Perpetual Removal Won’t Save You

Clipperjet Inc. v. Tyson, No. G055491 (D4d3 Aug. 7, 2019)

Generally, removing a case to federal court divests a state court of jurisdiction to do anything, especially to issue substantive orders. That’s true even when a case is ultimately remanded. But Defendant in this case had already removed the case once on a frivolous ground, only to be quickly remanded. A co-defendant removed again, on the same frivolous ground, only three days prior to a hearing on a motion to strike the complaint. Notwithstanding the second removal, the trial court denied the motion. Following a remand, Defendant never responded to the complaint. A default, and then a default judgment were entered. And then a motion for relief from default was later filed and denied.

That all gets affirmed. The Court of Appeal decides to “recognize a narrow exception to the general rule that state courts lose jurisdiction when a case is removed to federal court.” Relying on cases from various other jurisdictions, the Court holds that when a removal is clearly frivolous or duplicative, the state court retains jurisdiction to rule on pending motions. Otherwise, removing defendants could “game the system and . . . to trifle with the court.”

Affirmed.

Perhaps I am too textualist, but I don’t think I agree, although the error is probably harmless. The relevant removal state, 28 U.S.C. § 1446(d), says that upon the filing of a notice removal, “the State court shall proceed no further unless and until the case is remanded.” That doesn’t seem like it brooks some silent frivolity exception, however justified it might be by legit policy concerns. On the other hand, there are several statutory tools for courts to deter and punish frivolous removals. See 28 U.S.C. § 1447(c) (removal sanctions); Fed. R. Civ. P. 11(c) (general sanctions); Code Civ. Proc. § 128.7 (general sanctions); U.S. Bank Nat’l Ass’n v. Jefferson, 314 F. Supp. 3d 768, 784 (S.D. Tex. 2018) (enjoining further frivolous removals under the authority of the All Writs Act, 28 U.S.C. § 1651). It seems better rely on the legislatively authorized toolkit before coming to the conclusion that Congress would have authorized exceptions it didn’t write into the rules.