Hybrid Removal

Author:Samuel P. Jordan
Position:Professor of Law, Saint Louis University School of Law
Pages:793-828
SUMMARY

In the wake of the Supreme Court's recent activity in the domain of personal jurisdiction, defendants have greater leverage to challenge the forum choices made by plaintiffs when initiating litigation. This Article uncovers an unexpected way that defendants are deploying that leverage: by filing hybrid removals in federal court. Hybrid removals are filed in cases that lack facial diversity of... (see full summary)

 
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793
Hybrid Removal
Samuel P. Jordan*
ABSTRACT: In the wake of the Supreme Court’s recent activity in the domain
of personal jurisdiction, defendants have greater leverage to challenge the
forum choices made by plaintiffs when initiating litigation. This Article
uncovers an unexpected way that defendants are deploying that leverage: by
filing hybrid removals in federal court. Hybrid removals are filed in cases that
lack facial diversity of citizenship and involve no federal question. Ordinarily,
these characteristics would trigger a quick remand. To avoid that result,
defendants have sought to make personal jurisdiction part of the removal
analysis. This crossing of jurisdictional lines has the potential to facilitate
expediency, but it may also undermine the relationship between federal and
state courts. For that reason, the Article concludes that hybrid removal should
be embraced with due care, and offers some guidelines for its implementation.
I.INTRODUCTION ............................................................................. 794
II.THE EVOLVING PERSONAL JURISDICTION LANDSCAPE .................. 796
A.IMPACT: GOODYEAR AND DAIMLER ........................................ 797
B.REVERBERATION AND CALIBRATION ......................................... 799
III.NAVIGATING THE NEW LANDSCAPE ............................................... 805
A.THE EXPECTED RESPONSES ...................................................... 805
B.THE UNEXPECTED RESPONSE: HYBRID REMOVAL ...................... 810
IV.ASSESSING HYBRID REMOVAL ........................................................ 816
A.EXPEDIENCY AND DOCTRINAL FIT ............................................. 816
B.FEDERALISM AND RESTRAINT ................................................... 821
C.STRIKING THE BALANCE .......................................................... 823
D.DISTRUST ................................................................................ 827
V.CONCLUSION ................................................................................ 828
*
Professor of Law, Saint Louis University School of Law. Thanks to Scott Dodson , Tom
Stewart, and participants at the Saint Louis University faculty workshop for helpful thoughts and
comments. This Article also benefited from conversations with several practicing attorneys who
cannot be named, but whose insights are greatly appreciated. Finally, Abigail Halliday and Taylor
Morthland provided excellent research assistance, for which I am grateful.
794 IOWA LAW REVIEW [Vol. 104:793
I. INTRODUCTION
In 1945, the United States Supreme Court revolutionized personal
jurisdiction with its decision in International Shoe Co. v. Washington.1 Dispensing
with the rigid constraints that had governed for roughly 70 years,2 the Court
embraced a new vision of the adjudicatory authority of states rooted in the
now-familiar concept of “minimum contacts.”3 Now, roughly 70 years after
International Shoe, a second personal jurisdiction revolution is underway. This
current revolution is softer than the first—no longstanding precedent has
been overturned, and the Court has instead strained to frame its decisions as
mere extensions of established principles.4 But revolutions take many forms,
and as Part II of this Article explains, there can be little doubt that the Court’s
recent cases have articulated narrowing principles that mark a substantial shift
in both doctrine and tone.5
For confirmation of this, one need only look to the trial courts. Both
plaintiffs and defendants have been making adjustments in litigation strategy
in response to the Court’s activity, and trial judges have been faced with an
influx of personal jurisdiction-related motions.6 The bulk of this Article is
focused on these adjustments and these motions in the context of aggregate
litigation. There is certainly much to be said about current developments in
other forms of litigation,7 but the basic case structure under consideration
here involves claims—most often product liability claims—by multiple
plaintiffs against one or more defendants. Plaintiffs have long had substantial
leeway in their selection of a forum for the litigation of these sorts of disputes.8
They have used that leeway to achieve both horizontal and vertical objectives.
Horizontally, plaintiffs seek to identify states that may be hospitable to the
claims being brought; vertically, plaintiffs often seek to secure a state court
1. Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).
2. See generally Pennoyer v. Neff, 95 U.S. 714 (1877) (establishing the test courts should
use to determine whether parties had personal jurisdiction).
3. See Int’l Shoe Co., 326 U.S. at 316. The classic discussion of the impact of International
Shoe is Ar thur T . von M ehren & Dona ld T. T rautm an, Jurisdiction to Adjudicate: A Sugges ted Analysis,
79 HARV. L. REV. 1121 (1966).
4. See, e.g., Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1781 (2017)
(“Our settled principles regarding specific jurisdiction control this case.”); id. at 1783 (“Our
straightforward application in this case of settled principles of personal jurisdiction will not result
in the parade of horribles that respondents conjure up.”).
5. See infra Part II.
6. See infra notes 116–19 and accompanying text.
7. As discussed infra notes 29–34 and accompanying text, a particular area for concern is
the impact on transnational cases.
8. See infra notes 84–85 and accompanying text.
2019] HYBRID REMOVAL 795
within that hospitable state by structuring the parties to the suit in a way that
shields the case from removal.9
The nascent personal jurisdiction revolution gives defendants powerful
tools that can be employed to disrupt the ability of plaintiffs to achieve these
objectives. Part III explains what those tools are, and how they are being used
on the ground. In many cases, the forum selected by plaintiffs is insufficiently
connected to at least some of the claims being asserted, and that permits
defendants to force those claims to be litigated elsewhere.10 When plaintiffs
are from multiple states, this connectedness problem may extend only to
those claims brought by non-resident plaintiffs, and the victory for defendants
is in that sense impartial. But because the unconnected—and therefore
jurisdictionally suspect—claims are often included in the suit precisely to
destroy diversity of citizenship among the parties, their elimination renders
the remaining claims removable to federal court.11 In this way, the personal
jurisdiction revolution frustrates the plaintiffs’ vertical preferences and
creates echoes in the domain of subject matter jurisdiction. Whether these
echoes were intended or anticipated is not clear, but they are nevertheless an
understandable outgrowth of the new jurisdictional landscape.
What is less understandable is the procedural route by which the
defendants are seeking to achieve these results. Rather than raise their
personal jurisdiction arguments in state court, many defendants are opting
instead to remove directly to federal court, notwithstanding a facial lack of
diversity that would ordinarily provoke a remand.12 To avoid that outcome,
defendants are asking federal courts to consider questions of personal
jurisdiction prior to assessing the viability of removal.13 If this request is
successful, then some parties to the state suit may be dismissed, and the
remaining parties may then satisfy the requirements for removal to federal
court.14 This Article labels this procedural strategy “hybrid removal” because
it hinges on a consideration of personal jurisdiction arguments as part of the
subject matter jurisdiction determination.
Hybrid removal deviates from the traditional federal analysis of
removability, and its use is traceable directly to the personal jurisdiction
revolution.15 Part II discusses the evolution of personal jurisdiction beginning
with International Shoe up until present day. Part III tells the story of the
introduction of hybrid removals, its early failures, and eventual success in the
9. See infra notes 85–88 and accompanying text.
10. See infra notes 80–86 and accompanying text.
11. See infra notes 86–94 and accompanying text.
12. See infra Section III.B.
13. See infra Section III.B.
14. See infra Section III.B.
15. See infra notes 110–27.

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