Arnold Crossroads, L.L.C. v. Gander Mountain Company

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-2020

___________________________

Arnold Crossroads, L.L.C.

lllllllllllllllllllll Plaintiff - Appellee

City of Arnold, Missouri

lllllllllllllllllllllInterpleader plaintiff - Appellee

v.

Gander Mountain Company

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

____________

Submitted: January 14, 2014

Filed: June 2, 2014

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Before LOKEN, MURPHY, and SMITH, Circuit Judges.

____________

MURPHY, Circuit Judge.

Arnold Crossroads, LLC brought this action against Gander Mountain

Company (Gander) in Missouri state court alleging breach of a commercial lease.

Since then Gander has initiated removal of the case to the United States District Court

for the Eastern District of Missouri on three occasions. Each time the federal district

court has remanded to the state court. Now before us is Gander's appeal from the

order of the district court1 remanding the misrepresentation claim of intervenor the

City of Arnold which Gander removed on the eve of trial in state court. We dismiss

the appeal for lack of jurisdiction.

I.

Arnold Crossroads operates a commercial real estate business, and in 2005 it

entered into a redevelopment agreement with the City of Arnold under a tax increment

financing plan. In January 2008 Arnold Crossroads negotiated a 15 year lease with

Gander for it to operate a store in a shopping center within the redevelopment area at

a site formerly occupied by a K-Mart. Gander planned at that time to open a retail

store there featuring outdoor equipment and gear.

Under the terms of Gander's lease with Arnold Crossroads it had a right to

terminate, but the parties dispute the last date on which Gander would have been able

to take that action. After Gander attempted to terminate the lease in January 2009,

Arnold Crossroads sued on February 24 in the Circuit Court of Jefferson County,

Missouri for breach of their lease. Arnold Crossroads' state complaint sought

approximately $40,000 for one month of unpaid rent.

Gander, a citizen of Minnesota, attempted to remove the case to federal court

on the basis of diversity. Arnold Crossroads, a citizen of Missouri, objected that the

1

The Honorable Henry E. Autrey, United States District Judge for the Eastern

District of Missouri.

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amount in controversy was too low for federal jurisdiction, and the district court

agreed since 28 U.S.C. 1332(a) requires at least $75,000 to be in controversy. United

States District Judge Henry Edward Autrey remanded the action to state court for lack

of subject matter jurisdiction on January 12, 2010.

Seventeen days after the remand order, Gander filed a new action against

Arnold Crossroads in the federal district court. In it, Gander sought a declaratory

judgment that it had validly terminated its lease with Arnold Crossroads and that it

had no remaining obligations under it. On March 23, 2010, United States District

Judge Donald J. Stohr dismissed the case on abstention grounds to avoid interference

with the pending state case between the parties. Gander Mountain Co. v. Arnold

Crossroads, L.L.C., 2010 WL 1170014, *3 (E.D. Mo. Mar. 23, 2010).

In October 2010 Arnold Crossroads amended its state complaint to include

damages for unpaid rent over the entire 15 year term of its lease with Gander, claiming

several million dollars. Gander once more attempted to remove the case to the federal

district court in November 2010, and Judge Autrey again remanded it to state court,

ruling that Gander's removal attempt was untimely under 28 U.S.C. § 1446 since it

was seeking to remove an action which had originally been initiated by Arnold

Crossroads in February 2009. Section 1446 provided at the time that "a case may not

be removed on the basis of jurisdiction conferred by section 1332 of this title more

than 1 year after commencement of the action."2

2

28 U.S.C. § 1446 was subsequently amended to bar removal of a case after it

has been pending for 1 year "unless the district court finds that the plaintiff has acted

in bad faith in order to prevent a defendant from removing the action." This

amendment was not in effect at the time of the district court's ruling.

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Subsequently on October 7, 2011, the City of Arnold moved under Missouri

Supreme Court Rule 52.12(b)3 to intervene in the state case which Arnold Crossroads

had brought against Gander. The City's motion to intervene alleged that "the City of

Arnold has been harmed by the misrepresentations of Defendant in connection with

the same conduct set forth by Arnold Crossroads, L.L.C." The City alleged that

Gander had falsely represented that it would occupy the Arnold Crossroads shopping

center property and that the City had been harmed by expending funds for

transportation infrastructure in the development district in reliance on Gander's

misrepresentations. The state court granted the City's intervention motion on

November 4, 2011. Pretrial discovery continued, and the City served discovery

responses in February 2012 indicating that it was seeking $750,000 in damages from

Gander.

In March 2012, at a point when trial in the state court was scheduled to begin

in ten days, Gander filed its third notice of removal in the federal district court.

Gander alleged that the complaint submitted by the City with its motion to intervene

in the dispute with Arnold Crossroads had initiated a separate and independent civil

action removable under 28 U.S.C. § 1441(a). Gander's notice of removal named only

one other party in the state case it sought to remove, that being the City of Arnold.

According to Gander, Arnold Crossroads lacked standing because it was not a party

in the matter to be removed. The imminent state court trial was postponed, and both

the City and Arnold Crossroads filed motions in the federal district court seeking

remand to the state court.

The federal district court granted the two motions for remand, citing its own

prior remand orders and stating that 28 U.S.C. § 1441(a) allows only entire cases to

be removed to federal court. Gander again opposes remand, contending that we have

3

Rule 52.12(b) provides for permissive intervention when an intervening party's

claim "and the main action have a question of law or fact in common."

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jurisdiction to review the remand order and that the federal district court erred in its

interpretation of § 1441(a). The City and Arnold Crossroads seek to dismiss Gander's

appeal for lack of jurisdiction, arguing that review of the district court's order is barred

by 28 U.S.C. § 1447(d) and also adopting the court's conclusion that § 1441(a) allows

removal only of entire cases, not of individual claims.

II.

Section 1441(a) provides that "any civil action brought in a State court of which

the district courts of the United States have original jurisdiction, may be removed by

the defendant" to federal district court. 28 U.S.C. § 1441(a). Gander argues that the

district court erred when it concluded that the City's intervention in its dispute with

Arnold Crossroads was not a separate "civil action" within the meaning of § 1441(a).

According to Gander, the federal district court had subject matter jurisdiction over the

City's misrepresentation claim because the parties were citizens of different states and

the alleged damages satisfied the amount in controversy requirement under 28 U.S.C.

§ 1332(a); the district court therefore erred by remanding the City's claim to state

court.

Our first consideration on review is whether we have appellate jurisdiction over

Gander's appeal of the district court's remand order. With the exception of review of

certain civil rights cases not applicable here, an order remanding a case to the state

court from which it has been removed "is not reviewable on appeal or otherwise." 28

U.S.C. § 1447(d). The meaning of § 1447(d) has been narrowed by the Supreme

Court, which has made it explicit that "only remands based on grounds specified in

§ 1447(c) are immune to review under § 1447(d)." Things Remembered, Inc. v.

Petrarca, 516 U.S. 124, 127 (1995). The grounds specified in § 1447(c) provide that:

[a] motion to remand the case on the basis of any defect other than lack

of subject matter jurisdiction must be made within 30 days after the

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filing of the notice of removal under section 1446(a). If at any time

before final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c).

By including § 1447(d) in the judicial code, Congress attempted to "expedite

the process of choosing a forum for litigation" in order to avoid lengthy proceedings

over removal issues. Adkins v. Illinois Cent. R. Co., 326 F.3d 828, 832 (7th Cir.

2003). Congress has decided that in the ordinary case the federal district court should

have the final word on removal since "at some point litigation over the choice of a

courtroom must end." Id. This congressional judgment makes perfect sense for "[t]he

only thing that is at stake is the forum that will hear a claim," and this issue is "not so

fundamental that a second or third layer of judges must test its correctness." Id.

Our court has recognized that appellate jurisdiction is lacking over remand

orders which are "based on a procedural defect or lack of subject matter jurisdiction."

Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir. 2006).

This jurisdictional bar applies to all § 1447(c) remand orders, even those that may

have been erroneously decided. Roberts v. BJC Health System, 452 F.3d 737, 739

(8th Cir. 2006). In contrast, we do have appellate jurisdiction over remand orders not

based on procedural defects or the lack of subject matter jurisdiction. Notable

examples of such appellate jurisdiction have been discussed by the Supreme Court in

Quakenbush v. Allstate Insurance Co., 517 U.S. 706, 711–712 (1996) (jurisdiction to

review a remand order after a decision to abstain), and Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 344, 351–52 (1996) (jurisdiction to review remand

based on a federal court's crowded docket). In contrast, we recognized that

jurisdiction was lacking because Article III standing had not been shown in Roberts,

452 F.3d at 738–39, and that subject matter jurisdiction was lacking over state law

claims that were not completely preempted in Carlson, 445 F.3d at 1050, 1054.

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In such cases, "[w]e are required to determine by independent review the actual

grounds for the district court's remand order." Vincent v. Dakota, Minnesota, &

Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir. 2000). This requires the reviewing

appellate court to make its own assessment of the actual basis for the remand since a

district court's own citation of § 1447(c) is not dispositive of the question, even though

it remains "influential to our analysis." Lindsey v. Dillard's, Inc., 306 F.3d 596, 598

(8th Cir. 2002). On examining whether we have jurisdiction to review a remand order

under § 1447(c), "the scope of our review is limited to verifying that the actual basis

for remand was lack of subject matter jurisdiction." Carlson, 445 F.3d at 1051.

III.

At the outset of its analysis in this case, the district court cited the § 1447(c)

requirement that cases be remanded if "at any time before final judgment it appears

that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). The

court then went on to interpret the "civil action" language in § 1441(a) to require that

an entire case be removed, "not piecemeal claims for the parties to choose." In

reaching this conclusion the district court relied on 28 U.S.C. § 1441(c), which allows

"the entire action" to be removed if a claim within it provides federal question

jurisdiction. Nonremovable claims are to be severed and remanded, as well as any

claims not within the original or supplemental jurisdiction of the federal district court.

Id. The district court pointed out that it was required to resolve any ambiguity in

favor of state court jurisdiction, see In re Business Men's Assurance Co. of America,

992 F.2d 181, 183 (8th Cir. 1993), and that removal jurisdiction must be narrowly

construed in favor of the nonmoving party. Finally, the district court summarized that

it was ordering remand "for these reasons, and for some of the same reasons offered

in [its] previous remand orders in this matter."

After thoroughly examining the record, we conclude that the underlying basis

for the district court's remand order now under review was its observation that Gander

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was again attempting to remove part of a state case more than one year after it had

been initiated. The district court explained that it was remanding "for some of the

same reasons offered in [its] previous remand orders in this matter." Its two prior

orders had both granted remands on § 1447(c) grounds. The first was based on a lack

of subject matter jurisdiction, for at the time of that removal Arnold Crossroads had

only sought recovery of about $40,000, an amount below the jurisdictional threshold

in 28 U.S.C. 1332(a). See Carlson, 445 F.3d at 1054. The second remand grew out

of Gander's tardy removal in November 2010 more than a year after the February

2009 commencement of that action in state court. See Things Remembered, Inc. v.

Petrarca, 516 U.S. 124, 128 (1995) (holding untimely removal is "precisely the type

of removal defect contemplated by § 1447(c).").

Gander's third removal now under review was initiated on March 16, 2012, ten

days before the trial date set in state court. In this order the district court's language

indicates that it perceived the same kind of procedural flaw as in Gander's previous

removal attempts, for it remanded "for some of the same reasons offered in [its]

previous remand orders in this matter." Gander has offered no other convincing

explanation about the intended meaning of the court's reference to its previous remand

orders. Judge Autrey viewed the removal as untimely as shown by his previous

citation to 28 U.S.C. § 1446, a statute Congress added to limit the time for removal

of a civil action to thirty days after notice of a claim for relief against the moving

party. See 28 U.S.C. § 1446, Commentary on 1988 Revision.

Gander overlooks the district court's reference to its previous remand order in

the matter now under review. Instead, Gander argues that the district court relied on

§ 1441(a)'s "civil action" provision to remand, and that a removing party's failure to

meet that statute's requirements is a "statutory flaw" rather than a jurisdictional or

procedural defect, citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 73 (1996). We

disagree. After closely examining the proceedings in the district court and its written

orders, we conclude that the basis for the remand now under review was untimely

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removal, one of the bases the court had relied on in its prior remand orders. The

district court's statement that § 1441(a) requires removal of an entire case was simply

one comment made in its process of analysis leading to its ultimate conclusion that

remand was required because Gander's attempted removal was untimely. The

references in the court's order to § 1447(c), which bars remands for lack of subject

matter jurisdiction or procedural flaws, and its own prior remand orders confirm this

conclusion.

Gander contends that even if the district court did base its latest remand order

on the § 1447(c) procedural flaw of untimely removal, we would still have jurisdiction

because the City and Arnold Crossroads failed to raise a timeliness objection before

the district court. According to Gander the motions for remand raised only the issue

that a partial removal is not permitted. We disagree. While the City's motion for

remand did argue that removal of less than the entire case was impermissible, the City

also pointed out that the remainder of the case against Gander had been determined

to be unremovable on two prior occasions. By stating that it was basing the decision

now on appeal on its "previous remand orders in this matter," the district court

endorsed arguments raised by the City in its timely filed motion to remand. We

therefore need not address the sometimes vexing question of whether an appellate

court has jurisdiction over a remand based on a procedural flaw not timely raised.

Compare BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 471 (5th Cir. 2012)

(declining jurisdiction where remand was based on § 1447(c) ground not raised in the

timely filed motion for remand) with Mitskovski v. Buffalo & Fort Erie Public Bridge

Authority, 435 F.3d 127, 131–32 (2nd Cir. 2006) (exercising jurisdiction where

remand was based on § 1447(c) ground not raised in the timely filed motion for

remand).

The City and Arnold Crossroads support the ruling by the district court by

arguing that permitting removal from state to federal court of individual claims would

transform a single efficient state court proceeding into burdensome parallel litigation,

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and in its opposition Gander cites Exxon Mobil Corp. v. Allapattah Services, Inc., 545

U.S. 546 (2005). Exxon Mobil was a diversity class action case brought by gasoline

dealers claiming they had been overcharged for fuel; they argued for the exercise of

supplemental jurisdiction under 28 U.S.C. § 1367 over the claims of class members

not meeting the jurisdictional amount in controversy under 28 U.S.C. § 1332. Id. at

550. The Supreme Court's decision that so long as there was original jurisdiction over

one class member, the district court could exercise supplemental jurisdiction over the

other claims for overcharges, id. at 559, is inapposite here. In that case the Court had

no reason to analyze the statutes which Congress has provided for removal jurisdiction

on which the district court relied here, such as 28 U.S.C. § 1447(d)'s bar on review of

remand orders based on a procedural flaw under § 1447(c), or § 1446's bar on

untimely removals. Gander also cites an inapposite line of garnishment cases, a type

of case recognized to be a "separate proceeding for removal purposes," Koehnen v.

Herald Fire Insurance Co., 89 F.3d 525, 528 (8th Cir. 1996).

After thorough examination of the record, we conclude that the basic ground

for the district court's remand order was that Gander's removal attempt was defective

and that we thus lack jurisdiction over its appeal. See Carlson, 445 F.3d at 1050. We

therefore need not address the separate argument that the district court erred by

concluding that § 1441(a)'s "civil action" language allows only an entire case to be

removed. Where, as here, "one of the § 1447(c) criteria served as the basis for the

district court's remand order, § 1447(d) proscribes [review of] the correctness of the

legal conclusions underlying that order." In re Atlas Van Lines, Inc. 209 F.3d 1064,

1067 (8th Cir. 2000).

While Gander continues to argue that its March 2012 removal of the City's suit

was timely since the City had only intervened in November 2011, we lack jurisdiction

to review the district court's remand order because its decision was based on the

§ 1447(c) procedural flaw of untimely removal. See Roberts, 452 F.3d at 739.

Deciding otherwise would disregard the limits Congress set on removal jurisdiction

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and treat them as "nothing at all, because appeals [would] be taken and sustained in

those cases where the district court made a mistake, and rejected in cases where the

district court was correct." Adkins, 326 F.3d at 834. Because the remand here was

based on a procedural defect under § 1447(c), the district court was acting on a ground

on which Congress gives it the final word on the issue of removal. See id. at 832.

IV.

In remanding Gander's third attempt to remove a dispute related to the Arnold

shopping center development from state court, the district court relied on one of the

same procedural flaws it had identified in its previous remand orders: untimely

removal of a case from state court more than a year after the action had been

commenced. 28 U.S.C. § 1446(c). We therefore lack jurisdiction over Gander's

attempted appeal of the district court's remand order, for 28 U.S.C. § 1447(d) bars

review of dismissals based on a § 1447(c) procedural defect. Gander's attempted

appeal is thus dismissed.

SMITH, Circuit Judge, dissenting.

I respectfully dissent. I would reverse the district court's remand order. I believe

the majority mischaracterizes the district court's remand order as focused on concerns

of timeliness.

I. Jurisdiction

The majority avoids the primary issue presented here by concluding that we

lack jurisdiction to review the district court's remand order dated April 26, 2013. See

Majority Opinion, Part III, supra. The majority correctly explains that

"[w]e are required to determine by independent review the actual

grounds for the district court's remand order." Vincent v. Dakota,

Minnesota, & Eastern R.R. Corp., 200 F.3d 580, 581 (8th Cir. 2000).

This requires the reviewing appellate court to make its own assessment

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of the actual basis for the remand since a district court's own citation of

§ 1447(c) is not dispositive of the question, even though it remains

"influential to our analysis." Lindsey v. Dillard's, Inc., 306 F.3d 596, 598

(8th Cir. 2002). On examining whether we have jurisdiction to review a

remand order under § 1447(c), "the scope of our review is limited to

verifying that the actual basis for remand was lack of subject matter

jurisdiction." Carlson, 445 F.3d at 1051.

See Majority Opinion, Part II, supra. Based on an independent review of the actual

grounds for the remand order here, the district court provided no discussion of the

timeliness of Gander's removal; rather, it focused on whether Gander could remove

something less than an entire case.

Rather than timeliness, I read the district court's order to focus on a defendant's

ability to remove "less than the entire case." The district court's discussion of the "civil

action" requirement would be unnecessary if the decision turned on Gander's lack of

timeliness. The district court could have stated summarily that it ordered remand "for

some of the same reasons offered in the Court's previous remand orders." I believe

that the actual basis for the district court's remand order involved its interpretation of

the "civil action" requirement. We should, therefore, resolve the proper issue on

appeal—whether a "civil action" under the removal statutes consists of an entire case

or something less. Because this issue does not involve "a procedural defect or lack of

subject matter jurisdiction," it is a reviewable final decision under 28 U.S.C. § 1291.

Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224, 1229 (8th Cir. 2012).

II. Removal of Less than the Entire Case

The primary issue is whether the City's fraud allegations against Gander

constitute a separate "civil action" that Gander can remove to federal court.

Unfortunately, few cases touch on whether an intervenor's separate claim against a

defendant can be removed despite the lack of removability of the underlying claim.

In resolving this issue, the district court stated:

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Under § 1441(a), any "civil action" can be removed. Additionally, the

most basic reading of § 1441(c) says that the entire action can be

removed, not piecemeal claims for the parties to choose. Given the basic

language of § 1441, a party is not permitted to remove less than the

entire case. The Court recognizes that case law on this issue is not

entirely clear. The Court must resolve all ambiguity in favor of

jurisdiction in the state court. Masepohl v. American Tobacco Company,

Inc., 974 F. Supp. 1245, 1249 (D. Minn. 1997). Additionally, removal

jurisdiction must be narrowly construed in favor of the non-removing

party. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107–09

(1941).

The district court supports its proposition that only an entire action may be

removed by observing that "the most basic reading of § 1441(c)" requires that courts

remove an entire action. However, § 14414 never defines a "civil action," nor does it

4

Section 1441 provides:

(a) Generally.—Except as otherwise expressly provided by Act of

Congress, any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be removed

by the defendant or the defendants, to the district court of the United

States for the district and division embracing the place where such action

is pending.

(b) Removal based on diversity of citizenship.—(1) In determining

whether a civil action is removable on the basis of the jurisdiction under

section 1332(a) of this title, the citizenship of defendants sued under

fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the

jurisdiction under section 1332(a) of this title may not be removed

if any of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is brought.

(c) Joinder of Federal law claims and State law claims.—(1) If a civil

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state whether a defendant may remove something less than an entire case. Also,

Gander sought removal on diversity-of-citizenship grounds under § 1441(b) rather

than federal-question grounds under § 1441(c); therefore, the district court's reliance

on § 1441(c) is misplaced. Further, even if we assume the district court properly chose

to apply § 1441(c), that subsection never states that a defendant must remove an entire

case; rather, § 1441(c) merely authorizes a defendant to remove an entire case despite

the presence of accompanying state-law claims. Nowhere in subsection (c) does

Congress unequivocally indicate an all-or-nothing removal scheme. Finally, other

nearby removal statutes use the phrase "any case" rather than "any civil action,"

indicating a potential difference in meaning. See, e.g., 28 U.S.C. § 1447(a).

action includes—

(A) a claim arising under the Constitution, laws, or treaties

of the United States (within the meaning of section 1331 of

this title), and

(B) a claim not within the original or supplemental

jurisdiction of the district court or a claim that has been

made nonremovable by statute, the entire action may be

removed if the action would be removable without the

inclusion of the claim described in subparagraph (B).

(2) Upon removal of an action described in paragraph (1), the

district court shall sever from the action all claims described in

paragraph (1)(B) and shall remand the severed claims to the State

court from which the action was removed. Only defendants

against whom a claim described in paragraph (1)(A) has been

asserted are required to join in or consent to the removal under

paragraph (1).

28 U.S.C. § 1441 (emphasis added).

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Despite the paucity of authority, sound reasoning nonetheless favors concluding

that a "civil action" may constitute something less than "an entire case." First, leading

federal practice commentary has observed:

There is, however, a sensible judge-made limitation—stemming

from the civil action requirement—that proceedings that are ancillary to

an action pending in state court cannot be removed separately from the

main claim. This restriction, which has been applied in numerous cases

for over a century, is premised on the wastefulness of having a satellite

element of a case pending in federal court when the principal claims are

being litigated in state court . . . .

A few cases have drawn a distinction between supplemental

proceedings that are a mere mode of execution or relief, inseparably

connected with an original judgment or decree in a state court proceeding

and therefore not removable, and supplemental proceedings that involve

an independent controversy with a new and different party. The latter are

removable.

14B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3721

(4th ed. 2014) (emphasis added) (footnotes omitted). Thus, Wright & Miller suggest

that a defendant may remove a supplemental proceeding involving an independent

controversy with a new party. This is precisely the situation between Gander and the

City. The City, a new and different party, asserts a new and independent claim—fraud.

According to Wright & Miller's test, therefore, the district court should have allowed

Gander to remove the City's claims.

Second, courts have consistently determined that defendants may remove

certain classes of cases despite the underlying action taking place in state court. For

example, the Seventh Circuit in Travelers Property Casualty v. Good recognized that

defendants may remove only independent suits and not ancillary proceedings so as to

avoid the waste of having federal courts entertain "satellite elements" of ongoing state

suits. 689 F.3d 714, 724 (7th Cir. 2012) (quotation and citation omitted). The

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Travelers court further noted that "[w]hether a particular state judicial procedure

qualifies as a separate action is not an all-or-nothing proposition. It depends on the

context of each case in which it arises." Id. (citation omitted). The Travelers court then

concluded that courts overwhelmingly treat garnishment actions involving "genuine

disputes with new parties and raise new issues of fact and law" as independent and

removable actions. Id. at 725 (citation omitted). This is because garnishment

proceedings are not "substantially a continuation of a prior suit" such that "[j]udicial

economy concerns about 'satellite' issues no longer apply." Id. (citation omitted).

Furthermore, in GE Betz, Inc. v. Zee Co., Inc., the Seventh Circuit noted that §

1441(a) allows removal of independent suits but not ancillary or supplementary

proceedings. 718 F.3d 615, 622–23 (7th Cir. 2013). The original case focused on

covenants not to compete and trade practices whereas the case sought to be removed

involved lien priorities. Id. Thus, the action was removable because there was a new

and different party and an independent controversy despite ongoing proceedings of

the original case in state court. Id. (involving an underlying suit pending appeal in

state court). Furthermore, the Eleventh Circuit has defined independent civil actions

subject to removal as those that are "in effect suits involving a new party litigating the

existence of a new liability." Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d

1127, 1134 (11th Cir. 2013) (quotation and citation omitted).

We recognized long ago that garnishment actions were removable apart from

the original case. In Stoll v. Hawkeye Casualty Co. of Des Moines, Iowa, we quoted

former Chief Justice John Marshall's definition of "suit":

"The term is certainly a very comprehensive one, and is understood to

apply to any proceeding in a court of justice, by which an individual

pursues that remedy in a court of justice which the law affords him. The

modes of proceeding may be various, but if a right is litigated between

parties in a court of justice, the proceeding by which the decision of the

court is sought is a suit."

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185 F.2d 96, 98 (8th Cir. 1950) (quoting Weston v. City of Charleston, 27 U.S. (2 Pet.)

449, 464 (1829)). We then held that the district court acquired jurisdiction to the

garnishment proceeding such that removal was proper. Id. at 99. We reaffirmed Stoll

eight years later by noting that the garnishment proceeding was properly removed as

a separate "civil action." Randolph v. Emp'rs Mut. Liab. Ins. Co. of Wis., 260 F.2d

461, 464–65 (8th Cir. 1958). These cases demonstrate that this court does not always

require a defendant to remove an "entire case."

On appeal, the City and Arnold Crossroads contend that the garnishment

exception to an all-or-nothing removal requirement does not apply here because

garnishment actions require resolution and judgment of the original case before the

garnishment action may be filed. The majority opinion states that the garnishment

cases are "inapposite" because they are a "'separate proceeding for removal purposes.'"

See Majority Opinion, Part III, supra (quoting Koehnen, 89 F.3d at 528).

Both the appellees and the majority are incorrect. Although resolution of the

underlying action may occur before commencement of the garnishment action, courts

have removed portions of cases despite the pendency of the original action in state

courts. See, e.g., GE Betz, Inc., 718 F.3d at 622–23. Additionally, as Wright & Miller

states, the test should not be whether proceedings would occur simultaneously in both

court systems; rather, the test should be whether the new controversy involves new

parties with independent claims. Wright & Miller, supra, at § 3721. While satellite

proceedings are a concern, the differences in the parties and the independence of the

asserted claims avoid conflicting state and federal judgments.

Furthermore, the federal removal statutes contemplate that a claim may be

removed while other claims remain before the state court. For example, in 28 U.S.C.

§ 1441(c), Congress anticipated the scenario where a defendant removes a case to

federal court that includes both federal-law and state-law claims. In this situation,

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§ 1441(c) allows the defendant to remove the entire case to federal court, but the

federal court must sever the state-law claims that do not bestow original jurisdiction

on the federal courts and remand these claims to state court. Thus, in this scenario, a

federal court hears the federal-law claims, and the state court hears the state-law

claims. Consequently, the removal statutes explicitly contemplate the severance of

claims between the federal and state courts such that a defendant is not subject to an

all-or-nothing removal requirement.

The third reason why Gander correctly asserts the removability of less than an

entire case is that federal law, not state law, determines whether federal courts have

removal jurisdiction. We have noted that "[t]he question whether a civil action is

removable and has been properly removed is one for the consideration of the federal

court and is not controlled by State law." Stoll, 185 F.2d at 99 (citations omitted). This

makes sense because, "[l]ike the diversity of citizenship and alienage jurisdiction of

the federal courts, the original right to remove probably was designed to protect

nonresidents from the local prejudices of state courts." Wright & Miller, supra, at

§ 3721. If "civil actions" consist of only entire cases, then state court litigants could

avoid removal jurisdiction by grouping what could be entirely separate cases together

in a manner that prohibits removal. The City's intervention in an existing, non-

removable state case here is just such an example. Thus, removability of a claim

should not turn on state joinder rules and their employment; rather, removability

should turn on a federal courts' determination whether the claim to be removed

involves a new party who asserts an independent claim.

Fourth, courts have traditionally defined the meaning of "any civil action" in

28 U.S.C. § 1441(a) broadly. Jackson-Platts, 727 F.3d at 1134. A court's construction

of "any civil action" that allows for less than an entire case to be removed comports

better with this broad construction than the appellees' more limited reading.

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Finally, the Supreme Court, in a case involving a different statute, has recently

given credence to the notion that "any civil action" can, on occasion, mean less than

the entire case. In Exxon Mobil Corp. v. Allapattah Services, Inc., the Court held that,

where at least one plaintiff satisfies the amount-in-controversy requirement, 28 U.S.C.

§ 1367 authorizes courts to exercise supplemental jurisdiction over claims that other

plaintiffs assert in the same case that do not meet the amount-in-controversy

requirement, provided that the additional claims are part of the same case or

controversy. 545 U.S. 546, 549 (2005). While Exxon Mobil5 is not on point to the

present problem, the Court supported its holding by analogizing to removal cases,

stating that § 1441(a) "bears a striking similarity to the relevant portion of § 1367,

authoriz[ing] removal of 'any civil action . . . of which the district courts of the United

States have original jurisdiction . . . .'" Id. at 563 (quoting 28 U.S.C. § 1441(a)).

Importantly, the Court also acknowledged that "[i]f the court has original jurisdiction

over a single claim in the complaint, it has original jurisdiction over a 'civil action'

within the meaning of § 1367(a), even if the civil action over which it has jurisdiction

5

In dicta, the majority opinion criticizes the Supreme Court's alleged dicta in

Allapattah, stating:

Exxon Mobil was a diversity class action case brought by gasoline

dealers claiming they had been overcharged for fuel; they argued for the

exercise of supplemental jurisdiction under 28 U.S.C. § 1367 over the

claims of class members not meeting the jurisdictional amount in

controversy under 28 U.S.C. § 1332. Id. at 550. The Supreme Court's

decision that so long as there was original jurisdiction over one class

member, the district court could exercise supplemental jurisdiction over

the other claims for overcharges, id. at 559, is inapposite here. In that

case the Court had no reason to analyze the statutes which Congress has

provided for removal jurisdiction on which the district court relied here,

such as 28 U.S.C. § 1447(d)'s bar on review of remand orders based on

a procedural flaw under § 1447(c), or § 1446's bar on untimely removals.

See Majority Opinion, Part III, supra.

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comprises fewer claims than were included in the complaint." Id. at 559. Thus, the

Court in Exxon Mobil acknowledged in the supplemental-jurisdiction context that a

"civil action" can refer to a subset of claims within a case and not simply an "entire

case." Id. Exxon Mobil thus explicitly recognized the similarity between the analyses

used for supplemental jurisdiction and for removal jurisdiction. The Court found their

similarity so substantial that cases interpreting removal statutes may be used to

interpret similar terms in the supplemental-jurisdiction statute. Id. at 563. In sum, the

Court has at least implicitly recognized that a "civil action" in the removal context can

consist of something less than the entire case.

III. Conclusion

Based on the foregoing, I would reach the primary issue in this case and hold

that Gander can remove the City's claim because that civil action involved a new party

who asserted a new and original claim. Therefore, I respectfully dissent.

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