Can courts excuse late removals to federal court?

As many law students learn in their civil procedure course, when a plaintiff files suit in state court asserting a claim over which a federal district court would have jurisdiction, federal law permits the defendant to remove the case to federal court. But the defendant must act quickly: 28 U.S.C. § 1446(b)(1) requires the notice of removal to be filed within 30 days of receiving the complaint or being served with process. The question in Enbridge Energy LP v. Nessel – on which the court will hear argument on Feb. 24 – is whether district courts are authorized to extend (or “equitably toll”) this 30-day deadline for excusable reasons.

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Enbridge has a fascinating backstory, most of which is irrelevant to the question before the court. In June 2019, Michigan Attorney General Dana Nessel filed this suit in Michigan state court seeking to shut down “Line 5,” an oil and natural-gas-liquids pipeline running beneath the Straits of Mackinac. (Line 5 supplies a huge portion of the crude oil and propane consumed in Michigan, Ohio, Ontario, and Quebec.) Nessel’s complaint alleges that the operation of Line 5 violates, among other things, Michigan public-trust and nuisance law, posing an unacceptable risk of catastrophic environmental harm.

Enbridge did not initially seek to remove the case to federal court, instead filing a motion for summary disposition. In November 2020, when that motion was pending, Michigan Governor Gretchen Whitmer filed a separate lawsuit against Enbridge on behalf of Michigan, also in Michigan state court, asserting basically the same claims. (At this point, the Canadian government announced that Michigan’s shutting down of Line 5 would put the U.S. in violation of the 1977 Transit Pipelines Treaty.) Enbridge timely removed this second case to federal court, likely thinking that a federal district court would be a friendlier forum than a Michigan trial court. In November 2021, the federal district court held that Whitmer’s suit presented “substantial federal questions,” making the removal proper. Shortly thereafter, Whitmer voluntarily dismissed her case, leaving Michigan’s first suit (brought by Nessel) still pending in state court.

At that point, in December 2021 – 30 months after Nessel had filed suit – Enbridge filed a notice of removal to federal court, to which Michigan timely objected. The federal district court held that Enbridge’s removal was proper, concluding that Section 1446(b)(1)’s 30-day limit “is overcome in exceptional circumstances, where overriding federal interests or compelling equitable considerations are evidenced,” and that such “exceptional circumstances” were present here. On appeal, the U.S. Court of Appeals for the 6th Circuit reversed, determining that the 30-day limit is not subject to equitable tolling.

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Everyone agrees that Section 1446(b)(1)’s 30-day deadline does not affect the district court’s jurisdiction. Instead, the question is whether the time limit is mandatory: if a plaintiff timely objects to a defendant’s late notice of removal, is the district court required to send the suit back to state court, regardless of the circumstances?

Enbridge contends there is a strong and longstanding presumption in favor of equitable tolling for all statutory deadlines that prescribe a period in which certain rights can be enforced. According to it, this means Section 1446(b)(1)’s 30-day deadline is subject to tolling unless Congress has clearly indicated otherwise. To Enbridge, nothing in §1446(b) reveals such an intent. First, Section 1446(b) does not expressly prohibit tolling; indeed, it does not even speak to the question. Second, Section 1446(b)(1)’s language is “not meaningfully different from that of other statutes” the court has held are subject to tolling. Third, Section 1446(b)’s 30-day window is quite short – and certainly not “unusually generous” – which, in Enbridge’s view, suggests Congress understood courts would be authorized to toll the deadline in appropriate circumstances. Finally, Congress declined to build any equitable tolling language into Section 1446(b) and supplant the background rule.

By contrast, Michigan argues that the presumption in favor of tolling only applies to statutes of limitations – deadlines directed to when plaintiffs must file their claims. In that context, the presumption makes sense, as it can protect plaintiffs from forfeiting their claims entirely. But Section 1446(b) only applies after a plaintiff has already filed suit, and it merely concerns the forum in which the case will be litigated. For these sorts of deadlines – those with “broader system-related” objectives, such as “facilitating the administration of claims” or “promoting judicial efficiency” – Michigan contends that tolling is generally inapt.

Moreover, argues Michigan – even if a presumption in favor of tolling applied to Section 1446(b) – it is overcome here because Congress has made plain its intent to preclude tolling. The statute’s text sets a strict 30-day requirement, providing that a notice of removal “shall be filed within 30 days.” The word shall “normally creates an obligation impervious to judicial discretion.” And Section 1446(b)’s structure – which, as Michigan points out, includes six explicit exceptions to the 30-day deadline – evinces an intent to preclude courts from extending the deadline for other reasons. What’s more, Michigan argues, the central purpose of Section 1446(b) is to determine the forum early in the litigation – forbidding a litigant from “experiment[ing] in the State court until satisfied he would fail there,” and preventing “the delay and waste of resources” when a case starts over “in a second court after significant proceedings” have already taken place. To Michigan, tolling would frustrate these basic objectives.

Towards the end of their briefs, the parties tussle over whether – if Section 1446(b) is indeed subject to tolling – the circumstances in this case justified Enbridge’s 30-month delay in filing its notice of removal. But the 6th Circuit did not address the issue, and it lies outside the question presented – i.e., simply whether Section 1446(b) is subject to tolling. It thus seems unlikely the court will reach that issue.

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Whether Michigan succeeds in shutting down Line 5 will have significant economic and political ramifications. But the question before the court in Enbridge is much narrower. Still, whether Section 1446(b)’s 30-day deadline for removal is subject to equitable tolling could have important consequences for civil litigation in the U.S., particularly when parties have a strong preference for litigating in state or federal court.