By Ben Solis
Gongwer News Service
Enbridge Energy Company has requested the entire 6th U.S. Circuit Court of Appeals bench to review its decision to return Attorney General Dana Nessel’s Line 5 pipeline lawsuit to state court.
In petition for rehearing en banc filed Monday in Nessel v. Enbridge (USCOA Docket No. 23-1671), the company that operates the pipeline beneath the Straits of Mackinac argued that any shutdown would have “a ‘devastating impact’ on Canada’s economy and energy security.” Enbridge asserted that the line was protected by a 1977 treaty between the United States and Canada.
The company noted that in a separate but related case, Enbridge v. Whitmer (USWDM Docket No. 20-01142), U.S. District Judge Robert Jonker of the Western District of Michigan denied the state’s motion to dismiss and scheduled motions for summary judgment filed by Enbridge on July 31.
In June, the 6th Circuit unanimously ruled that Enbridge failed to timely remove this case to federal court and remanded it back to Ingham County.
Enbridge argued the decision by the 6th Circuit to return the case to state court applied a provision of the federal removal statute in a way that directly conflicts with established precedent in Berera v. Mesa Medical Group. The Enbridge decision was published, and the 6th Circuit can only overrule a published decision if it is reheard en banc, or before the entire bench.
“Section 1446(b)(1) says that a notice of removal ‘shall be filed within 30 days after the receipt by the defendant … of a copy of the initial pleading,’” Enbridge argued. “But Section 1446(b)(3) adds that ‘if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after the receipt by the defendant … of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.’ When Congress added this provision, it ‘codified previous judicial holdings’ that the removal clock will be extended when a case ‘later becomes or is discovered to be removable.’”
The 6th Circuit previously construed those provisions in Berera, where a defendant removed a case from federal court more than 30 days after receiving the complaint and outside the statute’s 30-day window, Enbridge said.
“The defendant argued that the complaint purported to assert state-law claims and failed to provide ‘adequate notice of the federal nature of Berera’s claims.’ The defendant said it received such notice for the first time at a court hearing on August 30, 2013, and it removed within 30 days of that hearing,” the petition said. “The defendant urged that ‘the transcript of the August 30 hearing’ counted as an ‘other paper from which it could first be ascertained that the case is one which is … removable,’ making the removal timely under Section 1446(b)(3).”
“The 6th Circuit agreed, holding that the 30-day period in Section 1446(b)(1) starts to run only if the initial pleading contains solid and unambiguous information that the case is removable,” Enbridge noted. In that regard, the filing argues, Berera should have controlled the outcome of Enbridge.
The panel’s rejection of the company’s invocation of Berera was an error on two grounds, Enbridge argued.
“First, the panel deemed Berera ‘distinguishable on its facts.’ But the scope of a binding precedent turns on the scope of its reasoning,” the petition said. “And nothing in Berera suggests that the outcome on timeliness turned on whether the plaintiff had been willful or artful in casting a claim that arose under federal law as a mere state-law claim. Timeliness turned on when the defendant received ‘solid and unambiguous information that the case is removable,’ which ‘is akin to actual notice.’”
The panel also reasoned the case was removable and the 30-day clock began to run as soon as the defendant has a good faith basis to argue that at least one of the plaintiff’s claims depends on the application of federal law.
“This standard, which the panel apparently drew from Federal Rule of Civil Procedure 11 is inconsistent with § 1446(b) and Berera,” Enbridge argued. “Section 1446(b) is phrased in terms of whether the case ‘is or has become removable,’ not whether a defendant has some good-faith basis to argue removability. … The panel here read this to mean only that the defendant must ‘learn with certainty that there are good-faith grounds on which to argue for federal jurisdiction.’ That conclusion is irreconcilable with Berera’s language, reasoning, and outcome.”
Aside from its reliance on Berera, the company further argued that the panel’s decision conflicts with decisions made by the 11th and 5th circuits related to extraordinary circumstances.
“The circumstances here easily satisfy an exceptional circumstances standard – including the critical federal interests at stake, the risk of waste and inconsistent judgments from parallel state and federal litigation, and the state’s gamesmanship in seeking to evade federal court jurisdiction,” Enbridge wrote. “The state official’s gamesmanship here is wasteful, unbecoming, and inconsistent with the federal court’s virtually unflagging obligation to exercise federal jurisdiction where it exists.”
Gongwer News Service
Enbridge Energy Company has requested the entire 6th U.S. Circuit Court of Appeals bench to review its decision to return Attorney General Dana Nessel’s Line 5 pipeline lawsuit to state court.
In petition for rehearing en banc filed Monday in Nessel v. Enbridge (USCOA Docket No. 23-1671), the company that operates the pipeline beneath the Straits of Mackinac argued that any shutdown would have “a ‘devastating impact’ on Canada’s economy and energy security.” Enbridge asserted that the line was protected by a 1977 treaty between the United States and Canada.
The company noted that in a separate but related case, Enbridge v. Whitmer (USWDM Docket No. 20-01142), U.S. District Judge Robert Jonker of the Western District of Michigan denied the state’s motion to dismiss and scheduled motions for summary judgment filed by Enbridge on July 31.
In June, the 6th Circuit unanimously ruled that Enbridge failed to timely remove this case to federal court and remanded it back to Ingham County.
Enbridge argued the decision by the 6th Circuit to return the case to state court applied a provision of the federal removal statute in a way that directly conflicts with established precedent in Berera v. Mesa Medical Group. The Enbridge decision was published, and the 6th Circuit can only overrule a published decision if it is reheard en banc, or before the entire bench.
“Section 1446(b)(1) says that a notice of removal ‘shall be filed within 30 days after the receipt by the defendant … of a copy of the initial pleading,’” Enbridge argued. “But Section 1446(b)(3) adds that ‘if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after the receipt by the defendant … of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.’ When Congress added this provision, it ‘codified previous judicial holdings’ that the removal clock will be extended when a case ‘later becomes or is discovered to be removable.’”
The 6th Circuit previously construed those provisions in Berera, where a defendant removed a case from federal court more than 30 days after receiving the complaint and outside the statute’s 30-day window, Enbridge said.
“The defendant argued that the complaint purported to assert state-law claims and failed to provide ‘adequate notice of the federal nature of Berera’s claims.’ The defendant said it received such notice for the first time at a court hearing on August 30, 2013, and it removed within 30 days of that hearing,” the petition said. “The defendant urged that ‘the transcript of the August 30 hearing’ counted as an ‘other paper from which it could first be ascertained that the case is one which is … removable,’ making the removal timely under Section 1446(b)(3).”
“The 6th Circuit agreed, holding that the 30-day period in Section 1446(b)(1) starts to run only if the initial pleading contains solid and unambiguous information that the case is removable,” Enbridge noted. In that regard, the filing argues, Berera should have controlled the outcome of Enbridge.
The panel’s rejection of the company’s invocation of Berera was an error on two grounds, Enbridge argued.
“First, the panel deemed Berera ‘distinguishable on its facts.’ But the scope of a binding precedent turns on the scope of its reasoning,” the petition said. “And nothing in Berera suggests that the outcome on timeliness turned on whether the plaintiff had been willful or artful in casting a claim that arose under federal law as a mere state-law claim. Timeliness turned on when the defendant received ‘solid and unambiguous information that the case is removable,’ which ‘is akin to actual notice.’”
The panel also reasoned the case was removable and the 30-day clock began to run as soon as the defendant has a good faith basis to argue that at least one of the plaintiff’s claims depends on the application of federal law.
“This standard, which the panel apparently drew from Federal Rule of Civil Procedure 11 is inconsistent with § 1446(b) and Berera,” Enbridge argued. “Section 1446(b) is phrased in terms of whether the case ‘is or has become removable,’ not whether a defendant has some good-faith basis to argue removability. … The panel here read this to mean only that the defendant must ‘learn with certainty that there are good-faith grounds on which to argue for federal jurisdiction.’ That conclusion is irreconcilable with Berera’s language, reasoning, and outcome.”
Aside from its reliance on Berera, the company further argued that the panel’s decision conflicts with decisions made by the 11th and 5th circuits related to extraordinary circumstances.
“The circumstances here easily satisfy an exceptional circumstances standard – including the critical federal interests at stake, the risk of waste and inconsistent judgments from parallel state and federal litigation, and the state’s gamesmanship in seeking to evade federal court jurisdiction,” Enbridge wrote. “The state official’s gamesmanship here is wasteful, unbecoming, and inconsistent with the federal court’s virtually unflagging obligation to exercise federal jurisdiction where it exists.”
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