In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-8008 & 10-8009
F IRST B ANK,
Plaintiff, Counterdefendant-Petitioner,
v.
DJL P ROPERTIES, LLC, et al.,
Defendants, Counterplaintiffs-Respondents.
Petitions for Leave to Appeal from the United States
District Court for the Southern District of Illinois.
Nos. 09-cv-969-MJR & 09-cv-970-JPG
Michael J. Reagan and J. Phil Gilbert, Judges.
S UBMITTED M ARCH 4, 2010—D ECIDED M ARCH 24, 2010
Before E ASTERBROOK, Chief Judge, and R OVNER and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. First Bank commenced two
suits in state court against DJL Properties, which filed
counterclaims styled as class actions. First Bank then
filed notices of removal, invoking the Class Action
Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453. The pro-
2 Nos. 10-8008 & 10-8009
ceedings were assigned to different district judges.
Judge Gilbert remanded one of the suits, concluding that
a litigant who initially chose the state forum cannot
remove even after becoming a counterclaim defendant.
2010 U.S. Dist. L EXIS 7204 (S.D. Ill. Jan. 27, 2010).
Judge Reagan then remanded the other suit, adopting
Judge Gilbert’s reasoning. 2010 U.S. Dist. L EXIS 7700
(S.D. Ill. Jan. 29, 2010). We grant First Bank’s petition for
leave to appeal, see §1453(c)(1), because the cases present
an issue not yet resolved in this circuit.
Chapter 89 of the Judicial Code, 28 U.S.C. §§ 1441–53,
authorizes removal of certain cases by “defendants.”
Almost 70 years ago, the Supreme Court concluded that
a litigant who files suit in state court is a “plaintiff” and
cannot remove the case, even if the defendant files a
counterclaim and the original plaintiff then wears two
hats, one as plaintiff and one as defendant—and even if
the counterclaim is distinct from the original claim and
could have been a separate piece of litigation. Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). That rule
may be as old as 1867. See West v. Aurora, 73 U.S. 139, 142
(1867). It remains the law for removal in general, and
two circuits have held that it applies to removal under
the Class Action Fairness Act in particular. Palisades
Collections LLC v. Shorts, 552 F.3d 327, 336 (4th Cir. 2008);
Progressive West Insurance Co. v. Preciado, 479 F.3d 1014,
1018 (9th Cir. 2007). Judge Gilbert held that Shamrock
Oil, Palisades Collections, and Progressive West Insurance
prevent First Bank from removing; Judge Reagan agreed;
so do we. We conclude that Palisades Collections and
Progressive West Insurance were rightly decided.
Nos. 10-8008 & 10-8009 3
Section 1453(b) says that a “class action” (a defined term)
may be removed “in accordance with section 1446”
whether or not “any defendant” is a citizen of the state
in which the suit is pending, and “without the consent of
all defendants”. (Otherwise every defendant must sign
the notice of removal. Chicago, Rock Island & Pacific Ry. v.
Martin, 178 U.S. 245 (1900).) The 2005 Act thus refers us
to §1446, which specifies where and when “defendants”
file notices of removal. Section 1441, which creates the
right of removal for cases that could have been filed
initially in federal court, also says that “defendants” may
remove a suit.
First Bank contends that the word “defendant” in
§1453(b) includes a counterclaim defendant even though
the word “defendant” in §1441 and §1446 does not. That
would make hash of Chapter 89, because §1453(b)
refers to §1446; unless the word “defendant” means the
same thing in both sections, the removal provisions are
incoherent. More than that: the word “defendant” has
an established meaning in legal practice, and it is vital
to maintain consistent usage in order to ensure that
Members of Congress (and those who advise them)
know what proposed language will do, and people can
understand the meaning of statutes.
It does not follow from the fact that the 2005 Act
expands the set of removable cases that it must use
“defendant” in a novel way. The statute employs time-
tested legal language. If the drafters of the 2005 Act
wanted to negate Shamrock Oil, they could have written
“defendant (including a counterclaim defendant)” or “any
4 Nos. 10-8008 & 10-8009
party” (the phrase in 28 U.S.C. §1452(a) for removal in
bankruptcy proceedings). But they chose the unadorned
word “defendant,” a word with a settled meaning.
First Bank observes that in §1453(b) the word “any”
precedes the word “defendant”. “Any” is inclusive, to be
sure, but the word that it modifies remains “defen-
dant”—which First Bank is not, under Shamrock Oil. “Any”
appears twice. The function of the first “any” in §1453(b)
is to establish that §1441(b), which provides that a home-
state defendant can’t remove a diversity suit, does not
apply. (The context is: “without regard to whether any
defendant is a citizen of the State in which the action
is brought”.) The function of the second “any” is to estab-
lish that a single defendant’s preference for a federal
forum prevails, notwithstanding Martin. (The context is:
“except that such action may be removed by any
defendant without the consent of all defendants”.)
Neither instance of the word “any” implies that “defen-
dant” means something different in §1441(b) and §1453(b).
By using a word with an established meaning, Congress
produces the established result. See, e.g., Nken v. Holder,
129 S. Ct. 1749, 1759 (2009); Whitfield v. United States, 543
U.S. 209, 216 (2005). See also Brill v. Countrywide
Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (applying
this approach to the 2005 Act). Giving legal words
their standard legal meaning spares judges and lawyers
expensive tours through the legislative history and avoids
the impossible task of trying to guess what Members of
Congress may have “had in mind” or “intended” about
statutory language. See Hor v. Gonzales, 400 F.3d 482,
Nos. 10-8008 & 10-8009 5
484–85 (7th Cir. 2005). Doubtless First Bank is right to say
that exempting counterclaims from §1453 means that
the 2005 Act achieves less than it otherwise would, but
“no legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to
the achievement of a particular objective is the very
essence of legislative choice—and it frustrates rather
than effectuates legislative intent simplistically to
assume that whatever furthers the statute’s primary ob-
jective must be the law.” Rodriguez v. United States, 480
U.S. 522, 525–26 (1987) (emphasis in original). Congress
enacted a rule allowing removal by “defendants”; it did not
say anything similar to: “Courts may allow removal
whenever the case involves a large, multi-state class
action.”
The word “defendant” in §1453(b) means what the
word “defendant” means elsewhere in Chapter 89—and,
as Shamrock Oil held, that word does not include a
plaintiff who becomes a defendant on a counterclaim.
A FFIRMED
3-24-10