a class action defendant. CAFA gives the original jurisdiction.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I mean, the question is you would... you would be right if this claim started... excuse me, if this action started with the claim against you. But it <w>did</w><w>n't</w> start with the claim against you. And <w>you</w><w>'re</w> suggesting that we essentially ignore all this language about original jurisdiction in order to, you know, get to this second claim. But the second claim <w>is</w><w>n't</w> what counts under 1441. What counts under 1441 is the first claim.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, I would agree with that analysis if 1441(a) said only claims brought by the original plaintiff or only the original defendant can remove, but it <w>does</w><w>n't</w> say that.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, it said...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> All it says is original jurisdiction. This class action is within the original jurisdiction.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I mean, to... to... I'm repeating myself, but to decide whether...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Sorry, I feel like I am as well.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... original jurisdiction exists, you look to the original claim. That's what original jurisdiction is.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Well, Your Honor, again, we <w>do</w><w>n't</w> think <w>that</w><w>'s</w>... we think <w>that</w><w>'s</w> an atextual reading of the statute. I would also point out that the other side has said the sort of unanimous view of the lower courts that you can only have the original defendant remove and you <w>can</w><w>'t</w> look beyond that. Actually, the Fifth and Eleventh Circuits have allowed additional party defendants, new defendants added to cases to remove. So the analysis <w>you</w><w>'re</w> talking about has not been uniformly applied throughout the federal courts. We think it only makes sense. I mean, again, <w>you</w><w>'re</w>... we're not in the case prior. The only... the first time we're brought in the case is with a summons, and under Rule 4, the summons goes to the defendant. That's the plain language. We got a summons and complaint in this case. We had to to be brought into the case. We're not in the case otherwise.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Are you... are you...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> They <w>can</w><w>'t</w>... sorry.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Listen, I... there is... what I'm about to say has some flaw, and I'm trying to figure out what it is because they <w>do</w><w>n't</w> really make this argument, and, therefore... but... but I... it stopped me and I wanted to see what the answer was. All right. A class action may be removed, right?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Correct.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Okay. So we go look to see what is a class action, and then we have a definition in 1332 for these purposes. It says the term "class action" means any civil action... okay, this is a civil action... filed under Rule 23. Well, a civil action filed under Rule 23, I mean, the plaintiff filed a civil action under Rule 23.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Or a state court equivalent, Your Honor.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But that <w>was</w><w>n't</w> a class action. And you <w>did</w><w>n't</w> file a civil action under Rule 23. What you were, were the defendant, and you brought a counterclaim against a third-party, or <w>you</w><w>'re</w> the third-party, or whatever.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Yeah, we <w>did</w><w>n't</w> bring a counterclaim at all.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, no, no, no, <w>it</w><w>'s</w> somebody, the... I'm sorry, the other... the other... the plaintiff did. No, <w>it</w><w>'s</w> not the plaintiff. The plaintiff... see, <w>that</w><w>'s</w> the hard part. It's like an Abbott and Costello movie, you know, I mean.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But... but, look, A sued B, and A is the plaintiff and B is the defendant, and then B sued you.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Correct.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> So <w>you</w><w>'re</w> C, okay, over here. So being C over here, B, who is the one who sued you, is he... did he file a civil action under Rule 23?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Yes, we <w>do</w><w>n't</w>...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>do</w><w>n't</w> think he did, did he? Where does it say he did?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I think we clearly...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> What he did was he filed a...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I think we clearly did under CAFA.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> He says he brings... <w>that</w><w>'s</w> what he says, but he's bringing within the rules... he's bringing within the rules, what is it called, a third-party claim?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Again, Your Honor, <w>there</w><w>'s</w> a lot of shorthand <w>that</w><w>'s</w> involved in this and, unfortunately, <w>it</w><w>'s</w> just generally inaccurate. We're not a counterclaim defendant. We're not a third-party defendant, those specific terms. We're just a defendant.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Forget what <w>you</w><w>'re</w> not. What I want you to know... I realize that. But <w>it</w><w>'s</w> only if <w>it</w><w>'s</w> a class action, a civil action filed under Rule 23. Now...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Or a...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... did the person who filed the class action whose name happens to be 9 B...</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... did that person file a civil action under Rule 23?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Yes, Your Honor.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yes? How do we know that?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I would... I would turn the Court's attention to Dart Cherokee, where you ran through the CAFA analysis on the slip opinion at page 2 and said 1453 directs you to 1332(d), as you noted. We look at (d)(1) for the definitions of class actions.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Yes.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> That's a filing under Federal Rule 23 or a state equivalent.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> It is? Where does it say that?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> In 1332(d)(1).</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, no, no, I know. Where does it say the rule that when a defendant files a class action, namely B...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> What <w>they</w><w>'re</w>...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... against C, that that is an action filed, a civil action, because civil actions are usually filed by plaintiffs, where does it say that that action filed by B is a civil action filed under Rule 23? That's a simple question.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> A couple things. 1332(d) just refers to a filing by a representative party. That's the language the statute uses. Mr. Jackson certainly is a representative party. He's a class representative. He refers to himself as a plaintiff in the filing.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Why are you still not giving direct answers?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> In the civil action, he was defined as B2.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Because what he says is... it says a civil action...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> The argument is that what Mr. Jackson filed against you was not a civil action filed under Rule 23.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> That's right. Exactly. Thank you.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> And if that is the case, then I <w>do</w><w>n't</w> know what rules would govern this claim that Jackson filed against you. Is this some kind of class action that is... is this some sort of suit that is sort of like a class action, but <w>it</w><w>'s</w> not under Rule 23, so none of the requirements of Rule 23 would apply? I mean, the argument is... <w>it</w><w>'s</w> a clever argument, comes out of I <w>do</w><w>n't</w> know where... the argument is, no, <w>it</w><w>'s</w> not, he <w>did</w><w>n't</w> file a class action against you under Rule 23, but, when the court adjudicates this action, it should apply the rules that... it should apply the Rule 23 rules.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, again, I would just point the Court to Rule 3 of the Federal Rules of Civil Procedure, which says a civil action is commenced by filing a complaint in a court.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Exactly.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> He filed a class action complaint in court against Home Depot.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, no, <w>that</w><w>'s</w> the problem.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> That commences the civil action request.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> That's the problem.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Barnette, under your theory, every time one party joins another party, we would have a new civil action.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> No, the...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But we <w>do</w><w>n't</w>. We only have one civil action, and the civil action includes a multitude of claims, or can, between and among a wide range of parties. But <w>it</w><w>'s</w> only one civil action.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Your Honor, <w>that</w><w>'s</w> not our position. A counterclaim against an original plaintiff would not constitute a new... new civil action. But when <w>you</w><w>'re</w> bringing in a new defendant by summons...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So <w>you</w><w>'re</w>... <w>you</w><w>'re</w>... <w>you</w><w>'re</w>... <w>you</w><w>'re</w>... <w>you</w><w>'re</w> excluding one kind of claim, which is the claim against an original plaintiff, but there... there can be many, many parties under the... the federal rules and there can be counterclaims and there can be cross-claims and there can be impleaders and there can be all kinds of arrows going in every which direction. And <w>you</w><w>'re</w> suggesting that every one of those is a new civil action under Rule 1441(a), which is the one that I'm focusing on, and I'm suggesting that <w>that</w><w>'s</w> wrong. There's only one civil action, and <w>it</w><w>'s</w> the action <w>that</w><w>'s</w> brought by the original plaintiff.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> No, Your... Your Honor, respectfully, we disagree. I'm not arguing all these other things. I'm saying focus on this case. Substance governs, not labels of the parties' situation. That's this Court's holding in City of Indianapolis. You look at the substance of this. Home Depot was not in the case. This document is just a class action complaint against us. And Rule 3 clearly says filing a complaint in court establishes a civil action.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Barnette...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> That's all that happened here.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... <w>you</w><w>'re</w> suggesting that we should look at this case as though the original claim never occurred and we should pretend that the claim started with the original defendant. But the case did not start with the original defendant. The civil action started with the original plaintiff, who brought a claim against a defendant, who then brought a claim against you. And this is all... I mean, it... of course, the claim against you is governed by Rule 23, but all of these claims are one civil action. And the question is, what gives you the ability to remove that civil action if <w>there</w><w>'s</w> no original jurisdiction over it?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> The plain language of and CAFA give us original jurisdiction over this claim.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Over the claim, but...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> And we... we would...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... but 1441 does not speak in terms of claims.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Right. 1446 does. 1441(c) does refer to claims. 1446(b) says the procedure starts when you have a claim that establishes federal jurisdiction. This Court in Exxon said, once you have one claim within a civil action, the entire civil action is removed. We're saying you remove...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Yeah, but the reason why claims are... are there is <w>that</w><w>'s</w> to deal with a plaintiff <w>that</w><w>'s</w> bringing three claims and one of them raises a federal question and two of them <w>do</w><w>n't</w>. And then all that 1446 is saying is that, when <w>you</w><w>'re</w> in that position, the one claim that raises a federal question is going to be able to get you into federal court. So <w>there</w><w>'s</w> your claim-by-claim analysis. But the action is what is removed, and the action is removed by determining whether <w>there</w><w>'s</w> original jurisdiction, which is determined by looking to the original complaint.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Respectfully, Your Honor, <w>that</w><w>'s</w> not what 1441(a) says. So we're... we're traveling under the plain language of that statute, the plain language of CAFA, and we would say you would... you would remove... certainly would remove the entire civil action. If there is supplemental jurisdiction over that original $<w>10,000</w> debt collection action by Citi against Mr. Jackson, of course, those claims are no longer in the case at all. No claims by or against Citi are longer in the case. But you would either keep that under supplemental jurisdiction or sever it off and send it back to state court. A $<w>10,000</w> claim belongs in state court probably. But we... we can remove the class action. It's within the original jurisdiction of the district courts. That's what CAFA clearly says. We're not expanding federal jurisdiction. This case could have been filed as a stand-alone against us in federal court or it could have been filed as a stand-alone against us in state court and we would have removed it. The fact that Mr. Jackson chose to file a new class action proceeding in an existing case, that... that does not serve to defeat removal. I mean, <w>that</w><w>'s</w> what... <w>that</w><w>'s</w> the approach the plaintiffs are trying to take, but <w>that</w><w>'s</w> not how the law operates. A couple other things, Your Honor, I would just mention. The... the cases following Shamrock Oil that have held... the lower court cases that have held that only original defendants can remove, those are all based on the presumption against removal that this Court already held in Dart Cherokee does not apply to CAFA. And, frankly, that... that presumption really does not appear to be well founded in any... any event. When you look at the significance the framers put on diversity jurisdiction, put on removal jurisdiction, when you look at this Court's cases like Exxon again, where we say... where the Court said we're not going to apply jurisdictional statutes too broadly but nor are we going to read them too narrowly. Or you look at a case like Reyes Mata that says federal courts have a virtually unflagging obligation to exercise jurisdiction where <w>it</w><w>'s</w> found. And then when you have the Supremacy Clause in the Constitution. Basically, these are cases of concurrent jurisdiction. They're going to go forward in one venue or the other, state or federal, but <w>there</w><w>'s</w> no reason for federal courts to put a thumb on the scale and send them to state court to resolve doubts in favor of remand. That just <w>should</w><w>n't</w> apply in a traditional diversity setting. But the Court's already held under CAFA it does not apply.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Can I ask a question about... because it is important to me... about how lower courts have interpreted things for decades now since Shamrock. Basically, your argument has been rejected by virtually every district court. Not surprising it <w>has</w><w>n't</w> gone to the circuit courts because you generally <w>can</w><w>'t</w> appeal a remand.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Pre-CAFA, <w>that</w><w>'s</w> correct, Your Honor.</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> That's correct. So, to me, <w>does</w><w>n't</w> that have some force? Couldn't and <w>should</w><w>n't</w> I presume that, given the state of the law, which was unanimity on this question, why <w>should</w><w>n't</w> I presume Congress, in... in creating this class action statute, removal, and in addressing these questions over the years, <w>would</w><w>n't</w> have understood that this was the state of the law? That your position was not accepted?</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Well, again, Your Honor, <w>that</w><w>'s</w> actually not an accurate state of the law. As we point out in our brief, the Fifth and Eleventh Circuits have allowed additional parties, third-parties, to remove in these circumstances, not class action cases but traditional cases, traditional diversity cases. Those cases are from the '80s and '90s. So, on this point about if you rule in our favor, <w>there</w><w>'s</w> going to be this flood of cases in the federal courts, I would say look at the Fifth and Eleventh Circuit. Have there been a flood of cases in those circuits? No, there <w>have</w><w>n't</w>. And <w>that</w><w>'s</w> the law. As you point out, there was not a lot of circuit law on this pre-CAFA. This issue, I think tellingly, only arose post-CAFA as a way to get around CAFA. There were no counterclaim class actions being filed before CAFA because there were much easier ways for plaintiffs to stay out of federal court. It only is when CAFA came into play that this device became more widely used. And <w>it</w><w>'s</w> a growing trend. Sorry, Your Honor.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I hate to do this, but let me do the... I <w>do</w><w>n't</w> hate that much. If you have something else important to say, I'll figure it out.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> No, go ahead, Your Honor.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I mean, I...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Not as important as what <w>you</w><w>'re</w> going to say, I'm sure.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Not...</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, that is not likely so. Look... look what I'm doing, which I... which you... which you <w>have</w><w>n't</w>.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> I'm sorry?</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>do</w><w>n't</w> think I... I've shown you what I'm doing. I'm going back to where it says in 1453(b), what is it we can remove? We can remove...</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> A qualified class action...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, wait. Less than that. A... I'll figure it out later.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> All right.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>do</w><w>n't</w> want to interrupt your rebuttal time.</u> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> All right. I'd like to reserve the remainder of my time for rebuttal, Your Honor.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Bland.</u> | |
| </p> | |
| <p id="ORAL ARGUMENT OF F. PAUL BLAND ON BEHALF OF THE RESPONDENT"> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Mr. Chief Justice, and if it please the Court: Since... the original jurisdiction idea has really been set forth here and Justice Sotomayor correctly pointed out that the case law under 1444(a) is virtually unanimous in our behalf, and what my friend says is that actually <w>there</w><w>'s</w> a division among the case law, that the Fifth Circuit, the Eleventh Circuit disagree. The Fifth and Eleventh Circuit cases, Your Honors, are talking about a different statute. It's not 1441(a). It's 1441(c). 1441(c) draws the exact distinction that Justice Kagan draws; in other words, 1441(c) talks about claims. 1441(a) talks about a civil action, the single unitary civil action that starts when a plaintiff files a complaint.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, but it... it... 1446(b), which is setting forth the procedures for removal, it refers to the notice of removal of a civil action or proceeding.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yes, Your Honor.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well... so it <w>does</w><w>n't</w> have to just be a civil action, does it?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Well...</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> However you want to conceptualize it, it seems to me that you might conceptualize it as including what would otherwise be a freestanding proceeding, such as the one that... where B sued C, but then it also talks about a proceeding. And even if you <w>do</w><w>n't</w> think <w>that</w><w>'s</w> a civil action properly conceived, <w>it</w><w>'s</w> certainly a proceeding of some kind, <w>is</w><w>n't</w> it?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Well, I... I <w>do</w><w>n't</w> think <w>it</w><w>'s</w> a... a proceeding is not an action over which you'd have original jurisdiction under 1441(a), and as I understand the relationship between 1441(a) and 1446, Your Honor, 1441(a) is... is the part of the removal statutes that says here are the types of... here... here are cases over which <w>there</w><w>'s</w> removal jurisdiction. And then 1446 are the procedures that go through... you have to have... everyone has to agree and you have to do it within so many days and this sort of thing.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, do you think those procedures apply to 1441(a)?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> They... they do apply to 1441(a) except where they've been amended by CAFA, but 1441(a) is where the grant of original jurisdiction... or where the grant of jurisdiction comes from. And this Court has repeatedly said that if there is not original jurisdiction over the claims in the... excuse me, over the plaintiff's complaint, if <w>there</w><w>'s</w> not original jurisdiction over the plaintiff's complaint, that you <w>do</w><w>n't</w>... you <w>do</w><w>n't</w> meet the standard... you <w>do</w><w>n't</w> meet... you <w>do</w><w>n't</w> qualify for removal. So that was... that goes back to the Planters' Bank case, the Union-Planters' Bank case in 1894. It was a central case that sets this out. Then it was applied the next year in a diversity case, the Mexican National... National Railroad case. My friend has said that... that the original jurisdiction rule <w>does</w><w>n't</w> apply in diversity cases. That's wrong. It was applied in a diversity case right after it was first enunciated by this Court. And the original jurisdiction rule of 1441(a) is where all... all of the district courts, starting in the 1950s, that were looking at Shamrock Oil and then said, yes, the same rule that applies in Shamrock Oil also applies to third-party defendants, counterclaimants, cross-claimants, what... what have you, that it <w>does</w><w>n't</w> turn upon the nature of whatever state or federal rule, procedural rule, is bringing someone in; that the substantive question of is there jurisdiction goes back to the original jurisdiction test. And <w>that</w><w>'s</w> why the 1441(a) distinction between 1441(a) and 1441(c), which relies upon a claim, is so important. There are other statutes that create federal jurisdiction over claims. For example, the bankruptcy code. My friend would have a terrific argument and we would be in terrible shape if we were arguing a bankruptcy case. But because we are arguing under four... because the jurisdictional test here is 1441(a), which has always turned on can you find jurisdiction in the plaintiff's complaint, <w>it</w><w>'s</w> really a different animal.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> But what <w>you</w><w>'re</w> arguing is not based on the language, not based on the term "original jurisdiction" in 1441. It's based on the well-pleaded complaint rule. Am I right on that?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Actually, Your Honor, I <w>do</w><w>n't</w> think you are right. And can I try and explain? I think this is sort of complicated because I think the Court has sometimes used these words to mean the same things and they really <w>do</w><w>n't</w>. So the... the original jurisdiction rule for 1441(a), as I... what it says is that you look to see whether there is jurisdiction from the plaintiff's complaint.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yeah. That's the...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> But... but... but... I'm sorry. I <w>did</w><w>n't</w> mean...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> No, go ahead.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Okay. So the well-pleaded complaint rule, by contrast, comes from 1331, which is the substantive juris... the federal question jurisdiction statute, and <w>it</w><w>'s</w> a way of finding out is there original jurisdiction. So you only look at the complaint. But the well-completed complaint rule <w>does</w><w>n't</w>...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yeah, but <w>you</w><w>'re</w> saying... <w>you</w><w>'re</w>... <w>you</w><w>'re</w>... there would be original jurisdiction if this claim were in the case at the beginning. You would agree with that. So <w>you</w><w>'re</w> saying <w>it</w><w>'s</w> original jurisdiction at the beginning, right? That's what...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yeah, <w>that</w><w>'s</w> right.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> So <w>you</w><w>'re</w> reading that into the text, and you make...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, original is at the beginning, <w>is</w><w>n't</w> it?</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> No. Well, original...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> It's jurisdiction at the beginning from the original complaint.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> I... I totally agree with you.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> You agree with Justice...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yes. We agree, absolutely.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... with Justice Kagan's answer to my question?</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> There... there... I <w>do</w><w>n't</w>... I... I feel like I'm making a TV commercial, but <w>there</w><w>'s</w> only one original. You know, <w>there</w><w>'s</w> the original complaint. There's the original civil action. And then... then there are claims within it. So...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, this is... this is... this case is very, very complicated. And <w>let</w><w>'s</w> go... <w>let</w><w>'s</w> go back step by step. Put aside this question of original jurisdiction. If we look at the text, we have a reference to the defendant or the defendants. So Home Depot would qualify there, would it not?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> No, because, in... in the context of 1441(a), defendant is, in that setting, is a defendant in a civil action where there is original jurisdiction.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Okay. You're reading things into it. But, in the ordinary sense of the term, are they... are they not defendants?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> They're... <w>they</w><w>'re</w>...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> They are some kind of defendants.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> There... there are lots of colloquial ways in which they would be termed a defendant. But, within the meaning of 1441(a), every court <w>that</w><w>'s</w> looked at...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yeah. Okay. And where does this come from? All right? So we start out with a term <w>that</w><w>'s</w> big enough to encompass them. Now we have the limitation. Where does this limitation come from? It comes from Shamrock Oil, does it not? That's the... the origin of it.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Shamrock Oil was the first case to look at a counterclaim defendant from this Court, yes.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Right. And so Shamrock Oil basically says, look, you... you started out as the plaintiff, and you chose the state forum. And now that you have been sued with a counterclaim, you <w>can</w><w>'t</w>... you know, you... you chose the state court and <w>you</w><w>'re</w> stuck in state court, so you <w>can</w><w>'t</w> remove it to federal court. I... I <w>do</w><w>n't</w> see that Shamrock Oil goes any further than that.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Well, first, I want to... Shamrock Oil is... is ultimately looking at... at the text. There is language in Shamrock Oil where they said this is not about waiver. What this is about is what did Congress provide to you. And so that that key... <w>there</w><w>'s</w> key language in Shamrock that says <w>it</w><w>'s</w> not about waiver, but <w>it</w><w>'s</w> about what did Congress provide to you. And so then the question is Shamrock... Shamrock... in Shamrock, you <w>did</w><w>n't</w> have an original jurisdiction issue because Shamrock chose to sue in state court, but they could have sued in federal court. This case is different.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Right. They chose state court.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Citibank could never have brought this case in federal court. So there was never original jurisdiction here where there was original jurisdiction in Shamrock. So Shamrock <w>did</w><w>n't</w> talk about our argument.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yeah, but Citibank is gone. And, you know, Citibank brought a little case on credit card debt in state court. And then suddenly this thing gets transmogrified into a class action that you say, well, this one has to stay in state court despite CAFA. If it had been brought originally in this forum, it would be removable under CAFA. That's what Congress wanted. And somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA. And <w>there</w><w>'s</w> a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so that we can keep these things in state court. Is that not correct?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> There... there... there are a number of premises, Your Honor, with which I strongly disagree. So, first of all, CAFA <w>does</w><w>n't</w> change what 1441(a) says. Four... CAFA is in the... in the... in the Senate report, which this Court treated as being... having precedential value in the Dart Cherokee case. The... the... the... the... the Senate report said that CAFA was intended, the... the Section 1453, which Justice Breyer was quoting from earlier, was intended to make some alterations to but is... but is essentially adopting 1440(a). The idea of having counterclaims defendants has been around forever. The idea that there has been some jump in class action counterclaims simply is not empirically true. There was a law review article by an advocate. It's not really a law review article and a peer-reviewed article. I think <w>it</w><w>'s</w> more like a blog. But, anyhow, a guy writes an article saying...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Since when are law review...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> ... we're worried this is going to be a lot of our problem.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Since when are law review articles peer reviewed?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> You know, <w>that</w><w>'s</w> a good point.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Who are they... who are they reviewed by?</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> You're totally right. I... I'm so sorry. I... I should never have said that, <w>you</w><w>'re</w> right.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> They should be... maybe they should be peer reviewed.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Law review articles are student reviewed, <w>they</w><w>'re</w> not peer reviewed. I... I... I withdraw. That was...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I'm fine on law review articles.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But I have a question. I think they have very good policy arguments on the other side. I understand it. I <w>do</w><w>n't</w> think Shamrock really covers it. So I might, at least for purposes of argument, assume they are a defendant under and, if they were alone, they could just remove the case. And when they remove it and get into district court, if they get it into district court, Rule 23 applies. I have no problem with that, for a hypothetical, for this question. Where I got stuck, which you will get me out of...</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... is that I think they <w>can</w><w>'t</w> get into federal court without 1453 because not all defendants agree with them, or there are a variety of reasons they need 1453. Is that right?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> So I... I... I agree that they cannot get in...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, I'm just saying, is that right?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> It is.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Okay. Now, if they need 1453, I go to 1453 and I look who can... who can take advantage of 1453, and it talks about a class action. Now they could surely do it if we <w>did</w><w>n't</w>... if we just stop there. But then it says class action shall have the meanings given to that term under 1332(d)(1). This is just language. It's just language, no policy, no nothing. So I turn to 1332(d)(1), right, and what do I discover when I get there in the first words? What it says is class action, the very word I just left, the very word that referred me here, means any civil action filed under Rule 23. So I look. Was this a civil action filed under Rule 23? Now I'm over with Justice Kagan. A civil action is an action brought by a plaintiff. And <w>that</w><w>'s</w> just what it happens to be. It <w>does</w><w>n't</w> have to do with claims. And, therefore, since this <w>is</w><w>n't</w> a civil action filed... only filed, not what governs it if <w>they</w><w>'re</w> in federal court... filed under Rule 23, it <w>can</w><w>'t</w>... they <w>can</w><w>'t</w> take advantage of because they <w>do</w><w>n't</w> fit within the definition. Now am I right?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> You're right about that, yes.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> If I'm right about that, why <w>did</w><w>n't</w> you make that argument?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Because 1453 is essentially... 1453 amends and changes essentially some of the provisions of 1446 that the Chief Justice was talking about. Essentially, they track each other. sets out the rules for removal, and then there were several rules around CAFA where... where the... where Congress was concerned that there were abuses, that cases were being... were being kept in state court that should be in federal court, so just for class actions, 1453 changes some of the procedural rules. So you no longer require unanimity in all the defendants. You can have a defendant <w>who</w><w>'s</w> not... a defendant in a home state can go forth. But 1453 is not by itself a grant of federal jurisdiction the way 1440(a) is.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Nobody says it is. All I'm saying is, do they need 1453 to be able to remove?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> For... for CAFA, yes, they do.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Okay.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> And they... and they...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And I look to who does it cover, and it covers a class action as defined in a different statute. I <w>do</w><w>n't</w> care if they said class action defined in the antitrust law. Then I'd go look and see how they define it in the antitrust law or defined in, I <w>do</w><w>n't</w> care what, I mean, defined in the criminal code. But I want to... they referred me to that, so I went and looked at that. And when I looked at that, I saw class action is defined as I just said. Okay. So my question is, same question, great argument for you. Why <w>did</w><w>n't</w> you make it? And so <w>there</w><w>'s</w> something wrong with my thinking, and <w>that</w><w>'s</w> what I'm trying to find out.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Well, I think... I think that we were focusing on... on 1440(a) as the grant of removal jurisdiction, 1446 as the procedures, and 1453 not as a new grant of removal jurisdiction but just more procedures. And so, to the extent that <w>there</w><w>'s</w> just no original jurisdiction over a civil action under 1440(a), we think <w>that</w><w>'s</w> the end of it. So <w>that</w><w>'s</w> where we have focused the vast majority of our advocacy. I think that the point you make about is... is extremely clever and wish we had... had... had articulated it more better.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> But I think that...</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>was</w><w>n't</w> trying to help you. I'm not there right beside you.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> But I do think that 1440(a) is... is where... where this case starts and ends. The original jurisdiction cases going back to the 1890s really govern. I want to point out for a second now, since <w>there</w><w>'s</w> been a lot of discussion about this difference between a civil action and a claim, and also this word "defendant" if <w>it</w><w>'s</w> defendant now is not just the original defendant, but a defendant's cross-claim or counterclaim or whatever different rule you want to use, 13, 14, 19, or... or something like that, that <w>it</w><w>'s</w> going to have a gigantic effect not on class actions but on all sorts of individual cases. And here's why: So picture just a regular state law negligence case where a defendant's a resident of the same state as the plaintiff, and the defendant would really like to be in federal court. They'd like their first bite at the apple, right? And they have an out-of-state insurer. Right now, if that defendant brings a claim against the out-of-state insurer, no... no diversity jurisdiction, even if <w>it</w><w>'s</w> over the jurisdictional amount, because you <w>do</w><w>n't</w> have complete diversity; you have the defendant and the plaintiff's same. Under their rule, now what you do is you look at the claim by claim, instead of by the original civil action, going back to the word "original." So, if you now start looking at things claim by claim, there is diversity between the two defendants. So every single time you have a personal injury case in which <w>there</w><w>'s</w> a defendant who wants to be out of federal court and they have an out-of-state insurer, so basically any company <w>who</w><w>'s</w> not in Connecticut will be able to now name their insurance company through some sort of third-party claim, and now why <w>is</w><w>n't</w> there diversity jurisdiction? The simple answer is there is. Another thing that their idea is of... of broadening the idea of... definition of... of what is a defendant from the... you know, from the rule that has been affirmed by literally dozens and dozens of district courts and circuit courts around the country for years, and you'd go from 1440(a)'s limit on civil action to instead have a... a rule <w>that</w><w>'s</w> going to turn upon claims, is you can start having a lot of business-to-business disputes that right now would be in state court that could get into federal court. So, for example, there are a lot of cases in which corporations would rather have their cases, with all respect to the federal courts, in Delaware state courts, where <w>there</w><w>'s</w> a lot of sophistication, a lot of rules that have been built up. There are a lot of Silicon Valley companies who are more interested in being in... in San Jose... in the state courts of California, where <w>there</w><w>'s</w> a lot of sophistication around their particular issues <w>that</w><w>'s</w> built up. So what happens if <w>you</w><w>'re</w> a defendant in one of these cases and you suddenly decide, you know, I really wish I <w>had</w><w>n't</w> made this deal because the law <w>that</w><w>'s</w> built up is bad for me, you find another company, bring a cross-claim against them. Now their... under their theory, whether or not <w>there</w><w>'s</w> diversity is based upon a claim-by-claim basis. You look at them and say, oh, we're going to bring a cross-claim against them. They're a defendant because, even though under all the law <w>that</w><w>'s</w> existed up to now, we're now going to change this and the defendant's not just going to be the defendant to the original claim; <w>they</w><w>'re</w> going to be a cross-claim, counterclaim, whatever. In those cases, a company is going to be able to change its mind and bring those cases in...</u> | |
| <u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I have... I have...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, perhaps <w>it</w><w>'s</w> not possible to decide this case in a way that <w>does</w><w>n't</w> go as... <w>does</w><w>n't</w> effectively decide all these other different situations that <w>you</w><w>'ve</w>... <w>you</w><w>'ve</w> posited, but if we look just at what happened here... and this... and this involves not... I mean, this implicates not just the original removal statute but CAFA, is there any good reason why a claim like this, if you accept CAFA, why this should be... should not be removable to... to federal court?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yes, Your Honor, because CAFA is a balancing act. CAFA is... if CAFA was a preemption statute, it would not be a field preemption, it would be an express preemption. Congress saw certain problems that they were unhappy about and they solved those problems.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> When you think CAFA said, well, if... if a claim like this is filed originally in federal... in state court, it can be removed, but if it comes into the state court in this strange sort of back-door way, then it has to stay in state court. You really think that <w>that</w><w>'s</w> a possible decision Congress would make?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> So, first of all, I... I do think <w>it</w><w>'s</w> possible because, as Justice Sotomayor said earlier, I think that you assume that Congress knows the backdrop against which <w>it</w><w>'s</w>... <w>it</w><w>'s</w> legislating. They have a bunch of lawyers when <w>they</w><w>'re</w> writing these laws. Congress had repeatedly changed the... the jurisdiction statute. So, in 2011, there was the amendment to overturn this Court's decision in the Holmes versus Vornado case, where the Congress said any party can remove a case, not a defendant, in the... the America Invents Act. The America Invents Act is...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, I mean, <w>that</w><w>'s</w>... I mean, <w>that</w><w>'s</w> based on the...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Congress could have done it.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... the idea that they... they... they were aware of these district court cases. They're... <w>they</w><w>'re</w> almost all district court cases.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> That's... <w>that</w><w>'s</w> correct.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> And they said, well, okay, we... we want to accept that.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Right.</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I mean, <w>that</w><w>'s</w>...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> I mean, <w>it</w><w>'s</w> quite possible that Congress never thought of this because it just <w>was</w><w>n't</w> really a very big problem and it <w>was</w><w>n't</w> one of the issues that came up in the hearings. I... I sort of tracked the hearings at the time. I <w>do</w><w>n't</w> remember anyone talking about it. I mean, this Court has said on a number of occasions that even if you think that there is something that if Congress had thought about they would have done something, you <w>can</w><w>'t</w> engraft a solution into what Congress said to... to address the problem. I mean, I think <w>it</w><w>'s</w> possible that...</u> | |
| <u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Is Home Depot... I'm sorry. Is Home Depot a defendant under 15 1453?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> No, Your Honor, because...</u> | |
| <u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And what... what is it then?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> It's... <w>it</w><w>'s</w> a... <w>it</w><w>'s</w> a counterclaim or third-... third-party claim defendant. And <w>that</w><w>'s</w> just different than a defendant for... for...</u> | |
| <u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> So, when it says any defendant, that <w>does</w><w>n't</w> include...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Right, because...</u> | |
| <u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... that kind of defendant?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Right, because the word "defendant" in the removal statutes has this... has this fixed meaning from 1440(a). And putting the word "any" in front of it <w>does</w><w>n't</w> change. So if you had... if Congress had a statute that said... or a statute about rabbits, and then they amended it and said "any rabbit," that <w>does</w><w>n't</w> mean that a weasel or a gerbil becomes a rabbit. You know, <w>it</w><w>'s</w> still... the word "any" in front of a noun leaves the noun as what it is. So...</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, but that still means that a brown rabbit is a rabbit. In other words, when you were describing what they were, you said a counterclaim defendant or a third-party defendant, <w>it</w><w>'s</w> a type of defendant. And if you have a statute that says "any defendant," it would seem that it includes those as well.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> It's a type of defendant in a colloquial way, Your Honor, but I <w>do</w><w>n't</w>... I disagree with the concept that <w>it</w><w>'s</w> a type of defendant for purposes of the removal statutes. I think for...</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Where do people speak colloquially of third-party defendants?</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yeah.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Which was not necessarily meant that way. I mean, <w>it</w><w>'s</w>... <w>it</w><w>'s</w>... <w>it</w><w>'s</w> only used as a fairly technical term.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Right. And... and... and... and in the removal statutes, the word "defendant" has... has this meaning where <w>it</w><w>'s</w>... <w>it</w><w>'s</w> not by itself, but it is cabined by civil action on one side and original jurisdiction on the other side, which this Court has... has repeatedly interpreted to say that... that third-party counterclaimants and so forth in all other settings are not included. So the only question is, does CAFA change anything by sticking the word "any" in front of it? And... but the thing is we know what Congress was trying to do in that sentence. What Congress was trying to do was there was a concern that plaintiffs' lawyers were supposedly going out and suing several defendants and they would pick one who was sort of their buddy who was not going to agree to removal, and so then that one said, well, no, you <w>would</w><w>n't</w> be able to get unanimous agreement from all the defendants to remove. And so <w>that</w><w>'s</w> what that provision was aimed at, was the unanimous consent, that everyone was supposed to agree. And the Senate report says that clear as day. And if you read the whole sentence in context, what the word "any" there means is each and every. It means each and every. And <w>they</w><w>'re</w> saying each and every defendant separately has the right to remove this case to federal court.</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But it... that does say... I mean, you know, you heard his policy argument. It's a little hard to see why if you understand it, and he does use... the rules use the word "defendant" to refer to his client in this situation. The statutes use it. It has some other qualifications in front of it. So policy, language is possible, why <w>is</w><w>n't</w> he right? And I grant you that I've only been able to say that once I got into this. I had to get through the argument, but I <w>do</w><w>n't</w> know the answer to that. All right. So why <w>is</w><w>n't</w> he on the policy end, on the...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> On the policy?</u> | |
| <u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> On the policy and on the brown rabbit analogy.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Okay. CAFA was a compromise. You know, there... the Chamber of Commerce brief colorfully calls it a grinding eight-year battle. There were a series of changes that were made over it. There were times in which it was going to cover more than it ended up covering. It shrunk somewhat. There were a lot of people who wanted more cases to stay in court. The... the Senate report actually, they have one of those things, you know, where they say like <w>there</w><w>'s</w> like this sort of list, like five myths where they say things that people... or bad things people say about CAFA but <w>are</w><w>n't</w> true. One of them was, well, some people say <w>it</w><w>'s</w> going to federalize all class actions. Actually, we expect that more than percent of class actions will remain in state court after CAFA. It was never intended to federalize all class actions. Judge Easterbrook of the Seventh Circuit in the First... excuse me, the... the First Bank case, said, look, if Congress had wanted to say we want to federalize all large multi-state class actions, they could have said that. They could have written the equivalent of a field preemption. But instead of treating this as something where they were trying to federalize all class actions, they <w>did</w><w>n't</w> throw a hand grenade. They were shooting rifle shots at particular abuses that they saw. And you can see it when you look at how 1453 tracks 1446. There are certain things that Congress was upset about and they were trying to fix those things. And they <w>were</w><w>n't</w> trying to... they <w>were</w><w>n't</w> trying to federalize everything else. There are a lot of reasons why you <w>do</w><w>n't</w> want every single class action in federal court. I mean, this case, for example, is a case involving 286 people, 90 percent of whom live in North Carolina, who have claims entirely under North Carolina law against a North Carolina defendant and Home Depot. So, I mean, this is not the kind of case... this case, even if... <w>there</w><w>'s</w> a way in which this entire argument in some ways, Your Honors, is a... is... is... is a... while incredibly complicated for me at least, is a... is an abstraction in the sense that this case is going to end up in state court under the... under the... the home state removal... the local... the local removal section anyhow of CAFA. CAFA has an exception that we... that we put forward in our brief. This is a local controversy if you ever heard of one. But CAFA was not attempting to... to... to nationalize everything. If they had, they would have gone in a different way. There are a lot of decisions Congress has made here. When they've wanted to say "claims," they've said, in the bankruptcy code in 1441, claims. When they wanted to say "civil action," they meant something else. If they'd wanted to federalize everything, they would have federalized everything. They <w>did</w><w>n't</w> want to here. If they had wanted to say third-party counterclaimants, they would have done exactly what they did in the America Invents Act where, when they <w>did</w><w>n't</w> like one of this Court's decisions that admittedly was under the well-pleaded complaint rule, but in Footnote 2, this Court cited the exact same language that we were talking about under the original jurisdiction statute. And so <w>it</w><w>'s</w> clear that <w>it</w><w>'s</w> a removal rule. It's not... <w>it</w><w>'s</w> not... <w>it</w><w>'s</w> not a subject matter jurisdiction rule. It's a removal rule. And the same... the same rule has been applied in a bunch of diversity cases. Congress made that decision in that statute and they <w>did</w><w>n't</w> make that decision here. This is an issue where, if Congress is unhappy about this, they sure know how to fix it. They've done... they've done the exact same thing in the America Invents Act. The bankruptcy code is written differently. They knew how to say party instead of defendant. They know how to say claim instead of civil action. The... the... the... the... the... the statutes here, you know, it may well be that if Congress had thought about this in CAFA, they just said, well, we <w>do</w><w>n't</w> really like that, they would have done something differently. But you <w>can</w><w>'t</w> rewrite the statute for them on the grounds that they <w>did</w><w>n't</w>...</u> | |
| <u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, they could have been... they surely... they could have been more specific in a way that favors Home Depot. They also could have been more specific in a way that favors you, right? It's pretty hard to argue that when they said any defendants, they said we're going to say any defendants because we <w>do</w><w>n't</w> want to include the kind of defendant that Home Depot is.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Well, <w>it</w><w>'s</w> in a sentence where, if you look at the sentence as a whole... if you look at the sentence as a whole, it says "class action may be removed in accordance with Section 1446 without regard to whether any defendant is a citizen of the state in which the action was brought, except that such action may be removed by any defendant without the consent of all defendants." When they used the word "any" there, they mean each and every. What they are trying to do is solve the problem I was just talking about a second ago about where you have unanimous... where you... the unanimous requirement that everyone has to agree to remove. It's... <w>it</w><w>'s</w> absolutely crystal-clear what they meant and they... and they said in the Senate report what they meant. And so to take that word and say that now <w>it</w><w>'s</w> going to change the nature of a defendant so that Section 1440(a) is now going to mean something different for class actions than it means everywhere else, <w>that</w><w>'s</w> really a problem.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Why <w>is</w><w>n't</w>... okay, each and every. Why <w>does</w><w>n't</w> it mean each and every defendant in the civil action, in the proceeding?</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Because what... what their... what the point of what <w>they</w><w>'re</w> saying is <w>they</w><w>'re</w> saying each and every defendant has a separate right to decide that they want to remove the case to federal court, that you <w>do</w><w>n't</w> have to have unanimity. And the Congress said the point of what we're aiming at here in the... in the Senate report was to avoid unanimity.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, it still works with respect to Home Depot.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> I... I... with respect, Your Honor, it... <w>it</w><w>'s</w>... it is a... a... a... a procedural change... it... that... that... that... that tracks part of 1446 and says this <w>does</w><w>n't</w> apply here. But it is not changing who has the right, the power, to remove under 1440(a), where the word "defendant" has a different meaning. The word "defendant" there talks about original jurisdiction. And Home Depot certainly does not have original jurisdiction here under this... under the... under the whole line of cases both from this Court and then the ton of district court cases that came afterwards applying it to third-party counterclaim defendants.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Is what <w>you</w><w>'re</w> saying, Mr. Bland, that 1446 changes a number of the procedures by which you can remove? It does not, it never before...</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> 1453 is the CAFA one.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> 1453.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> 1453 changes 1446.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Right.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Sorry, but otherwise <w>you</w><w>'re</w>...</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Exactly right.</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Sorry.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I'm confusing things in an effort to make them more clear.</u> | |
| <u loc="[LAUGHTER]">[LAUGHTER]</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> That's my life.</u> | |
| <u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So 1453 changes a number of the procedures in 1446 so that there are different procedures in CAFA suits as to removal. does not... does not purport to and simply does not affect the grant of removal jurisdiction. The grant of removal jurisdiction can only be found in one place, and <w>that</w><w>'s</w> in 1441(a).</u> | |
| <u loc="MR. BLAND"><w>[MR. BLAND]</w> Yes, exactly, Your Honor. And so, if there are no further questions, that is... <w>that</w><w>'s</w> exactly right, and if Congress wanted to change it, they could have. Thank you so much, Your Honors.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Five minutes, Mr. Barnette.</u> | |
| </p> | |
| <p id="REBUTTAL ARGUMENT OF WILLIAM P. BARNETTE ON BEHALF OF THE PETITIONER"> | |
| <u loc="MR. BARNETTE"><w>[MR. BARNETTE]</w> Thank you, Mr. Chief Justice. A couple quick points, Your Honors. The compromises that were done in CAFA were on things like is the amount in controversy going to be $1 million or $10 million and they set it on $5 million. There are no compromises on these qualifying $5 million plus minimal diversity class actions. Those are all capable of being removed under CAFA. On Justice Kagan's original jurisdiction question, just to be clear, original jurisdiction does not mean the case as originally filed. 1446(b) and 1332(d)(7) in CAFA both recognize a case can start out not within the original jurisdiction, not removable, can become removable subsequently and within the original jurisdiction, and <w>that</w><w>'s</w> exactly what happened here. We had a qualifying class action filed under CAFA that allows for removal. On Justice Kavanaugh's question, of course, we're a defendant. I mean, they want $5 million plus... $5 million plus from us. I... I <w>do</w><w>n't</w> know what else you would call us. We're a defendant. In conclusion, Your Honors, Home Depot is simply and solely a defendant. Shamrock Oil's holdings should not be extended to parties like Home Depot that are solely defendants. Home Depot is within the plain language of 1441(a), is entitled to remove this case under CAFA. The Fourth Circu<w>it</w><w>'s</w> judgment should be reversed. Thank you.</u> | |
| <u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u> | |
| </p> | |
| </text> |