Commercial Litigation and Arbitration

Removal: Pre-Suit Discovery Proceedings Are Removable Under the Removal Clarification Act of 2011, As Are Other Previously Unremovable Proceedings

Estate of Wisler, 2016 U.S. Dist. LEXIS 8690 (S.D. Ind. Jan. 25, 2016):

In 2011, Congress passed the Removal Clarification Act of 2011 in response to "recent Federal court cases that reflect an inter- and intra-circuit split as to whether State 'pre-suit discovery' laws qualify as civil actions or criminal prosecutions that are removable." See H.R. Rep. No. 112-71(1) at 2 (2011) reprinted in 2011 U.S.C.C.A.N. 420, 421 (2011). The Removal Clarification Act of 2011 added, among other things, the language found in section 1442(d)(1) regarding "civil action" and "criminal prosecution." See 28 U.S.C. § 1442(c) (2011) (amended 2013). Section 1442(d)(1) defines "civil action" and "criminal prosecution" to "include any proceeding (whether or not ancillary to another proceeding) to the extent that in such a proceeding a judicial order, including a subpoena for testimony or documents, is sought or issued." 28 U.S.C. § 1442(d)(1).

Although Congress noted that it was concerned with state [*6]  court pre-suit discovery laws, the plain language of the statute is much broader than necessary to reach Congress' stated goal. As a result, the Court applies the statute to ... proceedings, which are outside of the pre-suit discovery context. "As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005); see also Owner-Operator Indep. Drivers Ass'n, Inc. v. Mayflower Transit, LLC, 615 F.3d 790, 792 (7th Cir. 2010) ("What Congress meant to do, but didn't, is not the law. So when a statute's language conflicts with its legislative history[,] . . . it is the enacted text rather than the unenacted legislative history that prevails"); Spivey v. Vertrue, Inc., 528 F.3d 982, 985 (7th Cir. 2008) ("Legislative history may help disambiguate a cloudy text by showing how words work in context; it does not permit a judge to turn a clear text on its head"). This application is consistent with that of other federal district courts. See, e.g., Heinrich v. Dep't of Treasury, No. 8:14CV401, 2015 U.S. Dist. LEXIS 58627, 2015 WL 2085712 (D. Neb. May 5, 2015) (finding of magistrate judge proposing application of 28 U.S.C. § 1442's grant of jurisdiction to disallowance of claim in state court probate matter), entered as final order, No. 8:14CV401, Dkt. No. 31 (D. Neb. Sept. 3, 2014); Goncalves v. Rady Children's Hosp. San Diego, 65 F. Supp. 3d 985 (S.D. Cal. 2014) (applying 28 U.S.C. § 1442's grant of jurisdiction to motion to expunge subrogation lien in [*7]  state court medical malpractice action), appeal docketed, No. 15-55010 (9th Cir. Jan. 5, 2015).

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