Petition for Writ of Certiorari — Javitch Block, LLC, Petitioner v. Jerome Redman

Supreme Court briefMar 15, 2023

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Text

No.

___________

JAVITCH BLOCK, LLC,

Petitioner,

JEROME REDMAN, Individually and on behalf of all

others similarly situated,

Respondent.

___________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

___________

PETITION FOR WRIT OF CERTIORARI

___________

MICHAEL D. SLODOV

Counsel of Record

JAVITCH BLOCK, LLC

1100 Superior Ave. 19th Floor

Cleveland, Ohio 44114

(440) 318-1073

mslodov@jbllc.com

(i)

QUESTIONS PRESENTED

28 U.S.C. § 1331 vests U.S. District Courts

with original jurisdiction over actions presenting a

federal question. An action under the Fair Debt

Collection Practices Act is within the original

jurisdiction of U.S. District Courts. 15 U.S.C. §

1692k(d). Under 28 U.S.C. § 1441 and § 1446(b), a

defendant in an action commenced in state court that

presents a federal question claim has 30 days from

receipt by the defendant to file a notice of removal.

Neither 28 U.S.C. § 1446 nor § 1447 expressly

provide that a U.S. District Court may decline to

exercise jurisdiction and remand a matter to state

court, a timely removed action over which it has

federal question jurisdiction on the grounds of waiver

by participation in state court litigation. This Court

held in Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S.

336 (1976), a District Court exceeds its authority in

remanding the case on grounds not permitted by §

1447(c).

The questions presented are whether waiver

by participation in state court litigation is a

permissible basis for District Courts to decline to

exercise their original jurisdiction and remand a case

under 28 U.S.C. § 1447(c).

If so, whether such waiver applies when a

motion to dismiss addressing the merits is filed

before removal as the Fourth Circuit held here, or

only when there has been an adjudication of the

merits as the Seventh Circuit recently held, but not

when the motion to dismiss was compelled to be filed

before removal by the time frame set by state court

rules, as the Tenth and Eleventh Circuits have held.

PARTIES TO THE PROCEEDINGS BELOW

The caption contains the name of all the

parties in the court of appeals.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Javitch Block LLC

(“Javitch”) states there is no parent or publicly held

company owning 10% or more of the corporation’s

stock.

STATEMENT OF RELATED CASES

Pursuant to Supreme Court Rule 14.1, the

following proceedings in state and federal courts are

directly related to this case:

Circuit Court of Berkely County, West

Virginia, Case No. 21-C-11, captioned Jerome

Redman v. Javitch Block, LLC. The case

remains pending and has no date of final

judgment.

United States Court of Appeals for the Fourth

Circuit, Case No. 21-2236, captioned Jerome

Redman v. Javitch Block, LLC, decided

December 15, 2022.

United States District Court for the Northern

District of West Virginia, at Martinsburg, Case

No. 3:21−cv−00037−GMG, captioned Jerome

Redman v. Javitch Block, LLC, decided

October 12, 2021.

West Virginia Supreme Court of Appeals, Case

No. 23-90, captioned State of West Virginia ex

rel. Javitch Block LLC, v. The Honorable R.

Steven Redding, Judge of the Circuit Court of

Berkeley County, and Jerome D. Redman. The

case remains pending and has no date of final

judgment.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS BELOW ........... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED CASES ....................... iv

TABLE OF CONTENTS ............................................. v

TABLE OF AUTHORITIES...................................... vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 2

STATUTES INVOLVED ............................................. 2

STATEMENT OF THE CASE .................................... 5

REASONS FOR GRANTING THE PETITION ....... 11

I. Review is required because the decision of

the Fourth Circuit conflicts with relevant

decisions of this Court on the District Court’s

obligation to exercise original jurisdiction in

removed cases. .................................................... 13

II.

The Fourth Circuit’s decision conflicts

with decisions of the Seventh Circuit. ............... 18

A. If waiver by participation in state court

litigation is a valid reason for declining to

exercise original jurisdiction over a timely

removed federal question claim, waiver cannot

be found absent an adjudication of the merits. . 18

B. The Eleventh and Tenth Circuits except

motions to dismiss compelled to be filed by state

court rules in advance of removal from waiver. 21

C. The Fifth, Sixth, Eighth and Ninth Circuits

also employ a different standard than the Fourth

Circuit in assessing whether pre-removal

participation in state court litigation gives rise to

waiver. ................................................................ 23

D. There was no testing of the waters ............ 25

E. The remand order and proceedings in state

court do not moot this appeal ............................ 27

CONCLUSION .......................................................... 29

APPENDIX

APPENDIX A: Per Curiam Order, United States

Court of Appeals for the Fourth

Circuit, No. 21-2236 December 15,

2022.................................................... 1a

APPENDIX B: Order granting motion to remand,

United States District Court for the

Northern District of West Virginia,

Martinsburg, Civil Action No. 3:21CV-37, October 12, 2021 ................... 7a

APPENDIX C: Order denying motion for stay

pending appeal, United States District

Court for the Northern District of

West Virginia, Martinsburg, Civil

Action No. 3:21-CV-37, November 2,

2021.................................................. 12a

APPENDIX D: Order denying motion to dismiss,

Circuit Court of Berkeley County,

West Virginia, Case No. CC-02-2021C-11, February 2, 2023 ................... 16a

vii

TABLE OF AUTHORITIES

Federal Cases

Acad. of Country Music v. Cont’l Cas. Co., 991 F.3d

1059 (9th Cir. 2021) ............................................... 28

Atkins v. AT&T Mobility Servs., LLC, No. 2:18-CV00599, 2019 WL 5190971 (S.D.W. Va. Oct. 15,

2019) ....................................................................... 17

BP P.L.C. v. Mayor & City Council of Baltimore, 141

S. Ct. 1532, 209 L. Ed. 2d 631 (2021).............. 14, 17

Bryan v. BellSouth Commc’ns, Inc., 492 F.3d 231 (4th

Cir. 2007)................................................................ 28

City of Albuquerque v. Soto Enterprises, Inc., 864

F.3d 1089 (10th Cir. 2017)............................... 17, 22

Cogdell v. Wyeth, 366 F.3d 1245 (11th Cir. 2004) .... 22

Colorado River Water Conservation Dist. v. U.S., 424

U.S. 800 (1976)....................................................... 17

Dodd v. U.S., 545 U.S. 353 (2005) ............................ 14

Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699

(1972) ...................................................................... 29

Hammer v. United States Dep’t of Health & Hum.

Servs., 905 F.3d 517 (7th Cir. 2018)...................... 28

Hemphill v. New York, 211 L. Ed. 2d 534

(2022)(Alito, J., concurring) ................................... 19

Hill v. Maton, 944 F.Supp. 695 (N.D.Ill.1996) ......... 21

Hill v. State Farm Mut. Auto. Ins. Co., 72 F. Supp. 2d

1353 (M.D. Fla. 1999) ............................................ 22

Home Depot U. S. A., Inc. v. Jackson, 204 L. Ed. 2d

34, 139 S. Ct. 1743 (2019)(Alito, J. dissenting) .... 14

viii

Hudson United Bank v. LiTenda Mortg. Corp., 142

F.3d 151 (3d Cir. 1998) .......................................... 28

In re Bridgestone/Firestone, Inc., ATX, ATX II, 128

F. Supp. 2d 1198 (S.D. Ind. 2001) ......................... 21

In re Digicon Marine Inc., 966 F.2d 158 (5th

Cir.1992)................................................................. 28

Ins. Corp. of Ireland v. Compagnie des Bauxites de

Guinee, 456 U.S. 694 (1982) .................................. 14

Kakarala v. Wells Fargo Bank, N.A., 578 U.S. 914,

136 S. Ct. 1153 (2016)(Thomas, J., dissenting) .... 15

Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786 (9th

Cir. 2018)................................................................ 24

Kontrick v. Ryan, 540 U.S. 443 (2004)...................... 13

Mata v. Lynch, 576 U.S. 143 (2015).......................... 17

Morgan v. Sundance, Inc., 212 L. Ed. 2d 753, 142 S.

Ct. 1708 (2022) ....................................................... 19

Murphy Brothers, Inc. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344 (1999) ...................................... 29

Perez v. Air & Liquid Sys. Corp., 223 F. Supp. 3d 756

(S.D. Ill. 2016) ........................................................ 21

PR Group, LLC v. Windmill Intern., Ltd., 792 F.3d

1025 (8th Cir. 2015) ............................................... 24

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996)

................................................................................ 11

Resol. Tr. Corp. v. Bayside Devs., 43 F.3d 1230 (9th

Cir. 1994), as amended (Jan. 20, 1995)................. 24

Robertson v. U.S. Bank, N.A., 831 F.3d 757 (6th Cir.

2016) ....................................................................... 24

Rock Hemp Corp. v. Dunn, 51 F.4th 693 (7th Cir.

2022) ............................................................. 8, 17, 20

Roman Cath. Archdiocese of San Juan, Puerto Rico v.

Acevedo Feliciano, 140 S. Ct. 696, 206 L. Ed. 2d 1

(2020) ...................................................................... 28

Rosenthal v. Coates, 148 U.S. 142 (1893) ................. 26

Rothner v. City of Chicago, 879 F.2d 1402 (7th Cir.

1989) ............................................. 8, 9, 15, 16, 20, 21

Shapiro v. Logistec USA, Inc., 412 F.3d 307 (2d Cir.

2005) ....................................................................... 28

Shiboleth LLP v. Buhannic, 779 F. App'x 57 (2d Cir.

2019) ....................................................................... 17

Song v. MTC Fin., Inc., 812 F. App'x 609 (9th Cir.

2020) ....................................................................... 24

Sprint Communications, Inc. v. Jacobs, 571 U.S. 69

(2013) ...................................................................... 17

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283 (1938) ............................................................... 14

Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th

Cir. 2003)................................................................ 23

Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S.

336 (1976) ................................. 11, 12, 14, 15, 17, 27

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

(1995) ................................................................ 15, 18

TRW Inc. v. Andrews, 534 U.S. 19 (2001) (Scalia, J.,

concurring) ............................................................. 15

U.S. v. Rutherford, 442 U.S. 544 (1979) ................... 14

United States v. Olano, 507 U.S. 725 (1993) ............ 18

Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381

(1998) ...................................................................... 16

Yusefzadeh v. Nelson, Mullins, Riley & Scarborough,

LLP, 365 F.3d 1244 (11th Cir. 2004) ........ 21, 22, 25

Federal Statutes

15 U.S.C. § 1692k(d) ................................................... 2

28 U.S.C. § 1254(1) ...................................................... 2

28 U.S.C. § 1331 ......................................................... 2

28 U.S.C. § 1441 ......................................................... 3

28 U.S.C. § 1446 ..................... 2, 3, 4, 14, 17,18, 19, 27

28 U.S.C. § 1447 ................................ 4, 11, 12, 13, 14,

.................................................. 15, 16, 17, 18, 27, 28

28 U.S.C. § 2101(c) ...................................................... 2

Other Authorities

1A MOORE'S FEDERAL PRACTICE ¶ 0.157[9] at 151 (2d

ed.1987) .................................................................. 16

14A C. WRIGHT, A. MILLER & E. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3721 at 223–25 (1985)

................................................................................ 16

14C CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE

AND PROCEDURE § 3721 (rev. 4th ed.) ........ 19, 22, 26

16 MOORE’S FEDERAL PRACTICE §107.132 [1], [2][c] . 19

Elizabeth Williams, Annotation, Waiver of Right to

Remove Action to Federal District Court by

Participation in State Court Proceeding, 35 A.L.R.

Fed. 3d Art. 10 (Originally published in 2018)..... 19

https://www.merriam-webster.com/dictionary/within

................................................................................ 19

Federal Rules

Fed.R.Civ.P. 81(c)(2) .................................................14

Supreme Court Rules 13.1 and 13.3 ......................... 2

Constitutional Provisions

U.S. Const. art. III, § 1 .............................................. 13

___________

JAVITCH BLOCK, LLC,

Petitioner,

JEROME REDMAN, Individually and on behalf of all

others similarly situated,

Respondent.

___________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

___________

PETITION FOR WRIT OF CERTIORARI

___________

Javitch Block LLC (“Javitch”) respectfully files

this petition for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW

The per curiam order of the Court of Appeals

affirming the District Court’s remand decision is

unreported and available at 2022 WL 17716772 (4th

Cir. Dec. 15, 2022). Pet. App. 1a. The order of the

District Court remanding the case to Berkeley

County, West Virginia Circuit Court is unreported

and available at 2021 WL 5177462 (N.D.W. Va. Oct.

12, 2021). Pet. App. 7a. The District Court’s order

denying the motion to stay pending appeal is

unreported and available at 2021 WL 7448734

(N.D.W. Va. Nov. 2, 2021). Pet. App. 12a. The Circuit

Court of Berkely County, West Virginia entered an

order after remand; its decision is unreported. Pet.

App. 16a.

JURISDICTION

The Fourth Circuit Court of Appeals entered

its judgment on December 15, 2022. Petitioner

invokes the jurisdiction of this Court under 28 U.S.C.

§ 1254(1). This Petition is timely pursuant to 28

U.S.C. § 2101(c) and Supreme Court Rules 13.1 and

13.3. Original jurisdiction over Mr. Redman’s action

presenting a federal question arose when he served

his first amended complaint on February 11, 2021

asserting claims under the Fair Debt Collection

Practices Act. 15 U.S.C. § 1692k(d). Under 28 U.S.C.

§ 1441 and § 1446(b), Javitch timely filed its notice of

removal on March 5, 2021.

STATUTES INVOLVED

28 U.S.C. § 1331 provides:

“The district courts shall have original

jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the

United States.”

15 U.S.C. § 1692k(d) provides:

“An action to enforce any liability created by

this subchapter may be brought in any

appropriate United States district court

without regard to the amount in controversy,

or in any other court of competent jurisdiction,

within one year from the date on which the

violation occurs.”

28 U.S.C. § 1441 provides in pertinent part:

“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.”

28 U.S.C. § 1446 provides in pertinent part:

(a) Generally.—

A defendant or defendants desiring to remove

any civil action from a State court shall file in

the district court of the United States for the

district and division within which such action

is pending a notice of removal signed pursuant

to Rule 11 of the Federal Rules of Civil

Procedure and containing a short and plain

statement of the grounds for removal, together

with a copy of all process, pleadings, and

orders served upon such defendant or

defendants in such action.

(b) Requirements; Generally.—

(1) The notice of removal of a civil action or

proceeding shall be filed within 30 days after

the receipt by the defendant, through service

or otherwise, of a copy of the initial pleading

setting forth the claim for relief upon which

such action or proceeding is based, or within

30 days after the service of summons upon the

defendant if such initial pleading has then

been filed in court and is not required to be

served on the defendant, whichever period is

shorter.

...

(3) Except as provided in subsection (c), if the

case stated by the initial pleading is not

removable, a notice of removal may be filed

within thirty days after receipt by the

defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or

other paper from which it may first be

ascertained that the case is one which is or has

become removable.

28 U.S.C. § 1447 provides in pertinent part:

any defect other than lack of subject matter

jurisdiction must be made within 30 days after

the 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. An order remanding the case may

require payment of just costs and any actual

expenses, including attorney fees, incurred as

a result of the removal. A certified copy of the

order of remand shall be mailed by the clerk to

the clerk of the State court. The State court

may thereupon proceed with such case.

STATEMENT OF THE CASE

The pending case below was preceded by an

action brought in by FIA Card Services, N.A. against

Jerome Redman on December 27, 2012, in the

Berkeley County Circuit Court, West Virginia, Civil

Action No. 12-C-1011, to recover the balance owed on

a credit card (“Redman I”). Pet. App. 2a, 7a. The case

resulted in a default judgment against Mr. Redman

on July 2, 2013. Id. Javitch was later retained to

collect the judgment and in 2019, filed wage

garnishment proceedings attaching a portion of Mr.

Redman’s wages due from his employer Southland

Concrete, a Virginia company (referred to as a

suggestee execution under West Virginia law). Pet.

App. 2a, 7a, 17a. The judgment was later set aside,

the wage garnishment proceedings were terminated

and Mr. Redman’s wages were returned. Id.

Nonetheless, Mr. Redman filed a class action

counterclaim against FIA Card Services and a thirdparty complaint against Javitch. Id. Mr. Redman and

FIA Card Services then settled their respective

claims and they jointly dismissed the entire action

with prejudice. Id. Mr. Redman later filed a dismissal

as to Javitch without prejudice. Id. at 18a.

On January 14, 2021, Mr. Redman filed a

second class action complaint against Javitch in the

Berkeley County Circuit Court, West Virginia, Civil

Action No. CC-02-2021-C-11 (“Redman II”). Id. The

complaint in Redman II did not contain any federal

claims nor an amount in controversy that afforded a

basis for removal under diversity jurisdiction. Id. On

February 11, 2021, Mr. Redman amended the

complaint in Redman II to include a Fair Debt

Collection Practices Act claim. Id. Mr. Redman’s

claims against Javitch allege that West Virginia

Circuit Courts lack authority to enforce their

judgments in cross-border cases (where a judgment

debtor lives in the judgment rendering state but

works for an employer in a neighboring state), and

that Javitch’s suggestee execution in West Virginia

was unlawful under the FDCPA and state law. Pet.

App. 26a-28a. Mr. Redman maintains that in such

cases, domestication of the West Virginia judgment

where the wages were paid from was necessary to

acquire jurisdiction over the wages. Pet. App. 17a,

26a-28a.

Javitch was compelled to respond to the

amended complaint under the West Virginia Rules of

Civil Procedure on or before March 1, 2021 (the

longer of 30 days from service of the original

complaint or 10 days from service of the amended

complaint). W.Va. Civ. P. Rule 6(a), 12(a)(1) and

15(a). Javitch’s removal deadline was March 15,

2021. On February 25, 2021, Javitch filed a combined

motion pursuant to Rules 12(B)(1) and 12(b)(6) of the

West Virginia Rules of Civil Procedure, to dismiss

the action for lack of subject matter jurisdiction (lack

of standing) and failure to state a claim. Pet. App.

10a, 19a. Javitch filed a notice of supplemental

authority on March 1, 2021, with recently decided

cases from the West Virginia Supreme Court of

Appeals. Id. at 10a. On March 3, 2021, Javitch moved

to stay discovery pending its motion to dismiss. Id.

On March 5, 2021, the state court judge assigned to

hear Redman II recused himself and transferred the

case to the previous judge who handled Redman I.

Pet. App. 3a.

Javitch timely filed its notice of removal on

March 5, 2021, within hours of the recusal/transfer,

ten days before the time to remove expired. Pet. App.

4a, 10a. The state court did not address the motion

beyond setting a briefing schedule, and Mr. Redman

did not respond to the motion before removal. On

March 22, 2021, Mr. Redman moved to remand on

the grounds of waiver, Javitch opposed, and on

October 12, 2021, the District Court granted

Redman’s motion to remand. Pet. App. 7a. The

District Court did not directly address Javitch’s

argument that waiver of the right to remove for

participation in state court proceedings was not

statutorily authorized. Pet. App. 10a.

In its remand order, the District Court noted

that the Amended Complaint filed in Redman II

“triggered the case’s removability – which neither

party contests” and that “the Defendant timely filed

its notice of removal within thirty days of Plaintiff

filing his amended complaint, which for the first time

included a claim giving rise to federal jurisdiction.”

Pet. App. 8a. However, the District Court also found

that “Defendant manifested an intent to litigate in

state court, thereby waiving its right to remove.” Pet.

App. 11a. The District Court pointed to the following

facts in support of its conclusion:

Between February 25 and March 3, 2021, the

Defendant filed a motion to dismiss, a letter

with supplemental authority to the judge, and

a motion to stay discovery pending resolution

of the motion to dismiss. These filings

demonstrate the Defendant’s desire to litigate

the matter in state court. The motion to

dismiss was filed pursuant to 12(b)(1) and

12(b)(6) and raised dispositive arguments.

Particularly interesting is that the Defendant

filed its notice of removal just over three hours

after the case was reassigned to the judge who

handled the first litigation involving these

parties. The Court further notes that one of

the Defendant’s arguments in its motion to

dismiss was res judicata. The Defendant

argued that the first litigation precludes the

Plaintiff’s claims in the instant case. Who

better to consider and decide that question

than the judge who handled the first

litigation? Yet, the Defendant fled to federal

court within a few hours of that judge’s

assignment to the case.

Pet. App. 10a. Javitch appealed, requested

mandamus relief, and sought a stay pending appeal

which the District Court, and later the appellate

court, also denied. Pet. App. 12a. During the appeal

to the Fourth Circuit, Javitch provided notice of the

U.S. Court of Appeals decision in Rock Hemp Corp. v.

Dunn, 51 F.4th 693 (7th Cir. 2022) which reexamined Rothner v. City of Chicago, 879 F.2d 1402

(7th Cir. 1989).

On December 15, 2022, in a per curiam order,

the Fourth Circuit Court of Appeals affirmed the

order remanding, without addressing Javitch’s

request for mandamus relief or Rock Hemp Corp. v.

Dunn. The Court reiterated that “[t]here is no

dispute that Javitch timely filed its notice of removal

within 30 days of receiving Redman's amended

complaint raising the federal FDCPA issue.” Pet.

App. 4a. The Court did not directly address Javitch’s

argument that waiver of the right to remove for

participation in state court proceedings was not

statutorily authorized. Id. Instead, the Court referred

to its precedents which applied the federal common

law waiver doctrine in this context. Id. The Court

observed:

We have found that “a defendant may yet

waive its 30-day right to removal by

demonstrating a ‘clear and unequivocal’ intent

to remain in state court.” Grubb [v. Donegal

Mut. Ins. Co., 935 F.2d 57, 57 (4th Cir. 1991)],

(quoting Rothner [v. City of Chicago, 879 F.2d

1402, 1416 (7th Cir. 1989)). Waiver of this

right is only appropriate “in extreme

situations, when judicial economy, fairness,

and comity demand it.” Northrop Grumman,

[v. Dyncorp Int'l LLC, 865 F.3d 181, 186 (4th

Cir. 2017)] (internal quotations omitted). In

past cases, we have looked to see whether a

defendant has taken substantial defensive

action in state court before petitioning for

removal. See Aqualon Co. v. MAC Equipment,

Inc., 149 F.3d 262, 264 (4th Cir. 1998); see also

Northrop Grumman, 865 F.3d at 188.

Pet. App. 4a.

In affirming the remand order and finding a

waiver by participation, the Court pointed to the

following facts:

Here, Javitch took several actions which

expressed the requisite intent to remain in

state court. First, Javitch filed a motion to

dismiss in which it raised substantive

arguments before the state court. Under West

Virginia law, a ruling on a motion to dismiss

amounts to an adjudication on the merits. See

Sprouse v. Clay Comm., Inc., 211 S.E.2d 674,

696 (W. Va. 1975). Thus, Javitch opened itself

up to a complete merits determination in state

court. Further, Javitch filed this motion a full

two weeks after receiving notice that the case

was removable. Instead of proceeding straight

to federal court, Javitch decided to avail itself

of state court. Then, before removing the case,

Javitch supplemented its motion to dismiss

with

additional

authority,

further

demonstrating an intent to receive a merits

determination on the matter in state court.

And finally, Javitch moved to stay discovery

pending resolution on the motion to dismiss.

These actions show Javitch “actively engage[d]

in defensive litigation in the state court[.]”

Northrop Grumman, 865 F.3d at 188.

As for the “extreme situations” determination,

the district court was also not clearly

erroneous in finding this satisfied. It found

that “judicial economy clearly weighs in favor

of this case being decided by the court in which

it originated and was already, partially

litigated.” J.A. 630. We note that Javitch

waited 22 days before removing the complaint,

and only did so three hours after the case was

reassigned to Judge Redding. Javitch cannot

“be allowed to test the waters in state court ...

and finding the temperature not to its liking,

beat a swift retreat to federal court.” Northrop

Grumman, 865 F.3d at 188 (quoting Estate of

Krasnow v. Texaco, Inc., 773 F.Supp. 806, 809

(E.D. Va. 1991)). Javitch sought to use the

state court proceedings to its advantage

several times over, and only changed its mind

once Judge Redding was assigned to the case.

Under these circumstances, the district court

was not clearly erroneous in finding Javitch

waived its right to removal, and we affirm.

Pet. App. 5a.

After entry of the order remanding the action

to state court, the Circuit Court Judge in Redman II

denied Javitch’s motion to dismiss. Pet. App. 16a. On

February 17, 2023, Javitch brought an original action

for a writ of prohibition in the West Virginia

Supreme Court of Appeals, Case No. 23-90, captioned

State of West Virginia ex rel. Javitch Block LLC, v.

The Honorable R. Steven Redding, Judge of the

Circuit Court of Berkeley County, and Jerome D.

Redman. That action remains pending.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari and clarify

once and for all that under 28 U.S.C. § 1447, waiver

by participation in state court litigation is not a

permissible basis for district courts to decline to

exercise their original jurisdiction over a timely filed

notice of removal. This Court held that “Congress

[n]ever intended to extend carte blanche authority to

the district courts to revise the federal statutes

governing removal by remanding cases on grounds

that seem justifiable to them but which are not

recognized by the controlling statute.” Thermtron

Prod., Inc. v. Hermansdorfer, 423 U.S. 336,

344(1976), abrogated by Quackenbush v. Allstate Ins.

Co., 517 U.S. 706 (1996). This Court should also

grant certiorari to resolve the circuit split over

whether an adjudication of the merits or mere filing

of a motion to dismiss in state court prior to filing a

timely notice of removal qualifies as a waiver of the

right to removal. As this Court held in Thermtron, a

District Court exceeds its authority in remanding the

case on grounds not permitted by § 1447(c).

Over 30,000 cases a year are removed from

state courts to U.S. District Courts. 1 One standard

should exist in every circuit to assess whether

remand is authorized.

As things stand, District Courts in different

circuits continue to remand removed cases using no

less than three different standards to assess waiver

by participation in state court proceedings. In the

Seventh Circuit, a motion to remand a removed case

based on filing of a motion to dismiss in state court

before removal “is a loser” unless the merits were

fully litigated. In the Tenth and Eleventh Circuits, a

motion to remand based on mere filing a motion to

dismiss may or may not lose, depending on whether

the motion was compelled to be filed under the time

frame provided by state court rules. If so, remand

motions in the Tenth and Eleventh Circuits are also

losers. In the Fifth, Sixth and Ninth Circuits, taking

purely defensive actions prior to removal that do not

reach the merits will also not support a remand, but

it is not clear whether a motion to dismiss filed

before removal is “purely defensive.” In the Fourth

Administrative Office of the U.S. Courts, Judicial

Facts and Figures, Table 4.3, online at

https://www.uscourts.gov/statistics-reports/judicialfacts-and-figures-2021

Circuit, however, any motion to dismiss that

broaches the merits – even where combined with a

non-merits motion – will give rise to waiver, even

where the merits are not yet litigated.

The waiver by participation in state court

doctrine is an anachronism borne out of ill-defined

pre-1948 indefinite removal statutes. The common

law waiver doctrine’s contours have led to carte

blanche authority to deny a federal forum based on

equitable considerations that are inconsistent with

the clear statutory text governing removal, unmoored

from the remand statute, and should be buried once

and for all in the sands of time.

Review is required because the

decision of the Fourth Circuit conflicts

with relevant decisions of this Court on

the District Court’s obligation to exercise

original jurisdiction in removed cases.

Waiver by participation in state court

litigation is not a permissible basis for District

Courts to decline to exercise their original

jurisdiction over a timely removed action under 28

U.S.C. § 1447(c).

Only Congress can create or destroy

subject-matter jurisdiction; a party's litigation

conduct cannot create or destroy subject-matter

jurisdiction. U.S. Const. art. III, § 1; Kontrick v.

Ryan, 540 U.S. 443, 456 (2004)(“a court's subjectmatter jurisdiction cannot be expanded to account for

the parties' litigation conduct; a claim-processing

rule, on the other hand, even if unalterable on a

party's application, can nonetheless be forfeited if the

party asserting the rule waits too long to raise the

point.”)(emphasis added); Ins. Corp. of Ireland v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702

(1982)(“no action of the parties can confer subjectmatter jurisdiction upon a federal court….”).

Removal of cases from state courts has

been allowed since the first Judiciary Act. St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

286–89 (1938) (citing Judiciary Act of Sept. 24, 1789

§ 12, 1 Stat. 73, 79). As pertinent here, a notice of

removal must be filed within 30 days of service of an

amended pleading setting forth a federal question

claim first indicating it is removable. 28 U.S.C. §

1446(b)(3). BP P.L.C. v. Mayor & City Council of

Baltimore, 209 L. Ed. 2d 631, 141 S. Ct. 1532, 1538

(2021); Home Depot U. S. A., Inc. v. Jackson, 204 L.

Ed. 2d 34, 139 S. Ct. 1743, 1753 (2019)(Alito, J.

dissenting). The remand statute, 28 U.S.C. § 1447,

does not provide that waiver based on participation

in state court proceedings is a basis for remanding a

timely removed action. Ordinarily, a statute clear on

its face must be enforced as written. Dodd v. U.S.,

545 U.S. 353, 359 (2005). “Exceptions to clearly

delineated statutes will be implied only where

essential to prevent absurd results or consequences

obviously at variance with the policy of the

enactment as a whole.’” U.S. v. Rutherford, 442 U.S.

544, 552 (1979). No implied exceptions are necessary

here. Cf. Fed.R.Civ.P. 81(c)(2)(obviating repleading).

Remand for waiver by participation in

state court proceedings is simply not authorized by

the removal or remand statutes, and a timely filed

notice of removal is only subject to remand for lack of

jurisdiction or defects in the notice. Thermtron Prod.,

Inc. v. Hermansdorfer, 423 U.S. 336, 344(“we are not

convinced that Congress ever intended to extend

carte blanche authority to the district courts to revise

the federal statutes governing removal by remanding

cases on grounds that seem justifiable to them but

which are not recognized by the controlling statute.”);

Things Remembered, Inc. v. Petrarca, 516 U.S. 124,

130 (1995)(Kennedy, J., concurring). To end the

quagmire Thermtron left unresolved by admitting the

possibility for remands other than pursuant to 28

U.S.C. § 1447(c), the Court can also bring closure to

appellate review of cases that are barred by 28 U.S.C.

§ 1447(d). Kakarala v. Wells Fargo Bank, N.A., 578

U.S. 914, 136 S. Ct. 1153, 1154 (2016)(Thomas, J.,

dissenting).

Waiver by participation in state court

litigation as grounds for remand of a timely filed

notice of removal is “a bad wine of recent vintage.”

TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia,

J., concurring ).

The Seventh Circuit’s decision in

Rothner v. City of Chicago explained the common law

waiver doctrine grew out of pre-1948 “ambiguous and

indefinite time requirements of the early removal

statutes.” Rothner v. City of Chicago, 879 F.2d 1402,

1413 (7th Cir. 1989). The Seventh Circuit’s catalog of

amendments to the removal statutes culminated in

amendments in 1949 that set a finite time limit for

removal. Rothner, 879 F.2d 1402, 1414. The new

finite time limits set by Congress obviated the need

to resort to the common law waiver doctrine, but by

hook or by crook, the doctrine became ensconced in

both leading treatises on federal civil procedure.

Rothner, 879 F.2d 1402, 1414 (citing 14A C. WRIGHT,

A. MILLER & E. COOPER, FEDERAL PRACTICE AND

PROCEDURE § 3721 at 223–25 (1985) and 1A MOORE'S

FEDERAL PRACTICE ¶ 0.157[9] at 151 (2d ed.1987)).

Since then, the waiver by participation doctrine took

on a life of its own. Rothner, 879 F.2d at 1415 (noting

that “the treatise cites to district court cases which

simply cite to pre-1948 cases, or back to the treatise,

or to no authority at all.”).

Section 1447(c) allows for a plaintiff to

move to remand a case “on the basis of any defect

other than lack of subject matter jurisdiction” within

thirty days of the notice of removal being filed. 28

U.S.C. § 1447(c); Wisconsin Dep't of Corr. v. Schacht,

524 U.S. 381, 392 (1998).

Critically here, there was no lack of

jurisdiction or “any defect” in the notice of removal,

the motion to remand did not allege the contrary, and

both the District Court and Fourth Circuit found that

the removal was timely filed and involved a claim

over which the District Court had original

jurisdiction. Pet. App. 4a, 10a. Javitch’s opposition to

the motion to remand and its appellate brief (both

urging reversal and praying for a writ of mandamus)

argued that remand for waiver based on participation

in state court proceedings is not authorized by the

removal statute nor remand statute, but neither the

district court or the court of appeals addressed the

question.

“[W]hen a federal court has jurisdiction,

it also has a ‘virtually unflagging obligation ... to

exercise’ that authority.” Mata v. Lynch, 576 U.S.

143, 150 (2015)(quoting Colorado River Water

Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976));

BP P.L.C. v. Mayor & City Council of Baltimore, 141

S. Ct. 1532, 1537, 209 L. Ed. 2d 631 (2021)(quoting

Sprint Communications, Inc. v. Jacobs, 571 U.S. 69,

72(2013)).

10.

28 U.S.C. § 1447(c) authorizes the court

to entertain a motion to remand “on the basis of any

defect other than lack of subject matter jurisdiction.”

28 U.S.C. § 1447(c). The statutory grounds for

remand “defects” contemplated by Section 1447(c)

include

noncompliance

with

the

statutory

requirements for removal, such as “untimely

removal,” Things Remembered, Inc. v. Petrarca, 516

U.S. 124, 128; not attaching the pleadings or other

required documents, Atkins v. AT&T Mobility Servs.,

LLC, No. 2:18-CV-00599, 2019 WL 5190971, at *3

(S.D.W. Va. Oct. 15, 2019); a notice of removal that

does not demonstrate federal subject-matter

jurisdiction or not signing the notice of removal.

Shiboleth LLP v. Buhannic, 779 F. App'x 57, 58 (2d

Cir. 2019).

Waiver by participation in state court

litigation is not within the scope of “defects” or

subject matter remands contemplated by section

1447(c). City of Albuquerque v. Soto Enterprises, Inc.,

864 F.3d 1089, 1094-1095 (10th Cir. 2017).

Accordingly, the District Court’s refusal to

exercise its jurisdiction was not statutorily

authorized by 28 U.S.C § 1446 or 28 U.S.C § 1447(c).

Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S.

336, 345; Things Remembered, Inc. v. Petrarca, 516

U.S. 124, 130; Rock Hemp Corp. v. Dunn, 51 F.4th

693, 700 (7th Cir. 2022).

Because Congress established 30 days as the

time within which to remove an action from state

court to federal court in 28 U.S.C. § 1446(b)(3), a

timely removed federal question is not subject to

remand under 28 U.S.C § 1447 on the grounds of

waiver by participation in state court.

II.

The

Fourth

Circuit’s

decision

conflicts with decisions of the Seventh

Circuit.

A. If waiver by participation in state court

litigation is a valid reason for declining

to exercise original jurisdiction over a

timely removed federal question claim,

waiver cannot be found absent an

adjudication of the merits.

Even if waiver by participation in state

court proceedings were a valid and necessary federal

common law doctrine allowing a District Court to

decline to exercise its federal question jurisdiction in

a timely removed case over which it has original

jurisdiction, waiver cannot be found absent an

adjudication of the merits.

By definition, waiver exists when there

is a voluntary and intentional relinquishment of a

known and existing right. Morgan v. Sundance, Inc.,

212 L. Ed. 2d 753, 142 S. Ct. 1708, 1713 (2022)

(waiver “is the intentional relinquishment or

abandonment of a known right.”)(quoting United

States v. Olano, 507 U.S. 725, 733 (1993)). Waiver

may be express or implied through a course of

conduct. Hemphill v. New York, 211 L. Ed. 2d 534,

142 S. Ct. 681, 694 (2022)(Alito, J., concurring).

Because the right to remove exists for

30 days from the date the case first becomes

removable under 28 U.S.C. § 1446(b)(1), the timely

exercise that right cannot logically constitute waiver

because the time for performance has not expired.

One need only file a notice of removal “within 30

days….” § 1446(b)(1)(emphasis added). “Within”

means “before the end of.” https://www.merriamwebster.com/dictionary/within. Nothing filed in state

court alters the fact that the right endures for 30

days. By timely removing a case to federal court

before any adjudication of the merits, waiver is

inapplicable.

“[A] perusal of the decided cases shows

that the line between what will constitute waiver of

the right to remove and what will not is far from

clear.” 14C CHARLES A. WRIGHT, ET AL., FEDERAL

PRACTICE & PROCEDURE § 3721, collecting cases at

nn. 99-100 (rev. 4th ed.); 16 MOORE'S FEDERAL

PRACTICE - CIVIL § 107.132[1] (“a particular act may

be held to waive a defendant’s right to remove in one

case and not in another.”); id. at [2][c]. Courts have

decided these questions on a case- by-case basis.

Elizabeth Williams, Annotation, Waiver of Right to

Remove Action to Federal District Court by

Participation in State Court Proceeding, 35 A.L.R.

Fed. 3d Art. 10 (Originally published in 2018).

The Fourth Circuit decision in this case

is in direct conflict with a Seventh Circuit case on

whether merely filing a dispositive motion, as

opposed to actually adjudicating the merits, suffices.

Compare Rock Hemp Corp. v. Dunn, 51 F.4th 693,

700 (“waiver of the right to removal may still be

found under ‘the common law doctrine of waiver ...

only where the parties have fully litigated the merits’

of the case in state court.”)(emphasis added), with

Pet. App. 5a (asking whether the defendant has

“taken substantial defensive action in state court

before petitioning for removal” and “opened itself up

to a complete merits determination in state court.”).

This Court should grant review to resolve this

conflict.

In Rock Hemp Corp. v. Dunn, the Seventh

Circuit considered a case involving a Defendant who

filed a motion to dismiss, engaged in discovery and

attended a hearing on the motion, all before removal

occurred. Rock Hemp Corp. v. Dunn, 51 F.4th 693,

700. As in this case, the Rock Hemp case was not

initially removable, and the Defendant filed a motion

to dismiss to avoid dismissal before learning the case

was removable. The Seventh Circuit began by

revisiting Rothner and confirmed its view that

“waiver of the right to removal may still be found

under “the common law doctrine of waiver ... only

where the parties have fully litigated the merits” of

the case in state court.” Rock Hemp Corp. v. Dunn, 51

F.4th 693, 700. Filing of a motion to dismiss and

addressing the merits before removal do not suffice.

Rather, in the Seventh Circuit, to constitute waiver,

a case must be “considered at length in state court”

and the defendant's state court actions must

demonstrate “a clear and unequivocal waiver[,]” and

constitute “fully litigat[ing] the merits” of the case in

state court. Rock Hemp Corp. v. Dunn, 51 F.4th at

701. See Perez v. Air & Liquid Sys. Corp., 223 F.

Supp. 3d 756, 760 (S.D. Ill. 2016)(“most district

courts in this Circuit have continued to follow

Rothner and have held that filing motions to dismiss

or taking other preliminary actions in state court

does not constitute waiver of the right to

remove.”)(collecting cases); Hill v. Maton, 944

F.Supp. 695, 697 n. 3 (N.D.Ill.1996) (argument that

the filing of a motion to dismiss in state court

constituted a waiver of right to remove “is a loser in

the Seventh Circuit” (citing Rothner)); In re

Bridgestone/Firestone, Inc., ATX, ATX II, 128 F.

Supp. 2d 1198, 1201 (S.D. Ind. 2001).

B. The Eleventh and Tenth Circuits except

motions to dismiss compelled to be filed by

state court rules in advance of removal

from waiver.

The Fourth Circuit’s decision is also

inconsistent with the Eleventh Circuit’s decision in

Yusefzadeh v. Nelson, Mullins, Riley & Scarborough,

LLP, 365 F.3d 1244, 1245 (11th Cir. 2004). In

Yusefzadeh, the Eleventh Circuit considered the

filing of a combined motion to dismiss for lack of

jurisdiction and failure to state a claim which had to

be filed under state rules before the removal

deadline. Yusefzadeh, 365 F.3d 1244, 1245. The court

reversed a finding of waiver, holding that the

defendant did not take substantial offensive or

defensive actions in state court by filing the motion.

Id. at 1246-1247 (11th Cir. 2004). The Court noted

that the Defendant’s response to the complaint before

filing the notice of removal was compelled by state

court rules, creating a “quandary of either: (1)

removing the action and filing the motion to dismiss

in federal court within [7] days, (2) filing a motion to

dismiss in state court and then immediately seeking

removal or (3) requesting an extension to file

responsive pleadings in state court prior to

removing.” Yusefzadeh, 365 F.3d 1244, 1246. While

the Court recognized the tension between the two

deadlines, the Court remarked “[t]his quandary

should not be used to forestall a state court

defendant who chooses to pursue the second option

from swiftly seeking to remove his case to the federal

court. Therefore ‘[t]he filing of a motion to dismiss in

and of itself does not necessarily constitute a waiver

of the defendant's right to proceed in the federal

forum.’ ” Yusefzadeh, 365 F.3d at 1246 (quoting Hill

v. State Farm Mut. Auto. Ins. Co., 72 F. Supp. 2d

1353, 1354 (M.D. Fla. 1999)). See also FEDERAL

PRACTICE & PROCEDURE § 3721 (rev. 4th ed.)(courts

“have refused to find a waiver, however, when the

defendant's participation in the state action was . . .

dictated by the rules of that court….”). See also

Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir.

2004)(no waiver found where Defendant “moved the

state court to dismiss the case and (before the court

could rule on the motion) removed the case the case

to the district court”).

The Tenth Circuit in City of

Albuquerque v. Soto Enterprises, Inc., held that filing

a motion to dismiss addressing the merits before

filing a notice of removal did amount to a waiver, but

noted an exception for compelled participation – that

is, where state procedural rules required a response

to the complaint before the removal deadline lapsed

akin to the issue in Yusefzadeh – the filing of such a

motion will not support waiver. 864 F.3d 1089, 1100

(10th Cir. 2017), cert. denied, 200 L. Ed. 2d 249, 138

S. Ct. 983 (2018).

In this case, Javitch was also compelled

by the state court rules to take some action before its

time for removal expired. Javitch’s responsive

pleading deadline was March 1, 2021, and Javitch’s

removal deadline was March 15, 2021. Javitch filed

its motion to dismiss on February 25 and its notice of

removal on March 5, 2021. Pet. App.2a, 3a, 8a.

The Fifth, Sixth, Eighth and Ninth

Circuits also employ a different standard

than the Fourth Circuit in assessing

whether pre-removal participation in

state court litigation gives rise to waiver.

In Tedford v. Warner-Lambert Co., the

Fifth Circuit held that the waiver of right to remove

must be clear and unequivocal and the defendant did

not waive removal by participating in state court

proceedings including moving to transfer to another

county, moving for confidentiality order, moving to

consolidate under state law, and filing special

exceptions, because nothing defendant did, including

agreeing to trial date before learning of nonsuit of

nondiverse defendant, submitted the cause to

adjudication on merits in state court. 327 F.3d 423,

428–429 (5th Cir. 2003). See also Robertson v. U.S.

Bank, N.A., 831 F.3d 757, 761 (6th Cir. 2016)

(“waiver usually must be explicit, but a defendant

may constructively waive the right to remove by

taking substantial action in state court that

manifests a willingness to litigate on the merits….

Affirmative actions, like filing a cross-claim or

permissive counterclaim in state court, are the kinds

of steps that may amount to waivers.”).

In PR Group, LLC v. Windmill Intern.,

Ltd., the Eighth Circuit found that filing a motion to

dismiss for lack of prosecution does not constitute the

clear and unequivocal waiver of the right to remove,

because it neither addressed the merits of the

plaintiff's complaint nor sought an adjudication on

the merits, and the motion did not clearly and

unequivocally demonstrate any willingness by the

defendant to litigate in state court. PR Group, LLC v.

Windmill Intern., Ltd., 792 F.3d 1025 (8th Cir. 2015).

The Ninth Circuit Kenny v. Wal-Mart

Stores, Inc., held that taking “necessary defensive

action to avoid a judgment being entered

automatically against him, … does not manifest an

intent to litigate in state court” and that “the right of

removal is not lost by action in the state court short

of proceeding to an adjudication on the merits.” 881

F.3d 786, 790 (9th Cir. 2018) (internal reference

omitted). See also Song v. MTC Fin., Inc., 812 F.

App'x 609, 610 (9th Cir. 2020)(no waiver by opposing

motion for preliminary injunction and in exercising

peremptory challenge to state court judge); Resol. Tr.

Corp. v. Bayside Devs., 43 F.3d 1230, 1240 (9th Cir.

1994), as amended (Jan. 20, 1995)(“Where, as here, a

party takes necessary defensive action to avoid a

judgment being entered automatically against him,

such action does not manifest an intent to litigate in

state court, and accordingly, does not waive the right

to remove.”).

As noted above, Javitch was compelled

by the state court rules to take some action before its

time for removal expired. Javitch’s combined nonmerits motion to dismiss for lack of subject matter

jurisdiction and motion to dismiss based on the

merits is the epitome of an equivocal expression –

expressing both a desire that the court not exercise

its jurisdiction and not to address the merits at all,

along with an expression of a desire that in the case

of exercising jurisdiction, the court reach the merits

and find in the movant’s favor. This type of joint

motion

does

not

unequivocally

reflect

“unequivocal” intent to remain in state court.

Yusefzadeh, 365 F.3d 1244, 1246. Even coupled with

the two other filings – a notice of additional authority

and a motion to stay discovery – Javitch’s actions did

no more than comply with state court rules and

defend

against

judgment

being

entered

automatically. In any case, the merits were never

reached by the state court before the removal.

The Seventh Circuit has the test right:

only where there has been an adjudication of the

merits may the right to remove be lost. Congress did

not bestow the right to have a federal court readjudicate a dispute that was already decided in

state court before removal. Because an adjudication

on the merits before removal is antithetical to the

purpose of the removal statutes, mere filing a

pleading or motion prior to removal is immaterial.

There was no testing of the waters

Redman devoted much of his argument

below to an ad hominem attack against Javitch as a

villain on the run from a judge bearing enduring

animus toward Javitch from Redman I, who turned

tail and ran to federal court “three hours after the

court filed notice that … judge was assigned to the

[Redman II] case.” The Court of Appeals found the

timing of Javitch’s removal indicative of an effort to

“test the waters.” Pet. App. 6a.

Significantly, the unexplained recusal

followed by removal cannot be seen as “testing the

waters.” For an adverse inference to arise, there

must have been a prior adverse decision, and here,

there was none. Cf. Rosenthal v. Coates, 148 U.S.

142, 147(1893) (removal acts “do not contemplate

that a party may experiment on his case in the state

court, and, upon an adverse decision, then transfer it

to the Federal court.”)(emphasis added). There were

no rulings on the merits by the judge from Redman I

in Redman II before the case was removed, and the

removal was timely filed. A single ruling in a prior

case, or a win-loss ratio from prior cases before a

specific judge of a court cannot be a litmus test for

the permissibility of removal.

A party’s ability to remove because the party

sees an advantage in federal court is part of the

design of the Congressional grant of the right of

removal as a means of avoiding perceived prejudice

against non-resident defendants. 14C CHARLES A.

WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE §

3721 (rev. 4th ed.)(“the original right to remove

probably was designed to protect nonresidents from

the local prejudices of state courts.”). Indeed, many

defendants’ decision to remove could be sullied by

pointing to success or failure in prior litigation with a

given state court judge, or the judge’s perceived

propensity to rule adversely. A judge’s decisions in

one case do not necessarily predict any or all future

decisions.

Every Defendant named in state court who has

the right to remove an action based on federal

question jurisdiction engages in some type of calculus

in deciding whether to flee to federal court to avoid

leaving their fate in the hands of a state court judge

who is or is not likely to side with their position.

Congress afforded all litigants 30 days to make that

decision in 28 U.S.C. § 1446.

To say the die is cast immediately when filing

some papers in state court and the calculus cannot

change if the action is reassigned from one judge to

another, makes a mockery of Congressional policy in

28 U.S.C. § 1446(b) affording all litigants with 30

days to make up their minds where their fate will be

determined - in state court or federal court.

Here, the calculus changed for Javitch when

the first state court judge inexplicably recused

himself. That the case was reassigned to the judge

who presided over Redman I was incidental to the

recusal, and defendant timely removed the case.

The remand order and proceedings

in state court do not moot this

appeal

Neither the District Court’s remand

order nor its entry in the state court pursuant to 28

U.S.C. § 1447(c) divested the lower courts of

jurisdiction to entertain this appeal, because this

Court retains jurisdiction to hear challenges to

remand orders not based on a jurisdictional or

procedural defect, despite § 1447(d). Thermtron

Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 346.

If the case was properly removed, the

state court has no jurisdiction to proceed and any

proceedings it conducts are void. Roman Cath.

Archdiocese of San Juan, Puerto Rico v. Acevedo

Feliciano, 140 S. Ct. 696, 700, 206 L. Ed. 2d 1 (2020).

Courts have found that district and circuit courts

retain jurisdiction over the proceedings despite the

order remanding. Cf. Acad. of Country Music v. Cont’l

Cas. Co., 991 F.3d 1059, 1065 (9th Cir. 2021)(“the

transmittal of a remand order to the state court does

not deprive a court of jurisdiction to review that

order if review is not barred by § 1447(d).”); In re

Digicon Marine Inc., 966 F.2d 158, 160–61 (5th

Cir.1992) (“Although we had previously stated that

the district court was divested of jurisdiction once it

mailed the remand order to the state court, ... where

remand is reviewable on appeal a district court has

jurisdiction to review its own order, and vacate or

reinstate that order.”); Hammer v. United States

Dep’t of Health & Hum. Servs., 905 F.3d 517, 525

(7th Cir. 2018) (“Because the remand order in this

case is reviewable, the certification of the remand

order imposes no independent bar on either our

jurisdiction or the district court’s jurisdiction. In

reaching this conclusion, we join the three other

circuits that have considered this issue.”)(citing

Shapiro v. Logistec USA, Inc., 412 F.3d 307, 312 (2d

Cir. 2005); Hudson United Bank v. LiTenda Mortg.

Corp., 142 F.3d 151, 159 (3d Cir. 1998); In re Digicon

Marine, Inc., 966 F.2d 158, 160-61 (5th Cir. 1992).

Moreover, a reversal of the remand

order may result in the nullification of the

proceedings in state court by virtue of the Supremacy

Clause. Bryan v. BellSouth Commc’ns, Inc., 492 F.3d

231, 241, n. 5 (4th Cir. 2007).

The Fourth Circuit’s decision in this case

undermines the uniform procedure established by

Congress allotting 30 days for filing removal

petitions when state court deadlines compel a

response before the deadline runs to timely file for

removal. Murphy Brothers, Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 351 (1999); Grubbs v.

Gen. Elec. Credit Corp., 405 U.S. 699, 705 (1972). The

Court should grant the petition.

CONCLUSION

For the foregoing reasons, the petition for writ

of certiorari should be granted.

Respectfully submitted,

MICHAEL D. SLODOV

Counsel of Record

JAVITCH BLOCK, LLC

1100 Superior Ave. 19th Floor

Cleveland, Ohio 44114

(440) 318-1073

mslodov@jbllc.com

Counsel for Javitch Block, LLC

March 15, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.