Hybrid Removal

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

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. I MPACT : GOODYEAR AND DAIMLER ........................................ 797 B. R EVERBERATION AND C ALIBRATION ......................................... 799 III. NAVIGATING THE NEW LANDSCAPE ............................................... 805 A. T HE E XPECTED R ESPONSES ...................................................... 805 B. T HE U NEXPECTED R ESPONSE : H YBRID R EMOVAL ...................... 810 IV. ASSESSING HYBRID REMOVAL ........................................................ 816 A. E XPEDIENCY AND D OCTRINAL F IT ............................................. 816 B. F EDERALISM AND R ESTRAINT ................................................... 821 C. S TRIKING THE B ALANCE .......................................................... 823 D. D ISTRUST ................................................................................ 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 Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested 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. 796 IOWA LAW REVIEW [Vol. 104:793 wake of the Supreme Court’s most recent personal jurisdiction decision. 16 Part IV then offers a critical analysis of whether and when hybrid removal should be permitted. Although there is no reason to impose a categorical bar, federal judges ought to approach the doctrine with care. Personal jurisdiction determinations based on questions of federal law and limited to the pleadings are good candidates for hybrid removal; determinations requiring the development and assessment of jurisdictional facts or interpretations of state law are not. II. THE EVOLVING PERSONAL JURISDICTION LANDSCAPE Almost since the day the modern approach to personal jurisdiction was ushered in by the Supreme Court’s opinion in International Shoe , courts have distinguished between jurisdiction based on contacts related to the suit and jurisdiction based on aggregate contacts. 17 The first category, now shorthanded as specific jurisdiction, supports jurisdiction only for particular claims and has been the subject of fairly sustained attention by the Supreme Court. 18 Although litigated less frequently, the second category—general jurisdiction—remained a viable if less visible form of adjudicatory authority. 19 In particular, general jurisdiction proved useful in cases where a foreign defendant conducted substantial business activities within a state (or states). In such circumstances, a foreign defendant could be hauled before an American court based on those activities, even when they bore no relation to 16 . See generally Bristol-Myers Squibb Co. v. Superior Court of Cal., ...