It could be a first-year civil procedure question: The removability of a case to federal court is determined as of the moment of removal – nothing thereafter can defeat removal. See, e.g., St. Paul Mercury Indemnity. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938) (a plaintiff cannot “deprive the district court of jurisdiction” “after removal” “by amendment of his pleadings”); 14A C. Wright & A. Miller, Federal Practice & Procedure §3721, at 213 (2d ed. 1985) (once “a case has been properly removed . . . plaintiff[s] cannot successfully do anything to defeat federal jurisdiction and force a remand”).
That is precisely what the petitioner in a pending United States Supreme Court matter, Royal Canin U.S.A., Inc. v. Wullschleger, No. 23-677, is asking the Court to hold. Oral argument in the Royal Canin case is occurring today. For more details, including copies of all pleadings, see the SCOTUSblog page.
Here are the questions presented by the certiorari petition that the Court accepted:
1. Whether such a post-removal amendment of the complaint defeats federal-question subject matter jurisdiction.
2. Whether such a post-removal amendment of the complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. §1367.
Royal Canin is an appeal of Wullschleger v. Royal Canin U.S.A., Inc., 75 F.4th 918 (8th Cir. 2023) (“Wullschleger II”). Technically, the litigation does involve a prescription medical product, but that product was prescription dog food – which explains why this case fell through our cracks – that and it not being a product liability action.
Briefly, here is what happened in Royal Canin. The plaintiff brought a supposed consumer protection class action in Missouri state court, but also included antitrust and unjust enrichment claims. In a prior appeal the Eighth Circuit held that those claims “necessarily requires the interpretation and application of federal law.” Wullschleger v. Royal Canin U.S.A., Inc., 953 F.3d 519, 522 (8th Cir. 2020) (“Wullschleger I”). Specifically:
After alleging violations of the FDCA throughout the complaint, plaintiffs request judgment: (1) “[f]inding, adjudging, and decreeing” that defendants have violated federal law; (2) enjoining defendants from engaging in further violations of federal law; and (3) estopping defendants from denying that prescription pet food is a “drug” and “enjoining Defendants to comply with all federal and Missouri provision . . . .”
Id. (citation omitted). Thus, “[t]he face of plaintiffs’ complaint gives rise to federal question jurisdiction and plaintiffs’ isolated focus on their alleged state law claims is nothing more than an apparent veil to avoid federal jurisdiction.” Id.
Plaintiffs’ response was to “switch gears.” Wullschleger II, 75 F.4th at 921. Plaintiffs deleted all the aforementioned references to the FDCA and to dropped both of those counts, leaving only the Missouri consumer protection claim. Then they sought remand. Citing the aforementioned rule that removability is determined as of the time of removal, the district court held that a subsequent amendment could not divest federal question jurisdiction and denied remand. Id.
On the second appeal, in what appears to be an unprecedented decision, the Eighth Circuit reversed. Wullschleger II held that the “rule that the jurisdiction of the court depends upon the state of things at the time of the action brought,” was trumped by another “rule that an amended complaint supersedes an original complaint and renders the original complaint without legal effect.” Id. at 922 (citations and quotation marks omitted). The decision invoked what it conceded was a “subtle” distinction between “the state of things” and “the alleged state of things” in holding that a post-removal amendment to a complaint – at least one involving federal question jurisdiction – could defeat such jurisdiction after the fact and require remand. Id. at 923. To reach its singular result, Wullschleger II opted to follow a decision from 1926, rather than more modern Eighth Circuit precedent applying the general rule. 75 F.4th at 924 n.3.
Wullschleger II appears to be a radical departure from prior law (and what we learned in law school), the consensus of which has, for decades, precluded plaintiffs from engaging post-removal gamesmanship to defeat pre-existing federal jurisdiction. See, e.g., Rodriguez v. Comas, 888 F.2d 899, 904 n.20 (1st Cir. 1989); Hammond v. Terminal Railroad Ass’n, 848 F.2d 95, 97 (7th Cir. 1988); Henry v. Independent American Savings Ass’n, 857 F.2d 995, 998 (5th Cir. 1988); Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985); In re Romulus Community Schools, 729 F.2d 431, 434 (6th Cir. 1984); In re Carter, 618 F.2d 1093, 1101 (5th Cir. 1980); Anderson v. Allstate Insurance Co., 630 F.2d 677, 681 (9th Cir. 1980); In re Greyhound Lines, 598 F.2d 883, 884 & n.1 (5th Cir. 1979); Westmoreland Hospital Ass’n v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 123 (3d Cir. 1979) (all cited in the petitioners’ merits brief, at pp. 20-21 n.2). Why the absence of more recent decisions? In 1988, the statute governing post-removal procedure was amended (PL 100-702 §1016(c)) to add what is now 28 U.S.C. §1447(e), which gave courts discretion to allow (or deny) post-removal amendments in diversity cases adding “defendants whose joinder would destroy subject matter jurisdiction.”
To be sure, Wullschleger II professed to limit the scope of its ruling to federal question, as opposed to diversity, cases:
[I]t is not even clear that the time-of-filing rule applies in federal-question cases, and certainly not to the extent it does in diversity cases. It first arose in a diversity case . . . [a]nd for the most part, it has not strayed from there.
75 F.4th at 924 (citation omitted). However, if the Supreme Court were to strike down the time-of-removal rule in federal question cases, it is likely that plaintiffs in diversity cases will attempt to engage in similar post-removal shenanigans (beyond §1447(e)) to seek remand to state court. See Id. (stating that “all doubts about federal jurisdiction must be resolved in favor of remand”) (citation and quotation marks omitted).
We hope that the Royal Canin matter in the Supreme Court is an example of “cert. granted with intent to reverse.” But after the Mallory debacle – which also involved the Court resurrecting a century-old throwback case − we have no faith in anything that the current Supreme Court does. Thus, we bring Royal Canin to our readers’ attention as one more thing to worry about.