Kathleen Wood v. Crane Co

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1868

KATHLEEN R. WOOD, Personal Representative for the Estate of
James E. Joyner,

Plaintiff – Appellee,

v.

CRANE CO., individually and as successor to National−U.S.
Radiator, is a Delaware Corporation with its principal
place of business in Connecticut,

Defendant – Appellant,

and

A.C. & R INSULATION CO., INC.; ALLEN−BRADLEY COMPANY, INC.;
ALLIS−CHALMERS ENERGY, INC.; AIR & LIQUID SYSTEMS
CORPORATION, Successor by Merger to Buffalo Pumps, Inc.;
A.O. SMITH CORPORATION; ARMSTRONG INTERNATIONAL, INC.;
AQUA−CHEM, INC., d/b/a Clever−Brooks Division; AURORA PUMP,
CO; A.W. CHESTERTON, INC.; BW/IP, INC., and its wholly
owned subsidiaries as successor−in−interest to BW/IP;
CARRIER CORP.; CBS CORPORATION, f/k/a Viacom, Inc., as
successor to Westinghouse Electric Corp.; CERTAINEED
CORPORATION; CLEAVER−BROOKS COMPANY; COLUMBIA BOILER
COMPANY; CROWN CORK & SEAL COMPANY, INC.; EATON ELECTRICAL,
INC., f/k/a Cutler Hammer, Inc.; ELLIOTT COMPANY I, f/k/a
Elliott Turbomachinery Co. Inc.; FMC CORPORATION,
individually, on behalf of its Former Construction
Equipment Group & Former Peerless Pump Division;
FOSTER−WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION,
f/k/a Foster Wheeler Corporation; GARDNER DENVER, INC.;
GARDNER DENVER NASH, LLC, a/k/a Gardner Denver, Inc., f/k/a
Nash Elmo Industries, LLC; GENERAL ELECTRIC COMPANY;
GEORGIA−PACIFIC, LLC; THE GOODYEAR TIRE & RUBBER COMPANY,
individually and as successor−in−interest to Durabla
Manufacturing; GOULDS PUMPS, INC., a subsidiary of ITT
Industries, Inc.; THE GRISCOM−RUSSELL COMPANY, f/k/a The
Dial Corporation, a Delaware Corporation; H.B. FULLER
COMPANY, Successor/or parent of Benjamin Foster Division of
Amchem Products, Inc.; H.B. SMITH COMPANY, INC., a/k/a
Smith Cast Iron Boilers; HONEYWELL INTERNATIONAL, INC.;
HOPEMAN BROTHERS, INC.; IMO INDUSTRIES, INCORPORATED,
individually and on behalf of and successor to DeLaval;
DeLaval Stream Turbine Co., IMO DeLaval and Warren Pump
Co.; INGERSOLL−RAND COMPANY; INTERNATIONAL PAPER COMPANY,
INC.; JOHN CRANE, INC.; KAISER GYPSUM COMPANY, INC.;
MCNALLY INDUSTRIES, INC., individually and as
successor−in−interest to Northern Pump Company and Northern
Fire Apparatus Company; MCIC, INC., f/k/a McCormick
Asbestos Co.; METROPOLITAN LIFE INSURANCE CO.; NATIONAL
SERVICE INDUSTRIES, INC., f/k/a North Brothers, Inc.;
OWENS−ILLINOIS, INC.; RAPID−AMERICAN CORPORATION; RILEY
POWER, INC., f/k/a Babcock Borsig, Inc., f/k/a Riley Stoker
Corporation; SB DECKING, INC., f/k/a Selby, Battersby &
Company; SEALING EQUIPMENT PRODUCTS CO. INC.; SIEMANS DEMAG
DELAVAL TURBOMACHINERY, INC., f/k/a Demag Delaval
Turbomachinery, Inc.; SCHNEIDER ELECTRIC USA, INC., f/k/a
Square D Company; UNION CARBIDE CORPORATION; UNIROYAL,
INCORPORATED; VALEN VALVE CORPORATION; WALLACE & GALE
ASBESTOS SETTLEMENT TRUST; THE WALTER E. CAMPBELL COMPANY,
INC.; WARREN PUMPS, LLC, f/k/a Warren Pumps, Incorporated;
WEIL PUMP COMPANY INC.; WEIL−MCLAIN, INC.; YARWAY
CORPORATION; ROCKWELL AUTOMATION, INC., successor−in−
interest to Allen−Bradley Co.,

Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cv-02294-CCB)

Argued: March 19, 2014 Decided: August 15, 2014

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined. Judge Duncan concurred in the judgment
only.

2
ARGUED: Michael James Ross, K&L GATES LLP, Pittsburgh,
Pennsylvania, for Appellant. Jacqueline Gagne Badders,
RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for
Appellee. ON BRIEF: Nicholas P. Vari, Syed D. Ali, K&L GATES
LLP, Pittsburgh, Pennsylvania; Neil J. MacDonald, MACDONALD LAW
GROUP, LLC, Beltsville, Maryland, for Appellant. Jonathan
Ruckdeschel, Z. Stephen Horvat, RUCKDESCHEL LAW FIRM, LLC,
Ellicott City, Maryland, for Appellee.

3
DIAZ, Circuit Judge:

Crane Company, one of many defendants in this asbestos

litigation, removed this case to federal court, asserting a

federal defense to plaintiff James Joyner’s 1 state tort claims.

When Joyner amended his complaint, eliminating the claims

underlying that federal defense, the district court remanded to

state court. Crane now complains that it should have been given

the opportunity to assert a new basis for federal jurisdiction--

even though it had declined to do so in a timely fashion. We

affirm the district court’s decision to remand.

I.

A.

James Joyner was diagnosed with mesothelioma in March 2012.

His illness allegedly resulted from exposure to asbestos while

working as an electrician for the Coast Guard and then in the

private sector.

Joyner filed suit in Maryland state court, alleging (1)

strict liability for defective design and failure to warn; (2)

breach of implied warranty; (3) negligence products liability

claims; and (4) aiding and abetting and conspiracy to conceal

1
Joyner passed away during the course of these proceedings,
and his representative, Kathleen Wood, has been substituted in
the caption. We continue to refer to Joyner in our opinion.

4
information about the dangers of asbestos. Joyner named as

defendants a number of manufacturers who allegedly supplied

asbestos-containing materials with which he came into contact at

various points in his career. One of those defendants, Crane

Co., allegedly manufactured and supplied asbestos-containing

valves and gaskets to the Navy, 2 on whose ships Joyner worked

while employed by the Coast Guard.

Crane removed the case to federal court under the federal

officer removal statute. See 28 U.S.C. § 1442(a)(1). That

provision allows for removal of suits against “[t]he United

States or . . . any officer . . . in an official or individual

capacity, for or relating to any act under color of such

office.” Id. In support of its position, Crane averred that it

would assert the federal contractor defense, as it had supplied

the valves in conformance with military specifications. See

J.A. 42. Crane’s notice of removal did mention that the valves

included gaskets as internal component parts, but Crane did not

explicitly assert the defense as related to gaskets. See J.A.

42.

2
Joyner’s complaint did not identify the valves and gaskets
as the source of his injuries; this information became available
during the course of depositions, after which Crane filed its
notice of removal.

5
 Joyner moved to remand to state court, arguing that Crane’s

evidence was insufficient to support its jurisdictional

allegations. In the alternative, Joyner moved to sever the

valve claims against Crane and to remand the claims against the

other defendants--as well as Joyner’s gasket claims against

Crane--to state court. At oral argument before the district

court, Crane explicitly refused to take a position as to whether

the federal contractor defense applied to any gaskets Crane

might have supplied. Rather, Crane apparently sought to

preserve its contention that the gaskets simply weren’t theirs.

See J.A. 2646 (“Crane has a different position with regard to

their gasket because it was never, never on the Navy’s QPL

[qualified products list] and should never have been used.”);

see also J.A. 2732 3 (“To be clear, it is Crane Co.’s position

that Mr. Joyner did not work with replacement Cranite gaskets on

Navy vessels because Cranite gaskets were not on any government

QPL list, and thus were not able to be ordered for use on Navy

vessels through the procurement process.”). Crane declined,

however, to make an argument in the alternative--that the

gaskets “would have been supplied pursuant to detailed

3
This citation is to Crane’s opposition to Joyner’s notice
of abandonment and request for remand, filed on April 11, 2013
in the district court.

6
government specifications”--until much later in the litigation.

J.A. 2732.

In a memorandum opinion and order issued March 7, 2013, the

district court found that Crane had sufficiently supported

removal pursuant to § 1442(a)(1), focusing on the valve claims.

See Joyner v. A.C. & R. Insulation Co., No. CCB-12-2294, 2013 WL

877125 (D. Md. Mar. 7, 2013). It did, however, grant in part

Joyner’s motion to sever the valve claims from all the others.

The court noted that it could exercise supplemental jurisdiction

over the other claims, but largely declined to do so. The court

found that state law claims predominated over the claims

implicating the federal defense and that Maryland had a strong

interest in adjudicating its own state law claims, leading the

court to sever the claims against the other defendants. But the

court also noted its interest in economy, which weighed against

forcing Crane to litigate claims regarding valves in one court

and gaskets in another. Thus, the court remanded the claims

against the other defendants back to Maryland state court, but

retained both claims against Crane.

Shortly thereafter, Joyner filed a “notice of abandonment

of claims regarding Crane Co. valves only and request for

remand.” J.A. 2722. The notice explained that Joyner was

abandoning his claims against Crane with respect to its valves,

retaining only his claims involving injuries caused by Crane’s

7
gaskets. See J.A. 2722–23, 2923. Joyner argued that because

Crane’s removal to federal court relied on the government

contractor defense as to the valves alone, the district court

had no subject matter jurisdiction without those claims.

Crane vociferously contested Joyner’s motion, arguing that

Joyner was manipulating his complaint to avoid federal

jurisdiction and that Federal Rule of Civil Procedure 15 does

not permit Joyner to amend his complaint with such precision.

Crane also argued that it could assert its federal defense in

relation to the gaskets.

The district court addressed these concerns in a memorandum

opinion and order on June 6, 2013. See Joyner v. A.C. & R.

Insulation Co., No. CCB-12-2294, 2013 WL 2460537 (D. Md. June 6,

2013). The court chose to construe Joyner’s notice of

abandonment as a motion to amend his complaint under Rule 15(a).

Finding that such an amendment would not prejudice Crane, the

district court granted leave to amend. The court found that

Crane had not asserted a federal defense with respect to gaskets

and that 28 U.S.C. § 1446(b) prevented Crane from asserting it

now, well beyond the thirty days that provision grants for

notice of removal. The court also explained that any cross-

claims for contribution would be irrelevant, as Joyner had

forfeited any damages related to the valves. Thus, the defense

would not apply as to potential cross-claims from co-defendants.

8
Accordingly, the court remanded Joyner’s remaining claims to

Maryland state court.

B.

Crane appeals both the March 7 and June 6 orders,

contending that all claims should have remained in federal

court. The case is calendared for trial in the Circuit Court

for Baltimore City, and we think it belongs there. Because the

district court did not err in remanding the Crane gasket claims

to state court, we need not evaluate the propriety of the

court’s earlier decision to remand the claims against the other

defendants, or whether we even have jurisdiction to consider

that question.

II.

As an initial matter, Joyner asserts that we have no

jurisdiction to review this appeal. We disagree.

Crane correctly observes that “[a]n order remanding a case

to the State court from which it was removed is not reviewable

on appeal or otherwise, except that an order remanding a case to

the State court from which it was removed pursuant to section

1442 or 1443 of this title shall be reviewable by appeal or

otherwise.” 28 U.S.C. § 1447(d). This case was originally

removed pursuant to § 1442(a)(1) and is thus reviewable.

9
 Joyner argues that because he amended his complaint to

disclaim any cause of action regarding the valves, the part of

the case that was removed pursuant to § 1442 simply no longer

exists. As Joyner sees it, because the issues now before us

were in the district court pursuant to its supplemental

jurisdiction, they do not fall within the narrow exceptions of

§ 1447(d).

But Joyner ignores a basic proposition: that parties remove

cases, not claims. Section 1447(d) explicitly refers to a

“case” removed from state court. Because this case was

originally removed pursuant to the federal officer removal

statute, we have jurisdiction now.

III.

The district court remanded this case pursuant to 28 U.S.C.

§ 1447(c). 4 See J.A. 3007. That statute provides that “[i]f at

4
To be clear, we recognize that the district court could
certainly have chosen to exercise supplemental jurisdiction even
after the valve claims were gone. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988) (“[A] district court has
discretion to remand to state court a removed case involving
pendent claims upon a proper determination that retaining
jurisdiction over the case would be inappropriate. The
discretion to remand enables district courts to deal with cases
involving pendent claims in the manner that best serves the
principles of economy, convenience, fairness, and comity which
underlie the pendent jurisdiction doctrine.”). Our reading of
the March 7 and June 6 orders together suggests to us that the
district court declined to do so. See Mangold v. Analytic
(Continued)
10
any time before final judgment it appears that the district

court lacks subject matter jurisdiction, the case shall be

remanded.” Id. Crane contends that the district court never

“lack[ed] subject matter jurisdiction,” asserting that Joyner’s

disclaimer as to the valves was wholly ineffectual. And in the

alternative, Crane argues, it should be able to assert new

grounds for subject matter jurisdiction in response to Joyner’s

disclaimer. We address each argument in turn, and in so doing,

interpret the relevant statutes de novo. See Holland v. Pardee

Coal Co., 269 F.3d 424, 430 (4th Cir. 2001).

A.

Crane first asserts that Joyner’s disclaimer is a legal

nullity, devoid of real effect. Crane does not dispute that “a

federal district court has discretion under the doctrine of

pendent jurisdiction to remand a properly removed case to state

court when all federal-law claims in the action have been

eliminated and only pendent state-law claims remain.” Carnegie-

Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (noting our
“power--and responsibility--to look past contextually ambiguous
allusions and even specific citations to § 1447(c) to determine
by independent review of the record the actual grounds or basis
upon which the district court considered it was empowered to
remand” (emphasis omitted)). We simply understand the district
court to say that it no longer had an independent basis for
subject matter jurisdiction besides the supplemental
jurisdiction it declined to exercise.

11
Mellon Univ. v. Cohill, 484 U.S. 343, 345 (1988);

see also Appellant’s Br. at 16. But because the federal

question arose from the defense to the dismissed claims, rather

than the claims themselves, Crane thinks different rules apply.

In support of this assertion, Crane cites to one unreported

district court case from outside our circuit. That court held

that “[b]ecause removals pursuant to the federal officer removal

statute are premised on the existence of a federal defense,

rather than a plaintiff’s artfully constructed complaint,

neither Plaintiff’s disclaimer nor [his] characterizations of

[his] claims are determinative.” Brantley v. Borg-Warner Morse

Tec, Inc., No. 3:12cv540 AJB (JMA), 2012 WL 1571129, at *2 (S.D.

Cal. May 3, 2012) (internal quotation marks and citations

omitted).

Even if we were inclined to rest our decision on such

authority, the case is distinguishable. “[D]espite [his]

disclaimer” of any claims related to the “direction of an

officer of the United States Government,” Brantley “still

s[ought] damages arising out of his exposure to asbestos in and

around the Westinghouse turbines produced by Defendants while

serving in the United States Navy . . . .” Id. 5 But here,

5
Brantley apparently contended that Westinghouse supplied
turbines with little or no direction from the Navy as to product
specifications.

12
Joyner expressly disclaimed any damages--giving his disclaimer

real effect, unlike Brantley’s. As we have no reason to believe

that the state court will fail to hold Joyner to this

disclaimer, it effectively precludes any defense based on the

valves alone.

Crane also argues that Joyner’s amendment should be

disallowed as a “manipulative tactic[]” meant to evade federal

jurisdiction. See Carnegie-Mellon, 484 U.S. at 357. But there

is no “categorical prohibition” on such manipulation. Id.

Instead, “[i]f the plaintiff has attempted to manipulate the

forum, the [district] court should take this behavior into

account in determining whether the balance of factors to be

considered under the pendent jurisdiction doctrine support a

remand in the case.” Id. Crane’s bare assertion that “even if

Crane Co.’s federal defense were somehow extinguished,

supplemental jurisdiction remained,” Appellant’s Br. at 14, is

insufficient to raise the issue of whether the district court

abused its discretion in declining to exercise supplemental

jurisdiction over the remaining claim. See Edwards v. City of

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to

comply with the specific dictates of this rule [requiring the

reasons for contentions and citations to authorities and the

record] with respect to a particular claim triggers abandonment

of that claim on appeal.”).

13
 B.

Accepting the disclaimer’s effect, we next consider whether

Crane may properly assert any other grounds of subject matter

jurisdiction. Crane primarily argues 6 that it should have been

able to assert a federal defense regarding the gasket claims

after Joyner amended his complaint. We think not.

As the district court noted, defendants have thirty days to

file a “short and plain statement of the grounds for removal”--a

window that had closed by the time Joyner amended his complaint.

28 U.S.C. § 1446(a). The court reasoned that Crane should have

asserted any and all federal defenses within those thirty days.

Instead, Crane explicitly refused to take a position as to

whether the federal officer defense applied to the gasket

claims.

1.

Crane first suggests that it should have been allowed to

amend its notice of removal, pursuant to 28 U.S.C. § 1653. 7 This

6
Crane also notes that the other defendants’ cross-claims
as to the valves remain in play, thus invoking the same defense.
But, as the district court explained, because Joyner disclaimed
any right to damages regarding the valves, any damages so
attributed would remain beyond his reach: Crane cannot be liable
to Joyner or any other defendant for that sum. The cross-claims
fall with the primary claim as a matter of course.
7
It is not clear to us that Crane made this argument before
the district court. But as we explain, the contention fails on
its merits.

14
argument at first seems plausible on the face of the statute,

which provides that “[d]efective allegations of jurisdiction may

be amended, upon terms, in the trial or appellate courts.” Id.

But courts generally apply the thirty-day limit to this statute

as well, at least in cases where the amendment is something more

than a minor technical correction. See Nutter v. New Rents,

Inc., No. 90-2493, 1991 WL 193490, at *2 (4th Cir. Oct. 1, 1991)

(“We . . . apply the majority rule that an amendment which

merely perfects a technically defective jurisdictional

allegation in a timely filed removal petition may be allowed

after the 30-day removal period.”); see also Barrow Dev. Co. v.

Fulton Ins. Co. 418 F.2d 316, 317 (9th Cir. 1969) (“[S]ince

removal must be effected by a defendant within 30 days after

receiving a copy of the complaint, the removal petition cannot

be thereafter amended to add allegations of substance but solely

to clarify ‘defective’ allegations of jurisdiction previously

made.” (internal citations omitted)); 14C Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 3733 (4th ed.

2009) (“In most circumstances, . . . defendants may not add

completely new grounds for removal or furnish missing

allegations, even if the court rejects the first-proffered basis

of removal . . . .”). In short, “[t]he privilege of removal may

be lost if it is not asserted in time and in conformity with the

provisions of the statute.” Richard H. Fallon, Jr. et al., Hart

15
and Wechsler’s The Federal Courts and the Federal System 1433

(6th ed. 2009).

Our district courts have noted the tension between these

statutes, providing for a thirty-day window on the one hand and

amendment on the other. The confusion, they assert, has caused

a split among our circuit’s district courts. See, e.g., Covert

v. Auto. Credit Corp., 968 F. Supp. 2d 746, 750 (D. Md. 2013);

W. Va. v. Minn. Mining & Mfg. Co., 354 F. Supp. 2d 660, 668–69

(S.D.W. Va. 2005); Muhlenbeck v. KI, LLC, 304 F. Supp. 2d 797,

800–01 (E.D. Va. 2004).

The District of Maryland, for instance, has contrasted the

“strict constructionist” school with the “liberal approach.”

Covert, 968 F. Supp. 2d at 750. Under the former, “amendments

after § 1446(b)’s thirty-day period are allowed only for the

purpose of setting forth more specifically grounds that had been

imperfectly stated in the original petition; missing allegations

may not be supplied nor new allegations furnished.” Id.

(internal quotation marks omitted). Under the liberal approach,

it explains, supplemental allegations are permitted “where the

imperfection in the jurisdictional allegation is a mere defect.

However, even under this liberal approach if a ground for

removal was completely omitted as opposed to ‘imperfectly

stated,’ the court has no discretion to permit amendment under

16
§ 1653 and must remand the case to state court.” Id. (internal

quotation marks, citations, and alterations omitted).

In our view, these two schools differ only in verbiage.

The upshot is the same: after thirty days, district courts have

discretion to permit amendments that correct allegations already

present in the notice of removal. Courts have no discretion to

permit amendments furnishing new allegations of a jurisdictional

basis. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

831 (1989) (“But § 1653 speaks of amending ‘allegations of

jurisdiction,’ which suggests that it addresses only incorrect

statements about jurisdiction that actually exists, and not

defects in the jurisdictional facts themselves.”); id. at 832

(“[E]very Court of Appeals that has considered the scope of

§ 1653 has held that it allows appellate courts to remedy

inadequate jurisdictional allegations, but not defective

jurisdictional facts. We decline to reject this longstanding

interpretation of the statute.” (footnote omitted)). The trick

lies in placing a case within one of those two categories.

Our precedent indicates that amendment is appropriate for

technical changes, such as the exact grounds underlying

diversity jurisdiction. For instance, in Nutter, the original

notice of removal claimed that the defendant was a “Kentucky

corporation”; we permitted an amendment stating that Kentucky

was merely the party’s “principal place of business.” 1991 WL

17
193490, at *2. Similarly, in Yarnevic v. Brink’s, Inc., 102

F.3d 753 (4th Cir. 1996), the original petition for removal

cited both federal question and diversity jurisdiction. See id.

at 754. The petition listed the plaintiff’s domicile as Ohio,

though he had moved to Pennsylvania after filing his complaint--

but either state would have supported diversity jurisdiction.

We held that “[w]hile it would have been prudent for Brink’s to

file a supplemental petition specifying the new basis for

diversity within 30 days . . . it was not required,” as the

“change of domicile information simply added new evidence to

rebut [the] motion to remand.” Id. at 755; see also Newman-

Green, 490 U.S. at 831 (explaining that Ҥ 1653 would apply if

[a party] were, in fact, domiciled in a State other than

Illinois or was, in fact, not a United States citizen, but the

complaint did not so allege,” but would not apply “where the

complaint is amended to drop a nondiverse party in order to

preserve statutory jurisdiction”).

One could argue, of course, that the difference between

valves and gaskets is no broader than the difference between

Ohio and Pennsylvania: both relate to the factual bases

underscoring the same source of jurisdiction. Here, however,

the district court made clear that the valves and gaskets were

being treated separately for purposes of removal. Crane

nonetheless chose to preserve its position that it had not

18
supplied the gaskets. That decision--made in open court--

suggests that Crane’s failure to include gaskets as a ground for

removal was no “mere inadvertence,” see Clephas v. Fagelson,

Shonberger, Payne & Arthur, 719 F.2d 92, 94 (4th Cir. 1983), nor

a clerical error, but instead a strategic choice. As a result,

the district court correctly denied as untimely Crane’s attempt

to amend its notice of removal to include the gasket claims.

2.

Crane also argues, in a final alternative, that no

amendment was necessary at all. Once the initial removal was

deemed appropriate, it posits, the notice of removal--and the

contents thereof--ceased to matter.

But federal jurisdiction, in such a case, is contingent on

removal. Indeed, the statute simply provides that such a suit

“may be removed by [the officer] to the district court,” 28

U.S.C. § 1442(a); it “does not enlarge the original jurisdiction

of the district courts,” Mir v. Fosburg, 646 F.2d 342, 345 (9th

Cir. 1980). Thus, having failed to assert the specific defense

it now invokes when it removed the action, Crane cannot rely on

§ 1442(a) as an independent jurisdictional hook. See Mesa v.

California, 489 U.S. 121, 136 (1989) (“Section 1442(a) . . .

cannot independently support Art. III ‘arising under’

jurisdiction. Rather, it is the raising of a federal question

in the officer’s removal petition that constitutes the federal

19
law under which the action against the federal officer arises

for Art. III purposes.”).

And none of the cases Crane puts forth require a different

outcome. Crane purports to rely primarily on Jamison v. Wiley,

14 F.3d 222 (4th Cir. 1994). That case, however, is inapposite

to the question at hand. In Jamison, the defendant--a federal

employee accused of sexual assault--removed the case to federal

court under the federal officer removal statute and the Westfall

Act, asserting that he had been acting within the scope of his

duties. At that time, the Department of Justice had agreed to

provide his defense. At some point thereafter, the DOJ changed

its mind. The district court decided, as a result, that the

defendant had not been acting within the scope of his duties and

that the federal officer defense was no longer meritorious, and

remanded to state court.

We reversed, explaining that “removal jurisdiction exists

whenever the defendant-official asserts, in his removal

petition, a ‘colorable’ federal defense to the action.” Id. at

239. Thus, Jamison stands for the innocuous proposition that

later evidence regarding the merits of a defense does not impact

the propriety of its pleading. Here, by contrast, we are

confronted with a defense that was never adequately asserted in

the first place.

20
 Two other cases relied on by Crane warrant further

discussion. In Willingham v. Morgan, 395 U.S. 402 (1969), the

Supreme Court confronted a similar issue where defendants had

asserted the federal officer defense. In his motion for remand,

the plaintiff alleged that the defendants were not acting within

the scope of their official duties at the time in question. The

Court pointed out that “[t]he only facts in the record which in

any way respond to this allegation appear in [the defendants’]

affidavits in support of their motion for summary judgment.”

Id. at 407. In a footnote, the Court stated, “This material

should have appeared in the petition for removal. However, for

purposes of this review, it is proper to treat the removal

petition as if it had been amended to include the relevant

information contained in the later-filed affidavits.” Id. at

407 n.3. This language indicates that the notice of removal

itself--rather than any subsequent docket entry--is the document

to which the court must refer.

At first glance, Willingham appears to be in tension with

our explanation of the impropriety of belated amendment. But a

closer look reveals that the amendment permitted in Willingham

went to the merits of a previously raised ground for removal,

rather than the assertion of the ground itself. As the Third

Circuit agreed,

21
 [t]he Supreme Court has upheld removal where
jurisdictional facts required to support the removal
were found in later-filed affidavits rather than in
the notice of removal. . . . . [W]e are satisfied that
sections 1446(a) and 1653, together with the Supreme
Court’s opinion in Willingham, permit a court to
consider jurisdictional facts contained in later-filed
affidavits as amendments to the removal petition
where, as here, those facts merely clarify (or correct
technical deficiencies in) the allegations already
contained in the original notice.

USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n.12 (3d Cir.

2003); see also Ruppel v. CBS Corp., 701 F.3d 1176, 1184 n.1

(7th Cir. 2012) (“CBS could also have amended its notice of

removal and added supporting exhibits under 28 U.S.C. § 1653

. . . .” (citing Willingham)); cf. In re Methyl Tertiary Butyl

Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 129 (2d Cir.

2007) (noting that the defendants had not made a particular

allegation in the notice of removal, “[n]or do they cite any

later-filed affidavits which could provide the basis for us to

treat the removal petitions as amended to include those

allegations” (citing Willingham)). Thus, Willingham comports

with our understanding of the importance of--and limits to--

amending the notice of removal.

Williams v. Costco Wholesale Corp., 471 F.3d 975 (9th Cir.

2006), is also of no help to Crane. There, the defendant had

removed on the basis of federal question jurisdiction, and when

the plaintiff amended his complaint to remove the federal claim,

the district court remanded. The Ninth Circuit held that the

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remand was inappropriate because the district court had

diversity jurisdiction as well--even though the defendant had

not asserted diversity in its notice of removal. The court

postulated that “post-removal amendments to the pleadings cannot

affect whether a case is removable, because the propriety of

removal is determined solely on the basis of the pleadings filed

in state court.” Id. at 976. The court then held that “[o]nce

a case has been properly removed, the district court has

jurisdiction over it on all grounds apparent from the complaint,

not just those cited in the removal notice”--grounds asserted

well before the thirty-day deadline. Id. at 977 (emphasis

added).

The Ninth Circuit’s approach, which mirrors that of the

Fifth Circuit, 8 has been criticized as contrary to well-settled

practice. See Jeannette Cox, Removed Cases and Uninvoked

Jurisdictional Grounds, 86 N.C. L. Rev. 937, 953–57 (2008)

(arguing that the Fifth and Ninth Circuits “have failed to

adequately explain their departure from the traditional approach

to uninvoked jurisdictional grounds”). But even were we to

8
See Buchner v. F.D.I.C., 981 F.2d 816, 818 (5th Cir. 1993)
(“The fact that the FDIC waived its right to remove the instant
case is irrelevant to the determination of whether the case
should have or could have been remanded once it had been
properly removed by another party who had not waived the right
to remove.”).

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accept those principles, they do not control the result here.

Contrary to Crane’s view of things, we do not take the Ninth

Circuit’s language as carte blanche for defendants to assert new

grounds for removal at any time (as was the case here), but

rather an invitation for the court to look at those grounds

already before it.

Our litigation system typically operates on a raise-or-

waive 9 model: if a litigant fails to raise a claim in a

complaint, or a defense in an answer, or to preserve an

objection at trial, they are generally out of luck. This model

forces efficiency and discourages sandbagging. It is thus

reasonable to expect that a litigant would raise every ground

for removal in his initial filing. Such a rule prevents

precisely the incessant back-and-forth controversy we see here. 10

Crane made a strategic decision not to assert removal as to the

9
Though “raise-or-waive” is the usual nomenclature, in
reality, of course, courts--including us here--often mean
“raise-or-forfeit.” “Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (internal quotation marks and citation omitted).
10
The thirty-day window for asserting federal jurisdiction
runs from the moment the grounds for such jurisdiction become
apparent, rather than the filing of the complaint--thus
preventing the plaintiff from sandbagging by hiding
jurisdictional grounds in a first complaint and later amending
it to add them. See 28 U.S.C. § 1446(b)(3).

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gasket claims. We usually hold parties to that sort of

strategic decision, and are unable to discern why this situation

would merit a departure from the general rule.

We hasten to underscore the narrowness of our holding. It

may seem unjust, at first glance, that Joyner was allowed to

amend his complaint to withdraw the relevant claims, but that

Crane may not respond by restructuring its defense. But there

is already a remedy in place for such a scenario: had the

district court thought that Joyner’s manipulative tactics were

too sharp, it had every opportunity to retain the case in

federal court as a matter of discretion. “The district courts

thus can guard against forum manipulation . . . .” Carnegie-

Mellon, 484 U.S. at 357 (explaining that a party’s manipulative

tactics are a factor the district court should weigh in deciding

whether to retain the case in federal court). We trust that

they will do so.

IV.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

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