X. Special Topic: Removal to Federal Court

In this chapter

This special topic covers the arguments that gun industry defendants have made to remove litigation from state to federal court, and the strategies and arguments you may want to employ in favor of remand.

First, this chapter covers removal based on federal question jurisdiction, and what it means under the controlling Grable test for an embedded federal issue to be: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting federal-state comity.

Second, it covers removal based on diversity jurisdiction, and arguments centered on fraudulent joinder of non-diverse parties.

Third, it addresses efforts by the gun industry to assert federal officer jurisdiction as a basis for removal.

Fourth and finally, it covers procedural issues like untimeliness of removal and lack of unanimity among defendants, which can each be bases for remand. It also briefly covers the possibility of recovering sanctions for improvident removal.

As plaintiff’s counsel, one early decision you will need to make is where to file suit, including whether to file in state or federal court. The strategic considerations that go into this choice are numerous and varied. If you determine that state court is your preferred forum, you may face a defendant that prefers federal court and removes your case at the outset of litigation. This special topic is for plaintiffs that prefer to litigate in state court, and covers some of the bases for removal and arguments you may want to make on a motion to remand your case.

Typically, a defendant can remove a civil action to federal court only if the action could have been filed originally in federal court.³⁵³See 28 U.S.C. § 1441(a). The party seeking removal bears the burden of demonstrating that removal was proper, so all doubts about federal jurisdiction must be resolved in favor of remand.³⁵⁴Soto v. Bushmaster Firearms Int’l, LLC, 139 F. Supp. 3d 560, 562 (D. Conn. 2015) (granting motion to remand); see also Roberts v. Smith & Wesson Brands, Inc., No. 22-CV-6169, 2023 WL 6213654, at *4 (N.D. Ill. Sept. 25, 2023) (same), aff’d, 98 F.4th 810 (7th Cir. 2024); Getz v. Sturm, Ruger & Co., Inc., No. 23-CV-1338, 2024 WL 1793670, at *4 (D. Conn. Apr. 25, 2024) (same); Minnesota v. Fleet Farm LLC, 679 F.Supp.3d 825, 835 (D. Minn. 2023) (denying motion to remand). That means that a defendant must argue that there is jurisdiction under the federal question statute, 28 U.S.C. § 1331, the diversity statute, 28 U.S.C. § 1332, or one of the lesser-utilized grounds for removal, such as federal officer jurisdiction under 28 U.S.C. § 1442. It is well-settled that a federal defense (like PLCAA) is not a proper ground for removal.³⁵⁵Soto v. Bushmaster Firearms Int’l, LLC, 139 F. Supp. 3d 560, 565 (D. Conn. 2015); New York v. Arm or Ally, LLC, 644 F.Supp.3d 70, 78 (S.D.N.Y 2022); Woods v. Steadman’s Hardware, Inc., No. CV 12-33-H-CCL, 2013 WL 709110, at *2-3 (D. Mont. Feb. 26, 2013) (granting motion to remand, noting that “PLCAA does not provide subject matter jurisdiction for any cause of action whatsoever,” and awarding fees and costs); Delaware ex rel. Jennings v. Cabela’s Inc., No. 23-CV-790, 2024 WL 263296, at *4 (D. Del. Jan. 24, 2024) (remanding, holding that assertion of PLCAA defense does not provide a basis for removal, and awarding fees and costs); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (holding that a federal defense to a state-law cause of action does not support federal-question jurisdiction).

While the arguments a plaintiff must address in a motion to remand differ with the basis asserted for federal jurisdiction, as a guiding principle, if you want to get back to state court you should emphasize that your case is a personal injury sounding in tort—the type of case that has traditionally belonged in state courts.

Removal Based on Federal Question Jurisdiction

“[F]ederal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”³⁵⁶Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The corollary to the well-pleaded complaint rule is “the ‘artful pleading’ rule—pursuant to which [a] plaintiff cannot avoid removal by declining to plead ‘necessary federal questions.’”³⁵⁷Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998); see also Chiapperini v. Gander Mountain Co., 870, 13 N.Y.S.3d 777, 783 (N.Y. Sup. Ct. 2014) (noting that federal court remanded the case and rejected the artful pleading argument). In light of these pleading rules, if your aim is to litigate in state court then you will want to plead only claims that arise under state law, and avoid pleading federal claims that furnish a basis for federal question jurisdiction.

Even in the absence of federal claims, however, a defendant may still try to remove by arguing that your state law claims contain an embedded question of federal law. This might happen, for example, if your state law claims are predicated on conduct that violated a federal statute, or if they hinge on a term defined by federal law. An attempt to remove on this basis is an assertion of the “substantial federal question doctrine,” which recognizes that in a narrow class of cases “federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.”³⁵⁸Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312, (2005); see also Gunn v. Minton, 568 U.S. 251, 258 (2013) (interpreting Grable). This doctrine, articulated in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, “captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.”³⁵⁹Grable, 545 U.S. at 312.

Grable permits federal jurisdiction for only a “special and small category” of cases.³⁶⁰Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 699 (2006). The “‘mere presence’ of a federal issue in a state cause of action” or the mere assertion of a federal interest is not enough to trigger federal court jurisdiction.³⁶¹Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 813-17 (1986); see also New York v. Arm or Ally, LLC, 644 F.Supp.3d 70, 77 (S.D.N.Y 2022) (denying motion to remand). “Nor does the presence of a federal defense suffice—even if the parties concede that the defense is the only disputed issue in the case and, in that sense, necessary to the resolution of the state law claim.”³⁶²Arm or Ally, 644 F.Supp.3d at 78 (internal citations and quotations omitted); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (holding that a federal defense to a state-law cause of action does not support federal-question jurisdiction). Because a federal defense does not provide a basis to assert federal-question jurisdiction, a defendant’s invocation of PLCAA does not provide a basis for removal.³⁶³See supra note 353. Nevertheless, Grable arguments feature during removal and remand in a wide variety of litigation against the firearms industry.

Under Grable and its progeny, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.”³⁶⁴Gunn v. Minton, 568 U.S. 251, 258, (2013) (discussing Grable). “Where all four of these requirements are met . . . , jurisdiction is proper because there is a ‘serious federal interest in claiming the advantages thought to be inherent in a federal forum,’ which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.”³⁶⁵Id. (quoting Grable, 545 U.S. at 313). All four factors must be satisfied. Typically, most of the analysis happens under the first and third factors.

Necessarily raised

The first factor for a federal court to take jurisdiction under Grable is that “[i]t must be ‘impossible to decide’ the state-law claim without deciding an issue of federal law.”³⁶⁶Roberts v. Smith & Wesson Brands, Inc., No. 22-CV-6169, 2023 WL 6213654, at *13 (N.D. Ill. Sept. 25, 2023) (citation omitted), aff’d, 98 F.4th 810 (7th Cir. 2024); see also Ramos v. Wal-Mart Stores, Inc., 202 F. Supp. 3d 457, 468-69 (E.D. Pa. 2016); Corporan v. Wal-Mart Stores E., LP, 194 F. Supp. 3d 1128, 1132 (D. Kan. 2016); Daniel v. Armslist, LLC, No. 15-C-1387, 2016 WL 660894, at *3; (E.D. Wis. Feb. 17, 2016). “If the plaintiff can support her state-law claim with theories unrelated to the federal statute, then the state-law claim does not arise under federal law.”³⁶⁷Roberts, 2023 WL 6213654, at *15 (quoting Praschak v. Kmart Corp., 922 F. Supp. 2d 710, 713 (N.D. Ill. 2013)). While the cases applying these principles are not always entirely consistent with one another, they indicate that a plaintiff seeking to litigate in state court should ensure that each claim is supported by at least one theory of liability that does not implicate federal law. This is because even a single theory that does not implicate federal law should preclude a finding in the defendant’s favor on the first Grable factor. A survey of a few recent cases illustrates this point.

In Roberts v. Smith & Wesson Brands, a district court found that issues of federal law were not necessarily raised in a lawsuit where plaintiffs pled several state law claims based primarily on theories of liability grounded in state law, but also included a theory of liability based on federal law. That case was brought by victims and survivors of the July 4, 2022 mass shooting in Highland Park, Illinois against the manufacturer of the assault rifle used (Smith & Wesson), two gun stores involved in the sale of the rifle, and the shooter and his father.³⁶⁸Roberts, 2023 WL 6213654, at *2-3.

Plaintiffs’ primary allegations were that Smith & Wesson was negligent, and violated the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Uniform Deceptive Trade Practices Act by, among other things, marketing its assault rifles to young men by intentionally and unfairly targeting their propensity for risk-taking, impulsive behavior. However, the complaint also included “scattered references to federal law[,]” specifically violation of the National Firearms Act (“NFA”).³⁶⁹Id. at *16-17.

Despite the fact that the complaint referenced the NFA, the court held that this federal issue was not necessarily raised because plaintiffs had also pled alternative theories of misconduct that were not grounded in violations of federal law.³⁷⁰Id. at *17. Thus, the court held that while “[a] violation of federal regulations is a possible basis for violating the state statutes, [] it is not a necessary basis for violating the state statutes.”³⁷¹Id. The court found the same for the negligence claim, which also referenced the NFA but for similar reasons did not depend on a violation of the NFA to succeed.³⁷²Id. at *20-21 (“That theory of liability based on Smith & Wesson’s use of military imagery targeted at young adults stands apart from Plaintiffs’ allegations about the NFA. Once again, Plaintiffs could prevail without establishing that Smith & Wesson violated the NFA’s manufacturing and labeling requirements.”). The remaining claims did not reference federal law or contain embedded federal questions, either.³⁷³Id. at *22-23. Smith & Wesson appealed the remand decision, and the Seventh Circuit affirmed without having to reach the Grable issue. Roberts v. Smith & Wesson Brands, Inc., 98 F.4th 810, 816 (7th Cir. 2024). Courts evaluating firearms cases in other jurisdictions have come to similar conclusions.³⁷⁴See, e.g., Daniel v. Armslist, LLC, No. 15-C-1387 2016 WL 660894, at *3-4 (E.D. Wis. Feb. 17, 2016) (finding no federal jurisdiction over state-law claim against online firearms marketplace because, among other things, plaintiffs’ claims did not rely exclusively on violation of federal law); Corporan v. Wal-Mart Stores E., LP, 194 F. Supp. 3d 1128, 1131–32 (D. Kan. 2016) (finding no federal jurisdiction over state claims against firearms retailer because plaintiffs’ state-law claim was “supported by alternative and independent theories, one of which [did] not implicate federal law”) (citations omitted).

You may need to distinguish two gun industry cases that—in contrast to Roberts—analyzed the Grable factors but denied the motions to remand. The first is Minnesota v. Fleet Farm LLC, which involved allegations that federally licensed firearms retailers (“FFLs”) sold firearms to straw purchasers (someone who purchases a firearm for someone else in circumstances other than a bona fide gift).³⁷⁵679 F. Supp. 3d 825, 832-33 (D. Minn. June 27, 2023). Despite the complaint pleading only state law causes of action, the court found that the negligence claims were premised on federal regulations and guidance, raising a “question [that] will invariably entail an exploration of the duties and responsibilities of FFLs at the federal level.”³⁷⁶Id. at 837; but see Corporan v. Wal-Mart Stores E., LP, 194 F. Supp. 3d 1128, 1133 (D. Kan. 2016) (“In Grable, the Court upheld the continuing validity of Merrell Dow, explaining that the exercise of federal jurisdiction over state-law tort claims based on violations of federal standards, in the absence of a federal right of action, would be enormously disruptive of the proper division of labor as between federal and state courts[.]”). The court rejected the state’s argument that it could rely exclusively on state law to establish a duty that defendants’ conduct had violated, finding instead that “the Minnesota statutes cited by the Complaint cannot settle the core dispute” over the scope of gun dealers’ obligations. As a result, the court found a substantial federal issue was necessarily raised because “[t]he resolution of this case is likely to have a substantial impact on how future firearm retailers—in and out of Minnesota—act in similar circumstances.”³⁷⁷Fleet Farm, 679 F. Supp. 3d at 839. This result is broadly at odds with the numerous examples of state-law claims predicated on violations of federal gun laws being litigated in state courts.³⁷⁸See, e.g., Williams ex rel. Raymond v. Wal-Mart Stores E., L.P., 99 So. 3d 112, 116 (Miss. 2012); Franco v. Bunyard, 261 Ark. 144, 145–47 (Ark. 1977) (en banc); Martin v. Schroeder, 209 Ariz. 531, 537 (Ariz. Ct. App. 2005); Peek v. Oshman’s Sporting Goods, Inc., 768 S.W.2d 841, 844 (Tex. Ct. App. 1989); West v. Mache of Cochran, Inc., 187 Ga. App. 365, 368 (Ga. Ct. App. 1988); K-Mart Enters. Of Fla., Inc. v. Keller, 439 So. 2d 283, 285 (Fla. Dist. Ct. App. 1983). It is also contrary to the great weight of authority evaluating Grable removals, including decisions from the Supreme Court of the United States, which make clear that state tort claims predicated on violations of federal regulations do not entitle a defendant to remove a case to federal court.³⁷⁹See e.g., Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 318, (2005) (explaining that allowing cases into federal court which allege violations of federal regulations as part of a state tort claim, but where there is no federal cause of action, would result in “a horde of original filings and removal cases[.]”); Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 812 (1986) (rejecting removal where state tort claims were predicated on federal violations of law); Bennett v. Southwest Airlines Co., 484 F.3d 907, 909-12 (7th Cir. 2007) (“No court of appeals has held either before or after Grable that the national regulation of many aspects of air travel means that a tort claim in the wake of a crash ‘arises under’ federal law.”).

A second example of a court denying remand is New York v. Arm or Ally, LLC, a wide-ranging litigation brought by the state of New York against 10 different manufactures and sellers of unfinished firearm frames and receivers used to build so-called “ghost guns.”³⁸⁰644 F. Supp. 3d 70, 73 (S.D.N.Y. 2022). The case was premised on a 2021 New York state law specifically passed to hold gun industry members civilly liable for failing to implement reasonable controls to prevent their products from being used unlawfully and for contributing to public nuisances.³⁸¹Id. at 78-79 (citing N.Y. Gen. Bus. Law § 898-b). See the end of Section IV – Predicate Exception, for a discussion of state industry accountability laws. Critically (for the question of removal), this statute incorporated the definition of a “qualified product” from federal law—namely, from PLCAA itself.³⁸²N.Y. Gen. Bus. Law § 898-a(6) (McKinney 2023) (defining “qualified product” to “have the same meaning as defined in 15 U.S.C. section 7903(4)”). The definition at issue has since been amended to remove the specific reference to 15 U.S.C section 7903(4), but still maintains a cross-references to federal law.

To establish that the defendants’ products were “qualified products,” the state therefore had to demonstrate that they were “firearms” or “component parts” as defined by federal law.³⁸³See 15 U.S.C. § 7903(4) (cross-referencing definition of firearm in 18 U.S.C. § 921(a)(3)). The court found that this necessarily raised a federal question, namely the interpretation of the terms “firearm” and “component,” and that the issue was actually disputed, since the question of whether the products sold by defendants qualified as firearms went to the heart of the case.³⁸⁴Arm or Ally, 644 F. Supp. 3d at 78-82. The court also found the federal question substantial because the definitions of these terms “are central to the federal scheme embodied in the Gun Control Act,” and it noted that the United States government had filed a statement of interest in a parallel case.³⁸⁵Id. at 78-80. Depending on the facts of your case, you may be able to distinguish Arm or Ally on the basis that the federal-law definition of a term is not in dispute or that the decision in your case will not have sweeping consequences for the federal government’s powers to regulate weapons in other contexts.

Substantial

The other key factor in a Grable analysis is whether the federal question is “substantial.” Courts evaluate this from several different angles, any one of which can decide the issue. Often, the strongest argument against finding a substantial federal issue is the requirement that the federal issue be “a nearly pure issue of law, one that could be settled once and for all and thereafter would govern numerous [similar] cases,” rather than one that is “fact-bound and situation-specific.”³⁸⁶Empire Healthchoice Assurance v. McVeigh, 547 U.S. 677, 700-01 (2006) (citation omitted). The court in Corporan v. Wal-Mart cited this reason to remand the case back to state court, identifying “a fact-bound, private dispute between parties with no direct interest by the United States.”³⁸⁷Corporan v. Wal-Mart Stores E., LP, 194 F. Supp. 3d 1128, 1133 (D. Kan. 2016); see also Ramos v. Wal-Mart Stores, Inc., 202 F. Supp. 3d 457, 470 (E.D. Pa. 2016) (remanding for lack of a substantial federal question). The facts of Corporan involved a straw purchase that the plaintiffs—relatives and heirs of a doctor killed using the straw-purchased gun—asserted was negligence, negligent entrustment, and negligence per se on the part of the gun store.³⁸⁸Corporan, 194 F. Supp. 3d at 1129-30. Plaintiffs alleged that the sale violated various duties on the part of dealers under state law and the federal Gun Control Act (“GCA”), prompting the defendant to remove the case. The court found it unnecessary to define the dealer’s duties under federal law in light of independent alternative theories grounded solely in state law.³⁸⁹Id. at 1132. It also found the question of duty inextricably wrapped up in factual questions about the defendant’s conduct, presenting a fact-bound dispute without broader implications and thus without a substantial federal question.³⁹⁰Id. at 1132-34.

Another approach is that “the ‘substantiality inquiry . . . looks [] to the importance of the issue to the federal system as a whole.’”³⁹¹Fracasse v. People’s United Bank, 747 F.3d 141, 144 (2d Cir. 2014) (quoting Gunn, 568 U.S. at 260). “Garden-variety tort claims” where a claim created by state law “lean[s] on violations of a federal statute to create a presumption of negligence” generally do not contain a sufficiently substantial federal issue to sustain jurisdiction.³⁹²Tisdale v. Pagourtzis, No. 20-CV-140, 2020 WL 7170491, at *1, *6 (S.D. Tex. Dec. 7, 2020). The Tisdale v. Pagourtzis case, which stemmed from a 2018 school shooting in Texas that involved the negligent sale of ammunition to a minor in violation of a federal statute, was remanded back to state court on this basis.³⁹³Id. at *5-6 In that case, the plaintiffs had brought negligence claims against the defendant ammunition company, arguing that the company had violated federal law on the sale of ammunition to minors. But, in remanding the case, the court held that the state tort claims were “simply unimportant to the federal system as a whole.”³⁹⁴Id. at *6.

Finally, the lack of a private right of action under an embedded federal statute can also provide an important argument to remand a case back to state court.³⁹⁵Grable, 545 U.S. at 318 (“The [Merrell Dow] Court saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat.”). Under this rubric, a federal issue that constitutes an “element of a state cause of action” but for which “Congress has determined that there should be no private, federal cause of action for the violation” is not a substantial federal issue.³⁹⁶See Corporan, 194 F. Supp. 3d at 1133 (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 817 (1986), and noting that this holding was affirmed in Grable, 545 U.S. at 318–19). Notably, neither the Gun Control Act nor the National Firearms Act has a private right of action.

This was an additional basis for remand in Corporan, where the lawsuit was a “state-law negligence action in which a violation of a federal statute is asserted merely as an element of a negligence per se theory” and could not have been the basis for its own standalone claim.³⁹⁷Id. Thus, the lawsuit was “‘unmistakably of the kind that, absent federal subject matter jurisdiction in diversity, belongs in state court so as not to ‘materially affect, or threaten to affect, the normal currents of litigation.’”³⁹⁸Id. Similarly, in Ramos v. Wal-Mart Stores, a tortious ammunition sale that violated federal age restrictions was found not to present a substantial federal question because, among other things, the embedded federal statute did not create a private right of action.³⁹⁹Ramos, 202 F. Supp. 3d at 469-70.

The remand decision in Getz v. Sturm, Ruger & Co., Inc. synthesizes these various approaches in a lengthy, thoughtful analysis.⁴⁰⁰No. 23-CV-1338, 2024 WL 1793670 (D. Conn. Apr. 25, 2024). Getz involved a mass shooting in which the shooter used what was sold as an AR-15 “pistol” with a stabilizing arm brace.⁴⁰¹Id. at *3-4. Plaintiffs sued the manufacturer (Ruger) for state-law wrongful death and unfair trade practices claims predicated on the wrongful marketing of the firearm as a pistol when it was in fact a short-barreled rifle subject to extensive restrictions on sale and possession under federal law.⁴⁰²Id. at *1. Ruger removed, and the plaintiffs conceded that the federal issue—whether the firearm was a short-barreled rifle under federal law—was necessarily raised and actually disputed.⁴⁰³Id. at *5. But the court remanded, holding that the federal issue was nonetheless insubstantial.⁴⁰⁴Id.

In doing so, the court walked through each of the approaches to evaluating substantiality described above. First, it identified that the relevant provisions of federal law neither contained a private right of action nor preempted the plaintiffs’ state law claims.⁴⁰⁵Id. at *7. Next, the court determined that the disputed issue of whether the subject weapon was designed and intended to be fired from the shoulder was “primarily an issue of historical fact” rather than a pure question of law.⁴⁰⁶Id. at *8. The court also noted that the federal issue was not outcome-dispositive on its own, as a jury would still need to make findings on issues defined by state law (namely, causation and whether defendants’ conduct violated the state unfair trade practices law).⁴⁰⁷Id. Finally, the court rejected Ruger’s argument that a finding of liability would have a significant impact on the federal regulatory scheme for firearms though it acknowledged that this question was “a matter of degree.”⁴⁰⁸Id. at *9. In sum, the federal issue:

“does not fundamentally change the state-law nature of the case; it is fact-bound and situation-specific to a degree that is characteristic of private enforcement actions commonly adjudicated in state courts; the issue is not outcome determinative; and the federal interest in the parties’ dispute does not ‘justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues.’⁴⁰⁹Id. at *10 (quoting Grable, 545 U.S. at 312).

Removal Based on Diversity of Citizenship Jurisdiction

For a defendant to remove a case to federal court on the basis of diversity, “there must be complete diversity between the plaintiffs and the defendants, in other words, no plaintiff can be a citizen of the same state as any of the defendants.”⁴¹⁰Soto v. Bushmaster Firearms Int’l, LLC., 139 F. Supp. 3d 560, 561 (D. Conn. 2015); see also 28 U.S.C. § 1332(a)(1). In some cases, plaintiffs may share citizenship with certain defendants—like the shooter, or a local dealer—while other defendants in the supply chain hail from other states. In a scenario like this, defendants seeking to remove notwithstanding the lack of complete diversity will likely contend that the non-diverse defendants are fraudulently joined. But this carries a demanding standard of proof: “[t]o establish fraudulent joinder, the defendants ‘must demonstrate, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiff’s pleadings, or that there is no possibility, based on the pleadings, that [the] plaintiff[s] can state a cause of action against the non-diverse defendant in state court.’”⁴¹¹Soto, 139 F. Supp. 3d at 561 (citation omitted). As in all removals, the defendants bear the burden of establishing that federal jurisdiction exists.⁴¹²Id.

In Soto, out-of-state defendants argued that plaintiffs fraudulently joined the Connecticut business alleged to have sold the rifle used in the Sandy Hook shooting.⁴¹³Id. at 562. Specifically, they argued that PLCAA foreclosed any possibility of a claim against the local gun store.⁴¹⁴Id. In response, the Soto plaintiffs invoked two exceptions to PLCAA: that the store negligently entrusted the rifle to the shooter’s mother and that it had marketed the rifle in violation of Connecticut’s Unfair Trade Practices Act (“CUTPA”).⁴¹⁵Id. at 564. The ultimate viability of the claims against the store hinged on two issues of first impression: whether the word “use” in PLCAA’s negligent entrustment exception means something broader than the “discharge” of the firearm, and whether CUTPA was a valid predicate statute.⁴¹⁶Id.

The court rejected the argument that the gun store was fraudulently joined and declined to resolve these underlying merits questions on a motion to remand. In doing so, the court clarified the “no possibility” standard for fraudulent joinder, holding that it must be “objectively reasonable to infer that the plaintiff has engaged in a form of litigation abuse.”⁴¹⁷Id. at 562. The court compared this to the Rule 11 standard for sanctions: “[t]he analysis under both Rule 11 and fraudulent joinder therefore turns not on how likely a claim is to succeed, but rather on whether the claim is objectively frivolous.”⁴¹⁸Id. at 563. This high standard was not met based on the contested issues of first impression, even though the court recognized the possibility that PLCAA might ultimately require dismissal. Instead, it found that defendants could not establish fraudulent joinder where “neither the statute itself nor any controlling case conclusively establishes that the plaintiffs cannot state a cause of action against [the gun store].”⁴¹⁹Id. at 565. It then remanded the case to state court.

Different courts of appeal articulate the “no possibility” standard slightly differently, but the takeaway is the same: a claim against a defendant must basically be frivolous to support finding fraudulent joinder. In Ramos v. Wal-Mart, the court stated the standard as such:

“The fact that a plaintiff may not be able to prevail against a particular defendant does not necessarily mean that the decision to file suit against that defendant was fraudulent—more must be shown before it is safe to conclude that the defendant was joined in bad faith. The question is not whether the claims against the non-diverse defendant lack merit, but rather whether those claims are ‘wholly insubstantial and frivolous,’ such that ‘they should have never been brought at the outset,’ This standard places a ‘heavy burden of persuasion’ on the removing party.”⁴²⁰Ramos v. Wal-Mart Stores, Inc., 202 F. Supp. 3d 457, 462 (E.D. Pa. 2016).

In Ramos, plaintiffs sued Wal-mart as well as two of the store’s employees over the sale of ammunition used in a series of murders.⁴²¹Id. at 460-62. While the store was a chain retailer headquartered in another state, the two defendant employees were residents of the same state as plaintiffs, precluding diversity jurisdiction.⁴²²Id. at 460. Wal-mart contended that they were fraudulently joined, submitting affidavits from the employees stating that they were not involved in the sale.⁴²³Id. at 462. The court rejected this invitation to resolve a disputed issue of fact on a motion to remand, holding that it must accept the well-pled allegations as true and that it would be improper to consider the affidavits for the purpose of adjudicating the merits of those allegations.⁴²⁴Id. The court held that “[t]he fact that there is some difference of opinion about whether such a claim would be viable means that the claim is not ‘wholly insubstantial and frivolous’” and ultimately remanded the case.⁴²⁵Id. at 466.

Removal based on Federal Officer Jurisdiction

Recently, one gun company unsuccessfully attempted to remove a case based on 28 U.S.C. § 1442, which allows federal officers or agencies, or persons acting under them, to remove a case to federal court. The private gun manufacturer Smith & Wesson tried this tactic in a case stemming from the July 4, 2022 Highland Park shooting by claiming that their relationship with ATF made Smith & Wesson itself a federal officer. The district court rejected this assertion, holding that binding U.S. Supreme Court precedent “snuffs out any possibility that Smith & Wesson acted as a federal officer.”⁴²⁶Roberts v. Smith & Wesson Brands, Inc., No. 22-CV-6169, 2023 WL 6213654, at *9 (N.D. Ill. Sept. 25, 2023). The Seventh Circuit affirmed, likewise citing binding precedent “hold[ing] that being subject to federal regulation differs from acting under a federal agent for the purpose of 28 U.S.C § 1442(a)(1).”⁴²⁷Roberts v. Smith & Wesson Brands, Inc., 98 F.4th 810, 813 (7th Cir. 2024) In its order, the circuit court instructed the trial court to consider a fee award to “reimburse the plaintiffs’ costs and fees occasioned by the unjustified removal and appeal.”⁴²⁸Id. at 816.

The sound rejection of the federal officer argument in Roberts, combined with the potential fee award for this baseless removal attempt, may dampen defendants’ appetite for far-fetched assertions of federal-officer status. However, the allure of this argument for defendants is undeniable: removing a case to federal court under the “federal officer” provision gives the defendant the right to appeal the district court’s remand order. Typically, a remand order is not appealable,⁴²⁹28 U.S.C. § 1447(d) (“An order remanding a case to the state court from which it was removed is not reviewable on appeal . . .”). but the federal officer statute is an exception to that rule and can further delay a case’s return to state court.

Other Procedural Considerations

Timely Removal: A few other procedural considerations are worth highlighting, as they can have an outsized impact on removal and remand. As a threshold matter, check whether defendants’ notice of removal was timely filed. Pursuant to 28 U.S.C. § 1446(b), “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” If the case stated in the initial pleading is not removable, a defendant may file a notice of removal within thirty days after receipt of an amended pleading, motion, order, or other paper indicating, for the first time, that the case has become removable.⁴³⁰28 U.S.C. § 1446(b)(3). The 30-day window for removal contained in Section 1446(b) is “mandatory” and “rigorously enforced” by courts, absent a finding of waiver or estoppel.⁴³¹Spencer v. Duncaster, Inc., 54 F. Supp. 3d 171, 174 (D. Conn. 2014) (“[T]he removal statute, like other jurisdictional statutes, is to be strictly construed.”); see also Phx. Glob. Ventures, LLC v. Phx. Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005); Apolinar v. Polymer80, Inc., No. CV 21-8401 PA (PVCX), 2021 WL 5798051, at *5 (C.D. Cal. Dec. 7, 2021) (remanding case on the basis of untimely filed removal notice).

Unanimity Requirement: Generally speaking, when the only basis for removal is federal question jurisdiction under 28 U.S.C. § 1441(a), all properly served defendants must unanimously agree to remove.⁴³²28 U.S.C. §§ 1441(a), 1446(b)(2)(A); see also Roberts, 98 F.4th at 814 (“Normally federal-question removal, including the embedded-federal-issue variety discussed in Grable, proceeds under § 1441(a), which allows the removal of all suits over which federal courts have original jurisdiction. Claims arising under federal law support jurisdiction [ ] so § 1441(a) permits their removal—if all defendants consent.”); Tisdale v. Pagourtzis, No. 20-CV-140, 2020 WL 7170491, at *3 (S.D. Tex. Dec. 7, 2020) (noting that “[t]here are three exceptions to this unanimity requirement: (1) where the defendant was not yet served with process at the time the removal petition was filed; (2) where a defendant is merely a nominal, unnecessary or formal party-defendant; and (3) where the removed claim is a separate and independent claim under 28 U.S.C. § 1441(c).” (quotation marks omitted)). However, some gun industry defendants have invoked 28 U.S.C. § 1441(c) in their notices of removal to get around the unanimity requirement of Section 1441(a). For example, this has happened when the gun industry defendants have not gotten the consent of the shooter or another individual defendant was named in the case.⁴³³Roberts, 98 F.4th at 812-13; Tisdale, 2020 WL 7170491, at *6. It is important to note that section 1441(c) is only available for cases that contain both federal and state law claims, and the state claims are so unrelated to the federal claims that a federal court cannot exercise supplemental jurisdiction over them. In such cases, the unrelated state law claims must be severed and remanded to state court, and the defendants named in those claims do not have to consent to the original removal.⁴³⁴28 U.S.C. § 1441(c). Plaintiffs should not assume that an asserted removal under 1441(c) is proper, since supplemental jurisdiction exists when the state-law claims share a “common nucleus of operative fact” with the purported federal-question claims.⁴³⁵See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). This standard is not particularly demanding as a “loose factual connection between the claims is generally sufficient.”⁴³⁶McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 683 (7th Cir, 2014). Thus, it is a rare case where all of the asserted claims in the complaint do not arise out of a common nucleus of operative fact and for this reason removal under §1441(c) has come to be known as “[p]erhaps the most unusual basis for removal.”⁴³⁷14C Charles Alan Wright et al., Federal Practice & Procedure § 3722.3 (Rev. 4th ed. 2020).

Sanctions: Pursuant to 28 U.S.C. § 1447(c), plaintiffs may seek costs and attorney’s fees for a case that is improperly removed.⁴³⁸Roberts, 98 F.4th at 815-16. The Supreme Court has held that a court may award attorney’s fees under Section 1447(c) where “the removing party lacked an objectively reasonable basis for seeking removal.”⁴³⁹Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).

Further Reading

Key Cases

• Roberts v. Smith & Wesson Brands, Inc., No. 22-CV-6169, 2023 WL 6213654 (N.D. Ill. Sept. 25, 2023), aff’d, 98 F.4th 810 (7th Cir. 2024) (remanding case because Smith & Wesson was not entitled to either federal officer or federal question jurisdiction)
  
• Getz v. Sturm, Ruger & Co., Inc., No. 23-CV-1338, 2024 WL 1793670 (D. Conn. Apr. 25, 2024) (remanding case and finding that federal question was not substantial where embedded federal law did not provide for private right of action or preemption, where federal question was fact-bound and situation-specific, and did not alter the fundamentally state-law nature of plaintiffs’ personal injury action)
  
• New York v. Arm or Ally, LLC, 644 F. Supp. 3d 70 (S.D.N.Y. 2022) (denying remand and concluding that state law claims raised a necessary and substantial federal issue where state law incorporated federal definition of firearm, requiring this definition to be interpreted and applied to defendants’ products)
  
• Soto v. Bushmaster Firearms Int’l, LLC, 139 F. Supp. 3d 560 (D. Conn. 2015) (remanding case for lack of complete diversity and finding that non-diverse defendant gun store was not fraudulently joined despite the possibility that PLCAA might preclude liability)
  
• Corporan v. Wal-Mart Stores E., LP, 194 F. Supp. 3d 1128 (D. Kan. 2016) (remanding claim against gun dealer for engaging in straw purchases in violation of state and federal law, because violation of federal statute was one of several theories and thus not essential to resolving state law tort claims, and did not raise a substantial federal question in any event)

• Ramos v. Wal-Mart Stores, Inc., 202 F. Supp. 3d 457 (E.D. Pa. 2016) (remanding claim against gun dealer and its employees, finding that non-diverse employees were not fraudulently joined, and that embedded federal issue was not actually disputed or substantial)

• Tisdale v. Pagourtzis, No. 20-CV-140, 2020 WL 7170491 (S.D. Tex. Dec. 7, 2020) (remanding and finding that although plaintiffs’ claims satisfied two Grable factors, the federal issue was not substantial and adjudicating it would disturb the balance of federal and state judicial responsibilities)

• Minnesota v. Fleet Farm LLC, 679 F.Supp.3d 825 (D. Minn. 2023) (denying remand and finding that plaintiff’s complaint necessarily raised a substantial federal issue where it alleged that defendants engaged in straw sales in contravention of federal law and federal regulatory guidance, and where court rejected possibility of liability predicated solely on state common-law or statutory theories)

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