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86 Def. Counsel J. 1 (2019)

handle is hein.journals/defcon86 and id is 1 raw text is: 










Good              Strategy                or          Forum

Manipulation?                   The           Continuing

Evolution of the Bad Faith Exception

to the One-Year Time Limit on

Removal


By:   Anne   K. Guillory


               Anne  Guillory is a civil litigator focused on defending a
               wide variety of personal injury claims including product
               liability, premises liability and general insurance defense.
               She  co-chairs the Toxic Tort Subgroup of Dinsmore &
               Shohl, LLP   and  serves on  the inhouse  Medicare
               Secondary Payer team.


  N  2011, Congress codified an
  equitable exception to the one-
  year time period for removing
cases to federal court based upon
diversity jurisdiction. 1 The new
bad faith exception was intended
to discourage forum manipulation
by plaintiffs while maintaining a
temporal limitation on removals. In
the nearly seven years since the
amendment   took effect, there is
little consensus on how to apply the
exception.


   The  resulting patchwork  of
interpretation is due largely to the
limited opportunities to appeal
removal  decisions.  A  decision
remanding a case to state court is
not   generally appealable,  so
defendants cannot challenge the
standard applied by the  district
court2 On the other hand, a plaintiff
cannot appeal a decision finding bad
faith and retaining jurisdiction until
the case  concludes by  trial or
dispositive ruling. 3 As a result, we


3 See, e.g., Walker v. Philip Morris USA, Inc.,
443 Fed. Appx. 946 (6th Cir. 2011)


1 See 28 U.S.C. §1446(c)(1).
2 28 U.S.C. §1447(d).

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