GEORGE W. JACKSON, Third Party Plaintiff - Appellee,
HOME DEPOT U.S.A., INCORPORATED, Third Party Defendant-Appellant, and CAROLINA WATER SYSTEMS, INC.; CITIBANK, N.A., Defendants.
Argued: December 5, 2017
from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:16-cv-00712-GCM)
Stewart Haskins, II, KING & SPALDING, LLP, Atlanta,
Georgia, for Appellant.
Kevin Lietz, VARNELL & WARWICK, P.A., Lady Lake, Florida,
Merritt McAlister, J. Andrew Pratt, Zheyao Li, Atlanta,
Georgia, Antonio E. Lewis, KING & SPALDING, LLP,
Charlotte, North Carolina, for Appellant.
K. Bryson, WHITFIELD, BRYSON & MASON, LLP, Raleigh, North
Carolina; Rashad Blossom, BLOSSOM LAW PLLC, Charlotte, North
Carolina; Janet R. Varnell, VARNELL & WARWICK, P.A., Lady
Lake, Florida, for Appellee.
NIEMEYER, SHEDD and DUNCAN, Circuit Judges.
DUNCAN, CIRCUIT JUDGE
Defendant Home Depot U.S.A., Inc., filed a Petition for
Permission to Appeal the district court's order remanding
this case to state court. This court deferred ruling on Home
Depot's Petition for Permission to Appeal pending
consideration of the merits of the appeal. Home Depot argues
that it is entitled to remove the class action counterclaim
against it despite Fourth Circuit precedent to the contrary
because either the Supreme Court has called this precedent
into question or it is distinguishable here. Home Depot also
appeals the district court's denial of its motion to
realign the parties.
grant Home Depot's Petition for Permission to Appeal. For
the reasons that follow, we affirm both the district
court's decision to remand this case to state court and
its denial of Home Depot's motion to realign the parties.
9, 2016, Citibank, N.A., filed a debt collection action
against George W. Jackson in the District Court Division of
the General Court of Justice of Mecklenburg County, North
Carolina. Citibank alleged that Jackson failed to pay for a
water treatment system he purchased using a Citibank-issued
credit card. On August 26, 2016, Jackson filed an Answer in
which he asserted a counterclaim against Citibank and
third-party class action claims against Home Depot and
Carolina Water Systems, Inc. ("CWS"). Jackson
alleged that Home Depot and CWS engaged in unfair and
deceptive trade practices by misleading customers about their
water treatment systems, and that Citibank was jointly and
severally liable to him because Home Depot "directly
sold or assigned the transaction to" Citibank. J.A. 51.
On September 23, 2016, Citibank voluntarily dismissed its
claims against Jackson without prejudice.
Depot filed a notice of removal on October 12, 2016, citing
federal jurisdiction under the Class Action Fairness Act of
2005 ("CAFA"). Home Depot asserted that its notice
of removal was timely under 28 U.S.C. § 1446(b) because
it was filed within thirty days of its September 12, 2016,
receipt of Jackson's counterclaim. On October 28, 2016,
Home Depot moved to realign the parties with Jackson as
plaintiff and Home Depot, CWS, and Citibank as defendants. On
November 8, 2016, Jackson moved to remand. On November 18,
2016, Jackson amended his third-party complaint to remove any
reference to Citibank.
district court denied Home Depot's motion to realign
because it concluded that this was not a case "where
there are antagonistic parties on the same side, " and
granted Jackson's motion to remand because Home Depot did
not meet the removal statute's definition of
"defendant." See Citibank, N.A. v.