Supreme Court Argument On Third-Party Counterclaim Defendant Removal

On January 15, 2019, the Supreme Court heard argument on an appeal from a unanimous decision of the U.S. Court of Appeals for the Fourth Circuit holding that a third-party defendant against whom class action counter-claims are asserted in state court is not a "defendant" for purposes of the general removal statute, 28 U.S.C. § 1441 ("Section 1441") or the Class Action Fairness Act, 28 U.S.C. § 1453 ("CAFA").  The third-party defendant to the class action counterclaims therefore could not rely on those statutes to remove the case.  Home Depot U.S.A., Inc., v. Jackson, No. 17-1471.

Section 1441 provides "any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants to the [appropriate] district court."  28 U.S.C. § 1441(a).  In Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941), the Supreme Court, interpreting similar language in Section 1441's predecessor, held