The Supreme Court decided Home Depot v. Jackson, No. 17-1471, this morning about whether a third-party counterclaim defendant can remove a case to federal court under general federal removal provisions or under the Class Action Fairness Act's removal provision, 28 U.S.C. § 1453. The Court held, in a 5-4 opinion by Justice Thomas, that removal is not appropriate in that circumstance. The first paragraph of Justice Thomas's opinion sums it up:
The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant—that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove.
