Under federal law, when a plaintiff files a lawsuit in state court that falls under federal jurisdiction, the defendant has the right to remove the case to federal court. However, according to 28 U.S.C. § 1446(b)(1), this notice of removal must be filed within a strict 30-day deadline upon receiving the complaint. Occasionally, the courts are faced with the question of whether they have the authority to extend this deadline under specific circumstances, a concept known as “equitable tolling.”
The case of Enbridge Energy LP v. Nessel brings this matter to the forefront. In June 2019, Michigan Attorney General Dana Nessel filed a lawsuit in state court against Enbridge, seeking to shut down the Line 5 pipeline due to environmental concerns. Notably, Enbridge did not initially seek to remove the case to federal court.
Matters became complex when Michigan Governor Gretchen Whitmer filed a similar lawsuit in 2020, which Enbridge removed timely to federal court. However, in December 2021, Enbridge attempted to remove the original Nessel case to federal court 30 months post-filing. The federal district court ruled in favor of Enbridge, citing “exceptional circumstances” that justified the late removal. However, this decision was overturned by the U.S. Court of Appeals for the 6th Circuit, which ruled that the 30-day timeframe is mandatory and not subject to equitable tolling (full ruling here).
Enbridge argues that the deadline should be subject to tolling due to a general presumption favoring equitable tolling for statutory periods unless Congress explicitly indicates otherwise. Enbridge believes that Section 1446(b)(1) does not preclude tolling. Conversely, Michigan contends that such tolling is inappropriate for procedural deadlines intended to determine litigation forums and expressed through language suggesting mandatory nature, as signified by the term “shall.”
The broader implications of this debate lie in how it might influence civil litigation strategies and initial forum selection between state and federal courts. Should the Supreme Court rule in favor of tolling, this could potentially allow for more flexibility in removals but could also introduce uncertainties regarding litigation timelines.
This legal question, while narrower than the broader stakes of the Line 5 operation, could redefine procedural expectations for federal removals in the U.S. legal landscape. Additional details can be found in the SCOTUSblog coverage on this case.