In Re Mortgage Electronic Registration Systems, Inc.
680 F.3d 849
6th Cir.2012Background
- MERS sought permission to appeal a district court remand order under 28 U.S.C. § 1453(c).
- District court remanded involving a Kentucky state court class action removed under the Class Action Fairness Act (CAFA).
- Hansons filed third-party class claim alleging MERS lacked a valid mortgage and that MERS merely served as a database for assignments.
- MERS removed based on CAFA provision allowing removal by any defendant; Hansons argued third-party defendants cannot remove.
- District court granted remand; MERS seeks review in Sixth Circuit; issue is whether third-party defendants may remove under CAFA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a third-party defendant remove under CAFA? | Hansons: third-party cannot remove; Pulaski controls. | MERS: CAFA allows removal by any defendant without consent. | No; third-party defendants cannot remove under CAFA. |
| When does CAFA-remand appeal clock start? | Petition should be timely once filed. | Court may grant petition before clock starts; timing governed by §1453(c). | Sixty-day period begins when the court of appeals accepts the appeal. |
| Does CAFA's removal provision waive the requirement that all defendants join? | CAFA allows removal by any defendant. | Rule altered only regarding consent, not defendant status. | No; CAFA does not redefine 'defendant' to include third-party/counterclaim defendants. |
Key Cases Cited
- First Nat'l Bank of Pulaski v. Curry, 301 F.3d 456 (6th Cir.2002) (third-party defendants cannot remove under traditional removal stat.)
- Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (S. Ct.1941) (original removal limitations intact for third-party defendants)
- Westwood Apex v. Contreras, 644 F.3d 799 (9th Cir.2011) (CAFA does not overwrite defendant definition in removal)
- Palisades Collections LLC v. Shorts, 552 F.3d 327 (4th Cir.2008) (CAFA removal but not include counterclaim defendants)
- Morgan v. Gay, 471 F.3d 469 (3d Cir.2006) (timing and acceptance distinctions under §1453)
- Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir.2005) (timing under §1453(c)(2) interpretation)
- DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d 271 (2d Cir.2006) (acceptance timing under §1453(c))
- Patterson v. Dean Morris, L.L.P., 444 F.3d 365 (5th Cir.2006) (timing and acceptance principles under §1453)
- Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675 (7th Cir.2006) (CAFA removal framework)
- Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir.2006) (CAFA removal principles)
- Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir.2005) (CAFA-related removal discussion)
- Salling v. Budget Rent-A-Car Sys., Inc., 672 F.3d 442 (6th Cir.2012) (CAFA jurisdictional basis)