Philip Bowling v. U.S. Bank National Association

Case: 17-11953 Date Filed: 06/23/2020 Page: 1 of 20

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-11953
________________________

D.C. Docket No. 2:13-cv-01881-MHH

PHILIP BOWLING,
JENNIE M. BOWLING,

Defendants/Third-Party Counterclaim Plaintiffs-Appellants,

versus

U.S. BANK NATIONAL ASSOCIATION, As Trustee for C-Bass
Mortgage Loan Asset-Backed Certificates, Series 2007-SP2,
LITTON LOAN SERVICING, LP,
OCWEN LOAN SERVICING, LLC,

Third-Party Counterclaim Defendants-Appellees

________________________

Appeal from the United States District Court
for the Northern District of Alabama
________________________

(June 23, 2020)
 Case: 17-11953 Date Filed: 06/23/2020 Page: 2 of 20

Before ROSENBAUM, BRANCH, and HIGGINBOTHAM,* Circuit Judges.

ROSENBAUM, Circuit Judge:

Perhaps some might think removal is not the most riveting topic. But it’s

important: the removal statutes establish the basis for federal jurisdiction in

qualifying cases originally filed in state court. And every so often, a new Supreme

Court case comes along that changes the removal playing field—at least in our

Circuit. That’s what happened here.

After the district court upheld Third-Party Counterclaim Defendants U.S.

Bank National Association, Litton Loan Servicing, LP, and Ocwen Loan Servicing,

LLC’s removal of this case from Alabama state court, the Supreme Court issued

Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (2019). That case had the effect

of upending Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d

133 (5th Cir. 1980), our longstanding Circuit precedent on removal by third-party

counterclaim defendants.

As a result, we must reverse the district court’s denial of Defendants/Third-

Party Counterclaim Plaintiffs-Appellants Philip and Jennie Bowling’s motion to

remand, which was based in substantial part on Carl Heck. And since we conclude

that the district court erred in denying the Bowlings’ motion to remand, the district

*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.

2
 Case: 17-11953 Date Filed: 06/23/2020 Page: 3 of 20

court’s order granting the Third-Party Counterclaim Defendants’ motion for

summary judgment must be vacated, and the entire case must be remanded to state

court.

I.

In 1986, Defendants/Third-Party Counterclaim Plaintiffs-Appellants Philip

and Jennie Bowling bought a house located in Birmingham, Alabama. To pay for

the house, the Bowlings obtained a 30-year mortgage loan from First Security

Mortgage Corporation. As a part of this loan, the Bowlings executed a promissory

note in favor of First Security. Over the life of the loan, the note and mortgage were

transferred several times. Most recently, in July 2012, Bank of America assigned

the loan to Third-Party Counterclaim Defendant-Appellee U.S. Bank National

Association.

For many years, the Bowlings made their loan payments. But they began

missing payments in 1999, and after that, they hovered in and out of default for some

time. During this period, the servicer of the loan was Third-Party Counterclaim

Defendant-Appellee Litton Loan Servicing, LP. The Bowlings continued this

pattern until they made their last payment (which was not the final payment required)

on the loan in August 2011, just before Third-Party Counterclaim Defendant-

Appellant Ocwen Loan Servicing, LLC, replaced Litton as the loan servicer on

September 1, 2011.

3
 Case: 17-11953 Date Filed: 06/23/2020 Page: 4 of 20

Between September 20, 2011, and August 2012, Ocwen and the Bowlings had

various communications related to foreclosure and Ocwen’s responsibilities under

federal law. The following month, on September 24, 2012, Ocwen accelerated the

loan and provided a notice to the Bowlings that a foreclosure sale was scheduled for

October 24, 2012.

WGB, LLC, purchased the Bowlings’ house for $178,000.00 at the October

24, 2012, foreclosure sale. But the Bowlings refused to vacate the property.

So in Alabama state court, WGB filed a Complaint against the Bowlings for

ejectment. In response to the ejectment action, the Bowlings filed what they titled

an “Answer and Counterclaim.” The filing added three new parties to the action—

U.S. Bank, Ocwen, and Litton (the “Third-Party Counterclaim Defendants”)—and

it added fifteen claims that were a mix of state and federal claims. With respect to

the federal claims, the Bowlings asserted violations of the Truth in Lending Act

(“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), the Fair Credit

Reporting Act (“FCRA”), and the Fair Debt Collection Practices Act (“FDCPA”).

The Bowlings directed all claims in the “Answer and Counterclaim” at the three new

Third-Party Counterclaim Defendants and none against the original plaintiff WGB.

The Third-Party Counterclaim Defendants removed the entire case to federal

court, asserting that removal was proper under either 28 U.S.C. § 1441(a) or 1441(c).

Primarily, they argued that Section 1441(c) supported removal. The Bowlings

4
 Case: 17-11953 Date Filed: 06/23/2020 Page: 5 of 20

opposed removal and filed a motion to remand the case to state court.

After reviewing the Bowlings’ motion to remand, the district court denied it.

But it severed WGB’s original ejectment claim and remanded that to Alabama state

court. As a result, WGB was no longer a party to the federal proceedings.

Meanwhile, in the federal proceedings, the Third-Party Counterclaim

Defendants moved for summary judgment on the federal claims (TILA, RESPA,

FCRA, and FDCPA). The Bowlings opposed and sought to strike the declaration

testimony of one of the Third-Party Counterclaim Defendants’ witnesses and all

exhibits that were a part of that testimony, on the grounds that the witness’s

testimony was not based on personal knowledge. After the issues were fully briefed,

the district court denied the Bowlings’ motion to strike and granted the Third-Party

Counterclaim Defendants’ motion for summary judgment on the federal claims. The

court declined to exercise supplemental jurisdiction over the remaining state-law

claims and instead remanded them to the Alabama state court.

The Bowlings timely appealed the rulings denying remand, denying the

motion to strike the declaration testimony, and granting summary judgment on the

claims against the Third-Party Counterclaim Defendants.

II.

We review de novo the denial of a motion to remand. Blevins v. Aksut, 849

F.3d 1016, 1018 (11th Cir. 2017). The right to removal is statutory. Global Satellite

5
 Case: 17-11953 Date Filed: 06/23/2020 Page: 6 of 20

Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir. 2004) (citation

omitted). But because removal jurisdiction implicates “significant federalism

concerns,” we construe removal statutes strictly. Univ. of S. Ala. v. Am. Tobacco

Co., 168 F.3d 405, 411 (11th Cir. 1999); see also Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108 (1941). On a motion to remand, the removing party

shoulders the burden of establishing federal subject-matter jurisdiction. Conn. State

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009).

The district court denied the motion to remand because it concluded that the

Third-Party Counterclaim Defendants properly removed the case from state court

under 28 U.S.C. §1441(c). 1 Our predecessor Court analyzed a prior version of §

1441(c) in Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133

(5th Cir. 1980). 2 The district court relied on Carl Heck in finding the Bowlings’

federal claims against the Third-Party Counterclaim Defendants removable, and the

Third-Party Counterclaim Defendants likewise invoke Carl Heck on appeal. For

these reasons, we review Carl Heck in some detail.

1
The Third-Party Counterclaim Defendants also argued that 28 U.S.C. § 1441(a)
authorized removal of the case from Alabama state court. The district court did not opine on this
argument, since it found the case properly removed under § 1441(c). On appeal, while the Third-
Party Counterclaim Defendants originally urged § 1441(a) as an alternative basis for affirming the
district court’s decision, they have since conceded that the Supreme Court’s recent decision in
Home Depot U.S.A, Inc. v. Jackson, 139 S. Ct. 1743 (2019), means that § 1441(a) does not provide
a basis for removal. We agree. More on Home Depot later.
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all Fifth Circuit decisions issued before October 1, 1981.

6
 Case: 17-11953 Date Filed: 06/23/2020 Page: 7 of 20

At the time Carl Heck was decided, § 1441(c) read as follows:

Whenever a separate and independent claim or cause of action, which
would be removable if sued upon alone, is joined with one or more
otherwise non-removable claims or causes of action, the entire case
may be removed and the district court may determine all issues therein,
or, in its discretion, may remand all matters not otherwise within its
original jurisdiction.

28 U.S.C. § 1441(c) (1976).

In Carl Heck, Carl Heck Engineers, Inc., the plaintiff, sued Lafourche Parish

Police Jury in Louisiana state court. 622 F.2d at 134. Carl Heck sought liquidated

damages on a contract Heck had with Lafourche concerning engineering services for

the building and repair of public roads. Id. Lafourche then filed a third-party claim

against Maryland Casualty Company. Id. at 134-35. In that third-party claim,

Lafourche asserted that Maryland was required to defend Lafourche and hold it

harmless from Heck’s claim. Id. Lafourche based its claim on an agreement

Lafourche and Maryland had reached for Maryland to take over the responsibilities

on the road project for the general contractor (Douglas G. Lambert Contractor, Inc.),

whom Lafourche had previously separately contracted with and who had abandoned

the project before completion. Id. at 134.

Maryland removed the action to federal court. Id. at 135. In response,

Lafourche moved to remand the entire case to state court. Id. The district court

denied Lafourche’s motion, holding that the action was properly removable to

federal court under the then-existing version of § 1441(c). Id. It noted that diversity
7
 Case: 17-11953 Date Filed: 06/23/2020 Page: 8 of 20

of citizenship existed between Maryland and Lafourche,3 and the third-party claim

would be removable if Lafourche had separately sued Maryland on it. Id. Finally,

the district court concluded that Lafourche’s claim against Maryland, while related

to the circumstances surrounding Carl Heck’s claim filed in the original case, was

separate and independent from the claim Carl Heck alleged. Id.

Our predecessor Court affirmed. Id. at 137. It reasoned that “the language of

the statute does not require only those causes of action joined by the original plaintiff

to form the basis of removal.” Id. at 136. Rather, the Court explained, the statute

allowed for the removal of third-party claims that were “not unrelated to the main

claim [in the original action], but sufficiently independent of it that a judgment in an

action between [the parties to the third-party claim] alone can be properly rendered.”

Id. In our predecessor Court’s view, removal made sense because “[s]uch actions

can be and often are brought in a separate suit from that filed by the original plaintiff

in the main claim.” Id. And since it found that Lafourche’s claim against Maryland

stated a “separate and independent claim which if sued upon alone could have been

brought properly in federal court,” the old Fifth Circuit concluded that the case was

3
Under the then-existing version of § 1441(c), the satisfaction of diversity jurisdiction, as
well as of § 1441(c)’s other requirements, sufficed to permit removal. But the current version of
§ 1441(c) allows for removal only when federal-question jurisdiction exists, in addition to
fulfillment of the rest of § 1441(c)’s requirements. This difference between the prior and current
versions of § 1441(c) makes no difference to our analysis of whether § 1441(c) authorizes removal
in the Bowlings’ case, since the Bowlings’ claims against the Third-Party Counterclaim
Defendants clearly satisfy current §1441(c)’s federal-question requirement.
8
 Case: 17-11953 Date Filed: 06/23/2020 Page: 9 of 20

properly removable. Id.

In light of Carl Heck and its post-Circuit-split Fifth Circuit progeny, the

district court here understandably concluded that the Third-Party Counterclaim

Defendants’ claims were removable under § 1441(c). After all, the Bowlings’

federal claims against the Third-Party Counterclaim Defendants, though related to

WGB’s ejectment action, were just as separate and distinct from that action as

Lafourche’s claim against Maryland was from Carl Heck’s claim against Lafourche.

Nothing required the Bowlings’ federal claims against the Third-Party Counterclaim

Defendants to be litigated with WGB’s ejectment action against the Bowlings.

Indeed, as was the case with Lafourche’s claim against Maryland, the Bowlings

could have separately filed their claims against the Third-Party Counterclaim

Defendants here. And if they had done so, the Third-Party Counterclaim Defendants

might have been able to remove the case to federal court under the current version

of § 1441(c), since the Bowlings’ would-be separate action had “claim[s] arising

under the . . . laws . . . of the United States” and perhaps included claims satisfying

the phrase “claim[s] not within the original or supplemental jurisdiction of the

district court or . . . claim[s] that ha[d] been made nonremovable by statute.”4 28

4
Here, we need not decide whether the Bowlings’ federal claims against the Third-Party
Counterclaim Defendants qualified under § 1441(c)(1)(B)’s provision as claims “not within the
original or supplemental jurisdiction of the district court or a claim that has been made non-
removable by statute.” As we explain later in this opinion, the Supreme Court’s recent ruling in
Home Depot abrogates Carl Heck and renders the Bowlings’ third-party claims non-removable
here, regardless of whether they would have been removable had the Bowlings filed them in a
9
 Case: 17-11953 Date Filed: 06/23/2020 Page: 10 of 20

U.S.C. § 1441(c).

But the removal playing field has dramatically changed since the district court

issued its order denying remand of the entire case against the Third-Party

Counterclaim Defendants. As promised, see supra at notes 1 & 4, we now get to the

removal game-changer: Home Depot U.S.A, Inc. v. Jackson, 139 S. Ct. 1743 (2019).

In Home Depot, the Supreme Court clarified the types of defendants that

qualify as “defendants” who can obtain removal under § 1441(a). And its analysis

leaves no doubt about two things. First, even though Carl Heck involves § 1441(c),

Carl Heck is no longer good law because it is impossible to read the statute as a

whole and conclude that the same term in (a) and (c) has different meanings. And

second, § 1441(c) does not provide for removal jurisdiction of the Bowlings’ claims

against the Third-Party Counterclaim Defendants here because (a) is the operative

clause that authorizes removal, and (c) merely adds a condition for certain types of

civil cases.

Because Home Depot abrogates our forty-year-old precedent Carl Heck and

requires reversal of the district court’s order denying remand here, we discuss it at

length. In Home Depot, Citibank, N.A., filed a debt-collection action against

Jackson in state court. Home Depot, 139 S. Ct. at 1747. The action contended that

separate action. We therefore do not opine on whether, under the current language of § 1441(c),
the Bowlings’ federal claims would have been removable if the Bowlings had filed them as
plaintiffs in a new action.
10
 Case: 17-11953 Date Filed: 06/23/2020 Page: 11 of 20

Jackson was liable for charges he made on his Home Depot credit card. Id. In

response, Jackson filed an answer, as well as a counterclaim against Citibank and

third-party class-action claims against Home Depot and Carolina Water Systems,

Inc. Id. Essentially, the claims alleged that Home Depot and Carolina Water

Systems had schemed to induce homeowners to buy water-treatment systems at

inflated prices and that Citibank was jointly and severally liable for this alleged

conduct. Id.

Citibank soon dismissed its claims against Jackson, and Home Depot removed

the case, citing, among other statutes, § 1441. Id. Jackson moved to remand and

amended his third-party class-action claims to eliminate any reference to Citibank.

Id. The district court granted Jackson’s remand motion, and the Fourth Circuit

affirmed. Id. So did the Supreme Court. Id. at 1751.

As relevant here, en route to affirming, the Supreme Court considered whether

§ 1441(a) authorizes a third-party counterclaim defendant to remove a claim filed

against it. 5 Id. at 1747-48. Section 1441(a) provides,

§ 1441. Removal of civil actions

(a) Generally.—Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which the
district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of

5
The Supreme Court used the term “third-party counterclaim defendant” in referring to “a
party first brought into the case as an additional defendant to a counterclaim asserted against the
original plaintiff.” Home Depot, 139 S. Ct. at 1747 n.1.
11
 Case: 17-11953 Date Filed: 06/23/2020 Page: 12 of 20

the United States for the district and division embracing the place
where such action is pending.

28 U.S.C. § 1441(a).

The Supreme Court began its analysis of the statute with a discussion of the

meaning of the phrase “the defendant or the defendants.” Home Depot, 139 S. Ct.

at 1748. Noting that the phrase must be construed “in light of the structure of the

statute and [Supreme Court] precedent,” the Court concluded that “§ 1441(a) does

not permit removal by any counterclaim defendant, including parties brought into

the lawsuit for the first time by the counterclaim.” Id.

Six things demanded this conclusion, the Court reasoned.

First, § 1441(a) refers to “civil action[s],” not “claims.” Id. The Supreme

Court’s precedent has long required district courts, in evaluating whether they enjoy

original jurisdiction over a given civil action a party seeks to remove, to determine

whether the action could have been brought originally in federal court. Id. This, in

turn, imposes on the district court an obligation to ascertain whether federal subject-

matter jurisdiction would have extended to the plaintiff’s complaint, had the plaintiff

chosen to file in federal court instead of state court. Id. But counterclaims are

“irrelevant” to determining whether a district court has “original jurisdiction” over

a civil action; rather, Supreme Court precedent requires the plaintiff’s complaint in

the original action to establish “original jurisdiction.” Id. And “‘the defendant’ to

12
 Case: 17-11953 Date Filed: 06/23/2020 Page: 13 of 20

that action is the defendant to that complaint, not a party named in a counterclaim.”

Id.

Second, the Court pointed to the meaning of the term “defendant” in “related

contexts” and noted that it did not include third-party counterclaim defendants. Id.

at 1749. For example, the Court pointed out that the Federal Rules of Civil

Procedure distinguish among “third-party defendants, counterclaim defendants, and

defendants.” Id. In particular, the Court observed, Rule 14 governs “Third-Party

Practice,” and it distinguishes among “the plaintiff,” a “defendant” who becomes the

“third-party plaintiff,” and “the third-party defendant” sued by the original

defendant. Id. Similarly, Rule 12 differentiates between defendants and

counterclaim defendants in independently identifying when “‘[a] defendant must

serve an answer’ and when ‘[a] party must serve an answer to a counterclaim.’” Id.

(quoting Fed. R. Civ. P. 12(a)(1)(A)-(B)).

Third, the Court compared the language of § 1441(a) to that of other removal

provisions where Congress “clearly extended the reach of the statute to include

parties other than the original defendant.” Id. In this respect, it noted that 28 U.S.C.

§ 1452(a) authorizes “‘[a] party’ in a civil action to ‘remove any claim or cause of

action’ over which a federal court would have bankruptcy jurisdiction.” Id.

Similarly, 28 U.S.C. §§ 1452(a) and (b) permit “‘any party’ to remove ‘[a] civil

action in which any party asserts a claim for relief arising under any Act of Congress

13
 Case: 17-11953 Date Filed: 06/23/2020 Page: 14 of 20

relating to patents, plant variety protection, or copyrights.” Id. But § 1441(a), the

Court explained, allows removal by only “the defendant or the defendants” in a “civil

action” in which the district courts enjoy original jurisdiction. Id. This difference

is significant. Id.

Fourth, the Court reasoned that its decision in Shamrock Oil also supports the

conclusion that “third-party counterclaim defendants are not ‘the defendant or the

defendants’ who can remove under § 1441(a).” Id. The Court recounted that in

Shamrock Oil, it had held that a counterclaim defendant who was the plaintiff in the

original action could not remove under § 1441(a)’s predecessor statute. Id. Though

the Court recognized in Home Depot that Shamrock Oil, unlike Home Depot,

involved a counterclaim defendant that had chosen the original state forum when it

filed the civil action, the Court nevertheless concluded that the Shamrock Oil rule

applied equally to the counterclaim defendant in Home Depot. Id. After all, the

Court explained, Shamrock Oil did not construe the counterclaim to constitute a

different action with a new plaintiff and a new defendant. Id. Rather, the Shamrock

Oil Court emphasized that the original plaintiff remained “the plaintiff,” even after

the original defendant brought the counterclaim. Id.

Fifth, the Court concluded after considering other removal statutes that “the

limits Congress has imposed on removal show that it did not intend to allow all

defendants an unqualified right to remove.” Id. (citing 28 U.S.C. §§ 1441(b)(2)).

14
 Case: 17-11953 Date Filed: 06/23/2020 Page: 15 of 20

So the Court found unpersuasive Home Depot’s argument that the Court’s narrow

reading of “the defendant” in § 1441(a) contradicted the history and purposes of

removal by precluding a party involuntarily introduced into state-court proceedings

from removing the claim against it. Id.

And sixth, the Court observed that the broader construction of “the defendant”

to include a third-party counterclaim defendant would lead to absurd results in the

context of other removal statutes. Id. The Court pointed, for example, to §

1446(b)(2)(A) and noted that, if “defendant” were given the broader meaning for

which Home Depot advocated, that provision could be construed as requiring

“[removal] consent from the third-party counterclaim defendant, the original

plaintiff (as a counterclaim defendant), and the original defendant asserting claims

against them”—in other words, potentially all parties. Id. at 1750.

For all these reasons, the Court held that “a third-party counterclaim defendant

is not a ‘defendant’ who can remove under § 1441(a).” Id.

Though Home Depot deals with § 1441(a) and not § 1441(c), its analysis

necessarily demands the same conclusion with respect to § 1441(c). Section 1441(c)

provides,

§ 1441. Removal of civil actions

(c) Joinder of Federal law claims and State law claims.—(1) If a civil
action includes—

15
 Case: 17-11953 Date Filed: 06/23/2020 Page: 16 of 20

(A) a claim arising under the Constitution, laws, or treaties of the
United States (within the meaning of section 1331 of this title),
and

(B) a claim not within the original or supplemental jurisdiction
of the district court or a claim that has been made nonremovable
by statute,

the entire action may be removed if the action would be removable
without the inclusion of the claim described in subparagraph (B).

(2) Upon removal of an action described in paragraph (1), the district
court shall sever from the action all claims described in paragraph
(1)(B) and shall remand the severed claims to the State court from
which the action was removed. Only defendants against whom a claim
described in paragraph (1)(A) has been asserted are required to join in
or consent to the removal under paragraph (1).

28 U.S.C. § 1441(c) (bold, italic emphases added).

Every analytical tool the Supreme Court relied on in Home Depot to conclude

that counterclaim defendants may not remove a civil action under § 1441(a) applies

with equal force to § 1441(c).

First, the text of § 1441 as a whole compels the conclusion that “defendants”

means the same in (c) as in (a). As we have noted, “identical words and phrases

within the same statute should normally be given the same meaning.” SEC v. Levin,

849 F.3d 995, 1003 (11th Cir. 2017) (quoting Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 232 (2007) (quotation marks omitted)); see also Scalia &

Garner, Reading Law § 25, at 170 (2012) (“[a] word or phrase is presumed to bear

the same meaning throughout a text” unless context requires otherwise). In

16
 Case: 17-11953 Date Filed: 06/23/2020 Page: 17 of 20

reviewing § 1441(c)’s text in the context of § 1441 as a whole, we can discern

nothing that justifies a departure from this principle. Indeed, the most natural

reading of the statute is that removal is generally authorized under (a), with (c)

providing additional criteria for a certain subset of civil actions.

The caption of § 1441, “Removal of civil actions,” (emphasis added), also

bolsters our textual analysis. As we have noted, “civil actions” is one of the key

phrases the Supreme Court relied on in Home Depot. See Yates v. United States,

135 S. Ct. 1074, 1083 (2015) (“The title of a statute and the heading of a section are

tools available for the resolution of a doubt about the meaning of a statute.”) (cleaned

up). And when we determine whether a claim “aris[es] under” federal law in a “civil

action,” as § 1441(c) requires us to do, we look to the face of the original plaintiff’s

complaint. Conn. State Dental Ass’n, 591 F.3d at 1343. When we do that with cases

that fall under § 1441(c), the “defendants” to that action are the “defendant[s] to that

complaint, not a party named in a counterclaim.” Home Depot, 139 S. Ct. at 1748.

So just as “a counterclaim is irrelevant to whether the district court had ‘original

jurisdiction’ over the civil action” under § 1441(a), id., it is not germane to whether

the district court had federal-question jurisdiction over the “civil action” under

§ 1441(c).

Taking the Court’s remaining reasons out of order, just as Shamrock Oil is

consistent with the conclusion that “third-party counterclaim defendants are not ‘the

17
 Case: 17-11953 Date Filed: 06/23/2020 Page: 18 of 20

defendant or the defendants’ who can remove under § 1441(a),” Home Depot, 139

S. Ct. at 1749, it equally supports the conclusion that third-party counterclaim

defendants are not the “defendants” who can remove under § 1441(c). That is so

because Shamrock Oil did not construe the counterclaim as a different action from

the original action, with a new plaintiff and a new defendant. See id. And just as in

Home Depot, here, we are talking about third-party counterclaim defendants who

were not parties to the original action they attempted to remove.

As for the remaining points the Supreme Court cited in Home Depot when it

concluded that a third-party counterclaim defendant is not a “defendant” who can

remove under § 1441(a), they do not require additional explanation to show that the

same conclusion results with respect to § 1441(c): the Federal Rules of Civil

Procedure still differentiate among third-party defendants, counterclaim defendants,

and defendants; other removal statutes still demonstrate that when Congress wishes

to make removal available to parties other than the original defendant, it says so;

“the limits Congress has imposed on removal [still] show that it did not intend to

allow all defendants an unqualified right to remove,” Home Depot, 139 S. Ct. at

1749; and the broader construction of “defendants” to include a third-party

counterclaim defendant would still lead to absurd results in the context of other

removal statutes.

18
 Case: 17-11953 Date Filed: 06/23/2020 Page: 19 of 20

For all these reasons, Carl Heck cannot govern our construction of the current

version of § 1441(c). Indeed, the text of the current version of § 1441(c) differs in

important ways from that of the prior version of the statute. While the current

version of § 1441(c) speaks in terms of permitting removal of a case when a “civil

action” contains certain types of claims, the earlier version authorized removal of a

case when a “claim . . . which would be removable if sued upon alone, is joined with

one or more otherwise non-removable claims or causes of action.” 6 28 U.S.C. §

1441(c) (1976) (emphasis added). So while Carl Heck partially justified its analysis

on the basis that “the language of [the prior version of § 1441(c), which authorized

removal of “claims”] does not require only those causes of action joined by the

original plaintiff to form the basis of removal,” 622 F.2d at 136, the language of the

current version of the statute—which authorizes removal of only “civil action[s]”—

does in fact demand that only the original plaintiff’s claims provide a basis for

removal.

In short, to the extent that Carl Heck’s interpretation of § 1441(c)’s

predecessor statute could have been construed to govern the current iteration of §

1441(c), Home Depot has abrogated Carl Heck. Under Home Depot, only a

6
Section 1441(c)(2) speaks of “defendants against whom a claim . . . has been asserted”
rather than “a civil action.” 28 U.S.C. § 1441. But by its terms, § 1441(c) allows removal of only
“civil action[s]” that contain such “claims.” Subsection (c)(2) therefore merely clarifies that, when
there are multiple defendants in the original “civil action,” which would otherwise be removable,
only defendants to the claims that might otherwise pose a barrier to removal without § 1441(c)
need consent to removal.
19
 Case: 17-11953 Date Filed: 06/23/2020 Page: 20 of 20

defendant to the original action may seek to remove a case under § 1441(c). For that

reason, we reverse the district court’s order denying remand, vacate the district

court’s subsequent orders denying the Bowlings’ motion to strike and granting

summary judgment, and remand to the district court with instructions to remand to

the state court.

III.

After Home Depot, Carl Heck is no longer good law. And Home Depot

dictates that third-party counterclaim defendants cannot remove a “civil action”

under 28 U.S.C. § 1441(c). As a result, we must reverse the district court’s order

denying remand, vacate the orders denying the Bowlings’ motion to strike and

granting summary judgment, and remand to the district court with instructions to

remand to the state court.

REVERSED, VACATED, and REMANDED.

20