One of the issues raised by some legal commentators after the U.S. Supreme Court decided Standard Fire Insurance Company v. Knowles, 133 S. Ct. 1345 (2013) (blog post), was whether the Supreme Court’s opinion invalidating named plaintiffs’ stipulations regarding the amount in controversy would allow cases to be removed again, or removed after the 30-day period had expired.  This issue arose principally in two scenarios.  First, a defendant had previously removed a case to federal court, but the case was remanded based on a stipulation by the named plaintiff that he or she was not seeking more than $5 million.  The defendant may have concluded that seeking permission to appeal was fruitless because established circuit law upheld these stipulations (which the Supreme Court unanimously invalidated in Knowles).  Or in some cases an appeal was taken, and appellate review was denied or the decision was affirmed.  A second scenario in which this issue arose is where a defendant had not removed the case initially because it concluded that such a removal would be fruitless, due to established circuit law upholding the use of these stipulations.  Given that the Supreme Court had now overruled that circuit law, could a defendant remove late, or remove a second time?

The first decision I’ve seen on this issue is Henry v. Michaels Stores, Inc., Case No. 1:13-CV-831, 2013 U.S. Dist. LEXIS 71046 (N.D. Ohio May 20, 2013), which concluded that the Knowles opinion did not create grounds for a new removal.  This case was not removed within 30 days after it was served.  According to the defendant, it did not remove the case because it concluded that the plaintiff’s disclaimer of damages over $5 million in his complaint was enforceable under established Sixth Circuit law.  The defendant removed the case, however, within 30 days after the Supreme Court issued the Knowles opinion.  The court first addressed the question of whether the case was removable when it was initially filed (and thus the 2013 removal was too late).  It found Sixth Circuit law unclear on the relevant point, and thus did not find the removal to be untimely, on the basis that the right to removal must be “unequivocal” in order for the defendant to lose that right due to its failure to remove within 30 days of service. 

The court then focused on 28 U.S.C. § 1446(b)(3), which provides that, if the case is not removable based on the initial pleading, a removal beyond the initial 30-day period is authorized “within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”  (Emphasis added.)  The defendant argued that the Knowles decision was an “order” or an “other paper,” but the Northern District of Ohio rejected that position.  Relying on precedent construing § 1446(b)(3) and its legislative history, the court held that the words “order” or “other paper” are limited to an order or other document that is received in the case that is being removed, which would not include a new Supreme Court opinion.

So what is the lesson here?  Lots of lawyers tend to assume that binding circuit authority is impenetrable and the possibility of Supreme Court review can be ignored because it is highly unlikely that the Court will take a case involving the issue you are dealing with.  But that is not always true, as I found out when I got the call from the Supreme Court Clerk’s office when certiorari was granted in Knowles. When the issue is important you may have to go all the way to keep it alive in your case.  If someone else has a case involving your issue and gets the Supreme Court to take it, it may be that the only way you can preserve that issue in your case is by taking a dead-on-arrival, waste-of-time appeal to the court of appeals that has already decided the issue, and then, if necessary, filing your own petition for certiorari.  It doesn’t really cost that much to keep the issue alive in your case, and it is surprising sometimes what the Supreme Court takes.  If the issue is still alive in your case, you can seek a stay in the court of appeals pending the Supreme Court decision, or, if your case is in the Supreme Court when cert is granted in another case, they will likely hold it and then grant, vacate and remand when they decide the issue in the other case. 

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.