United States Court of Appeals

For the First Circuit

No. 21-1918

CARIBE CHEM DISTRIBUTORS, CORP.,

Plaintiff, Appellee,

v.

SOUTHERN AGRICULTURAL INSECTICIDES, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Barron, Chief Judge,

Kayatta and Montecalvo, Circuit Judges.

Ricardo F. Casellas Sánchez, with whom Carla S. Loubriel 

Carrión and Casellas Alcover & Burgos, PSC were on brief, for 

appellant.

Edgardo Santiago-Torres, with whom Santiago-Torres Law 

Offices, LLC was on brief, for appellee.

March 13, 2024
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KAYATTA, Circuit Judge. In this opinion we adopt the 

so-called "voluntary/involuntary" rule to determine that the 

removal of this lawsuit from Commonwealth to federal court was 

improper. A Puerto Rican company, Caribe Chem ("Caribe"), filed

a complaint in a Puerto Rico court against a Florida company, 

Southern Agricultural Insecticides ("Southern"), and another

Puerto Rico company and its principal, a citizen of Puerto Rico. 

As filed the lawsuit was not initially removable to federal court, 

because there was no complete diversity, no federal question, and 

no other basis for asserting federal-court jurisdiction. In due 

course, the two Puerto Rican defendants successfully procured an 

order dismissing them from the lawsuit on statute-of-limitations 

grounds over Caribe's objection. About thirteen days later 

Southern removed the case to federal court, citing the now-complete 

diversity of the remaining parties. The district court rejected 

the removal, and granted Caribe Chem's motion to remand to 

Commonwealth court. Southern thereupon appealed the remand order. 

I.

Before proceeding to the merits, we note that Caribe 

questions whether the district court's remand order is appealable

under 28 U.S.C. § 1447(d), given that the district court 

characterized its order as relying on a defect in removal 

procedure. See 28 U.S.C. § 1447(d) ("An order remanding a case to 

the State court from which it was removed is not reviewable on 
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appeal or otherwise . . . ."); BP P.L.C. v. Mayor of Balt., 141 

S. Ct. 1532, 1541 (2021) (explaining that 28 U.S.C. § 1447(d) bars 

appellate review of "remand orders premised on a lack of subject 

matter jurisdiction or a defect in removal procedure").

Neither party's brief treats this issue in a manner that 

facilitates its resolution. And because "[t]his case poses a 

question of statutory, not Article III, jurisdiction," and 

therefore "the question of jurisdiction 'need not be resolved if 

a decision on the merits will favor the party challenging the 

court's jurisdiction,'" we will assume that we have appellate

jurisdiction for the purposes of resolving Southern's appeal.1 Doe

v. Town of Lisbon, 78 F.4th 38, 45 (1st Cir. 2023) (quoting Akebia 

Therapeutics, Inc. v. Azar, 976 F.3d 86, 92 (1st Cir. 2020)). 

II.

Sometimes, as here, a lawsuit that initially lacks 

complete diversity of citizenship between the plaintiff and the 

1 Caribe also states without elaboration that we should 

abstain from exercising jurisdiction over this appeal under socalled Younger abstention. The Supreme Court has made clear that 

"[c]ircumstances fitting within the Younger doctrine . . . are 

'exceptional'" and include "state criminal prosecutions, civil 

enforcement proceedings, and civil proceedings involving certain 

orders that are uniquely in furtherance of the state courts'

ability to perform their judicial functions." Sprint Commc'ns, 

Inc. v. Jacobs, 571 U.S. 69, 73 (2013) (internal quotations 

omitted) (citing New Orleans Pub. Serv., Inc. v. Council of New 

Orleans, 491 U.S. 350, 367-68 (1989)). As Southern offers no 

reason why this private action would fall into any of these 

"exceptional" categories, we decline to apply Younger abstention. 
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defendants can acquire complete diversity when all nondiverse 

parties are dismissed from the action. The so-called 

voluntary/involuntary rule governs whether such a change in the 

make-up of the parties allows the remaining defendants to remove 

the case to federal court under 28 U.S.C. § 1446. For example, 

when a plaintiff amends a complaint to drop the only nondiverse 

defendant, the voluntary/involuntary rule treats the lawsuit as 

removable (assuming the amount in controversy requirement is 

satisfied). Advanced Indicator & Mfg., Inc. v. Acadia Ins. Co., 

50 F.4th 469, 473-74 (5th Cir. 2022). But if the nondiverse 

defendants are dismissed from the action without plaintiff's 

acquiescence, the rule generally treats the lawsuit as not 

removable. Id.

The origins of the rule lie in the Supreme Court's 

decision in Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92 

(1898). Powers was a tort action in which, after the deadline for 

removal had passed, the plaintiff "discontinued his action 

against" the nondiverse individual defendants, "leaving it an 

action between citizens of different states." Id. at 98. The 

defendants then attempted to remove the case to federal court, and 

the question became whether the removal was untimely. The Court 

reasoned that "to warrant a removal from a court of a state into 

a circuit court of the United States, . . . the necessary diverse 

citizenship . . . must exist." Id. at 99-100. It noted that "so 
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long as there does not appear of record to be any removable 

controversy, no party can be entitled to remove it." Id. at 100. 

But, it cautioned, "it by no mea[ns] follows, when the case does 

not become in its nature a removable one until after the time 

mentioned in the act has expired, that it cannot be removed at 

all." Id. at 98-99. That would "utterly defeat all right of 

removal in many cases." Id. at 100. Instead, the clock on 

removability starts ticking "as soon as the action assumes the 

shape of a removable case," which in Powers occurred when the 

plaintiff voluntarily terminated all the nondiverse defendants 

from the suit. Id. at 101.

Two years later in Whitcomb v. Smithson, the Supreme 

Court clarified that where the nondiverse defendant was dismissed 

by the state court in an order "adverse to plaintiff, and without 

his assent," the dismissal "did not operate to make the cause then 

removable." 175 U.S. 635, 638 (1900). Taken together, these cases 

articulate the rule that while "a case may become removable . . . 

upon the subsequent discontinuance of the action by the plaintiff 

against the defendants, citizens of the same state with the 

plaintiff . . . [] a different effect [is] ascribed to a ruling of 

the court dismissing the action as to one of the defendants than 

to a discontinuance by the voluntary act of the plaintiff." 

Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 

215 U.S. 246, 250 (1909); see also Self v. Gen. Motors Corp., 588 
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F.2d 655, 657-59 (9th Cir. 1978) (tracing the history of the 

voluntary/involuntary rule). 

The rule has been adopted in some form by the Second, 

Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh 

Circuits -- which by our count is every circuit to have considered 

the issue. See Quinn v. Aetna Life & Cas. Co., 616 F.2d 38, 40 

n.2 (2d Cir. 1980) (noting the "line of cases holding that . . . 

the involuntary dismissal of non-diverse parties does not make an 

action removable"); Higgins v. E.I. DuPont de Nemours & Co., 863 

F.2d 1162, 1166 (4th Cir. 1988) ("[A] case may . . . not be 

removable depending on whether the non-diverse party is eliminated 

from the state action by voluntary or involuntary dismissal."); 

Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547-48 (5th Cir. 1967) 

(adopting the rule); Davis v. McCourt, 226 F.3d 506, 510 n.3 (6th 

Cir. 2000) (same); Poulos v. Naas Foods, Inc., 959 F.2d 69, 72 

(7th Cir. 1992) (concluding that the voluntary/involuntary rule 

survived Congress's 1949 enactment of 28 U.S.C. § 1446(b)); In re 

Iowa Mfg. Co., 747 F.2d 462, 464 (8th Cir. 1984) (same); California

ex rel. Lungren v. Keating, 986 F.2d 346, 348 (9th Cir. 1993) 

("[W]hen an event occurring after the filing of a complaint gives 

rise to federal jurisdiction, the ability of a defendant to remove 

is not automatic; instead, removability is governed by the 

'voluntary/involuntary rule.'" (citation omitted)); DeBry v. 

Transamerica Corp., 601 F.2d 480, 486–88 (10th Cir. 1979) (applying 
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the voluntary/involuntary rule); Insinga v. LaBella, 845 F.2d 249, 

254 (11th Cir. 1988) (adopting the voluntary/involuntary rule). 

District courts in Massachusetts, New Hampshire, and 

Maine have similarly applied the voluntary/involuntary rule. See

Irabor v. Lufthansa Airlines, 427 F. Supp. 3d 222, 229 (D. Mass. 

2019) (applying the voluntary/involuntary rule); Me. Emps. Mut. 

Ins. Co. v. Yates Ins. Agency, 52 F. Supp. 2d 135, 136 (D. Me. 

1999) (same); Longden v. Philip Morris, Inc., No. Civ. 03-353-M, 

2003 WL 21975365, at *2 (D.N.H. Aug. 19, 2003) (same). 

Courts typically identify two reasons for the rule. The 

first is avoidance of a yo-yo effect, whereby "[r]emoval following 

an involuntary dismissal may be only temporary: the plaintiff may 

appeal the dismissal in state court, and success on appeal would 

lead to the reinstatement of the non-diverse party, destroying 

federal jurisdiction and compelling remand to the state court." 

Poulos, 959 F.2d at 72; see also E.I. DuPont de Nemours, 863 F.2d 

at 1166 (same). By finding removal proper only where the plaintiff 

has unilaterally -- and thereby irreversibly -- dismissed all 

nondiverse defendants, courts can ensure that subsequent decisions 

on appeal will not destroy the basis for federal jurisdiction, 

thus requiring remand to the state court. 

The second reason sounds in "a general principle of 

deference to the plaintiff's choice of forum." Poulos, 959 F.2d 

at 72. By "[a]llowing removal only when the plaintiff voluntarily 
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dismisses a defendant," a court can ensure that "the plaintiff 

will not be forced out of state court without his consent." Id. 

As the Supreme Court explained, the "obvious principle" of the 

line of cases setting forth the voluntary/involuntary rule "is 

that . . . the plaintiff may by the allegations of his complaint 

determine the status with respect to removability of a case . . . 

and that this power to determine the removability of his case 

continues with the plaintiff throughout the litigation." Great N.

Ry. Co. v. Alexander, 246 U.S. 276, 282 (1918).2

This broad and long-standing precedential authority --

as well as the confounding procedural complexities the rule 

eliminates -- weighs heavily in favor of adopting the 

voluntary/involuntary rule in this case. Southern disagrees. 

First, it argues that Congress abrogated the 

voluntary/involuntary rule in 1949 when it codified 28 U.S.C. 

§ 1446(b)(3). Section 1446(b)(3) states that "if the case stated 

by the initial pleading is not removable, a notice of removal may 

be filed within 30 days after receipt by the defendant, through 

service or otherwise, of a copy of an . . . order or other paper 

from which it may first be ascertained that the case is one which 

2 Of course, this power does not include the ability to 

defeat removal by fraudulently joining nondiverse defendants. 

Hoyt v. Lane Constr. Corp., 927 F.3d 287, 295 (5th Cir. 2019) ("The 

judicially created voluntary-involuntary rule is itself subject to 

a judicially created exception for improper joinder." (citing 

Great N. Ry. Co., 246 U.S. at 282)). 
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is or has become removable." Southern contends that the word 

"order" means only "a command or direction authoritatively given," 

Order, Black's Law Dictionary (3d ed. 1933), or "an act of a

court," Bolger v. Utermohlen, 485 F. Supp. 3d 588, 592 (E.D. Pa. 

2020), and makes no distinction between orders to which the 

plaintiff objects and those to which the plaintiff acquiesces.

But the text of the statute refers not just to an 

"order," but to an "order . . . from which it may first be 

ascertained that the case is one which is or has become removable." 

28 U.S.C. § 1446(b)(3). So the question remains -- has an action 

become removable if the order was entered over the plaintiff's 

objections? And as we have described, the common law in 1949 was 

that an action did not become removable upon the entry of such an 

order. See, e.g., Great N. Ry. Co., 246 U.S. at 281 (holding in 

1918 that "[i]t is also settled that a case . . . cannot be 

converted into a removable one . . . by an order of the court upon 

any issue tried upon the merits, but that such conversion can only 

be accomplished by the voluntary amendment of his pleadings by the 

plaintiff").

This is not to say that section 1446(b)(3) cannot be 

read more broadly to encompass any order that turns an action into 

one that satisfies the statutory requirements for subject matter 

jurisdiction in a federal court. But "when a statute addresses 

issues previously governed by common law, an inquiring court should 
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presume that -- except where explicit changes are made -- the 

legislature intended to retain the substance of preexisting law." 

In re PHC, Inc. S'holder Litig., 894 F.3d 419, 433 (1st Cir. 2018) 

(citing Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 538 

(2013)). Indeed, we have proof that this was the case with 

section 1446(b). When the bill was introduced in the House, it 

was explained that it would effect "not a single substantive change 

in the law. This is purely corrective." 95 Cong. Rec. 6249 (1949)

(statement of Rep. Joseph Bryson). 

The notes of revision that accompanied the statutory 

change further support this view. They state: 

The second paragraph of the amendment to 

subsection (b) is intended to make clear that 

the right of removal may be exercised at a 

later stage of the case if the initial 

pleading does not state a removable case but 

its removability is subsequently disclosed. 

This is declaratory of the existing rule laid 

down by the decisions. (See for example,

Powers v. Chesapeake etc., Ry. Co., 169 U.S. 

92).

28 U.S.C. § 1446 (Historical and Revision Notes, 1949 Act). As we 

have explained, the origins of the voluntary/involuntary rule can 

be traced back to the decision in Powers, suggesting that Congress 

was aware of, had no intention of abrogating -- and perhaps even 

implicitly codified -- the voluntary/involuntary rule when it 

passed section 1446 into law.
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Southern responds that Congress cited to Powers only for 

the proposition that a case not removable on the initial pleadings 

may become removable at a later stage of the litigation. But 

Congress "legislate[s] against a background of common-law 

adjudicatory principles." Minerva Surgical, Inc. v. Hologic, Inc., 

141 S. Ct. 2298, 2307 (2021) (quoting Astoria Fed. Sav. & Loan 

Ass'n v. Solimino, 501 U.S. 104, 108 (1991)). We can surely 

presume it to have been aware of the line of cases starting with 

Powers that developed the voluntary/involuntary rule when it 

drafted section 1446(b). Indeed the notes of revision refer to 

"decisions," in the plural, and reference Powers as an example of 

the cases codified by the law. This suggests that Congress was

gesturing towards the line of cases created by Powers rather than 

Powers in isolation. Construing Congress to have silently adopted 

only half of the rule articulated in a line of Supreme Court cases

contravenes our commonsense rules of interpretation. 

We therefore follow the lead of the other circuits, as 

well as the common practice of district courts in this circuit, in 

holding that the voluntary/involuntary rule precludes removal 

where the nondiverse defendants are dismissed in the absence of

plaintiff's voluntary action.

III.

Southern next switches tacks. It argues that by 

declining to appeal the trial court's dismissal order Caribe 
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rendered the dismissal voluntary. Thus, Southern posits, the 

voluntary/involuntary rule does not preclude removal in this case. 

See Aetna Life & Cas. Co., 616 F.2d at 40 n.2 ("[P]laintiffs' 

failure to take an appeal constituted the functional equivalent of 

a 'voluntary' dismissal.").

But as our fellow circuits have observed, "[i]n most of 

the instances in which the Supreme Court has employed the 

voluntary-involuntary rule [to preclude removal], . . . the 

elimination of the resident defendants was not final at the time 

the issue of the propriety of removal was considered because the 

state appellate process as to those defendants was not complete." 

Insinga, 845 F.2d at 252-53 (discussing cases); see also Self, 588 

F.2d at 658 (noting that the Supreme Court "apparently does not 

rely" on the finality of state court proceedings as a basis for 

the voluntary/involuntary rule). 

Conditioning the "voluntariness" of a partial dismissal 

on a plaintiff's subsequent appeal would also make the removability 

of a case dependent on the intricacies of state appellate 

procedure. Sometimes a partial dismissal is not appealable when 

entered. See, e.g., Ramos v. Colón, 153 D.P.R. 534, 544 (2001) (a 

partial judgment "do[es] not become final sua sponte," and is not 

appealable unless final). Other times, it is. See, e.g., P.R. 

Laws Ann. tit. 32A, app. V, § 42.3 ("[T]he court may direct the 

entry of a final judgment as to one or more but fewer than all of 
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the claims or parties only upon an express determination that there 

is no just reason for delaying judgment on such claims until final 

adjudication of the case and upon an express direction for the 

entry of judgment."). And sometimes, appealing right away may be

optional. See, e.g., Sanford v. CenturyTel of Mo., LLC, 490 S.W.3d 

717, 723 (Mo. 2016) (en banc) ("[A] failure to appeal from any 

action or decision of the court before final judgment shall not 

prejudice the right of the party so failing to have the action of 

the trial court reviewed on an appeal taken from the final judgment 

in this case." (citation omitted)). So a rule that conditions 

removability on the plaintiff forgoing an appeal would require a 

case-by-case parsing of state procedural intricacies, and hardly 

lend clarity to parties seeking to determine whether and when a 

case has become removable. 

Moreover, even in a case in which it is clear that any 

appeal must be made within thirty days or be deemed waived, the 

waiver would not occur until thirty days after entry of the order 

said to make the case removable. By that time it would be too 

late to remove under the thirty-day clock set by 28 U.S.C. 

§ 1446(b). One would instead have to argue that the waiver itself 

made the case removable, which would pile thirty days on top of 

thirty days. 

Nor does Southern's argument have a logical endpoint. 

Suppose a plaintiff appeals the dismissal of nondiverse 
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defendants, and the appellate court affirms the dismissal. Is the 

plaintiff now required to move for reconsideration, or petition 

the forum's highest court, to preserve the involuntary nature of 

the dismissal? Any such requirement would extend the uncertainty 

about the action's final venue. We therefore decline to adopt 

Southern's proposed variation of the voluntary/involuntary rule, 

which is unsupported by either Supreme Court precedent or 

practicality.

IV.

Finally, Southern asks us to find that the district court 

abused its discretion in denying the Rule 60(b) motion for relief 

from judgment. As Southern points out, the district court based 

its remand order in part on Caribe's insistence that it intended 

to appeal the Commonwealth court's dismissal. See Caribe Chem 

Distrib., Corp. v. S. Agric. Insecticides, Inc., Civ. No. 20-1547 

(ADC), 2021 WL 5406563, at *2 & n.4 (D.P.R. Sept. 30, 2021). Yet 

Caribe never did appeal. But as we have just explained, our 

treatment of the dismissal of the nondiverse defendants as 

involuntary does not hinge on Caribe's appealing the order of 

dismissal entered over its objection. 

V.

We therefore affirm the district court's order remanding 

the case and further affirm its denial of Southern's motion to set 

aside the judgment under Rule 60.