Noteworthy at the U.S. Supreme Court
The court in which a case is litigated can be one of the most important strategic decisions to be made by the parties involved. There are legal parameters in place, however, that may limit a party's choices. For instance, a case that is filed in state court may be removed by the defendant to a seemingly more desirable federal court forum under certain circumstances. And states are entitled to interstate sovereign immunity, meaning one state may not be sued by a private party in the courts of a different state without its consent. Three cases that raise noteworthy questions probing the boundaries of federal removal and interstate sovereign immunity recently were granted certiorari review by the U.S. Supreme Court: Can a district court excuse the 30-day time limit to remove a case to federal court? Is NJ Transit, which offers interstate transit services connecting three states, an arm of the state of New Jersey for interstate sovereign immunity purposes? The Supreme Court will hear the cases raising these questions during the October 2025 Term. We hit the highlights below and will keep you posted as they proceed through the High Court.
Enbridge Energy, LP, et al. v. Nessel, (No. 24-783)
Question Presented: Whether district courts have the authority to excuse the thirty-day procedural time limit for removal in 28 U.S.C. § 1446(b)(1).
Litigation is wrought with deadlines and a defendant must decide whether to remove a matter to federal court fairly quickly after commencement of a lawsuit – "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading...or within 30 days after the service of summons upon the defendant...whichever period is shorter," according to 28 U.S.C. § 1446(b)(1). Or might the defendant have more time? Several Circuit Courts of Appeals have ruled differently regarding the authority of a district court to excuse a defendant's failure to file notice of removal within the 30-day time limit set forth in the statute. On June 30, 2025, the U.S. Supreme Court granted the Cert. Petition in Enbridge Energy, LP, et al. v. Nessel, (No. 24-783) to bring clarity to the firmness of the 30-day time limit for removal. This question is one that will touch a substantial number of cases, as cases often are filed in state court that also would have been properly brought in a federal court due to the nature of the issues in the case or because the parties live in different states. It has been estimated that 11% of the cases in federal court at a given time have been removed from state court. According to federal statistics, there were more than 633,000 civil cases pending in just the district courts in the 12-month period ending March 31, 2024.
Case Background:
In Enbridge Energy, the defendant companies (collectively "Enbridge") were navigating several interrelated state and federal cases involving Michigan state officials' attempts to shut down an Enbridge operated pipeline that transports light crude oil and natural gas liquids in the state and to Canada. The case in question was filed by the Michigan Attorney General against Enbridge in state court in June 2019 (the "Michigan AG Case") and Enbridge did not seek to remove the case at the time. Instead, Enbridge filed a motion for summary disposition on the pleadings that was briefed, argued, and remained pending before the state court.
Due to changing circumstances involving the Enbridge pipeline, two interrelated cases were filed in late 2020 and the Michigan Attorney General agreed to hold the Michigan AG Case in abeyance while federal courts resolved relevant issues in the interrelated cases. In late 2021, among other determinations, a federal district court found that removal was proper in one of the interrelated cases. In response, the State voluntarily dismissed that case in an effort to allow the Michigan AG Case to proceed in state court. It was then that Enbridge filed a notice of removal in the Michigan AG Case for the first time – more than two years after the suit had been filed and a year after the parties had agreed to hold the case in abeyance.
The Michigan Attorney General filed a motion to remand the Michigan AG Case, but the district court denied the motion, holding that the 30-day time limit was excused on equitable grounds due to exceptional circumstances. The Sixth Circuit Court of Appeals reversed that decision, finding that Enbridge's notice of removal was untimely and there were no equitable exceptions to the statute's 30-day time limit. The parties disagree regarding the extent to which a Circuit split exists on this question. Nonetheless, the U.S. Supreme Court took up the case to be considered during the October 2025 Term.
Galette v. New Jersey Transit Corp. (24-1021) and New Jersey Transit Corp., et al. v. Colt, (24-1113)
Question Presented: Whether the New Jersey Transit Corporation is an arm of the state of New Jersey for interstate sovereign immunity purposes.
Every state is entitled to interstate sovereign immunity, which prevents private parties from suing states in the courts of a different state without their consent. Interstate sovereign immunity is grounded in the U.S. Constitution and extends to state-created entities that are considered an "arm of the state." Two cases involving New Jersey Transit Corporation ("NJ Transit") present the dilemma – what happens when interstate transit services collide with interstate sovereign immunity? NJ Transit is one of the largest public transit providers in the country, providing more than 250 million passenger trips annually via bus, rail, and light rail options that connect locations in New Jersey, New York and Philadelphia. Robust transportation networks like these can serve as powerful catalysts for regional economic growth and can produce positive educational, health, and environmental benefits as well. Yet, attendant to these benefits is a level of risk for the individuals who utilize transit services and the entities that provide them. Interstate sovereign immunity serves to mitigate some risk by limiting a state's exposure to the courts of other states. But, when transit services are provided across several state lines, the lines where sovereign immunity begins and ends can get blurred. On July 3, 2025, the U.S. Supreme Court granted certiorari review to resolve two conflicting decisions issued by the high courts of Pennsylvania and New York regarding NJ Transit's ability to claim interstate sovereign immunity in their state courts: Galette v. NJ Transit (24-1021) and NJ Transit, et al. v. Colt (24-1113).
Case Background:
In Colt, the plaintiffs sued NJ Transit in New York state court as a result of an accident in Manhattan in which a plaintiff had been hit by a bus. In Galette, the plaintiff sued NJ Transit in Pennsylvania state court after being struck while riding as a passenger in a vehicle in Philadelphia. NJ Transit sought to dismiss both cases on the grounds of interstate sovereign immunity and received opposite determinations from the state courts. The highest court in New York, the New York Court of Appeals, ruled that NJ Transit is not an arm of the state of New Jersey and therefore not entitled to interstate sovereign immunity. A few months later, the Pennsylvania Supreme Court held the opposite – that NJ Transit is an arm of the state of New Jersey and therefore immune from a private suit in the courts of Pennsylvania.
NJ Transit's Colt Cert. Petition illustrates the dilemma it faces in the wake of these conflicting state court decisions:
When an NJ Transit train leaves Morrisville, Pennsylvania, bound for New York City, its sovereign immunity from suit toggles on and off at different points along the route. If NJ Transit is sued for conduct in Morrisville, in Pennsylvania state court, NJ Transit has sovereign immunity. But if NJ Transit faces suit for the same conduct in New York City, in New York state court, its sovereign status suddenly evaporates. Same public service, same day, same train—yet a different answer on the same state entity's immunity.
A consistent analysis for determining arm-of-the-state status has not been applied by state and lower federal courts. The NY and PA state courts considered several factors in analyzing NJ Transit's status, such as how the state defined the entity, the level of state control over the entity, and the impact of a judgment against it on the State's treasury. But, in the absence of a definitive standard, the courts gave more or less weight to the factors and reached opposite conclusions on the ultimate question regarding NJ Transit's immunity claim.
The U.S. Supreme Court will have the opportunity to clarify the proper arm-of-the-state analysis as applied to NJ Transit's operation. The Galette and Colt cases were consolidated with the question limited to whether NJ Transit is an arm of the state of New Jersey for interstate sovereign immunity purposes. The High Court's review also is being looked to as an opportunity to bring clarity to the arm-of-the-state analysis for entities in other states that similarly offer interstate transportation services, as well as state-created entities providing other services outside of the transportation context.
The briefing schedules in these cases have been extended. In Enbridge Energy, Enbridge's merits brief is currently due by August 29, 2025 and Respondent Michigan Attorney General's brief is due by October 14, 2025. In Galette and Colt, NJ Transit's opening merits brief is due by September 3, 2025 and the response briefs are due by October 14, 2025. We will keep you posted on noteworthy updates in these cases.
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