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The statute creating removal jurisdiction allows a "Defendant" to remove a claim to federal court. But what about an intervenor who later has claims asserted against it? Isn't that kind of like being a defendant?
Maybe, but that's not good enough. The Fifth Circuit released In re Crystal Power Company, Ltd. on Monday March 21st, granting mandamus relief to address the district court's refusal to grant a motion to remand such a case. Judge Higginbotham wrote the court's opinion.
The court found the intervenor's status indistinguishable from that of a state court plaintiff who later tries to remove federal counterclaims -- a procedural posture that the Supreme Court refused to allow 70 years ago in Shamrock Oil & Gas Corp. v. Sheets. Judge Higginbotham wrote:
Although this case involves a cross-claim rather than a counter-claim, the answer is the same. The controlling legal principle from Shamrock is that “the plaintiff, having submitted himself to the jurisdiction of the state court, [is] not entitled to avail himself of a right of removal conferred only on a defendant who has not submitted himself to the jurisdiction.” If the [intervenor] wished for a federal forum, it was required to pursue a separate action in federal court. Having chosen to intervene as a plaintiff in state court, the firm forfeited its right to removal.
Congress meant what it said and said what it meant. "Defendant" means Defendant, one hundred percent.
© 2012 Andrews Kurth LLPAbout the Author
