Legal Memorandum: Removal Statute and Third-party Actions

Issue: May a third-party action be brought under Mississippi law if the claim is not derivative of the main claim?

The removal statute generally provides that a claim within a federal court’s original jurisdiction may be removed from state court to federal court “by the defendant or defendants.”  28 U.S.C. § 1441(a) (emphasis added).*FN1  Because the removal statute must be strictly construed, with doubts resolved in favor of remanding the case to state court, a majority of federal circuits, including the Fifth Circuit, have concluded that the word “defendant” as used in § 1441(a) means the original defendant and not a third-party defendant.  F.L. Crane & Sons, Inc. v. IKBI, Inc., 630 F. Supp. 2d 718, 720 (S.D. Miss. 2009); Avis Rent a Car Sys., Inc. v. Zea, No. Civ. A. G-05-469, at *3 (S.D. Tex. Oct. 31, 2005) (“This is ‘the overwhelming majority view . . . .”).  See also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S Ct. 868 (1941) (counter-defendant, i.e., the original plaintiff, was not a “defendant” for purposes of removal under § 1441). 

Removal interferes with a plaintiff’s right to choose the forum.  Thus, “[t]he defendant’s right to remove and the plaintiff’s right to choose the forum are not equal, and uncertainties are resolved in favor of remand.”  16 Moore’s Federal Practice § 107.05, at 107-25 (citing, inter alia, Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995); Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).  See also H&H Terminals, LC v. Ramos Family […]