Opposition Brief — Maremmont Corp. v. St. John (No. 09-568)

; ~ Supreme Coun, US.

FILED

DEC ! 9 2009

OFFICE OF THE CLERK

NO. 09-568

IN THE

Supreme Court of the United States

MAREMONT CORPORATION,

Petitioner,

FLORENCE DIANE ST. JOHN, Individually and as

Administratrix ad Prosequendum of the Estate of

Harold St. John,

Respondent.

On Petition for a Writ of Certiorarz to the

United States Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION

MOSHE MAIMON ARNOLD C. LAKIND

LEVY PHILLIPS & Counsel of Record

KONIGSBERG, LL.L.P. MARK A. FISHER

101 GROVERS MILL RD. SZAFERMAN, LAKIND,

SUITE 200 BLUMSTEIN & BLADER, P.C.

LAWRENCEVILLE, NJ 101 GROVERS MILL RD.

08648 SUITE 200

(609) 275-0400 LAWRENCEVILLE, NJ 08648

(609) 275-0400

Counsel for Respondent

Florence Diane St. John

QUESTION PRESENTED

Below, the Third Cireuit Court of Appeals

granted a motion to remand based upon a procedural

defect in Petitioner's Notice of Removal. Should this

Court order review on a writ of certiorari to address

the fact-specifiec waiver question posed by Petitioner,

which was never ruled upon by the Court of Appeals?

ii

TABLE OF CONTENTS

Bg 3 OS Dg i OF 0 i

RS 0h i i il

Meee PY BUALHIORITIES .... 2... cece cc cees lil

tg 0 ]

STATEMENT OF THE CASE ................ 1

REASONS FOR DENYING THE WRIT ....... 6

‘ MAREMONT'S QUESTION PRESENTED

WAS NOT PRESENTED TO OR RULED

UPON BY THE THIRD CIRCUIT ......... 6

Il. THE COURT LACKS JURISDICTION TO

REVIEW A REMAND BASED UPON A

PROCEDURAL DEFECT IN THE

Seapets GP MOPOMIOVAL ................. 7

Ill. EVEN AS FRAMED BY MAREMONT,

THE QUESTION PRESENTED DOES

NOT WARRANT REVIEW ............... 8

IV. MAREMONT WAIVED ITS RIGHT TO

REMOVE BY PARTICIPATING IN JURY

SELECTION WHILE REMAINING

SILENT ABOUT ITS PLAN TO

no a 16

OS 21

ill

TABLE OF AUTHORITIES

CASES

Andalysia Enters., Inc. v. Evanston Ins. Co.,

487 F. Supp. 2d 1290 (M.D. Ala. 2007) .......

Akin v. Ashland Chemical Co.,

156 F.3d 1030 (10th Cir. 1998) .............

Carlsbad Tech. Inc. v. HIF Bio, Inc.,

US. ,129S. Ct. 1862 (2008) ........ 6,

Chicago Title & Trust Co. v. Whitney

Stores, Inc.,

583 F. Supp. 575 (N.D. Ill. 1984) ...........

Com. of Pa. v. Newcomer,

618 F.2d 246 (Sd Cir. 1980) ...........000-

Durand v. The Hartford Life and Acc. Ins. Co.,

2007 WL 1395336 (D. Colo. 2007) ...........

Employer Shopmens Local 516 Pension Trust

v. Travelers Cas. And Sur. Co. Of America,

2005 WL 1653629 (D. Or. July 6, 2005) ......

Foster v. Chesapeake Insurance Co.,

983 F.2d 1207 (8d Cir. 1991) ...............

1V

TABLE OF AUTHORITIES - continued

Grubb v. Donegal Mutual Insurance Co.,

955 F 2a or (40R Ur. T1981) 5. ccc cee 18

JP Morgan Chase Bank, N.A. v. Smith,

2008 WL, Z2B44569 (DP. N. dd.) wc cc cee ewe ne 11

Kinateder v. Am. Family Mut. Ins. Co. of Wis.,

2009 WL 539668 (D. Colo. Mar. 4, 2009) ..... 3

Kircher v. Putnam Funds Trust,

Oe 8 ee CD le ke dew cee n sek van var 6

Kisor v. Collins,

338 F. Supp. 2d 1279 (N.D.Ala. 2004) ........ 3

Estate of Krasnow v. Texaco, Ine.,

773 F. Supp. 806 (E.D. Va. 1991) .......... 1]

Lewis v. Rego Comp.,

701 F 20 GG Grd Cir. 1985)... .. 2... eens 13

Lupo v. Human Affairs Intern, 1nc.,

oe fF .00 Zep (20. Cir. 1904) 2... cc ccc cess 14

Macriv. M & M Contractors, Inc.,

897 F. Supp. 381 (N.D. Ind.1995) ........... 3

Mancariv. AC K&S,

683 F’. Supp. 91 (D. Del. 1988) ............. 18

¥

TABLE OF AUTHORITIES - continued

McNutt v. General Motors Acceptance Corp.,

ee 8 Fe Do os vcs ou a ete eas tes 13

Murphy Brothers v. Michetti Pipe Stringing,

FE, Bee Ws OOO TIGR) 6c ccc eve cence vecess 13

Powertex Corp. v. Reliant Energy Services, [nc.,

Gk Gi COT) coc a ve ee ieee nave ns 8,13

Pritchett v. Office Depot, Inc.,

420 F.3d 1090 (10th Cir.2005) ............. 14

Quackenbush v. Allstate Insurance Co.,

ae Oe Pe og vache eee he ees 13

Regis Associates v. Rank Hotels (Mgmt) Ltd.,

S04 F'.2a 196 (Gth Cir. 1900) ...........208- 14

Rosenthal v. Coates,

Eek eS gy). | iy Me 4

Rothner v. City of Chicago,

S79 F.2d 1402 (7th Cir. 1989) .............. 19

Schmitt v. Insurance Co. of N. Am.,

845 F.2d 1546 (9th Cir. 1988) ............... G

Snapper, Inc. v. Redan,

171 F.3d 1249 (11th Cir. 1999)

vl

TABLE OF AUTHORITIES - continued

Suter v. Munich Reinsurance Co.,

223 F Sd 150 (Sd Cir. 2000) ... ccc cece ccces g

Tedford v. Warner-Lambert Co.,

327 F.3d 423 (5th Cir. 2003) ............ 12,15

Things Remembered, Inc. v. Petrarca,

De Sie RE CEOD bv b ec cesce sewed sesdees 13

Waldron v. Skelly Oil Co.,

101 F’. Supp. 426 (.D. Mo.1961)........... 18

Waller v. American Telegraph and Tel,

684 F. Supp. 475 (S.D. Tex. 1988) .......... 18

Wis. Department of Corr. v. Schacht,

Re re ee Co oo oes 6 ee ean seee cen 13

STATUTES

es, NE on 8s wh aes Se ks alee ees 2,12

eee ee, es oS ae ae cae eae ees 1,3

ee ee OE ook ck ch eee 4,6, 7,8

RULE

GM cn kk 46a wo aS eee ee Re ee 12

vil

TABLE OF AUTHORITIES - continued

LEGISLATIVE MATERIALS

Pere: Ba PO RU Co cat eek ek ae hee ae a 3

OTHER AUTHORITIES

1A Moore's Federal Practice 1 O.157[9] ........ 18

Wright and Miller, Federal Practice and

Procedure § 3721 (8d ed.2008) ............. 1]

1

INTRODUCTION

Maremont Corporation’s (Maremont or Petitioner)

petition is premised on a misapprehension of the Third

Cireuit Court of Appeals’ ruling. That court granted

Respondent Florence St. John’s motion for a remand

based upon a procedural defect in Maremont’s Notice

of Removal. The Notice was defective because

Maremont failed to attach summonses and orders as

required by 28 U.S.C. §1446(a). In opposing the motion,

Maremont did not dispute the procedural defect in its

removal, nor did it seek to cure the deficiencies.

Rather, it argued that remand was not mandatory and

that the court had the discretion to permit a cure. Ina

one-sentence decision, the court granted the motion

before it and remanded the case. Thus, the court never

ruled upon the issue presented in Maremont’s petition.

Moreover, even as set forth in the petition,

Maremont’s question does not warrant review because

there is no conflict among the circuit courts, and

because there is no issue of federal importance to

resolve.

The petition should be denied.

STATEMENT OF THE CASE

This mesothelioma death case came on for trial in

the Superior Court of New Jersey, Middlesex County

vicinage, on May 26, 2009. Shortly before the trial

began, counsel to Plaintiff reported to Defendants that

Mrs. St. John had settled her claims with Honeywell

2

Corp., which was the only remaining non-diverse

defendant. As a result, the matter became removable

under 28 U.S.C. § 1441.

Rather than inform the trial court of their

intention to remove, or seek leave to stay the trial,

Defendants remained silent, and jury selection began.

Defendants introduced themselves to the jury; they

identified potential witnesses for the jury; and they

participated in jury selection. In particular, Maremont

exercised two of its allotted three peremptory

challenges and dismissed other jurors for cause. The

other Defendants also participated in jury selection

and, collectively, they discharged nearly one dozen

potential jurors. Plaintiff, in contrast, retained the

overwhelming majority of her challenges.

Apparently dissatisfied with the emerging jury

panel and the depleted supply of peremptory

challenges, Maremont elected to remove this matter to

the United States District Court for the District of New

Jersey. At around 3:00 P.M. that afternoon, Maremont,

joined by all other Defendants, filed a Notice of

Removal with the district court.

After the Notice was filed, Mrs. St. John filed an

Order to Show Cause seeking a remand to the state

court on grounds of waiver. Following argument, the

district court made a fact-specific decision, concluding

that Maremont’s participation in jury selection resulted

in a waiver of its right to remove.

Maremont appealed to the Third Circuit Court of

Appeals and filed a motion to stay the remand in the

District Court. The District Court granted the motion

to stay, while reiterating the correctness of its decision

to remand.

After the thirty-day statutory removal period

expired, Mrs. St. John filed, in the Court of Appeals, a

motion to remand on the ground that the Notice of

Removal did not include the summonses and orders

entered below, as required by 28 U.S.C. 1446(a). Mrs.

St. John argued that remand was now required because

the defect in the Notice could no longer be cured.’ In

Following Congress’ adoption of the “1988 Judicial

Improvements Access to Justice Act,” Pub. L. No. 100-702, courts

have held that a procedurally defective Notice of Removal may not

be cured after the expiration of the thirty-day removal] period if a

plaintiff has filed a timely motion to remand. See, e.g., Andalysia

Enters., Inc. v. Evanston Ins. Co., 487 F. Supp. 2d 1290 (M.D. Ala.

2007) (requirement in 28 U.S.C.A. § 1446(a) that removing party

“shall file ... process” is mandatory and incurable after 30 days);

Kisor v. Collins, 338 F. Supp. 2d 1279, 1281 (N.D.Ala. 2004)(“This

court, sitting as a court of limited jurisdiction, cannot ignore a

manifest procedural defect. that a plaintiff has expressly

complained about just because the defect was inadvertent or

because the removing defendant tenders a belated correction.”);

Macnv. M & M Contractors, Inc., 2°07 F. Supp. 381 CN.D. Ind.1995)

(case remanded when defects of an unsigned removal petition, lack

of prompt written notice to plaintiff, and failure to promptly file a

copy of the notice with the state court were not cured within 30-day

removal period); Ainatederv. Am. Family Mut. Ins. Co. of Wis. , 2009

WL 539668 (D. Colo. Mar. 4, 2009) (remand based on failure to file

a state-court order); Durand v. The Hartford Life and Acc. Ins. Co.,

2007 WL 1395336 (D. Colo. 2007) (case remanded where defendant

fails to include summons with Notice of Removal); Employer

Shopmens Local 516 Pension Trust v. Travelers Cas. And Sur. Co. Of

4

the alternative, she argued that appellate jurisdiction

was lacking because the district court’s remand order

was not appealable under 28 U.S.C. § 1447.

In response, Maremont maintained that, unlike

the mandatory nature of remand if a defect in removal

is jurisdictional, aremand based on a procedural defect

is left to the court’s discretion. In reply, Mrs. St. John

pointed out that, even if the court had the authority to

excuse the deficiency, Maremont had failed to offer any

reason for it to do so. Moreover, she continued, because

Maremont had participated in state-court jury selection

without informing the court or counsel of its decision to

remove, there was no warrant co exercise discretion for

Maremont’s benefit.

In a single sentence, the Third Circuit Court of

Appeals granted the motion to remand:

The foregoing Motion by Appellee Florence

Diane St. John to Remand Case to the

Superior Court of the State of New Jersey,

or in the alternative, to Dismiss Case for

Lack of Jurisdiction is hereby GRANTED to

the extent that, for essentially the reasons

provided by the District Court, this matter is

REMANDED to the Superior Court of New

Jersey, Middlesex County, for further

proceedings.

America, 2005 WL 1653629 at 4 (D. Or. July 6, 2005). Maremont’s

petition does not challenge this case law.

Pet. App. la.

Thus, the Third Circuit granted the motion to

remand due to Maremont’s defective Notice of Re-

moval. Contrary to Maremont’s assertion in the Peti-

tion, the court did not “affirm” the District Court’s

holding that Maremont waived its right to remove; the

propriety of that holding had not yet been briefed by

the parties or presented to the appellate court.

6

REASONS FOR DENYING THE WRIT

I. MAREMONT’S QUESTION PRESENTED WAS

NOT PRESENTED TO OR RULED UPON BY

THE THIRD CIRCUIT.

Mrs. St. John made two arguments in the Court of

Appeals. The primary relief sought in the motion on

which the court ruled was a remand to state court

based upon an incurable procedural defect in

Maremont’s Notice of Removal. In the alternative, she

sought dismissal of Maremont’s appeal on the ground

that appellate jurisdiction was lacking because the

District Court’s waiver-based remand decision was not

appealable under 28 U.S.C. § 1447.” The Third Circuit

Court of Appeals ruled on the first argument and

ordered the case remanded.*

* Specifically, Mrs. St. John maintained that, because the

district court held that Maremont had waived its right to remove,

Maremont’s removal was defective for a reason “other than lack of

subject matter jurisdiction” under the purview of 28 U.S.C. §

1447(c) and, therefore, was not reviewable under 28 U.S.C. §

1447(d). See, e.g., Carlsbad Tech. Inc. v. HIF Bio, Inc., _ U.S. _,

1298S. Ct. 1862 (2009); Kircherv. Putnam Funds Trust, 547 U.S. 633,

640 (2006)(“[ W Je have relentlessly repeated that any remand order

issued on the grounds speciiied in § 1447(c) is immunized from all

forms of appellate review, whether or not that order might be

deemed erroneous by an appellate court.”)(internal brackets and

quotations omitted); See also Schmitt v. Ins. Co. of N. Am., 845 F. 2d

1546 (9" Cir. 1988) (finding a remand based on waiver within 28

U.S.C. § 1447(c)).

* The court did not, as the Petitioner suggests, “reject”

the Plaintiff's alternative argument to dismiss the appeal (see Pet.

7

Again, the only basis for the motion to remand was

the procedural defect in the Notice of Removal. By

referring to “the reasons provided by the District

Court,” the order appeared to agree with Maremont

that it had discretion to allow Maremont to cure the

defect. But the court declined to exercise that

discretion and remanded on the basis of the procedural

defect, in light of the reasons stated by the District

Court.

The Third Circuit did not decide the waiver issue

set forth in Maremont’s Question Presented. The issue

was not even briefed on the motion. Because Maremont

seeks review of a remand order based upon an issue

that was not presented to the appellate court, the

petition should be denied.

Il. THE COURT LACKS JURISDICTION TO

REVIEW A REMAND BASED UPON A PROCE-

DURAL DEFECT IN THE NOTICE OF

REMOVAL

With few exceptions, an order remanding a case to

the state court from which it was removed is not

reviewable on appeal. 28 U.S.C. § 1447(d).* And as this

6 at n.2); it simply did not reach it, as even a cursory review of the

very brief order makes plain. See Pet. App. la.

Section 1447(d) states, in pertinent part: “An order

remanding a case to the State court from which it was removed is

not reviewable on appeal or otherwise, except that an order

remanding a case to the State court from which it was removed

pursuant to section 1443 of this title shall be reviewable by appeal

8

Court has stated, section 1447(d) “preclude[s] review”

of remands “for defects in removal procedure.”

Powertex Corp. v. Reliant Energy Services, Inc.,551 U.S.

224, 229 (2007).

Because the Third Circuit granted Respondent’s

motion to remand for “defects in removal procedure,”

this Court lacks jurisdiction to review the order below,

and, for this additional] reason, the Petition should be

denied.

Ill. EVEN AS FRAMED BY MAREMONT, THE

QUESTION PRESENTED DOES NOT

WARRANT REVIEW

With regard to the waiver issue itself, and

contrary to Petitioner’s assertion, the circuit courts

have not adopted differing standards to evaluate when

a waiver has occurred. Rather, the relevant distinction

is between those cases that address the consequences

of a waiver claimed to have occurred prior to trial, and

those that address the consequences of a waiver

claimed to have occurred during trial. Courts are

uniform in their treatment: They are less willing to find

that a waiver has occurred before a trial commences

than thereafter.

Moreover, even if —as Maremont claims—the

Third Circuit had adopted the District Court’s ruling,

that ruling was based on the appropriate legal

standard. The District Court found a clear and

or otherwise.”

)

unequivocal waiver, and remanded on that basis.

Maremont’s disagreement with the District Court’s

application of the facts to the agreed-upon standard

does not merit review. In addition, given the unusual

facts of this case, the District Court’s decision will have

no widespread implications.

A. The Court of Appeals’ Order Does Not Create

a Conflict Among The Circuits.

Maremont claims that the Third Circuit’s order

conflicts with decisions of other courts of appeals on the

issue whether a defendant must manifest a “clear and

unequivocal” intent to waive its right to remove before

this right is lost. In fact, like other circuits, the Third

Circuit follows the “clear and unequivocal” standard

when a litigation-based waiver of the right to remove is

asserted. The conflict described by Maremont simply

does not exist.

1. Third Circuit case law clearly embraces the

same standard advocated by Maremont. Indeed,

Maremont acknowledges as much in its Petition, citing

to Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (8d Cir.

1991). Pet. 9 atn.4). In Foster, the Third Circuit agreed

that a litigation-based waiver of the right to remove

must be clear and unequivocal. /d. at 1217-18 n.15

(distinguishing litigation-based waiver from the

contractual-based waiver at issue in the case); see also

Suter v. Munich Reinsurance Co., 223 F.3d 150, 163 (3d

Cir. 2000). As the Eleventh Circuit, discussing Foster,

explained:

10

[T]he cases that have applied [the “clear and

unequivocal” | standard have arisen when the

removing party participated in actions in the

state court prior to removal that might be

interpreted as a waiver of the right to

remove. Such litigation-based waivers must

be distinguished from the contractual

waivers at issue in this case and in Foster. In

the context of litigation-based waivers, the

clear and unequivocal standard makes sense.

Snapper, Inc. v. Redan, 171 F.3d 1249, 1261 (11" Cir.

1999). There is, in short, no conflict between the

decisions of the Third Circuit and those of other courts.

Maremont’s petition is premised upon the

argument that a single sentence from the Panel’s

summary Order granting Mrs. St. John’s motion to

remand on the basis of procedural defects in the Notice

of Removal will be interpreted as a rejection of the

Third Circuit’s own precedent which holds that a

litigation-based waiver of the right to remove must. be

“clear and unequivocal.” This premise is unfounded.

Like the other circuit courts, the Third Circuit adheres

to the “clear and unequivocal” test.

2. Further, the District Court’s waiver ruling

(which is effectively the ruling of which Maremont

seeks review) applied the proper test. Although the

District Court did not expressly cite the “clear and

unequivocal” test, the opinion adhered to this standard.

Maremont maintained throughout the District Court

proceedings that, based upon Foster, among other

11

cases, a waiver must be “clear and unequivocal.” Mrs.

St. John did not challenge the standard or argue that a

different one applied. Rather, she called the court’s

attention to cases finding a clear and unequivocal

waiver where a defendant, following the accrual of a

right to remove, takes some substantial affirmative

action in state court, indicating a willingness to litigate

in the state forum. That is, she argued that the waiver

had been “clear and unequivocal.”

The District Court’s written decision granting

Maremont’s motion to stay reflects this standard and

relies on cases that apply it. Pet. App. 6a-7a (citing

Estate of Krasnow v. Texaco, Inc., 773 F. Supp. 806 (E.D.

Va. 1991); JP Morgan Chase Bank, N.A. v. Smith, 2008

WL 2943369 (D. N. J.)). For example, in Estate of

Krasnow, the court stated that a “waiver must be clear

and unequivocal,” 773 F’. Supp. at 808, and concluded

that, by awaiting the state court’s decision on a

demurrer before removing, the defendant

demonstrated a clear and unequivocal intent to waive

its right to remove. /d. at 809. The District Court below

also cited Wright and Miller, Federal Practice and

Procedure § 3721 (3d ed.2008), for the point that “a state

court defendant may lose or waive the right to remove

the case to a federal court by taking some substantial

offensive or defensive action in the state court action

indicating a willingness to litigate in that tribunal

before filing a notice of removal with the federal court.”

Pet. App. 7a.

Maremont parts company, not with the legal

standard applied by the District Court, but with its

12

application of the facts of this case to that standard.

That application, however, manifests no conflict among

the appellate courts. Moreover, “{a] petition for a writ

of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Sup.

Ct. R. 10.

B. The Court of Appeals Did Not Decide an

Important Question of Federal Law

Maremont also argues that the Third Circuit’s

Order “decide[s] an important question of federal law

that has not been, but should be, settled by this Court.”

See Sup. Ct. R. 10(¢c). Again, this argument is based on

Maremont’s failure to recognize that the Third Circuit

remanded because Maremont filed a procedurally

defective Notice of Removal, which it did not cure

within 30 days after the case became removable. The

Third Circuit did not hold that Maremont waived its

statutory right to remove by participating in jury

selection because that issue had not yet been briefed.

That being said, even if the Third Circuit’s remand

order had been based on Maremont’s waiver of its

removal right, the concerns raised by Maremont are

overstated and do not raise any important question of

federal law.

1. Maremont states that “this Court historically

has taken a particular interest in ensuring that the

standards for removal to federal courts are applied

evenly across the country.” Pet. 18. Yet the cases

Maremont cites are irrelevant to that proposition,

13

instead addressing jurisdictional issues. Most of the

cases cited by Maremont concern appellate jurisdiction

to review a remand order. See Carlsbad Tech., Inc.,

supra, _ U.S. __ , 129 S. Ct. 1862; Powertex Corp.,

supra, 651 U.S. 224 (2007); Quackenbush v. Allstate Ins.

Co., 517 U.S. 706 (1996); Things Remembered, Inc. v.

Petrarca, 516 U.S. 124 (1995). One case questioned

whether federal jurisdiction was destroyed where a

claim is barred by the Eleventh Amendment, Wis. Dep't

of Corr. v. Schacht, 524 U.S. 381 (1998), and another

commented on the need to establish a consistent

practice in dealing with questions of subject matter

jurisdiction, holding that the party alleging federal

subject matter jurisdiction has the burden to

demonstrate its existence. McNutt v. Gen. Motors

Acceptance Corp., 298 U.S. 178 (1936). The only case

which considers the right to remove is Murphy Bros. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). There,

the Court established a bright-line rule to resolve the

conflicts among the Circuits over when, following

initiation of a removable state court action, the 30-day

time period to remove begins to run. See id. at 347.

In any event, because the standard applicable here

is undisputed - by the parties or the lower courts - the

petition does not implicate the Court’s interest in

removal standards.

2. Maremont also contends that the standard

applied by the district court was inconsistent with

Maremont’s “absolute” federal right to remove and that

Ca] federal right of this importance cannot be waived”

by participating in state court jury selection. Pet. 14.

14

This contention is contrary to the principles of strict

construction afforded to removal statutes and at odds

with established case law. Indeed, this contention

cannot be reconciled with the “clear and unequivocal”

test that Maremont itself advocates, which recognizes

that the right to remove may be waived.

“Statutes conferring jurisdiction upon the federal

courts, and particularly removal statutes, are to be

narrowly construed... .” Pritchett v. Office Depot, Inc.,

420 F.3d 1090, 1094-95 (10th Cir.2005) (citing Shamrock

Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)).

Because the right to remove is statutory in origin, it

“must be invoked in strict conformity with statutory

requirements.” Lupo v. Human Affairs Intern, Inc., 28

F.3d. 269, 274 (2d. Cir. 1994). “Removal is a statutory

right, and the procedures must be followed.” Lewis v.

Rego Comp., 757 F.2d 66, 68 (3rd Cir. 1985). It is beyond

question that the right to remove a case under 28

U.S.C. § 1441(b) can be waived. Regis Associates v. Rank

Hotels (Management) Ltd., 894 F.2d 193, 195 (6" Cir.

1990).

C. The District Court’s Ruling Will Not Spur

Fraudulent Joinders.

Without explaining how the district court’s waiver

ruling could trigger such a result, Maremont predicts

an escalation of fraudulent joinders if the circumstances

here are held to result in waiver. Pet. 20-21. This flawed

argument is rooted in the notion that, had Maremont

disclosed its intention to remove prior to participating

in jury selection, the Plaintiff would have quickly joined

15

another non-diverse defendant before the removal

papers were filed. See Pet. 16 (discussing Tedford v.

Warner-Lambert Co., 327 F.3d 423, 429 (5" Cir. 2008)).

First, the suggestion assumes that counsel would

be indifferent to its Rule 11 obligations and

fraudulently join an inappropriate defendant. Second,

a plaintiff who has finally been able to bring a case to

trial will be exceedingly reluctant to add a new party,

which would reopen discovery and cause delay. Third,

a plaintiff would require leave of the trial court to add

a new party so late in the case, and it is inconceivable

that the court would allow a new party to be added in

the course of trial under the circumstances posited by

Maremont.

Finally, courts are sensitive to the danger of

fraudulent joinders. By way of example, the Fifth

Circuit in Tedford, supra, developed a remedy to deal

with a fraudulent joinder that occurred at the outset of

the litigation. There, shortly after filing the complaint

and well-before trial, a plaintiff attempted to defeat

removal based on diversity jurisdiction by naming a

non-diverse defendant in the action, after the diverse

defendant notified the plaintiff of its intention to

remove. /d. at 428. The plaintiff then post-dated a

Notice of Nonsuit for the benefit of the non-diverse

defendant but did not file it with the court or notify the

diverse defendant until the one-year period in which a

defendant may remove based upon diversity had

passed. /d. The court did not countenance this conduct.

Rather, it rejected the plaintiff's -fforts to prevent

removal and vindicated the defendant’s right to remove

16

by extending the one-year time period to remove:

Where a plaintiff has attempted to

manipulate the statutory rules for

determining federal removal jurisdiction,

thereby preventing the defendant from

exercising its rights, equity may require that

the one-year limit in § 1446(b) be extended.

The facts of this case present just such a

circumstance.

Id. at 428-29.

Itis, in sum, exceedingly unlikely that an attorney

would or could fraudulently join a party in the short

hiatus between the time a party informs a court of its

decision to remove and perfects that removal.

IV. MAREMONTWAIVEDITS RIGHT TO REMOVE

BY PARTICIPATING IN JURY SELECTION

WHILE REMAINING SILENT ABOUT ITS

PLAN TO REMOVE

Our courts strive to prevent defendants from

gaining an unfair advantage by “testing the waters” in

state court before removing to federal court. In this

case, the District Court not only followed the proper

legal standard—“‘clear and unequivocal’—it correctly

applied that standard to the facts, thus finding that

Maremont waived its right to remove during the state

court trial.

“(T]he spirit of the removal acts ... do not

contemplate that a party may experiment on his case in

17

the state court, and, upon an adverse decision, then

transfer it to the federal court.” Rosenthal v. Coates, 148

U.S. 142, 147 (1893). The Third Circuit has similarly

observed that the privilege of removal is susceptible to

abuse by defendants “testing the waters’ in state court

prior to removing to the federal district court.” Com. of

Pa. v. Newcomer, 618 F.2d 246, 252 (8d Cir. 1980).

Maremont and the other defendants filed their

Notice of Removal to federal court when, after

exercising most of their peremptory challenges, they

became dissatisfied with the emerging jury. The

District Court recognized removal at this point was

inappropriate, explaining:

It was incumbent upon Defendants to notify

the state court and ask for a brief adjourn-

ment as soon as they began contemplating

removal. Even if their request had been

denied, merely asking would have preserved

the right. But Defendants did not ask....

Maremont did not tell the state court of its

plans until six hours later, after it filed for

removal. During those six intervening hours,

Defendants simultaneous|ly] prepared their

removal documents and continued with jury

selection. This course of action enabled

Defendants to evaluate the potential jury

pool and then decide whether or not to

remove.

Pet. App. 7a.

18

The cases relied on by the district court support

this ruling. See also, e.g., Mancariv. AC & S, 683 F.Supp.

91, 94 (D. Del. 1988) (quoting 7A Moore's Federal

Practice § 0.157/9]/) (“Where the action becomes

removable shortly before, at, or during the trial, the

defendant may remove the case, but he must take

prompt steps to do so, if his right is to be preserved;

and, unless he does so, proceeding to or continuing with

the trial constitutes a waiver of the right of removal,

even though the thirty day period may not have

elapsed.”); Waller v. American Tel and Tel, 684 F. Supp.

A475 (S.D. Tex. 1988); Chicago Title & Trust Co. v.

Whitney Stores, Inc., 583 F.Supp. 575 (N.D. IL. 1984);

Waldron v. Skelly Oil Co., 101 F. Supp. 425, 426 (E.D.

Mo.1951) (“| WJhen a case becomes removable during

the process of a trial, the right to remove may be

waived by proceeding with the trial without objection,

but if timely objection is made the record is preserved

and what happened thereafter does not prevent

removal.”),

Conversely, the cases relied on by Maremont are

distinguishable. For instance, in Grubb v. Donegal Mut.

Ins. Co., 935 F.2d 57 (4 Cir. 1991), the Fourth Circuit

first observed that a waiver determination involves a

factual and objective inquiry, which would warrant

reversal only if the lower court ruling was clearly

erroneous. /d. at 59. In reviewing the district court's

denial of the remand motion, the Fourth Circuit noted

that although the removing defendant continued to

seek summary judgment immediately following

dismissal of the last non-diverse defendants during the

motion proceeding, the removing attorney did not go to

19

the hearing with any knowledge that the non-diverse

defendants might be dismissed. /d. The court also

pointed out that the defendant did not take any

substantial affirmative steps in the state court after the

case became removable and had already filed its

summary judgment motion before the case was

removable. /d.

Importantly, the Court also recognized that the

plaintiff seeking remand

pointi[ed] to several factors that might have

supported a contrary finding of fact as to [the

defendant’s] intent in participating as it did

in the state court proceeding. Had the court

found differently, we likely would have been

compelled to affirm that finding as not clearly

erroneous; but that was not its finding, and the

one made was, as indicated, a plausible one that

we may not reject.

Id. at 59-60 (emphasis added).

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

1989), cited by Maremont, is also distinguishable.

There, the court found that the city-defendant did not

waive its right to remove by opposing the plaintiffs

motion for a temporary restraining order to prevent

the city from enforcing an allegedly unconstitutional

ordinance. /d. at 1418-19. Shortly after commencing the

ease, plaintiff filed an application for a temporary

restraining order, which was argued and decided onthe

same day. The court of appeals held that the “district

20

court's decision was, by the court's own admission,

against the long-settled rule that opposing a motion for

a temporary restraining order in state court does not

waive the right to remove.” /d. The court also criticized

the district judge’s ruling as a “poorly disguised’

vehicle to effect a discretionary remand” where such

was contrary to case law. /d. at 1408.

Maremont’s reliance on Akin v. Ashland Chemical

Co., 156 F.3d 1030, 1036 (10° Cir. 1998), is likewise

misplaced. There, the plaintiffs argued that removal

was improper because one defendant “was barred from

consenting to removal because it had previously filed a

motion for summary judgment in state court[.]” /d.

However, since the case was not clearly removable

when the motion was filed, the court ruled that, absent

adequate notice of the right to remove, a defendant is

not barred from the right of removal just because it

defends itself in the state court forum. /d. Notably, the

defendant’s summary judgment motion had not yet

been decided when the case was removed. /d.

Most importantly, in the cases Maremont cites, the

alleged waivers all occurred well before trial

commenced, not during the trial. Here, once Maremont

learned that the case was removable, they actively

participated in jury selection without advising the trial

court that it was preparing a Notice of Removal. Thus,

Petitioner and the other Defendants were able to

evaluate the composition of the jury before making a

final decision on removal. “Testing the waters” of the

jury pool before removing is precisely the kind of state

court “experimentfation]” this Court denounced in

Rosenthal, supra,148 U.S. at 147, more than a century

ago.

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

ARNOLD C. LAKIND

Counsel of Record

MARK A. FISHER

SZAFERMAN, LAKIND,

BLUMSTEIN & BLADER, P.C.

101 GROVERS MILL RD.

SUITE 200

LAWRENCEVILLE, NJ 08648

(609) 275-0400

MOSHE MAIMON

LEVY PHILLIPS &

KONIGSBERG, L.L.P.

101 GROVERS MILL RD.

SUITE 200

LAWRENCEVILLE, NJ 08648

(609) 275-0400

Counsel for Respondent

Florence Diane St. John

December 10, 2009