Commercial Litigation and Arbitration

Removal — Is There a Futility Exception to § 1447(c)’s Command That, If District Court Lacks Subject Matter Jurisdiction over a Removed Action, “The Case Shall Be Remanded”? — Circuit Split

Sibley v. McConnell, 2015 U.S. Dist. LEXIS 138820 (D.D.C. Oct. 13, 2015):

The text of the removal statute is unequivocal: it instructs that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c) (emphasis added); see also Republic of Venezuela v. Philip Morris, 287 F.3d 192, 196 (D.C. Cir. 2002) ("When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case.") (citing 28 U.S.C. § 1447(c)).

The circuits are split as to whether § 1447(c) is subject to a "futility" exception, which would permit dismissal without remand where remand would be futile because the state court, too, would dismiss the case. See Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 213-14 (3d Cir. 1997) (collecting cases and describing split between Fifth and Ninth Circuits, which do recognize a futility exception to § 1447(c), and Fourth and Seventh Circuits, which do not). The D.C. Circuit has yet to enter the fray, but faced with a situation [*13]  much like the one presented by this case — in which a defendant "argue[d] that remand would be a 'futile waste of judicial resources,' because the standing rules applicable to federal courts apply equally to the Superior Court for the District of Columbia" — another court in this district declined to recognize a futility exception. See Randolph v. ING Life Ins. & Annuity Co., 486 F. Supp. 2d 1, 10-11 (D.D.C. 2007). The Randolph court explained that "the 'futility exception' recognized by the Fifth and Ninth Circuits has been expressly rejected by the Third, Fourth, Seventh, and Tenth Circuits; the First and Second Circuits have not adopted a futility exception when given the opportunity to do so; and the Supreme Court, in dicta, has expressed a reluctance to recognize a futility exception." Id. at 11.

The dicta referenced by Randolph is found in International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72 (1991). There, the Supreme Court examined whether to remand pursuant to § 1447(c) when "a remand of petitioners' claims to Louisiana court would be futile." Id. at 87. The Supreme Court examined a First Circuit case, Maine Association of Interdependent Neighborhoods v. Commissioner of Maine Department of Human Services, 876 F.2d 1051 (1st Cir. 1989), which found that "none of the[] anticipated barriers to suit in state court was sufficiently certain to render a remand futile." Int'l Primate, 500 U.S. at 88. Approving of this outcome, the Supreme Court reasoned that a "plaintiff's lack of Article III standing [*14]  would not necessarily defeat its standing in state court" because the standing issue "turns on a question of [state] law, and we decline to speculate on the proper result." Id. at 88-89. The Court "also [took] note . . . of the literal words of § 1447(c), which, on their face, give no discretion to dismiss rather than remand an action." Id. at 89 (internal quotation marks and citation omitted).

Although D.C. law seems relatively clear that its courts "follow[] Supreme Court developments in constitutional standing jurisprudence with respect to whether the plaintiff has made out a case or controversy," Grayson v. AT&T Corp., 15 A.3d 219, 233 (D.C. 2011) (en banc), remand still seems appropriate under the weight of the case law and the text of the removal statute. Put another way, in the absence of D.C. Circuit or Supreme Court law supporting a futility exception to remand, the Court believes it must grant Plaintiff's Motion to Remand this suit.

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