The Court of Appeals for the Fifth Circuit found that a district court improperly remanded a case on the ground that the defendant had failed to file a notice of appeal. In Humphries v. Elliot Company, ___ F3d ____ (5th Cir. 2014) 2014 WL 3633197 plaintiff filed a suit against various defendants, including DuPont, arising out of his alleged work-related exposure to asbestos. DuPont removed the case to the United States District Court under ?1442(a) and asserted what is known as a “government contractor defense.” After the case was removed Elliot was served and shortly thereafter filed an answer in federal court in which it also asserted a “government contractor defense.” It did not file a separate notice of appeal.
After plaintiff settled with DuPont and other defendants, the district court, sua sponte remanded the case to the state court because it concluded that Elliot waived its right to pursue the government contractor defense in federal court because it failed to join in the notice of removal or file its own. In reversing the remand order the court said:
“We first consider the question of whether Elliott was required to file a notice of removal or a “joinder” in DuPont’s notice of removal in these circumstances, where it was not served until after the case was already removed to federal court. We conclude that nothing in the language of the statute or the pertinent case law requires such a meaningless act, and, therefore, the district court erred in concluding that Elliott’s “government contract defense” was irrelevant to its analysis of whether to remand to state court.”