“The Second Circuit can preserve judicial resources by explicitly recognizing the revival doctrine.”
— John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s brief.

WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Second Circuit to reverse a decision remanding a case to New York state court.  WLF argues that the Second Circuit should adopt the revival doctrine and apply it here.

The case arises from the defendants’ remediation of four sites under the Comprehensive Environmental Response, Compensation, and Liability Act. In 2012, residents of Niagara Falls sued for negligent remediation at one CERCLA site. The case was removed to federal court and then remanded to state court. Over seven years later, the plaintiffs added claims about remediation at three new CERCLA sites. The three new sites differed substantially from the site in the initial suit. So the defendants again removed the case to federal court. Among the arguments for removal, the defendants argued that the amended complaint revived their right to remove the case to federal court. The U.S. District Court for the Western District of New York rejected this argument and remanded the case to state court.

In its amicus brief supporting the defendants, WLF argues that the Second Circuit should adopt the revival doctrine. District courts in the Second Circuit continue to note the lack of guidance on the issue, which is more important after the Supreme Court expanded the scope of appellate review of remand orders in B.P. v. Mayor and City Council of Baltimore. By permitting removal when the plaintiff substantially changes the suit by amending the complaint, the revival doctrine prevents plaintiffs from sandbagging meritorious federal claims to convince defendants to stay in state court. It does so without giving defendants additional information on how a state court will handle the new claims before the defendants may seek removal.

WLF’s brief also explains why the revival doctrine applies here. The amended complaint added three new sites where different types of chemicals were dumped. Those sites were each governed by a separate consent decree. The amended complaint also requested different, and more, relief than the original complaint. Because EPA oversees remediation of CERCLA sites, any alleged negligence during that cleanup necessarily raises a federal question and can be removed under the federal-officer removal statute. WLF therefore urges the Second Circuit to reign in plaintiffs’ gamesmanship by recognizing and applying the revival doctrine.