This week, the Ninth Circuit parts ways with the Second Circuit on whether unnamed real defendants in interest can remove state cases to federal court and issues a split decision on Title IX liability.


The Court holds that only a named defendant may remove a case to federal court under 28 U.S.C. § 1441(a).

Panel: Judges Lucero (10th Cir.), Ikuta, and VanDyke, with Judge VanDyke writing the opinion

Key Highlight: “As a federal court, we must enforce congressionally enacted limits on our jurisdiction. Constrained by the text of 28 U.S.C. § 1441(a), we . . . hold that only the actual named ‘defendant or the defendants’ may remove a case under that removal provision.”

Background: American Brokers Conduit foreclosed on plaintiffs Vinod and Vijay Sharma’s (“Sharmas”) home when they defaulted on a loan. The property was ultimately sold to Deutsche Bank National Trust Company (“DBNTC”) as Trustee for HIS Asset Loan Obligation Trust 2007-1. The Sharmas filed suit in California state court against HIS Asset Loan Obligation Trust and HIS Asset Securitization Corporation for wrongful foreclosure. DBNTC, a party not named in the Sharmas’ lawsuit, removed the lawsuit to federal court. The district court denied the Sharmas’ request to remand the lawsuit to state court, concluding that, despite not being named as a defendant in the lawsuit, DBNTC was a proper party to remove the action to federal court because as trustee for HIS it was the “real party defendant in interest.”

Result: The Ninth Circuit reversed. The Court concluded that the district court erred when it denied remand because the text of 28 U.S.C. § 1441(a), the removal statute, authorizes only a “defendant or the defendants” to remove an action to federal court. Because an unnamed party removed this case, the district court should have remanded it instead of retaining jurisdiction. The Court rejected the Second Circuit’s decision La Russo v. St. George’s University School of Medicine, 747 F.3d 90 (2d Cir. 2014), which reached the contrary conclusion. The Court concluded that the Second Circuit’s rule allowing unnamed “real defendants in interest” to remove is contrary to the text of § 1441(a). La Russo is also contrary to the Supreme Court’s decision in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), which held that 28 US.C. § 1446(b), which sets out a 30-day deadline for removal, requires more than receipt of a complaint to start the 30-day removal clock for a named defendant who is not yet “under a court’s authority.” Because allowing an unnamed party to remove creates confusion about when the clock starts, La Russo crafted a workaround to modify this 30-day deadline and service requirement so that an unnamed defendant must remove within 30 days of being put “on notice that the wrong company defendant has been named.” But that workaround is contrary to Murphy Brothers. Because Murphy Brothers held that mere unofficial notice of a lawsuit is not enough to bring even a named (but unserved) defendant under a court’s authority and therefore trigger the 30-day removal deadline, it follows, a fortiori, that mere unofficial notice of a lawsuit cannot be enough to bring an unnamed non-defendant under the court’s authority and therefore trigger the 30-day removal deadline. The Ninth Circuit also concluded that La Russo‘s rule would be unworkable because it creates uncertainty about when the 30-day clock begins to run for an unnamed party who thinks it may later become an actual defendant.


The Court holds in a Title IX case where the harasser has history of campus assault allegations that the university’s failure to address prior abuse is not sufficient to meet Title IX’s control-over-context requirement.

Panel: Judges Fletcher, Miller, and Forrest, with Judge Forrest writing the opinion and Judge Fletcher dissenting.

Key highlight: “While Brown’s anger with how the University handled the reports of Bradford’s abuse of other students is understandable, her argument stretches the text of Title IX and the implied private action that the Supreme Court has recognized too far.”

Background: Plaintiff Mackenzie Brown was an undergraduate student at the University of Arizona. When she was a freshman in February 2016, she began dating Orlando Bradford, a football player for the university. Later that summer, Bradford became abusive toward Brown. In September 2016, Bradford physically assaulted Brown multiple times at his off-campus apartment over a two day period, causing her to suffer significant injuries. Brown told her mother, who reported the abuse to the police. Bradford was arrested, suspended from the university, and removed from the football team. He was expelled from the university one month after his arrest and later convicted of felony aggravated assault and domestic violence.

Brown filed a Title IX suit against the university. Under Title IX, universities are only liable for student-on-student harassment when the institution “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999). Brown alleged that the university was liable because it had failed to respond to previous reports that Bradford had physically abused two other students. Indeed, university Title IX officials were aware of Bradford’s previous assaults months before he assaulted Brown. Nevertheless, the university moved for summary judgment, arguing that there was no evidence that the university controlled the context in which Brown’s abuse occurred. The district court agreed with the university and granted summary judgment on that basis.

Result: The Ninth Circuit affirmed. The majority concluded that the university did not exercise substantial control over the context in which Brown’s abuse occurred. Reviewing the text of Title IX and the Supreme Court’s decision in Davis, the majority reaffirmed that control over context is a necessary element of Title IX liability. The majority reasoned that Bradford’s conduct was beyond university control because he lived “in a private, off-campus residence unconnected to any school activity.” Moreover, the majority wrote that “Brown’s effort to circumvent Davis‘s control-over-context requirement by focusing on the University’s knowledge of and failure to address Bradford’s prior abusive behavior fails.” The key question for the majority was not whether the university controlled the context of those previous assaults, but rather whether the university controlled the context around Brown’s specific abuse.

In dissent, Judge Fletcher provided a more detailed account of Bradford’s history of violence against Brown and his two previous victims. He then examined the two-factor test from Davis, focusing closely on the control-over-context requirement. Judge Fletcher wrote that in determining context, “the key consideration is whether the school has disciplinary authority over the harasser in the setting in which the harassment takes place.” Citing several cases, Judge Fletcher noted that universities may still be liable under Title IX for off-campus activity. In the instant case, Judge Fletcher focused on several key factors: the university funded Bradford’s off-campus apartment; Bradford required permission from the football team to live there; he only remained off-campus on condition of good behavior; and had the university investigated his earlier assault accusations, he likely could not have lived off campus in the first place. Together, these factors suggested that the university controlled the context in which Bradford assaulted Brown, according to Judge Fletcher.

The majority responded to and ultimately rejected Judge Fletcher’s theory of context. In the majority’s view, Judge Fletcher collapsed Title IX’s two-part control test into a single requirement. The majority agreed that the university exercised substantial control over Bradford given his status as a student-athlete, but rejected the notion that the university controlled Bradford’s off-campus housing. The majority concluded that “[c]onflating the control-over-context requirement into the control-over-harasser requirement expands Title IX’s implied private right of action beyond what Title IX can bear.”