Amicus Curiae Brief — Enbridge Energy, LP, et al., Petitioners v. Dana Nessel, Attorney General of Michigan, on Behalf of the People of the State of Michigan

No. 24-783

In the Supreme Court of the United States

________________

ENBRIDGE ENERGY, LP, ET AL.,

Petitioners,

v.

DANA NESSEL, ATTORNEY GENERAL OF MICHIGAN, ON

BEHALF OF THE PEOPLE OF THE STATE OF MICHIGAN,

________________

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

________________

BRIEF OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AND NATIONAL

FEDERATION OF INDEPENDENT BUSINESS SMALL

BUSINESS LEGAL CENTER, INC. AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

________________

STEPHANIE A. MALONEY

JONATHAN D. URICK

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, DC 20062

Counsel for the Chamber of

Commerce of the United

States of America

MARY ELIZABETH MILLER

SHANNON G. DENMARK

Counsel of Record

LEHOTSKY KELLER COHN LLP

200 Massachusetts Ave., NW

Suite 700

Washington, DC 20001

(512) 693-8350

shannon@lkcfirm.com

Counsel for Amici Curiae

(additional counsel listed on inside cover)

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS LEGAL

CENTER, INC.

555 12th St., NW

Suite 1001

Washington, DC 20004

Counsel for National

Federation of Independent

Business Small Business

Legal Center, Inc.

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amici Curiae ............................................. 1

Introduction and Summary of Argument .................. 3

Argument .................................................................... 5

I.

This Court Should Interpret Section

1446(b)(1) to Allow for a Limited Equitable

Exception to Safeguard Federal Jurisdiction

Against Procedural Gamesmanship. .................. 5

A. The removal right is critically important

for defendants and federal courts. ............... 5

B. Courts have long guarded their federal

jurisdiction against gamesmanship. ............ 8

C. A limited equitable exception to Section

1446(b)(1) protects federal jurisdiction

from procedural gamesmanship. ............... 13

D. This case exemplifies the need for such a

limited equitable exception. ....................... 15

II. This Court Should Not Apply a Presumption

Against Removal................................................ 20

Conclusion................................................................. 23

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) .............................................. 21

Ala. Great S. Ry. Co. v. Thompson,

200 U.S. 206 (1906) ................................................ 9

Ardoin v. Stine Lumber Co.,

298 F. Supp. 2d 422 (W.D. La. 2003) ..................... 9

Back Doctors Ltd. v. Metro. Prop. & Cas.

Ins. Co.,

637 F.3d 827 (7th Cir. 2011) ................................ 21

Breuer v. Jim’s Concrete of Brevard, Inc.,

538 U.S. 691 (2003) .............................................. 21

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ................................................ 5

Chesapeake & O.R. Co. v. Cockrell,

232 U.S. 146 (1914) ................................................ 8

Colt Indus. Operating Corp. v. Index-Werke

K.G.,

739 F.2d 622 (Fed. Cir. 1984) .............................. 19

Dart Cherokee Basin Operating Co. v.

Owens,

574 U.S. 81 (2014) .......................................... 20, 21

iii

Dufrene v. Petco Animal Supplies Stores,

Inc.,

934 F. Supp. 2d 864 (M.D. La. 2012) ................... 11

England v. La. State Bd. of Med. Examiners,

375 U.S. 411 (1964) .............................................. 14

Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg.,

545 U.S. 308 (2005) .......................................... 7, 20

Gunn v. Minton,

568 U.S. 251 (2013) .............................................. 20

Kucana v. Holder,

558 U.S. 233 (2010) .............................................. 21

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

572 U.S. 118 (2014) ................................................ 3

Lincoln Prop. Co. v. Roche,

546 U.S. 81 (2005) .................................................. 6

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ............................ 5, 6

Mata v. Lynch,

576 U.S. 143 (2015) ................................................ 7

McKinney v. Bd. of Trs. of Mayland Cmty.

Coll.,

955 F.2d 924 (4th Cir. 1992) ................................ 15

Michigan v. Enbridge Energy, Ltd. P’ship,

571 F. Supp. 3d 851 (W.D. Mich. 2021) ..... 4, 15, 18

iv

Murphy Bros. v. Michetti Pipe Stringing,

Inc.,

526 U.S. 344 (1999) .............................................. 20

Negonsott v. Samuels,

507 U.S. 99 (1993) ................................................ 21

Nessel v. Enbridge Energy, LP,

104 F.4th 958 (6th Cir. 2024) .................. 13, 20, 21

Nessel v. Enbridge Energy Ltd. P’ship,

2022 WL 19005621 (W.D. Mich.

Aug. 18, 2022) ................................................. 15, 19

Plymouth Consol. Gold Mining Co. v.

Amador & Sacramento Canal Co.,

118 U.S. 264 (1886) ................................................ 8

Powers v. Chesapeake & O. Ry. Co.,

169 U.S. 92 (1898) .................................................. 9

Pretka v. Kolter City Plaza II, Inc.,

608 F.3d 744 (11th Cir. 2010) .............................. 15

Reece v. Bank of N.Y. Mellon,

760 F.3d 771 (8th Cir. 2014) ................................ 11

Royal Canin U.S.A., Inc. v. Wullschleger,

145 S. Ct. 41 (2025) .............................................. 10

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941) .............................................. 21

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) .................................................. 8

v

St. Paul Mercury Indem. Co. v. Red Cab Co.,

303 U.S. 283 (1938) ........................................ 10, 14

Staples v. Joseph Morton Co.,

444 F. Supp. 1312 (E.D.N.Y. 1978)...................... 12

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................ 7

Syngenta Crop Prot., Inc. v. Henson,

537 U.S. 28 (2002) ................................................ 21

Tedford v. Warner-Lambert Co.,

327 F.3d 423 (5th Cir. 2003) .................................. 9

Tennessee v. Davis,

100 U.S. 257 (1879) ............................................ 5, 8

Wecker v. Nat’l Enameling & Stamping Co.,

204 U.S. 176 (1907) ................................................ 8

White v. White,

32 F. Supp. 2d 890 (W.D. La. 1998)..................... 12

Williams v. Costco Wholesale Corp.,

471 F.3d 975 (9th Cir. 2006) ................................ 10

Statutes & Treaties

28 U.S.C. § 1331 .............................................. 7, 13, 16

28 U.S.C. § 1332 .............................................. 7, 13, 16

28 U.S.C. § 1446 .... 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 20

28 U.S.C. § 1453 ........................................................ 11

vi

Federal Courts Jurisdiction and Venue

Clarification Act of 2011, Pub. L. No.

112-63, 125 Stat. 758 ..................................... 10, 12

Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 73 ............ 5

Agreement Between the Government of the

United States and the Government of

Canada Concerning Transit Pipelines,

Jan. 28, 1977, 28 U.S.T. 7449 .............................. 17

Other Authorities

About Line 5, Enbridge,

https://perma.cc/6ZWA-MNSW............................ 16

Kevin M. Clermont & Theodore Eisenberg,

Do Case Outcomes Really Reveal

Anything About the Legal System? Win

Rates and Removal Jurisdiction, 83

Cornell L. Rev. 581 (1998) ..................................... 6

Enbridge, Line 5 Wisconsin Segment

Relocation Project (Aug. 2020),

https://perma.cc/C2KJ-WVD5 .............................. 17

House of Commons, Special Comm. on the

Econ. Relationship Between Canada and

the U.S., Enbridge’s Line 5: An Interim

Report (Apr. 2021),

https://perma.cc/E4V2-E4ZN ............................... 17

vii

Neal Miller, An Empirical Study of Forum

Choices in Removal Cases Under

Diversity and Federal Question

Jurisdiction, 41 Am. U. L. Rev. 369

(1992) ...................................................................... 6

Press Release, Gov. Gretchen Whitmer,

Governor Whitmer Takes Action to

Protect the Great Lakes (Nov. 30, 2021),

https://perma.cc/B4R7-CZ2B ............................... 18

S. Rep. No. 109-14 (2005) .......................................... 14

James M. Underwood, From Proxy to

Principle: Fraudulent Joinder

Reconsidered, 69 Alb. L. Rev. 1013 (2006) ............ 6

U.S. Chamber of Commerce, Inst. for Legal

Reform, Nuclear Verdicts: An Update on

Trends, Causes, and Solutions (May

2024), https://perma.cc/WCW2-TXJA .................... 6

Bernard L. Weinstein & Terry L. Clower,

Consumer Energy Alliance, Enbridge

Line 5: Shutdown Impacts on

Transportation Fuel (Feb. 2022),

https://perma.cc/442E-GDBV............................... 16

Charles Alan Wright et al., Federal Practice

& Procedure (4th ed. 2025) .................................... 7

INTEREST OF AMICI CURIAE 1

The Chamber of Commerce of the United States

of America is the world’s largest business federation.

It represents approximately 300,000 direct members

and indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The National Federation of Independent Business

Small Business Legal Center, Inc. (“NFIB Legal

Center”) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (“NFIB”),

which is the nation’s leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

Pursuant to Supreme Court Rule 37.6, amici curiae state

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amici curiae, their

members, or their counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

1

(1)

2

Amici curiae have a strong interest in ensuring

that federal courts’ removal jurisdiction remains

protected in the narrow circumstance where it is

threatened by procedural gamesmanship. Members of

amici curiae are frequently defendants in litigation

filed by plaintiffs in state court, and they often seek to

exercise their statutory right to remove such cases to

federal court where appropriate to do so. In such cases,

plaintiffs sometimes attempt to defeat federal

jurisdiction through tactics like those deployed by the

State of Michigan here. 2 Amici curiae thus have an

interest in ensuring a correct understanding of the

procedures for federal removal, as well as in

manageable rules that enable federal courts to protect

their jurisdiction in the face of forum manipulation.

2

Unless otherwise noted, this brief uses the term “the State”

to encompass the State of Michigan and its officers acting on its

behalf—including the Attorney General in this case.

3

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves the generally applicable

procedural time limit for removal in Section

1446(b)(1). Under that provision, a notice of removal

in a civil action generally “shall be filed within 30 days

after the receipt by the defendant … of a copy of the

initial pleading.” 28 U.S.C. § 1446(b)(1). Like other

procedural time limits, this 30-day time limit in

Section 1446(b)(1) ordinarily controls. But in certain

limited circumstances, federal courts should recognize

an equitable exception to safeguard their jurisdiction

against procedural gamesmanship.

Since the beginning of our Republic, federal law

has afforded defendants the right to remove a case

from state to federal court where federal jurisdiction

exists. That removal right is obviously important to

the defendants who seek a federal forum for their

dispute. But it is also critically important for federal

courts, which have a “virtually unflagging” “obligation

to hear and decide cases within [their] jurisdiction.”

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 126 (2014) (citation and internal

quotation marks omitted). In carrying out this

obligation, courts regularly reject plaintiffs’ attempts

to defeat federal jurisdiction in a variety of contexts—

including removal.

Courts should do the same when it comes to

Section 1446(b)(1). Plaintiffs should not be permitted

to manipulate Section 1446(b)(1)’s procedural time

limit to escape a federal forum afforded by federal law.

To allow plaintiffs to thwart the removal right in such

a way would impede the judicial duty to exercise

4

federal jurisdiction. It would also pervert the design of

Section 1446(b), in which Congress sought to curb

forum manipulation of this kind.

This case proves the point: A federal court has

already held that it is an “appropriate forum for

deciding the[] disputed and substantial federal issues”

at play in this dispute over the Line 5 international

oil-and-gas pipeline. Michigan v. Enbridge Energy,

Ltd. P’ship, 571 F. Supp. 3d 851, 862 (W.D. Mich.

2021). The claims at issue implicate important federal

interests in, among other things, foreign relations and

treaty obligations.

But because of the State’s crafty maneuvers, the

Sixth Circuit held that a federal forum is no longer

available. At a high level, the State ran out the clock

for removal in this case by filing a parallel case,

fighting over removal in that case for a year, agreeing

to hold this case in abeyance during that fight, and

then dismissing the parallel case once federal

jurisdiction was determined to exist. According to the

Sixth Circuit, this case is stuck in state court despite

Congress’s conferral of federal jurisdiction over the

important federal questions involved. And the parties

(and district court) have wasted years’ worth of time

and resources only to end up right where they started.

In sum, while Section 1446(b)(1)’s generally

applicable procedural time limit should ordinarily be

enforced, this Court should recognize a limited

equitable exception to protect federal jurisdiction

against procedural gamesmanship.

5

ARGUMENT

I.

This Court Should Interpret Section

1446(b)(1) to Allow for a Limited Equitable

Exception

to

Safeguard

Federal

Jurisdiction

Against

Procedural

Gamesmanship.

A. The removal right is critically important

for defendants and federal courts.

The federal removal right was introduced with the

Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 73, 79, and

“has been in constant use ever since,” Tennessee v.

Davis, 100 U.S. 257, 265 (1879). This removal right is

critically important both to the defendants seeking to

invoke federal jurisdiction and to the courts obligated

to exercise it.

1. The removal right is important to defendants.

That right gives effect to the notion that the federal

judicial power “was not to be exercised exclusively for

the benefit of parties who might be plaintiffs,

[who] … elect the national forum, but also for the

protection of defendants who might be entitled to try

their rights, or assert their privil[e]ges, before the

same forum.” Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat.) 304, 348 (1816).

To be sure, a plaintiff is “the master of the claim.”

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).

A plaintiff generally may choose whom to sue, what to

sue about, and—as relevant here—where to sue. If a

plaintiff is entitled to a federal forum, it usually may

design its complaint to invoke that forum or not. But

the federal removal statutes in turn give defendants

6

“a corresponding opportunity” to invoke a federal

forum if they are so entitled and if they so wish.

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); see

also Martin, 14 U.S. (1 Wheat.) at 349 (explaining that

the federal removal statutes provide defendants with

“equal rights” to a federal forum).

The removal right is particularly important for

business defendants. Plaintiffs’ attorneys often sue

business defendants in state court because of the

perception that those courts are more likely to favor

nonbusiness parties. See U.S. Chamber of Commerce,

Inst. for Legal Reform, Nuclear Verdicts: An Update

on Trends, Causes, and Solutions at 13-14 (May 2024),

https://perma.cc/WCW2-TXJA

(“Personal

injury

lawyers have long preferred to try cases in state

courts—which they often perceive as having more

plaintiff-friendly judges, jurors, and court rules—than

more neutral, federal courts with lifetime-appointed

judges.”); cf. Neal Miller, An Empirical Study of

Forum Choices in Removal Cases Under Diversity and

Federal Question Jurisdiction, 41 Am. U. L. Rev. 369,

412-13, 424 (1992) (“Defense attorneys’ forum

preference for federal court is based on expectations of

lesser hostility there toward business litigants (80% to

85% of defendants are businesses).”). 3 The statutory

This is not a hypothetical risk, particularly for business

defendants. See, e.g., James M. Underwood, From Proxy to

Principle: Fraudulent Joinder Reconsidered, 69 Alb. L. Rev. 1013,

1014 (2006) (“[A] plaintiff’s ability to avoid removal ... could mean

the difference between winning and losing.” (citation omitted));

Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes

3

7

removal right ensures that business defendants are

not subject to “the local prejudices of state courts”

when federal issues are in play. 14C Charles Alan

Wright et al., Federal Practice & Procedure § 3721 (4th

ed. 2025).

2. The removal right also enables federal courts to

exercise their jurisdiction. Plaintiffs regularly bring

lawsuits in state court that properly belong in federal

court and over which federal courts have statutorily

guaranteed jurisdiction. Those suits may, for example,

involve diverse parties and a sufficiently high amount

in controversy. See 28 U.S.C. § 1332(a). Or—as here—

they may involve important federal questions, see id.

§ 1331, over which Congress has sought to guarantee

“the experience, solicitude, and hope of uniformity

that a federal forum offers,” Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312

(2005).

If federal jurisdiction exists and is invoked,

federal courts have a duty to protect and exercise it.

“[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)

(citation omitted); see also Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 167 (2014) (“‘[A] federal

court’s obligation to hear and decide’ cases within its

jurisdiction ‘is virtually unflagging.’” (citation

Really Reveal Anything About the Legal System? Win Rates and

Removal Jurisdiction, 83 Cornell L. Rev. 581, 581 (1998)

(“Plaintiffs’ win rates in removed cases are very low,

compared … to state cases.”).

8

omitted)). Courts have “no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.” Sprint Commc’ns, Inc. v.

Jacobs, 571 U.S. 69, 77 (2013) (citation omitted).

This judicial duty is particularly salient in cases,

like this one, presenting important federal questions.

As this Court has recognized, federal question

jurisdiction is crucial to ensuring the supremacy of

federal law, as well as its “uniform and consistent

administration.” Tennessee, 100 U.S. at 265-66. When

a federal court’s jurisdiction over federal questions is

evaded, the federal “judicial power is, at least,

temporarily silenced, instead of being at all times

supreme.” Id. at 266.

B. Courts have long guarded their federal

jurisdiction against gamesmanship.

As this Court instructed more than a century ago,

“[f]ederal courts should not sanction devices intended

to prevent a removal to a Federal court where [a

defendant] has that right.” Wecker v. Nat’l Enameling

& Stamping Co., 204 U.S. 176, 186 (1907). Courts have

since followed that directive, protecting their federal

jurisdiction against gamesmanship in a variety of

contexts.

1. Fraudulent Joinder. This Court has

recognized that the “right of removal cannot be

defeated by a fraudulent joinder of a resident

defendant having no real connection with the

controversy.” Chesapeake & O.R. Co. v. Cockrell, 232

U.S. 146, 152 (1914); see also Plymouth Consol. Gold

Mining Co. v. Amador & Sacramento Canal Co., 118

9

U.S. 264, 270 (1886) (noting concerns over “sham

defendants”). This principle guards against

gamesmanship by preventing plaintiffs’ “attempts to

wrongfully deprive parties entitled to sue in the

Federal courts of the protection of their rights in those

tribunals.” Ala. Great S. Ry. Co. v. Thompson, 200 U.S.

206, 218 (1906).

Courts have accordingly foreclosed plaintiffs from

using the parties to an action to weaponize procedural

time limits and defeat federal jurisdiction. See, e.g.,

Powers v. Chesapeake & O. Ry. Co., 169 U.S. 92, 98102 (1898) (allowing equitable exception to removal

statute where plaintiff “discontinued” action against

nondiverse defendants after procedural time limit for

removal had lapsed); Tedford v. Warner-Lambert Co.,

327 F.3d 423, 425, 427-28 (5th Cir. 2003) (allowing

equitable exception to Section 1446’s one-year time

limit where plaintiff engaged in “forum manipulation”

through “eleventh-hour joinder and then nonsuit” of a

nondiverse defendant); Ardoin v. Stine Lumber Co.,

298 F. Supp. 2d 422, 428 (W.D. La. 2003) (permitting

equitable extension to Section 1446’s one-year time

limit where “plaintiffs attempted to manipulate the

statutory rules for determining federal removal

jurisdiction” by dismissing nondiverse defendants

after one year had lapsed). 4

Prior to 2011, Section 1446 provided simply that “a case may

not be removed on the basis of [diversity jurisdiction] more than

1 year after commencement of the action.” See 28 U.S.C. § 1446(b)

(2010). Plaintiffs sought to circumvent that provision by avoiding

triggering federal jurisdiction until the one-year mark. In 2011,

4

10

2. Claim Substance. This Court has also

guarded federal jurisdiction against a plaintiff’s

manipulation of the value of his claims to “defeat [the

removal right] and bring the cause back to the state

court at his election.” St. Paul Mercury Indem. Co. v.

Red Cab Co., 303 U.S. 283, 294 (1938). If a plaintiff

could “reduce the amount of his demand to defeat

federal jurisdiction[,] the defendant’s supposed

statutory right of removal would be subject to the

plaintiff’s caprice.” Id. 5

Other courts have similarly rejected plaintiffs’

efforts to manipulate the substance of their claims to

defeat federal jurisdiction. See, e.g., Williams v. Costco

Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006) (per

curiam) (holding that a second removal notice

Congress therefore amended Section 1446 to provide that the

one-year time limit does not apply if “the district court finds that

the plaintiff has acted in bad faith in order to prevent a defendant

from removing the action.” 28 U.S.C. § 1446(c)(1); see Federal

Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L.

No. 112-63, 125 Stat. 758, 760. This amendment demonstrates

Congress’s understanding that the procedural time limits in

Section 1446(c)(1)—like those in Section 1446(b)—are amenable

to jurisdiction-protecting exceptions.

5

This Court’s recent decision in Royal Canin U.S.A., Inc. v.

Wullschleger, 145 S. Ct. 41 (2025), cannot be read as an

endorsement of crafty procedural tactics to avoid federal

jurisdiction. That case involved a plaintiff’s efforts to “amend[]

her complaint” to “eliminate[] claims.” Id. at 30. And, of course, a

plaintiff “gets to determine which substantive claims to bring.”

Id. at 35; see supra p.5. The State here is not seeking to modify

its substantive claims in any way; it is instead manipulating

procedure with an eye to defeating federal jurisdiction. See infra

pp.15-20.

11

expressly invoking diversity jurisdiction was not

required because diversity jurisdiction existed at the

time of removal, even though the only basis for

removal articulated at the time of removal was federal

question jurisdiction and the federal claim had since

been eliminated); Dufrene v. Petco Animal Supplies

Stores, Inc., 934 F. Supp. 2d 864, 866 (M.D. La. 2012)

(allowing equitable tolling under Section 1446’s oneyear time limit where plaintiff engaged in “forum

manipulation by concealing the true value of her claim

for over a year”).

3. Class Actions. Courts likewise prevent

plaintiffs from manipulating class actions to defeat

federal jurisdiction. In Reece v. Bank of New York

Mellon, for example, the Eighth Circuit held that the

one-year time limit in Section 1446(c)(1) did not apply

to class actions. 760 F.3d 771, 775-76 (8th Cir. 2014).

In doing so, the court relied on another removal

statute providing that “the 1-year limitation under

section 1446(c)(1) shall not apply” when a “class action

[is] removed to a district court of the United States in

accordance with section 1446.” Id. (quoting 28 U.S.C.

§ 1453(b)). As that court explained, any other reading

of the statutes “would thwart clear congressional

intent by permitting plaintiffs to evade federal

jurisdiction through clever gamesmanship: filing an

individual complaint in state court, waiting a year,

then transforming the original complaint into a class

action by amendment, when it would be too late for a

defendant, now facing a class action, to file a notice of

removal.” Id. at 776.

12

4. Delay. Courts have likewise rejected plaintiffs’

efforts to delay development of their case to avoid

removal. Prior to the amendment of Section 1446(b),

courts allowed equitable exceptions to Section 1446’s

time limits when plaintiffs delayed service to run out

the clock. 6 See, e.g., White v. White, 32 F. Supp. 2d 890,

893 (W.D. La. 1998) (allowing equitable exception to

Section 1446’s one-year time limit where plaintiff set

a “removal trap” by “first serving an unsophisticated

defendant who is the least likely to attempt removal”

and waiting “until 30 days has elapsed” to “serv[e] the

more sophisticated defendants who are likely to

attempt removal”). And courts have also allowed

equitable exceptions when plaintiffs used deceit to

achieve delay. See, e.g., Staples v. Joseph Morton Co.,

444 F. Supp. 1312, 1313-14 (E.D.N.Y. 1978) (allowing

equitable tolling under Section 1446’s 30-day limit

where defendant, “relying upon plaintiff's agreement

to discontinue the action,” did not remove the action

within 30 days).

6

Prior to 2011, Section 1446(b) did not clearly explain which

defendant’s receipt of the complaint triggered the 30-day time

limit—the first defendant or any defendant. See 28 U.S.C.

§ 1446(b) (2010). Plaintiffs sought to exploit that ambiguity by

delaying service to some defendants until after the removal

deadline had passed. In 2012, Congress therefore amended

Section 1446(b) to provide that “[e]ach defendant shall have 30

days after receipt by or service on that defendant of the initial

pleading or summons … to file the notice of removal.” 28 U.S.C.

§ 1446(b)(2)(B) (emphasis added); see 125 Stat. at 760. This

amendment, too, demonstrates Congress’s desire to insulate

Section 1446(b)’s time limits from procedural gamesmanship.

13

In each of these contexts, courts have rejected

efforts to avoid federal jurisdiction through procedural

gamesmanship.

C. A limited equitable exception to Section

1446(b)(1) protects federal jurisdiction

from procedural gamesmanship.

The Sixth Circuit in this case held that “there are

no equitable exceptions to [Section 1446(b)’s]

deadlines for removal,” which it deemed “mandatory.”

Nessel v. Enbridge Energy, LP, 104 F.4th 958, 961, 971

(6th Cir. 2024). Amici curiae agree that Section

1446(b)(1)’s 30-day time limit is generally mandatory.

But the long judicial tradition of protecting federal

jurisdiction counsels against reading Section

1446(b)(1) as the Sixth Circuit did here. As Petitioners

ably explain, courts presumptively have the authority

to recognize equitable exceptions to procedural time

limits. See Petrs.’ Br. 32-33. This Court should

recognize a limited equitable exception to Section

1446(b)(1) that safeguards federal jurisdiction and

discourages forum manipulation.

1. Procedural gamesmanship cannot be permitted

to thwart the fundamental judicial duty to protect and

exercise federal jurisdiction. As noted, where federal

jurisdiction exists and has been invoked, courts have

a duty to exercise and protect it. See supra pp.7-8.

Congress has given federal courts jurisdiction

over certain cases and controversies. See, e.g., 28

U.S.C. § 1331 (federal question jurisdiction); id.

§ 1332(a) (diversity jurisdiction). And it has given

defendants the right to invoke that federal jurisdiction

14

where it exists. See, e.g., id. § 1441 (civil action

removal); id. § 1442(a)(1) (federal officer removal).

To allow a plaintiff’s procedural gamesmanship to

defeat federal jurisdiction when a defendant has

invoked it would be “at war with the unqualified terms

in which Congress, pursuant to constitutional

authorization, has conferred specific categories of

jurisdiction upon the federal courts.” England v. La.

State Bd. of Med. Examiners, 375 U.S. 411, 415 (1964).

And it would also cede the federal judicial duty to

exercise that jurisdiction “to the plaintiff’s caprice.” St.

Paul, 303 U.S. at 294. That is particularly true where,

as here, a federal court has already determined that

federal jurisdiction exists. See infra p.18.

2. Such a limited jurisdiction-protecting exception

would also be of a piece with the limited jurisdictionprotecting exceptions contained in Section 1446’s text.

Section 1446(b)(3), for example, allows for removal

more than 30 days after receipt of the complaint when

it is only later “ascertained that the case is one which

is … removable.” 28 U.S.C. § 1446(b)(3). And although

a defendant generally may not remove under Section

1446(b)(3) on the basis of diversity jurisdiction more

than one year after an action begins, that time limit

does not apply when “the plaintiff has acted in bad

faith in order to prevent a defendant from removing

the action.” Id. § 1446(c)(1).

These textual provisions reveal Congress’s intent

to protect federal jurisdiction against a plaintiff’s

efforts to conceal the federal nature of the action. See

S. Rep. No. 109-14 at 9 (2005) (explaining that Section

1446(b) was carefully designed “to prevent plaintiffs

15

from evading federal jurisdiction by hiding the true

nature of their case”). Congress plainly did not

“create[] the removal process … with one hand, and

with the other give plaintiffs a bag of tricks to

overcome” removal. McKinney v. Bd. of Trs. of

Mayland Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992)

(citation omitted).

D. This case exemplifies the need for such

a limited equitable exception.

This case demonstrates the need for a limited

equitable exception to Section 1446(b)(1) designed to

protect federal jurisdiction against procedural

gamesmanship. A federal court has already

determined that federal court is an “appropriate

forum for deciding the[] disputed and substantial

federal issues” in the Line 5 controversy. Michigan,

571 F. Supp. 3d at 862. The only reason this dispute is

not in federal court is because of the State’s “attempt

to gain an unfair advantage through the improper use

of judicial machinery.” Nessel v. Enbridge Energy Ltd.

P’ship, 2022 WL 19005621, at *6 (W.D. Mich. Aug. 18,

2022), rev’d and remanded, 104 F.4th 958 (6th Cir.

2024). “To force a defendant to tarry in state court”

like this when it has already “establish[ed] [its] right

to be in federal court … cannot be what Congress had

in mind when it enacted § 1446.” Pretka v. Kolter City

Plaza II, Inc., 608 F.3d 744, 767 (11th Cir. 2010).

1. This case is the first of two virtually identical

cases filed by the State seeking to shut down the Line

5 pipeline. The Michigan Attorney General filed this

action in state court seeking declaratory and

injunctive relief to prevent Enbridge from operating

16

Line 5. The complaint did not name completely diverse

parties, see 28 U.S.C. § 1332(a), and did not allege any

federal claims, see id. § 1331. Enbridge did not remove

the nondiverse, state-law complaint to federal court.

The State of Michigan, its Governor, and its

Department of Natural Resources later filed a second

case in state court. Like this case, the State’s second

case sought declaratory and injunctive relief to

prevent Enbridge from operating Line 5. But unlike

this case, the State brought its second case after the

Governor issued a notice of revocation and

termination of the easement that allowed Line 5 to run

through the Straits of Mackinac on November 13,

2020.

The negative consequences of that revocation and

termination cannot be overstated. Up to 540,000

barrels of crude oil and natural gas liquids pass

through Line 5 daily. 7 Those resources “heat homes

and businesses, fuel vehicles, and power industry.” 8

Residents and businesses in multiple midwestern

States depend on the resources transported through

Line 5—including Indiana, Michigan, Ohio,

Pennsylvania, and Wisconsin. 9 So too do residents and

7

About Line 5, Enbridge, https://perma.cc/6ZWA-MNSW.

8

Id.

See, e.g., Bernard L. Weinstein & Terry L. Clower,

Consumer Energy Alliance, Enbridge Line 5: Shutdown Impacts

on Transportation Fuel at 3 (Feb. 2022), https://perma.cc/442EGDBV (“If Line 5 shuts down, families and businesses across the

Midwest will spend at least $23.7 billion more on gasoline and

diesel over the following five years due to the resulting loss of

9

17

businesses in Canada. “Line 5 supplies four refineries

in Ontario and two in Quebec.” 10 And Line 5 is “the

only pipeline that supplies propane to southern

Ontario.” 11

Unsurprisingly, the Governor’s notice of

revocation and termination caught the attention of

Canada. As the Government of Canada later

explained, a Line 5 shutdown would “pose[] grave

concerns” regarding “Canada’s energy security and

economic prosperity” as well as “Canada’s ability to

rely on bilateral treaties that are at the heart of the

U.S.-Canada relationship.” 12 In particular, Canada

invoked the Agreement Between the Government of

the United States and the Government of Canada

Concerning Transit Pipelines, Jan. 28, 1977, 28 U.S.T.

7449. Pursuant to that treaty, the United States and

Canada agreed not to interfere with each other’s

pipelines and to use specific out-of-court procedures

for pipeline-related dispute resolution. 13

production at area refineries.”); Enbridge, Line 5 Wisconsin

Segment

Relocation

Project

at

2

(Aug.

2020),

https://perma.cc/C2KJ-WVD5 (“Line 5 is a critical conduit for

refineries in the region, delivering essential feedstock that is

refined into propane, gas, diesel, jet fuel, and other products.”).

10 House

of Commons, Special Comm. on the Econ.

Relationship Between Canada and the U.S., Enbridge’s Line 5:

An Interim Report at 5, 7 (Apr. 2021), https://perma.cc/E4V2E4ZN.

11

Id. at 6-7.

12 ECF 45 at 1-2, Michigan v. Enbridge Energy, Ltd. P’ship,

No. 1:20-cv-01142-JTN-RSK (W.D. Mich. June 1, 2021).

13

Id. at 8-10.

18

Given the significant foreign affairs concerns now

put in play by the State’s actions, Enbridge removed

the second case to federal court. After it did so, the

State agreed to hold this case in abeyance while the

second suit was resolved. Months later, the State

sought to remand the second case, but the federal

court refused. As that court explained, “the scope of

the property rights the State Parties assert

necessarily turns on the interpretation of federal law

that burdens those rights,” including the 1977 treaty.

Michigan, 571 F. Supp. 3d at 862. Federal court was

therefore an “appropriate forum for deciding the[]

disputed and substantial federal issues” presented by

the Line 5 controversy. Id.

Seeking to avoid federal jurisdiction at all costs,

the State promptly dismissed the second case. The

Governor candidly admitted that the State was

“shifting its legal strategy” because she “believe[d] the

people of Michigan, and our state courts, should have

the final say.” 14

The State sought to achieve that final say through

this case, which it had agreed should be held in

abeyance pending the outcome in federal court of the

now-dismissed second case. But recall that this case

involves the same pipeline dispute and seeks the same

relief. See supra pp.15-16. If the State’s second case

raised federal issues appropriate for adjudication in a

federal forum, then it stands to reason that this case

14 Press Release, Gov. Gretchen Whitmer, Governor Whitmer

Takes Action to Protect the Great Lakes (Nov. 30, 2021),

https://perma.cc/B4R7-CZ2B.

19

does too. Enbridge thus removed this case on similar

grounds, and the district court once again determined

that, “as in the earlier case, a federal forum is a proper

place to decide this controversy.” Nessel, 2022 WL

19005621, at *4. As that court observed, “[i]t is

apparent that [the State] seeks to avoid this federal

forum” by “engag[ing] in procedural fencing and forum

manipulation.” Id. at *3, *6.

The Sixth Circuit, however, was unbothered by

the State’s tactics, and the State’s gambit paid off. The

blueprint for future plaintiffs seeking to pull off the

same feat is plain: File an initial action in state court

concealing a dispute’s true federal nature. Then, after

the removal deadline has passed, file a second action

in state court and agree to hold the first in abeyance.

If the second action is not successfully removed,

mission accomplished. If the second action is

successfully removed, dismiss it and proceed with the

first (which is now unremovable)—and mission still

accomplished.

2. This case demonstrates not only the lengths a

plaintiff will go to in order to avoid federal jurisdiction,

but also the steep costs such obfuscation can impose

on defendants and courts. See Colt Indus. Operating

Corp. v. Index-Werke K.G., 739 F.2d 622, 623-24 (Fed.

Cir. 1984) (recognizing that “procedural and semantic

gamesmanship” can be “abusive of the judicial process

and wasteful of resources of the parties and the

court”).

The present removal fight began nearly four years

ago when Enbridge removed this case to federal court

in December 2021. Since then, substantial party and

20

judicial resources have been expended in a dispute

already deemed appropriate for adjudication in a

federal forum. See supra pp.15-19. Those costs are

compounded by the resources wasted on the first

removal fight in a case the State voluntarily dismissed

upon losing its remand motion. See supra p.18. Were

it not for the State’s tactics, these significant delays

could have been avoided and party and judicial

resources could have been saved.

*

*

*

Put simply, there can be no doubt that this case is

of great importance “to the federal system as a whole.”

Gunn v. Minton, 568 U.S. 251, 260 (2013). A plaintiff’s

gamesmanship should not rob the federal system of

“the experience, solicitude, and hope of uniformity

that a federal forum [would] offer[] on [these] federal

issues.” Grable, 545 U.S. at 312.

II. This Court Should Not Apply a Presumption

Against Removal.

In reading Section 1446(b)(1) to prohibit any

equitable exception whatsoever, the Sixth Circuit

reasoned “that removal statutes—such as § 1446(b)—

are to be strictly construed against removal out of

respect for state sovereignty.” Nessel, 104 F.4th at 970.

But this so-called “presumption against removal”

finds no support in this Court’s precedents. In fact,

this Court has expressly refused to “decide whether

such a presumption is proper.” Dart Cherokee Basin

Operating Co. v. Owens, 574 U.S. 81, 89 (2014); cf.

Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S.

344, 357 (1999) (Rehnquist, C.J., dissenting)

21

(criticizing the majority for “depart[ing] from this

Court’s practice of strictly construing removal and

similar jurisdictional statutes”). 15

Basic principles of statutory interpretation

dictate that a presumption against removal would be

improper. As this Court has explained, “[a] statute

affecting federal jurisdiction must be construed both

with precision and with fidelity to the terms by which

Congress has expressed its wishes.” Kucana v. Holder,

558 U.S. 233, 252 (2010) (citation omitted). Removal

statutes—like all other statutes—should be

interpreted according to their “text, structure, and

purpose.” Abramski v. United States, 573 U.S. 169,

185 (2014). In Judge Easterbrook’s words, “[t]here is

no presumption against federal jurisdiction in general,

or removal in particular.” Back Doctors Ltd. v. Metro.

Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir.

2011).

Rather than placing a thumb on the scale against

removal, courts should read the removal statutes to

“give effect to the will of Congress.” Negonsott v.

Samuels, 507 U.S. 99, 104 (1993) (citation omitted).

And, as explained above, one of the chief congressional

15 The Sixth Circuit cited two cases from this Court, both of

which predate Dart. See Nessel, 104 F.4th at 970-71 (citing

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), and

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)).

As this Court has recognized, “whatever apparent force” a

presumption against removal “might [once] have claimed” no

longer exists. Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S.

691, 697 (2003).

22

goals underlying the federal removal statutes is the

protection of federal jurisdiction. See supra pp.7-8.

23

CONCLUSION

The judgment of the Sixth Circuit should be

reversed.

Respectfully submitted.

STEPHANIE A. MALONEY

JONATHAN D. URICK

U.S. CHAMBER LITIGATION

CENTER

1615 H St., NW

Washington, DC 20062

MARY ELIZABETH MILLER

SHANNON G. DENMARK

Counsel of Record

LEHOTSKY KELLER COHN LLP

200 Massachusetts Ave., NW

Suite 700

Counsel for the Chamber Washington, DC 20001

(512) 693-8350

of Commerce of the

shannon@lkcfirm.com

United States of

America

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th St., NW

Suite 1001

Washington, DC 20004

Counsel for National

Federation of

Independent Business

Small Business Legal

Center, Inc.

SEPTEMBER 2025

Counsel for Amici Curiae