Recently, a split panel of the 4th Circuit Court of Appeals found that a counter-defendant added to the suit by the original defendant could not remove the case to federal court under 28 U.S.C § 1441(a) or § 1453(b). In Palisades Collections v. Shorts, a collection agency sought to recover $794.87 from Shorts for a cellular phone debt in West Virginia state court. Shorts responded by filing a counter-claim against Palisades and joined AT&T as a counter-defendant. Shorts filed for class certification to represent over 160,000 other citizens of West Virginia. AT&T removed the case to the Northern District of West Virginia. The district court granted Short’s motion to remand.
On appeal, the 4th Circuit affirmed. First, citing to authority from numerous other federal circuits the court "easily conclud[ed]" that an additional counter-defendant is not a "defendant" under 1441(a). Next, the court turned to AT&T’s argument that the broad language of 1453(b) permits an additional counter-defendant to remove a class action to federal court. After analyzing the language of 1453(b), the court held that there was no indication that in 1453(b) Congress intended to alter the traditional rule that only an original defendant may remove. The dissenting judge argued that CAFA authorizes removal even though AT&T is not an original defendant.
You can read the full opinion here.
-Counseller/ps