Petition for Writ of Certiorari — Waytec Electronics Electronics Corp. Corp. v. Rohm and Haas Electronic Electronic Materials Materials LLC (No. 07-1226)

Supreme Court, US.

07122 OMAR 2 6 2008

In The

Supreme Court of the United States

WAYTEC ELECTRONICS CORPORAITON,

Petitioner,

Vv.

ROHM AND HAAS ELECTRONIC

MATERIALS, LLC, Ev At..,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

FRANK K. FRIEDMAN

Counsel of Record

Mark D. Lortis

J AMES F. DOUTHAT

F.. ELIZABETH BURGIN

WOODS ROGERS PLC

10S. JEFFERSON STREET, S.W.

SuITE 1400, P.O. Box 14125

ROANOKE, VIRGINIA 24038-4125

(540) 983-7600

(540) 983-7611 Fax

Counsel for Petitioner

March 25, 2008

Becker Gallagher - Cincinnati, OH - Washington, D.C.- 800.890.5001

i

QUESTIONS PRESENTED

I. Where a Plaintiff Timely Moves to Remand a Case

Based Upon Defendants’ Failure to Comply With

Mandatory Requirements of the Removal Statutes,

and the Defect Cannot Be Cured, Do Caterpillar v.

Lewis, 519 U.S. 61 (1996) and Grupo Dataflux v.

Atlas Global, L.P, 541 U.S. 567 (2004), Compel or

Permit an Appellate Court to Ignore the Defective

Removal, in the Interest of Judicial Economy, Such

That the Preserved Objection Will Not Be

Considered on Appeal Once the Case Has

Proceeded to Final Judgment?

. Whether the Defendants Failed to Comply With the

Mandatory Requirement of 28 U.S.C. § 1446 That

a Notice of Removal Must Be Filed and Signed by

Each Defendant Within Thirty Days of Receipt of

Service?

il

RULE 14.1(B) STATEMENT

A list of all parties to the proceeding in the court

whose judgment is the subject of this Petition is as

follows:

Plaintiff-Appellant and Petitioner:

Waytec Electronics Corporation.

Defendants-Appellees and Respondents:

Rohm and Haas Electronic Materials, LLC;

Northern Laminate Sales, Incorporated, d/b/a NLS

Technologies.

RULE 29.6 STATEMENT

Waytec Electronics Corporation is not a publicly

held corporation and has no parent or publicly held

company owning 10% or more of the corporation’s

stock.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED

RULE 14.1(B) STATEMENT

RULE 29.6 STATEMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE AND

BACKGROUND JURISDICTIONAL FACTS .... 7

REASONS FOR GRANTING THE PETITION .. 10

I. This Court Should Resolve the Confusion in

Federal Decisions Regarding Whether

Preserved Objections to Statutory Removal

Defects Are Rendered Moot Under Caterpillar

as Long as Subject Matter Jurisdiction Exists

When Final Judgment is Entered. ......... 10

iV

A. Where Waytec Timely Objected to Si atutory

Defects in Removal, Requiring Remend, The

Fourth Circuit Should Not Be Permitted to

Openly Ignore the Governing Statute. ... 11

. Exceptions to Non-Compliance with Removal

Requirements Are Grounded in Doctrines of

Waiver or “Cured Defects.” No Such

Exceptions Are Applicable Here. ........ 15

i. Other Courts have Misinterpreted

Caterpillar and Grupo, Creating A

Conflict with This Court’s Decisions and

the Plain Language of the Removal

Statutes.

. This Court’s Decisions Declining to

Review Orders Denying Remand are

Grounded in Doctrines of Waiver and

“Cured” Defects.

. Waytec Did Not Waive Compliance With

The Mandatory Thirty-Day Limit of 28

See. ES 4 0 ssa kota Se uR Wwe 19

. Nothing in the Removal Statutes Supports

Denying Review of a Decision Erroneously

Re I, 5k cake hs HN Re ee 21

. The Defendants Failed to Comply with the

Mandatory Requirement of 28 U.S.C. § 1446

that a Notice of Removal Must Be Filed and

Signed by Each Defendant Within Thirty Days

CONCLUSION

APPENDIX

Appendix A: November 28, 2007 Fourth Circuit

Opinion and Judgment

Appendix B: September 2, 2005 District Court

Appendix C: September 2, 2005, Memorandum

Opinion

Appendix D: October 25, 2006 W.D. Virginia

Final Order

Appendix E: October 25, 2006 W.D. Virginia

Memorandum Opinion

Appendix F: January 24, 2008 Fourth Cir.

Corrected Order denying rehearing and

rehearing en banc

Appendix G: December 28, 2007 Fourth Cir.

Appendix H: June 29, 2005 Notice of Removal . 52a

Appendix I: July 20, 2005 Order and Opinion . 56a

Appendix J: July 20, 2005 Joint Notice of

Removal

Appendix K: July 27, 2005 Objection to Joint

Notice of Removal

vi

Appendix L: July 27, 2005 Motion to

Remand

Appendix M: July 27, 2005 Joint Notice of

Removal

Appendix N: July 29, 2005 Renewed Motion to

Remand

Appendix P: August 10, 2005 Transcript of

Motion Hearing

Appendix Q: February 2, 2004 Standing

Appendix R: Excerpts of Administrative

Procedures for Filing, Signing, and Verifying

(revised January 2005)

Vil

TABLE OF AUTHORITIES

CASES

American Fire & Cas. Co. v. Finn,

341 U.S. 6 (1951)

Amieco Inc. v. BWAY Corp.,

241 F. Supp. 2d 1028 (E.D. Mo. 2003)

Aqualon Co. v. MAC Equip., Inc.,

149 F.3d 262 (4th Cir. 1998)

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006)

Ayers v. Watson, 113 U.S. 594 (1885)

Baggs v. Martin, 179 U.S. 206 (1900)

Bailey v. Texas Co.,

47 F.2d 153 (2d Cir. 1931)

Baltimore & R.O. Co. v. Burns,

124 U.S. 165 (1888)

Becker v. Montgomery, 532 U.S. 757 (2001)

Bender v. Williamsport Area School Dist.,

475 U.S. 534 (1986)

Bowles v. Russell,

__ U.S. __, 127 S.Ct. 2360 (2007)

Vili

Business Guides, Inc. v. Chromatic Comm. Enter., Inc.,

498 U.S. 533 (1991)

Carter v. Bennett,

56 U.S. (15 How.) 354 (1853)

Caterpillar v. Lewis,

519 U.S. 61 (1996) . passim

Chicago, Rock Island & Pac. Ry. Co. v. Martin,

178 U.S. 245 (1900)

Chicago, R. I. & P. R. Co. v. Stude,

346 U.S. 574 (1954)

Creekmore v. Food Lion, Inc.,

797 F. Supp. 505 (E.D. Va. 1992)

Dorsey v. Borg-Warner Auto., Inc.,

218 F. Supp. 2d 817 (S.D. W. Va. 2002)

Edrington v. Jefferson, 111 U.S. 770 (1884) 20

Finley v. United States, 490 U.S. 545 (1989) .... 12

French v. Hay, 89 U.S. (22 Wall.) 238 (1874) .... 19

Gentek Building Prods. v. Steel Peel Litig. Trust,

491 F.3d 320 (6th Cir. 2007)

Gerling v. Baltimore & Ohio R. Co.,

151 U.S. 673 (1894)

Great Northern R. Co. v. Alexander,

246 U.S. 276 (1918)

ix

Green v. Target Stores, Inc.,

305 F. Supp. 2d 448 (E.D. Pa. 2004)

Greenivood v. Peacock, 384 U.S. 808 (1966)

Grubbs v. Gen. Elec. Credit Corp.,

405 U.S. 699 (1972) 18, 19, 23

Grupo Dataflux v. Atlas Global, L.P,

541 U.S. 567 (2004) passim

Harper v,. AutoAllianc: Intern., Inc.,

392 F.3d 195 (6th Cir. 2004)

Healy v. Ratta, 292 U.S. 263 (1934)

Henderson v. Holmes,

920 F. Supp. 1184 (D. Kan. 1996)

Huffman v. Saul Holdings,

194 F.3d 1072 (10th Cir. 1999)

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co.,

513 U.S. 527 (1995)

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994)

Lampkin v. Media General, Inc.,

302 F. Supp. 2d 1293 (M.D. Ala. 2004)

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit,

507 U.S. 163 (1993)

X

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach,

523 U.S. 26 (1998)

Local Union No. 172 Int'l Ass’n of Bridge, Structural

Ornamental Reinforcing Ironworkers v. P.J. Dick,

Inc.,

253 F. Supp. 2d 1022

Lopez v. Davis, 531 U.S. 230 (2001)

Mackay v. Uinta Dev. Co.,

229 U.S. 173 (1913)

Martin Oil Co. v. Philadelphia Life Ins. Co.,

827 F. Supp. 1236 (N.D. W.Va. 1993)

Masters v. Chapin Mfg. Co.,

520 F. Supp. 1066 (D. Ky. 1981)

McNutt v. Gen. Motors Acceptance Corp.,

298 U.S. 178 (1936)

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,

526 U.S. 344 (1999)

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989)

Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365 (1978)

Parrino v. FHP, Inc.,

146 F.3d 699 (9th Cir. 1998), cert. denied,

525 U.S. 1001 (1998)

xi

Payne ex rel. Estate of Calzada v. Brake,

439 F.3d 198 (4th Cir. 2006)

Pritchett v. Cottrell,

__ F.3d __, 2008 WL 183348 (8th Cir. 2008).. 25

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941)

Syngenta Crop Protection, Inc. v. Henson,

537 U.S. 28 (2002)

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976)

Turner v. Bank of North-America,

4 U.S (4 Dall.) 8 (1799)

Willy v. Coastal Corp.,

503 U.S. 131 (1992)

Wiltz v. Middlesex Co. Off. of the Prosecutor,

2007 WL 2717862 (3rd Cir. 2007)

STATUTES

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 1292(b)

28 U.S.C. § 1332(a)

28 U.S.C. § 1441

Xil

AP er re rer rrr passim

ye ee 5, 138, 24, 28

ok ee | | eee ee ere eerie 5, 13, 19, 26

is ob a hake Se ewe ee AS 6

ot aR ee 6, 19, 23

a passim

is wish veya 6 sew 9-04 ey ae 27

RULES

ee ee re 3

OTHER AUTHORITIES

Michael G. Collins, Jurisdictional Exceptionalism,

OS VA. ta TRV. SEO CT) nw cc ee cece cees 12

Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?

95 Nw. U. L. REV. 1207 (2001) ............. 12

N. Singer, SUTHERLAND STATUTORY CONSTRUCTION

ee Se re 22

WRIGHT & MILLER, 14 C FED. PRAC. & PROC. JURIS.

ica kek nda wakes wa 24

W.D. Va. Loc. Adm. Proc. For Filing, Signing, and

Verifying Pleading and Papers by Electronic

SS 8 ote Eh een bs ee as + A ed Ok 27

1

PETITION FOR A WRIT OF CERTIORARI

Waytec Electronics Corporation (“Waytec”) respect-

fully petitions for a Writ of Certiorari to review the

opinion and judgment of the United States Court of

Appeals for the Fourth Circuit.

INTRODUCTION

The Fourth Circuit refused to consider whether

defendants failed to comply with the statutory

requirements for removal set forth in 28 U.S.C. § 1446,

stating that Caterpillar v. Lewis, 519 U.S. 61 (1996),

dictates that once final judgment has been entered in

a diversity case where subject matter jurisdiction

exists, notions of judicial efficiency and economy

preclude any consideration of remand to State Court

even if removal was improper under the governing

statute. (App. 7a-8a.) The objection to removal here

was timely — and fully preserved. (App. 66a-74a, 77a-

89a, 96a-101a.)

Congress imposed mandatory requirements for

removing cases filed in State Court to Federal Court.

28 U.S.C. § 1446. The Fourth Circuit below ruled that

failure to comply with these statutory mandates can be

disregarded once judgment is entered. (App. 8a.)

(“The asserted procedural error . . . does not overcome

the ‘ccnsiderations of finality, efficiency, and economy’

held by the Supreme Court to be paramount. See

Caterpillar, 519 U.S. at 75.”) The Fourth Circuit’s

analysis is squarely at odds with the precedent of this

Court, violates Congressional pronouncements

regarding removal requirements, and runs counter to

the fundamental precept that “Federal courts are

2

courts of limited jurisdiction. They possess only that

power authorized by Constitution and statute.” Willy

vu. Coastal Corp., 503 U.S. 131, 136-37 (1992).

Numerous Courts of Appeals, like the Fourth

Circuit, interpret Caterpillar to hold that preserved

objections to statutory removal defects are moot once

final judgment is obtained in a diversity case. (App.

8a.)' These post-Caterpillar decisions uniformly reject

this Court’s precedent holding that federal removal

requirements must be strictly construed. Shamrock

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

Despite this Court’s admonition in Grupo Dataflux v.

Atlas Global, L.P., 541 U.S. 567, 572-74 (2004) that

Caterpillar “broke no new ground” and was not a sea-

change with regard to removal jurisprudence, the

' See e.g., Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998),

cert. denied, 525 U.S. 1001 (1998) (remand based on procedural

failure to file notice of removal within thirty days of service

“would be an empty formality” in light of Caterpillar), Huffman v.

Saul Holdings L.P., 194 F.3d 1072, 1080 (10th Cir. 1999) (“a

defect in removal procedure does not warrant a remand to state

court if subject matter jurisdiction existed at the time” of

judgment); Wiltz v. Middlexex County Off. of the Prosecutor, 2007

WL 2717862 (3rd Cir. 2007) (“although appellant raised a likely

meritorious objection to removal,” based on failure to file removal

notice within thirty days, Caterpillar dictates upholding

jurisdiction where notice ultimately was filed long after statutory

thirty-day period); Gentek Building Prods. v. Steel Peel Litig.

Trust, 491 F.3d 320, 327 (6th Cir. 2007) (if diversity case

continues to final judgment, no remand even if removal was

improper); Aqualon Co. v. MAC Equip., Inc. , 149 F.3d 262, 264-65

(4th Cir. 1998) (once improperly removed case proceeds to final

judgment, Caterpillar compels leaving judgment in place if subject

matter jurisdiction exists at judgment).

3

Courts of Appeals have read Caterpillar as a signal

that they now must sacrifice Congressionally-imposed

removal requirements on the altar of “judicial

economy.” This:-Court should resolve this important

conflict involving the scope of federal jurisdiction.

OPINIONS BELOW

The unpublished opinion of the United States Court

of Appeals for the Fourth Circuit is dated November

28, 2007. (App. la-lla.) Waytec timely filed a petition

for rehearing and suggestion for rehearing en banc

that was denied on December 28, 2007. A corrected

order denying rehearing was issued on January 24,

2008. (App. 48a-51a.) The District Court’s decision

denying remand, dated September 2, 2005, is

unreported (App. 15a-21a), and its final order granting

summary judgment, dated October 25, 2006 (App. 22a-

47a), is reported at 459 F. Supp. 2d 480 (W.D. Va.

2007).

JURISDICTION

The judgment of the United States Court of

Appeals for the Fourth Circuit was entered on

November 28, 2007. (App. 12a.) A Petition for

Rehearing and Suggestion for Rehearing En Banc was

timely filed and was denied by an Order dated

December 28, 2007, and by a corrected order dated

January 24, 2008. (App. 48a-51a.) This petition has

been filed within ninety days of the denial of

rehearing. Sup. Ct. R. 13.1 and 13.3.

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1). The basis of the petition,

4

however, is that federal jurisdiction was never

properly established below based on defendants’

failure to comply with the statutory requirements for

removal jurisdiction contained in 28 U.S.C. § 1446.

Federal! jurisdiction in the District Court was asse~ted

under 28 U.S.C. § 1332(a), diversity jurisdiction, and

in the Fourth Cirucit under 28 U.S.C. § 1291.

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1441 - Actions removable generally

(a) 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. For purposes of removal

under this chapter, the citizenship of

defendants sued under fictitious names shall be

disregarded.

(b) Any civil action of which the district courts

have original jurisdiction founded on a claim or

right arising under the Constitution, treaties or

laws of the United States shall be removable

without regard to the citizenship or residence of

the parties. Any other such action shall be

removable only if none of the parties in interest

properly joined and served as defendants is a

citizen of the State in which such action is

brought.

28 U.S.C. § 1446 —- Procedure for removal

(a) A defendant or defendants desiring to

remove any civil action or criminal prosecution

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) The notice of removal of a civil action or

proceeding shall be filed within thirty 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

thirty 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.

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

6

become removable, except that a case may not

be removed on the basis of jurisdiction conferred

by section 1332 of this title more than 1 year

after commencement of the action.

KK

28 U.S.C. § 1447 — Procedure after removal

generally

(c) A motion to remand the case on the basis of

any defect c.her 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 t’ .2 clerk

of the State court. The State court may

thereupon proceed with such case.

(d) 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

or otherwise.

7

STATEMENT OF THE CASE AND

BACKGROUND JURISDICTIONAL FACTS

Waytec filed its Motion for Judgment against

defendants Rohm and Haas Electronic Materials, LLC

(“RHEM”) and Northern Laminate Sales, Inc. (“NLS”)

in the Circuit Court for the City of Lynchburg,

Virginia, on June 1, 2005, alleging fraud and other

state law claims. RHEM was served with process on

June 7, 2005. NLS was served with process effective

June 20, 2005. (App. 89a, fold-out exhibits A and B.)

On June 29, 2005, RHEM electronically filed a Notice

of Removal in Federal Court alleging diversity as the

basis for federal jurisdiction. (App. 52a.) NLS was not

a party to this Notice; it was not signed by any

representative of NLS or by counsel for NLS, nor did

it show any consent to the removal by or on behalf of

NLS.

The District Court sua sponte issued an Order and

Opinion on July 20, 2005, identifying several

deficiencies in the Notice of Removal filed by RHEM,

including the fact that defendant NLS had not joined

in the removal. (App. 56a.) The Court’s Order, on its

face, gave the defendants fourteen days from that date

to show cause “why this action should not be dismissed

for lack of subject matter jurisdiction.” (App. 59a.)

Prodded into action by this notice, that same day,

July 20, 2005 — the last day a timely removal notice

could be filed by NLS (RHEM’s thirty days having

already long since expired) — counsel for RHEM

electronically filed a “Joint Notice of Removal”

purporting to be from both defendants. (App. 6la-

65a.) It is undisputed that counsel for RHEM signed

8

the Notice for NLS’s counsel. (App. 116a-118a.) The

document was electronically filed by counsel for RHEM

through the use of that counsel’s login identification

and password.”

After Waytec filed an Objection to the “Joint Notice

of Removal” and a timely Motion to Remand, counsel

for NLS electronically filed a second “Joint Notice of

Removal” that he signed and filed through the use of

his own login identification and password. This “Joint

Notice of Removal” was filed on July 27, 2005, thirty-

seven days after service of process on NLS. (App. 90a-

95a.) Waytec timely objected to this late “Joint Notice

of Removal” and renewed its Motion to Remand. (App.

96a-103a, 77a-87a.)

The jurisdictional issue in this case turns on a

simple undisputed fact: NLS did not file or sign a

removal notice, or a consent to removal, within thirty

days of service upon it. The “Joint Notice of Removal”

filed with the Court on July 20, 2005, was filed by

RHEM, and the typewritten signature of counsel for

NLS was affixed by counsel for RHEM — not by counsel

for NLS. Under substantial existing case law, counsel

for one party cannot sign a removal notice for another

party, thus rendering the Notice defective and the

removal improper. /nfra at Argument II. RHEM, also,

* Waytec promptly objected that RHEM’s counsel could not sign on

behalf of NLS - and that RHEM, in any event, failed to comply

with applicable rules for the clectronic filing of documents

containing multiple attorney signatures. (App. 67a-7 1a, 81a-85a.)

Waytec also objected that NLS’s ultimate filing was untimely.

(App. 97a-100a.)

9

filed this defective “Joint Notice” long after the

expiration of its thirty-day limit for filing under 28

U.S.C. § 1446. The District Court, however, ruled that

RHEM’s “Joint Notice of Removal” was acceptable and

denied remand. (App. 15a-21la.) That Court later

granted summary judgment against Waytec on the

merits. (App. 22a.)

The Fourth Circuit ruled that it would not even

address the preserved claim that federal jurisdiction

was never properly invoked because such a claim “does

not overcome the ‘considerations of finality, efficiency,

and economy’ held by the Supreme Court to be

paramount” in Caterpillar:

We have held that failure of all defendants to

properly join in removal proceedings is merely

a procedural defect, not a jurisdictional one. See

Payne ex rel. Estate of Calzada v. Brake, 439

F.3d 198, 203 (4th Cir. 2006). The asserted

procedural error in this case, which arises from

NLS’s failure to file its own notice of removal

and Rohm and Haas’ failure to file an electronic

joint notice of removal containing the signatures

of both defendants, does not overcome the

“considerations of finality, efficiency, and

economy” held by the Supreme Court to be

paramount. See Caterpillar, 519 U.S. at 75.

Such error, if it exists, does not supply

sufficient grounds to vacate the judgment

of the district court and remand this case

to state court. See id. at 77.

(App. 8a, emphasis added.) Waytec’s Petition for

Rehearing was denied. (App. 48a-51a.)

10

Here, because of the statutory removal defect,

federal jurisdiction was never properly invoked.

Unlike the diversity defect in Caterpillar, which was

cured by dismissal of the non-diverse defendant and

fell within a longstanding exception, the defect here

(failing to comply with the thirty-day deadline for

filing a notice of removal) is uncured and incurable.

REASONS FOR GRANTING THE PETITION

. This Court Should Resolve the Confusion in

Federal Decisions Regarding Whether

Preserved Objections to Statutory Removal

Defects Are Rendered Moot Under Caterpillar

as Long as Subject Matter Jurisdiction Exists

When Final Judgment is Entered.

The Fourth Circuit’s conclusion that a properly

preserved objection to statutory removal defects does

not merit reversal (or even review) is at odds with the

holdings of this Court. This logic is also contrary to

Congressional] directives regarding removal and with

the concept of limited federal jurisdiction. “It has

never been the rule that federal courts, whose

jurisdiction is created and limited by statute . .

acquire power by adverse possession.” Newman-Green,

Inc. v. Alfonzo-Larrain, 490 U.S. 826, 839 (1989)

(Kennedy, J., dissenting). The Fourth Circuit’s holding

that Federal Courts can decide cases never properly

placed before them cannot be squared with well-settled

doctrines limiting the exercise of federal jurisdiction.

11

A. Where Waytec Timely Objected_ to

Statutory Defects in Removal, Requiring

Remand, The Fourth Circuit Should Not

Be Permitted to Openly Ignore the

Governing Statute.

“Federal courts are courts of limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994). “They possess only that power

authorized by Constitution and statute,” Id.; Willy v.

Coastal Corp., 503 U.S. 131, 136-137 (1992); Bender v.

Williamsport Area School Dist., 475 U.S. 534, 541

(1986), which is not to be expanded by judicial decree.

American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951).

It is presumed that a case lies outside this limited

jurisdiction, Turner v. Bank of North-America,4U.S (4

Dall.) 8, 11 (1799), and the burden of establishing the

contrary rests upon the party asserting jurisdiction.

McNutt v. Gen. Motors Acceptance Corp. , 298 U.S. 178,

182-183 (1936). This is particularly so in the realm of

removal! statutes. As this Court held in Shamrock Oil

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

federal removal statutes should be strictly construed:

Not only does the language of the Act of 1887

evidence the Congressional purpose to restrict

the jurisdiction of the federal courts on removal,

but the policy of the successive acts of Congress

regulating the jurisdiction of federal courts is

one calling for the strict construction of such

legislation. The power reserved to the states

under the Constitution to provide for the

determination of controversies in their courts,

may be restricted only by the action of Congress

in conformity to the Judiciary Articles of the

12

Constitution. ‘Due regard for the rightful

independence of state governments, which

should actuate federal courts, requires that

they scrupulously confine their own

jurisdiction to the precise limits which the

statute has defined.’

(Emphasis added) (quoting Healy v. Ratta, 292 U.S.

263, 270 (1934)).

This limitation is derived in part out of respect for

state sovereignty, but also from the awareness that

Congress has the constitutional authority to define the

jurisdiction of the lower federal courts, Finley uv.

United States, 490 U.S. 545, 548 (1989), and, once the

lines are drawn, “limits upon federal jurisdiction . . .

must be neither disregarded nor evaded.” Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374

(1978); see also Bowles v. Russell, _ U.S. __, 127 §.Ct.

2360, 2365 (2007) (“Congress decides what cases the

federal courts have jurisdiction to consider. Because

Congress decides whether federal courts can hear

cases at all, it can also determine when, and under

what conditions, federal courts can hear them.”)°

* The founders were acutely aware of the danger that Federal

Courts might exceed legislative limits on jurisdiction through

fictions and collusions — a practice not uncommon in English

equity courts. See e.g., Michacl G. Collins, Jurisdictional

Exceptionalism, 93 VA. L. REV. 1829, 1832-33 & 1879 (2007);

Laura S. Fitzgerald, Js Jurisdiction Jurisdictional? 95 Nw. U. L.

REV. 1207, 1258-63 (2001) (English equity courts’ historic practice

of aggrandizing their jurisdiction could provide a legitimate basis

of concern regarding usurpation of state jurisdiction by Federal

Courts).

13

“The right of removal is entirely a creature of

statute and a suit commenced in state court must

remain there until cause is shown for its transfer

under some act of Congress.” Syngenta Crop

Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002); see

also Great Northern R. Co. v. Alexander, 246 U.S. 276,

280 (1918). Yet the Fourth Circuit’s ruling here

eviscerates the thirty- day filing limitation of 28 U.S.C.

§ 1446, and then seeks to justify the result by

characterizing the violated statutory requirement as

merely “procedural.” (App. 8a.) In so doing, the Court

fails to recognize that, in the area of removal

jurisdiction, “procedure” and _ subject matter

jurisdiction are intimately intertwined. See

Greenwood v. Peacock, 384 U.S. 808, 833 (1966)

(“Congress is constitutionally fully free to establish the

conditions under which civil or criminal proceedings

involving federal issues may be removed from one

court to another.”)

28 U.S.C. § 1446 plainly states that a defendant

desiring to remove a civil action from State Court to

Federal 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.” §1446(a) (emphasis added). The

notice “shall be filed within thirty 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.” § 1446(b) (emphasis added). Neither the

Fourth Circuit nor the District Court was at liberty to

disregard this mandatory language. See Lopez v.

Davis, 531 U.S. 230, 241 (2001) (noting Congress' “use

14

of a mandatory ‘shall’ . . . to impose discretionless

obligations”); Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he

mandatory ‘shall’... normally creates an obligation

impervious to judicial discretion.”) As this Court has

recently reminded, statutory time limits, even if not

denominated as “jurisdictional,” have jurisdictional

significance. Bowles v. Russell, —§ U.S. __, 127 S.Ct.

2360, 2365 (2007).

In order for the Federal District Court to acquire

jurisdiction over Waytec’s case by removal — and to

oust the Virginia State Court of jurisdiction —-

defendants were required to comply with the

mandatory provisions of the removal statutes.

Shamrock Oil, 313 U.S. at 108-09; Chicago, Rock

Island & Pac. Ry. Co. v. Martin, 178 U.S. 245 (1900)

(all defendants must join in petition for removal);

Gerling v. Baltimore & Ohio R. Co., 151 U.S. 673, 687

(1894) (if a notice of removal is not timely filed, and a

timely objection is raised by the plaintiff, the appellate

court should reverse “with directions to remand the

case to the state court.”). When defendant NLS failed

to file or sign a valid notice of removal, or a valid

consent to removal, within thirty days of service upon

it, the Federal District Court forever lost its

opportunity to exercise jurisdiction. 28 U.S.C. § 1446.

As a result, the Federal District Court no more had

jurisdiction over this case than it would if no

defendant had sought removal. The fact that the case

met the technical requirements for diversity

jurisdiction provided nothing more than the

opportunity for a Federal Court to exercise

jurisdiction. Proper and timely removal, in compliance

with statutory mandates, was the necessary

15

prerequisite for a Federal Court to exercise

jurisdiction. Here, that necessary prerequisite was

wholly lacking. See Syngenta, 537 U.S. at 32; Gerling,

151 US. at 687.

B. Exceptions to Non-Compliance’ with

Removal Requirements Are Grounded in

Doctrines of Waiver or “Cured Defects.”

No Such Exceptions Are Applicable Here.

The Fourth Circuit’s holding that judicial efficiency

requires Federal Courts to ignore such “technical”

matters as statutory compliance is an incorrect

analysis of Caterpillar and this Court’s precedent.

Although a procedural defect in removing a case can be

waived by the plaintiff, where it is not waived it is no

less mandatory. Congress requires strict compliance

with 28 U.S.C. § 1446.

Nothing in Caterpillar or Grupo suggests that a

preserved objection involving an _ incurable

jurisdictional defect can be absolved in the interest of

judicial economy. The Fourth Circuit’s ruling

effectively writes the “mandatory” thirty-day

requirement out of 28 U.S.C. § 1446, since (a) it need

not be followed, and (b) a violation can never be

reviewed on appeal. The requirement is “moot” in the

name of judicial economy by the time the case is tried

to conclusion. Ironically, this “mootness” rationale

directly contradicts Caterpillar (the case upon which

the Fourth Circuit purports to rely). Under

Caterpillar, contrary to the mootness ruling below,

Waytec “by timely moving for remand, did all that was

required to preserve [its] objection to removal. An

order denying a motion to remand, ‘standing alone,’ is

16

‘fo]bviously . . . not final and [immediately] appealable’

as of right. Nor is a plaintiff required to seek

permission to take an interlocutory appeal pursuant to

28 U.S.C. § 1292(b) in order to avoid waiving whatever

ultimate appeal right he may have.” Caterpillar, 519

U.S. at 74 (quoting Chicago, R. [. & P. R. Co. v. Stude,

346 U.S. 574, 578 (1954)) (footnotes omitted).

Moreover, this Court has ensured judicial economy

by holding that removal statutes must be strictly

construed and that any uncertainty as to the propriety

of removal must be resolved against the removing

party. Shamrock Oil, 313 U.S. at 108-09; McNutt, 298

U.S. at 182-83. Had that admonition of strict

construction been adhered to below there would be no

“judicial economy” concerns in this case. Instead, the

removal statute was not adhered to, the District Court

wrongly refused to remand, and both the District

Court and the Fourth Circuit wrongly proceeded to

determine the merits of a case never properly removed

from State Court.

1. Other Courts have Misinterpreted

Caterpillar and Grupo, Creating A

Conflict with This Court’s Decisions

and the Plain Language of the Removal

Statutes.

The Fourth Circuit’s ruling is not an isolated

decision. In Parrine v. FHP, Inc., 146 F.3d 699, 703

(9th Cir. 1998), the Ninth Circuit similarly concluded

that, although a defendant had failed to join in the

removal notice until two months after service, the non-

compliance must be excused under Caterpillar. See

also Wiltz v. Middlesex Co. Off. of the Prosecutor, 2007

17

WL 2717862 (3rd Cir. 2007) (rejecting a preserved

error regarding failure of all defendants to join a

removal notice, concluding that “by actively litigating

the case in federal court, those defendants who did not

initially sign the notice of removal consented to the

authority of the forum and implicitly endorsed

removal”); Huffman v. Saul Holdings, 194 F.3d 1072

(10th Cir. 1999) (untimely removal notice irrelevant

under Caterpillar); Gentek Building Prods. v. Steel

Peel Litig. Trust, 491 F.3d 320, 327 (6th Cir. 2007) (af

diversity case continues to final judgment, no remand

even if removal was improper). In Parrino, the dissent

aptly observed:

It seems to me that extending Caterpillar to

this case simply elides the procedures set forth

in § 1446 and replaces them with a rule that the

district court may, in its discretion, decline to

remand when those procedures are not complied

with. I cannot agree with that reading of the

statute or of Caterpillar. I do not believe that

reading is, in the long run, designed to enhance

economy or efficiency. It is designed to enhance

interference with state court proceedings,

district court amendment of the removal

statutes, and unnecessary appeals.

146 F.3d at 707 (Fernandez, J., dissenting).

There exists an obvious tension between the

interpretation of Caterpillar embraced by the Circuit

Courts of Appeals and this Court’s precedent holding

that removal statutes must be strictly construed,

Shamrock Oil, 313 U.S. at 1308-09, and that “[nJeither

the convenience of the litigants nor considerations of

18

judicial economy can suffice to justify extension” of

federal jurisdiction beyond its prescribed limits.

Owen, 437 U.S. at 377; Kokkonen, 511 U.S. at 377.

This Court should resolve this conflict.

2. This Court’s Decisions Declining to

Review Orders Denying Remand are

Grounded in Doctrines of Waiver and

“Cured” Defects.

Federal Courts, in weighing removal issues,

historically encountered the problem of litigants who

failed to raise any objections to removal jurisdiction

until they lost their case. For example, in Grubbs v.

Gen. Elec. Credit Corp., 405 U.S. 699, 702 (1972), this

Court made clear that after removal where a case is

tried on the merits without objection and the Federal

Court enters final judgment, the issue on appeal is not

whether the case was properly removed, but whether

the Federal District Court would have had original

jurisdiction of the case had it been filed in that court.

In some instances, the party complaining about

jurisdiction after judgment actually had chosen the

federal forum in the first place and such sleight-of-

hand was deemed impermissible. Baggs v. Martin,

179 U.S. 206 (1900); Mackay v. Uinta Dev. Co., 229

U.S. 173 (1913). Although this Court clarified that

parties cannot waive or forfeit objections to subject

matter jurisdiction (and that courts have the

independent obligation of ascertaining its existence,

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)), it

has also long been established that parties who waive

objection to statutory removal defects will be

prevented from profiting from the tactic. See e.g.,

19

Carter v. Bennett, 56 U.S. (15 How.) 354, 357 (1853);

Mackay, 229 U.S. at 176; Grubbs, 405 U.S. at 702.

Where the jurisdictional problem involves a lack of

federal subject matter jurisdiction, a reviewing court

has no option but to remand to State Court and waiver

concepts are irrelevant. But where the jurisdictional

problem involves a statutory defect, and subject matter

jurisdiction otherwise exists, courts have recognized

that waiver is applicable. Thus, where subject matter

exists at judgment and objection to statutory defects

has been waived, the courts have prevented a litigant

from “sandbagging” and raising an objection to the

defect for the first time after losing the case.* No such

waiver-based justifications for denying remand are

present here.

3. Waytec Did Not Waive Compliance With

The Mandatory Thirty-Day Limit of 28

U.S.C. § 1446(b).

The history of removal cases applying waiver

principles to untimely objections regarding

jurisdictional defects is ample. See e.g., Grubbs, 405

U.S. at 702; French v. Hay, 89 U.S. (22 Wall.) 238, 244-

45 (1874); Ayers v. Watson, 113 U.S. 594 (1885); Bailey

uv. Texas Co., 47 F.2d 153, 155 (2d Cir. 1931) (Hand, J.).

Nowhere in this Court’s jurisprudence, however, is it

stated that a properly preserved objection to a

* In fact, Congress itself has now prevented such tactics by

enacting a thirty-day limitation for a plaintiff to file objections to

removal on grounds other than lack of subject matter jurisdiction.

28 U.S.C. § 1447(c).

20

statutory defect can be ignored or that Federal Courts

enjoy “default jurisdiction” over cases wrongly wrested

from State Courts where a timely objection was lodged

below. To the contrary, Shamrock Oil requires that

compliance with Congress’ statutory mandates be

strictly construed, 313 U.S. at 108-09, and Gerling

clarifies that a properly preserved statutory objection

to removal should result in remand. 151 U.S. at 687;

see also Edrington v. Jefferson, 111 U.S. 770, 775

(1884); Baltimore & #.O. Co. v. Burns, 124 U.S. 165,

166 (1888).

The Fourth Circuit read Caterpillar to grant

Federal Courts carte blanche to ignore statutory

removal defects. However, this Court in Grupo

admonished that Caterpillar does nof stand for the

proposition that all removal defects are automatically

cured so long as the District Court merely possesses

subject matter jurisdiction at the time final judgment

is entered. In Grupo, Justice Scalia distinguished

Caterpillar by pointing out that, “Caterpillar broke no

new ground, because the jurisdictional defect it

addressed had been cured by the dismissal of the party

that had destroyed diversity. That method of curing a

jurisdictional defect had long been an exception to the

time-of-filing rule.” Jd.” Put another way, in

° Explaining that the Federal Courts adhere to the “time-of-filing”

rule utilized in Caterpillar for determining whether there is

subject matter jurisdiction, Justice Scalia pointed out that, “We

have adhered tc the time-of-filing rule regardless of the costs it

imposes.” Grupo, 541 U.S. at 571. He further noted that,

“(Hjolding that “finality, efficiency, and judicial economy” can

justify suspension of the time-of-filing rule would create an

exception of indeterminate scope. Id. at 575.

21

Caterpillar the initial presence of the diversity-

destroying defendant was curable under a well-settled

exception by which the Federal! District Courts could

dismiss the non-diverse defendant and retain

jurisdiction over the case. Grupo, 541 U.S. at 574.

Read in light of Grupo, Caterpillar’s reference to

considerations of “finality, efficiency, and economy” is

properly understood to mean that once a diversity case

has proceeded to final judgment, the appellate court

will not unnecessarily remand the case to State Court

if there is a recognized exception permitting the

District Court to cure the defect and thereby exercise

federal jurisdiction.

By contrast to Caterpillar, here, the statutory

defect is uncured and incurable. No time-honored

exception to the “time-of-filing” rule applies to this

case; nor do sandbagging or waiver principles apply.

Instead, it is a preserved error to the violation of a

statutory time limit that is required to be strictly

construed. Caterpillar, 519 U.S. at 74; Shamrock Oil,

313 U.S. at 108-09. This case should be remanded to

State Court because there was never any proper

removal to Federal Court, and no waiver principles

apply to excuse defendants’ lack of statutory

compliance.

C. Nothing in the Removal Statutes Supports

Denying Review of a Decision Erroneously

Denying Remand.

28 U.S.C. § 1447(d) provides that, “An order

remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise.”

(Emphasis added.) There is no reason to suppose that

22

Congress, in enacting this provision, meant also to say

that an order denying remand of a case to State Court

is not reviewable. Indeed, the logical inference from

the statutory language is to the contrary. See, e.g.,

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 168 (1993)

(“Expressio unius est exclusio alterius.”); N. Singer,

SUTHERLAND STATUTORY CONSTRUCTION § 47.24 (6th

ed. 2000) (under the doctrine of expressio unius est

exclusio alterius “when people say one thing, they do

not mean something else.”).

This Court has further held that 28 U.S.C.

§ 1447(d) does not bar review of an order remanding a

case in all instances. Rather, appellate courts can still

review a remand order if the remand is based on

grounds not authorized under the removal! statutes.

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

336, 349-51 (1976). Ifan improperly remanded case is

reviewable — despite the language of 28 U.S.C.

§ 1447(d) — then surely so is an improperly removed

case. As this Court has cautioned, Congress did not

“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, 423 U.S. at 351. Similarly,

Congress did not give District Courts authority to

ignore the statutory time limit for filing a removal

notice.°®

® It would be an ironic and anomalous outcome if the Fourth

Circuit’s interpretation of Caterpillar were to prevail. District

Court orders erroneously remanding cases would be reviewable in

23

Insulating erroneous refusals to remand from

appellate review furthers no legitimate end. Rather,

it can only encourage defendants to remove cases, even

after the statutory deadline has passed, in the hopes

that a District Court will ignore or excuse the

statutory violation. This Court has made clear that

such efforts should be discouraged. See Grupo, 541

U.S. at 580-581 (“the policy goal of minimizing

litigation over jurisdiction is thwarted whenever a new

exception to the time-of-filing rule is announced,

arousing hopes of further new exceptions in the

future”). See also Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co., 513 U.S. 527, 549 (1995)

(Thomas, J., concurring) (where jurisdiction is

involved, “[vjague and obscure rules may permit

judicial power to reach beyond its constitutional and

statutory limits.”); Grubbs, 405 U.S. at 705 (“[T]he

removal statutes...are intended to have uniform

nationwide application.”).

Because the Circuit Courts uniformly are

misapplying Caterpillar in a way that contradicts both

certain circumstances, despite 28 U.S.C. § 1447(d)’s apparent

prohibition. Yet a District Court order improperly rejecting

remand would become functionally unappealable upon final

judgment under the mantra of “judicial economy” (except for

defects in subject matter jurisdiction that the parties need not

raise or preserve under 28 U.S.C. § 1447(c)). This result not only

conflicts with 28 U.S.C. § 1447(d)’s plain language, but it is also

directly at odds with Caterpillar’s holding that orders denying

remand are not immediately appealable and that a timely motion

to remand raising defects in removal is all a plaintiff must make

to preserve its appeal. Caterpillar, 519 US. at 74.

24

Congress’ clear language and the precedent of this

Court, this Petition should be granted.

II. The Defendants Failed to Comply with the

Mandatory Requirement of 28 U.S.C. § 1446

that a Notice of Removal Must Be Filed and

Signed by Each Defendant Within Thirty Days

of Receipt of Service.

This Petition also raises the question of whether

(and under what circumstances) counsel for one

defendant may sign and file a removal notice for

another defendant who is independently represented

by separate counsel. The governing statute requires

all defendants who have been served or otherwise

properly joined in the state court action to join in the

removal by signing a notice of removal within thirty

days of formal service of state court process, or by

Sling a pleading or other paper evidencing that

defendant’s unambiguous consent to the removal. 28

U.S.C. § 1446(a); Chicago, Rock Island & Pac. Ry. Co.

v. Martin, 178 U.S. at 248 (all defendants must join in

petition for removal); WRIGHT & MILLER, 14 C FED.

PRAC. & PROC. JURIS. 3d § 3731 (2006); see Murphy

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

344, 354 (1999) (establishing that thirty-day limit runs

from formal service of process).

Case law and governing rules establish that one

party may not properly file or sign a removal notice for

another represented party. See e.g., Business Guides,

Inc. v. Chromatic Comm. En‘ >r., Inc., 498 U.S. 533,

542, 546 (1991) (noting Rule 11 requires that, where a

party is represented by counsel, that counsel must sign

pleadings or other papers filed with the Court;

25

obligation placed on individual affixing signature to

document); Creekmore v. Food Lion, Inc., 797 F. Supp.

505, 508-09 (E.D. Va. 1992) (holding that under Rule

11 party could not voice consent to removal through

another party’s attorney).’

Here, there was no removal notice that was signed

or filed by NLS within thirty days of service upon it.

’ See e.g., Green v. Target Stores, Inc., 305 F. Supp. 2d 448, 450-51

(E.D. Pa, 2004) (“one defendant may not speak for the other”);

Masters v. Chapin Mfg. Co., 520 F. Supp. 1066 (D. Ky. 1981)

(cannot add previously non-consenting defendants after thirty

days); Lampkin v. Media General, Inc., 302 F. Supp. 2d 1293

(M.D. Ala. 2004) (parent corporation’s consent does not constitute

subsidiary’s consent even when parties represented by same

counsel); Local Union No. 172 Int'l Ass’n of Bridge, Structural

Ornamental Reinforcing Ironworkers v. P.J. Dick, Inc., 253 F.

Supp. 2d 1022, 1025-26 (S.D. Ohio 2003) (Rule 11 does not

authorize one party to make representations or file pleadings on

behalf of another; each attorney of record must act for individual

defendant); Amteco Inc. v. BWAY Corp., 241 F. Supp. 2d 1028

(E.D. Mo. 2003) (corporation’s consent must come from its own

lawyer who has entered appearance in case); Dorsey v. Borg-

Warner Auto., Inc., 218 F. Supp. 2d 817, 819-20 (S.D.W.Va. 2002)

(removing defendant could not sign for “tagalong” defendants);

Henderson v. Holmes, 920 F. Supp. 1184, 1187 (D. Kan. 1996)

(each party must independently and unambiguously file notice of

consent within thirty-day period); Martin Oil Co. v. Philadelphia

Life Ins. Co., 827 F. Supp. 1236, 1238 n. 3, 1239 (N.D. W.Va. 1993)

(“counsel may not voice consent through another attorney”); but

see Harper ». AutoAlliance Intern., Inc., 392 F.3d 195 (6th Cir.

2004) (excusing failure of defendant to join removal notice);

Pritchett v. Cottrell, __ F.3d __, 2008 WL 183348 (8th Cir. 2008)

(counsel for one defendant can append consent letter from other

defendant to motion for removal).

26

RHEM, served on June 7, 2005, filed an initial Notice

of Removal for itself only. (App. 52a.) NLS, served on

June 20, 2005, had not filed any notice or pleading

with the court evidencing its consent to removal as of

the morning of July 20, 2005 — the last day removal

was possible. Later that same day — forty-three days

after it was served with process - RHEM electronically

filed a second, purportedly “joint” Notice of Removal.

(App. 61a.) It is undisputed this “Joint Notice” was

signed by counsel for RHEM by affixing a typewritten

signature mark for NLS’s counsel on the document.

(App. 116a-117a.) Waytec objected and moved to

remand because RHEM’s actions failed to comport

with the governing statutes or local rules. (App. 66a-

72a, 77a-87a.) NLS then filed its own Notice of

Removal, signed by its counsel, on July 27, 2005 (App.

90a) — well after the expiration of the statutory thirty-

day period. Again, Waytec timely objected and

renewed its motion to remand based on this late filing.

(App. 96a.)

The defendants did not comply with the mandatory

thirty-day limitation of 28 U.S.C. § 1446(b). NLS’s late

filing on its own behalf, thirty-seven days after it was

served, could not effect removal if Waytec timely

objected and moved to remand — as it did. RHEM’s

effort to cure the statutory non-compliance by filing its

“Joint Notice of Removal” purporting to show the

consent of NLS was also ineffective because one

defendant may not validly sign a notice of removal for

a co-defendant represented by separate counsel (and

certainly may not do so forty-three days after being

served).

27

Defendants suggested below that the introduction

of electronic filing and the use of “electronic

signatures” rendered all prior “signature” cases

distinguishable. (See fn. 7, supra.) Yet the language

of the statute and the governing case law establish

that the failure of NLS’s counsel to sign the document

is dispositive; whether the signature is by handwriting

or electronic means should be irrelevant.2 In any

event, even if the District Court’s administrative

procedures for electronic filing could trump the

requirements at 28 U.S.C. § 1446,? RHEM did not

comply with those procedures. The Western District

of Virginia’s published administrative procedures

establish a two-part requirement for electronically

filing a document requiring multiple attorney

signatures. (App. 123a-128a.) First, “[t]he filing party

or attorney must initially confirm that the content of

the document is acceptable to all attorneys required to

sign the document,” and second, “|t)he filing party or

attorney ... must obtain the signatures of all attorneys

on the document. For purposes of this rule, physical,

facsimile, or electronic signatures are permitted.”””

® Counsel for RHEM did sign for NLS’s counsel in ink on the copy

of the “Joint Notice of Removal” sent to the State Court. (App.

76a, fold-out exhibits.)

® It is well-settled that local rules cannot contravene the

requirements of a federal statute. 28 U.S.C. § 2071 (local rules

“shall be consistent with Acts of Congress.”).

© W.D. Va. Loc. Adm. Proc. For Filing, Signing, and Verifying

Pleading and Papers by Electronic Means at 12 (emphasis added).

(App. 125a-126a.)

28

Adhering to this requirement is the only way a party

can be bound to a specific document.

RHEM (and NLS) did not comply with this rule.

They could not produce below any evidence to show

that they satisfied the second requirement — the

signature of counsel for NLS on the “Joint Notice of

Removal.” When called upon to produce a copy of the

Notice containing the signature of counsel for NLS,

they produced only an e-mail message from counsel for

NLS expressing tentative approval of the content of a

draft notice, contingent on further instructions from

NLS’s corporate officials. (App. 109a.) This wholly

failed to meet the explicit requirement that the filing

party (here, RHEM) “obtain the signatures of all

attorneys on the document” before filing it

electronically.”

Thus, NLS failed to file or sign a notice of removal

in compliance with 28 U.S.C. § 1446. RHEM could not

sign or file such a notice for NLS — especially after its

thirty-day limit had expired. Even if RHEM somehow

could have filed and signed a “joint” notice for other

parties forty-three days after being served, here

RHEM failed to follow the District Court’s rules for

1! Id. at 12. Notably, the Administrative Procedures provide a

ready means for a defendant to file a notice of removal showing

the consent of a co-defendant represented by separate counsel in

a manner that fully complies with 28 U.S.C. § 1446(a), by

permitting a notice of removal to be signed in handwriting and

filed on paper as an exception to the electronic filing rules. Id. at

6. (App. 124a.)

29

such filings.” The failure of all defendants to file a

valid removal notice within thirty days of service, as

required by 28 U.S.C. § 1446, cannot be cured, and

Waytec timely raised the issue and preserved its

objection to the District Court’s exercising its removal

jurisdiction. The District Court should have remanded

the case, and the Fourth Circuit should have reviewed

and corrected the District Court’s erroneous failure to

do so.

CONCLUSION

This case was never properly removed to Federal

Court in the first instance, and Waytec preserved its

objection. The uncured error should not be absolved

under the Fourth Circuit’s rationale that the failure to

acquire federal jurisdiction somehow escapes appellate

review. Numerous other Circuit Courts share the view

that Caterpillar requires that they must ignore a

preserved objection to non-compliance with the

removal statute, so long as subject matter jurisdiction

” This case is not controlled by Becker v. Montgomery, 532 U.S.

757 (2001), in which a pro se prisoner-litigant timely filed a notice

of appeal, but attempted to “sign” his notice using a typewritten

signature, was allowed to add a handwritten signature later and

proceed. Here, counsel for NLS did not sign or file a notice of

removal within a Congressionally-prescribed time period. Instead

counsel for another party purported to file the document and sign

it for NLS. NLS did not file and sign its own Notice of Removal

until thirty-seven days after service. Becker cannot be read to

permit counsel for one party to substitute his signature, after the

fact, for the signature of counsel for another party, nor can such

actions be squared with the strict construction of the removal

statute’s requirements. Shamrock Oil, 313 U.S. at 108-09.

30

exists at judgment. This interpretation of Caterpillar

eviscerates Congressional directives on removal, and

directly contradicts this Court’s admonitions that

remova! statutes must be strictly construed because

Federal Courts are courts of limited jurisdiction. As a

result of this expansive and flawed reading of

Caterpillar, Federal Courts, in the name of “judicial

economy,” are improperly assuming “default

jurisdiction” over cases that properly belong in State

Court. This Court should resolve the conflict.

For the foregoing reasons, Waytec asks that its

Petition for Certiorari be granted and that the decision

below be reversed and the case remanded to State

Court.

Respectfully Submitted,

WAYTEC ELECTRONICS

CORPORATION

Frank K. Friedman (VSB #25079)

Counsel of Record

Mark D. Loftis (VSB #30285)

James F. Douthat (VSB #01191)

F. Elizabeth Burgin (VSB #74726)

Woods Rogers PLC

10 S. Jefferson Street, S.W., Suite 1400

P.O. Box 14125

Roanoke, Virginia 24038-4125

Phone: 540.983.7600

Facsimile: 540.983.7611