In order to distinguish BANA from a plaintiff that is already party to an action when a counterclaim is asserted against it, the Court will use the phrase "additional counterclaim defendant" to describe BANA's status. See Westwood Apex v. Contreras, 644 F.3d 799, 801 (9th Cir. 2011) (labeling "a party joined to an action as a defendant to a counterclaim" as an "additional counterclaim defendant"). B. Is BANA a "Defendant" under 28 U.S.C. § 1441(a)?
Courts therefore interpret § 1441 in accordance with Shamrock Oil . See, e.g. , Westwood Apex v. Contreras , 644 F.3d 799, 805 (9th Cir. 2011) ; First Nat'l Bank of Pulaski v. Curry , 301 F.3d 456, 462–63 (6th Cir. 2002). Congress, however, has expanded removal authority for class actions. It enacted CAFA "to curb perceived abuses of the class action device which, in the view of CAFA’s proponents, had often been used to litigate multi-state or even national class actions in state courts."
Nothing in First Bank is inconsistent with this outcome. We are further reinforced in our conclusion by the fact that no circuit has adopted Home Depot's view. The only two circuits that have squarely addressed this issue agree with us. Palisades Collections LLC v. Shorts , 552 F.3d 327, 334–36 (4th Cir. 2008) ; Westwood Apex v. Contreras , 644 F.3d 799 (9th Cir. 2011). Indeed, First Bank cited Palisades with approval.
Section 1453(b) thus eliminates three constrictions on removal that are present in cases not under the Act: (1) the one-year general limit on removal of a case after the commencement of the state court action, Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 406–07 (6th Cir.2007); (2) the rule that a “home-state” defendant may not remove the case; and (3) the requirement that all the defendants must consent to the removal. See Westwood Apex v. Contreras, 644 F.3d 799, 803–04 (9th Cir.2011). The parties dispute the meaning of “any defendant” under section 1453(b).
Id. at 106-07 (interpreting statute to comport with construction of prior statute in West v. Aurora City, 6 Wall. 139, 73 U.S. 139, 142 (1867)). The Shamrock Oil rule has been applied to CAFA in several cases. For example, in Duetsche Bank National Trust Co. v. Collins, No. 4:11-CV-4092 SOH, 2012 WL 768206 (W.D. Ark. March 7, 2012), and in Resurgent Capital Services LP v. Thomason, No. 12-3436-CV-ODS, 2012 WL 5398289 (W.D. Mo. Nov. 5, 2012), district courts in this circuit held that a plaintiff who is named as a defendant in a class-action counterclaim cannot remove based on CAFA. And in Westwood Apex v. Contreras, 644 F.3d 799, 806 (9th Cir. 2011), the Ninth Circuit held that a party added to the case as an additional counterclaim defendant could not remove under CAFA. The cases based their decision on the "any defendant" wording of CAFA and pointed out that if Congress had meant to include counterclaim defendants it could have said so.
" In Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L. Ed. 1214 (1941), the United States Supreme Court held that the statute precludes "removal by a state-court plaintiff who 'was in point of substance a defendant to the cause of action asserted in the counterclaim.'" Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir. 2011) (quoting Shamrock Oil, 313 U.S at 104). "Since Shamrock Oil, the law has been settled that a counterclaim defendant who is also a plaintiff to the original state action may not remove the case to federal court.
Rather than indicate that a counterclaim defendant can remove, "here the word ‘any’ is being employed in connection with the word ‘all’ later in the sentence—‘by any ... without ... the consent of all .’ " Westwood Apex v. Contreras , 644 F. 3d 799, 804 (CA9 2011) ; see Palisades Collections LLC v. Shorts , 552 F. 3d 327, 335–336 (CA4 2008). Neither clause—nor anything else in the statute—alters § 1441(a) ’s limitation on who can remove, which suggests that Congress intended to leave that limit in place.
We do not "construe a statute by reading related clauses in isolation or taking parts of a whole statute out of their context." Westwood Apex v. Contreras, 644 F.3d 799, 804 (9th Cir. 2011). Because the statute here includes both physical and non-physical "means of identification," we think that the far more reasonable interpretation of "used . . . on" in § 1028(d)(1) includes the use of non-physical authentication features that are naturally associated with a physical or non-physical "means of identification."
Defendants may remove cases to federal court, but generally third-party defendants may not. See Westwood Apex v. Contreras, 644 F.3d 799, 805 (9th Cir. 2011). Yet "[c]ourts may realign parties, according to their ultimate interests, whether the realignment has the effect of conferring or denying subject matter jurisdiction on the court."
The text of 49 U.S.C. § 44112 provides protection from liability only when the aircraft's lessor possesses neither actual possession nor actual control. See Westwood Apex v. Contreras, 644 F.3d 799, 804 (9th Cir. 2011) ("An excerpted clause in a statute cannot be interpreted without reference to the statute as whole, nor can it be understood free from the sentence in which it was included."). Legislative history supports this reading of the statute, as the statute's "purpose was to assure that liability under such laws would not attach to the holder of a security interest solely by virtue of that interest."