Tri-State Water Treatment, Inc., Plaintiff/Counterclaim- Defendant,
Michael Bauer and Stacey Bauer, Defendants/Counterclaim-Plaintiffs/ Appellees,
Home Depot U.S.A., Inc., Counterclaim-Defendant, Appellee.
December 1, 2016
from the United States District Court for the Southern
District of Illinois. No. 16-cv-0419-MJR-RJD - Michael J.
Reagan, Chief Judge.
WOOD, Chief Judge, and Flaum and ROVNER, Circuit Judges.
First Bank v. DJL Properties, LLC, 598 F.3d 915 (7th
Cir. 2010), we held that a counterclaim-defendant is not
entitled to remove a case from state court to federal court
under the provisions of the Class Action Fairness Act (CAFA),
28 U.S.C. § 1453(b). Today's case presents a related
question: whether, even though the original
counterclaim-defendant is barred from removing, an additional
counterclaim-defendant may nevertheless do so. We conclude
that the statute does not support treating an original
counterclaim-defendant differently from a new one, and so we
affirm the district court's order remanding this case to
case began as a simple collection action brought in the Small
Claims Court of Madison County, Illinois, by Tri-State Water
Treatment, Inc., against Stacey and Michael Bauer. Tri-State
alleged that the Bauers failed to pay for a water treatment
system it had installed at their house following a free,
in-home assessment of their water. The Bauers responded on
June 5, 2015, by answering the complaint and filing a
counterclaim against Tri-State. See 735 ILCS 5/2-608. But it
was not just any counterclaim: it asserted a multi-state
class action against Tri-State for fraud in connection with
the sale of its water-treatment system. See 735 ILCS 5/2-801.
For purposes of the counterclaim, the Bauers were
counterclaim-plaintiffs and Tri-State was the sole
became more complicated when, on February 26, 2016, the
Bauers filed an amended class-action counterclaim in which
they added Home Depot U.S.A., Inc., and Aquion, Inc., as
counterclaim-defendants. See 735 ILCS 5/2-616(a) (permitting
amendments that "introduce] any party who ought to have
been joined as plaintiff or defendant"). The Bauers
served the amended counterclaim on Home Depot on March 15,
amended counterclaim defines the class as consumers who
purchased a water treatment system from Tri-State, Rainsoft,
and Home Depot, following an in-home water test. It asserts
that the counterclaim-defendants conducted in-home water
tests that did nothing but identify mineral content, rather
than contaminants, and thereby misled consumers into buying
their water treatment systems.
Depot filed a timely notice of removal on April 14, 2016. See
28 U.S.C. §§ 1446(b)(1), 1453(b). It argued that
even though it was not an original "defendant" in
the underlying case, its status as an additional
counterclaim-defendant in an action meeting CAFA's
criteria entitled it to take this step. The Bauers filed a
motion to remand pursuant to 28 U.S.C. § 1447(c). They
argued that the general removal statute (§ 1446), as
modified by CAFA, does not permit any kind of
counterclaim-defendant (original or additional) to remove,
and thus that the case had to be returned to the state court.
order issued on September 29, 2016, the district court agreed
with the Bauers' position. It concluded that CAFA did not
disturb the longstanding rule that only original defendants
can remove cases to federal court. The court relied in
particular on First Bank v. DJL Properties, LLC,
supra, which it read as a broad statement that only the
original defendants are entitled to remove, not any of the
hyphenated defendants, whether initial
counterclaim-defendants, new counterclaim-defendants,
third-party defendants, or anything else in that general
October 11, 2016, Home Depot petitioned this court for
permission to appeal the remand order pursuant to 28 U.S.C.
§ 1453(c). We granted that request on November 16, 2016,
in order to resolve the unsettled question whether CAFA
permits an additional counterclaim-defendant to remove an
action. See 28 U.S.C. § 1453(c)(2); Hart v. FedEx
Ground Package Sys., Inc., 457 F.3d 675, 679 (7th Cir.
party seeking removal, Home Depot bears the burden of
establishing federal jurisdiction. In re Safeco Ins. Co.
of Am.,585 F.3d 326, 329-30 (7th Cir. 2009); Brill
v. Countrywide Home Loans, Inc.,427 F.3d 446, 447-48
(7th Cir. 2005). It argues that Congress granted parties in