Waiver-by-Amendment: Third Circuit Finds Plaintiff Forfeits Challenge to Removal by Non-Defendant After Adding Remover as a Party; Case-Management Memoranda Count as “Other Paper” for § 1446(b)(3)

Case: Sergei Kovalev v. Lidl US LLC, et al. (3d Cir. Nov. 12, 2025) (non-precedential)

Court: United States Court of Appeals for the Third Circuit

Panel: Hardiman, Matey, and Chung, Circuit Judges (per curiam)

Disposition: Affirmed

Note: The opinion is designated “Not Precedential” under I.O.P. 5.7 and does not constitute binding precedent in the Third Circuit, though it is informative and persuasive.

Introduction

This appeal arises from a pro se products liability suit filed by Sergei Kovalev, who alleged he became ill after consuming Lidl-branded bread purchased in Philadelphia. The litigation generated a dense docket of removal, remand, dismissal, and summary judgment issues. On appeal, the Third Circuit addressed three preserved questions: (1) whether removal was timely and proper in light of the removing entity’s non-party status at the time of removal and subsequent events; (2) whether settlement negotiations could divest the district court of diversity jurisdiction; and (3) whether summary judgment on Kovalev’s strict-liability claim under Pennsylvania law was appropriate for lack of proof of defect and causation.

The panel affirmed across the board. Most notably, although the district court later agreed that the case had been removed by a non-defendant (a procedural irregularity), both courts concluded that Kovalev forfeited any challenge to that defect when he amended his complaint to add the removing entity as a defendant—thereby “curing” the defect. The decision also underscores two recurring removal principles: a case-management-conference memorandum can be “other paper” under 28 U.S.C. § 1446(b)(3) that triggers the 30-day removal clock; and settlement offers or negotiations do not reduce the amount in controversy once jurisdiction is properly established. On the merits, the court affirmed summary judgment because Kovalev failed to adduce evidence that the bread was defective when it left the seller’s hands or that any identified defect proximately caused his alleged injuries.

Summary of the Opinion

Scope of appellate review narrowed by forfeiture: The court deemed forfeited any challenge to orders dismissing claims and to three of four summary-judgment rulings because Kovalev did not meaningfully brief them in his opening brief.
Removal timeliness and “other paper”: The notice of removal was timely under § 1446(b)(3). The plaintiff’s case-management-conference memorandum, which first made it ascertainable that the amount in controversy exceeded $75,000, qualified as “other paper,” starting the 30-day removal clock. The removal occurred within 30 days.
Settlement offers do not divest jurisdiction: Post-removal settlement positions below the jurisdictional threshold do not defeat diversity jurisdiction; the amount in controversy is fixed as of filing/removal and is not reduced by subsequent events.
Removal by a non-defendant and waiver-by-amendment: Although removal was irregular because Lidl US Operations, LLC was not a named defendant at the time, the defect was procedural and non-jurisdictional. Kovalev forfeited the objection by amending his complaint to add Lidl Operations, thereby curing the defect.
Strict liability under Pennsylvania law: Summary judgment was proper because (i) as to the 12-grain bread, Kovalev failed to produce evidence the product was defective when it left defendants’ hands; and (ii) as to the white bread, he failed to produce evidence that the “black substance” proximately caused any injury. Bare assertions and suspicions are insufficient at summary judgment.

Detailed Analysis

Precedents Cited and Their Role

Kars 4 Kids Inc. v. America Can!, 98 F.4th 436 (3d Cir. 2024): Reinforces that arguments not made in an opening brief are generally deemed forfeited. The court used this to limit the issues on appeal.
Geness v. Cox, 902 F.3d 344 (3d Cir. 2018): A mere passing reference is insufficient to preserve an issue; supports narrowing the appellate issues.
United States v. Gonzalez, 905 F.3d 165 (3d Cir. 2018): Attempts to incorporate district court submissions by reference do not preserve arguments on appeal.
Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d Cir. 2018): Cited for plenary review of remand decisions.
Barna v. Board of School Directors of Panther Valley School District, 877 F.3d 136 (3d Cir. 2017): Supplies the summary-judgment standard of review.
United States ex rel. Schumann v. AstraZeneca Pharmaceuticals L.P., 769 F.3d 837 (3d Cir. 2014): Sets the abuse-of-discretion standard and de novo review of legal conclusions for reconsideration orders.
Murray v. Bledsoe, 650 F.3d 246 (3d Cir. 2011): Allows affirmance on any basis supported by the record.
28 U.S.C. § 1446(b)(3): Permits removal within 30 days of defendant’s receipt of an “other paper” from which removability can first be ascertained; the case-management memorandum qualified as such “other paper.”
In re Diet Drugs Products Liability Litigation, 418 F.3d 372 (3d Cir. 2005): Cited for complete diversity principles under § 1332.
Auto-Owners Insurance Co. v. Stevens & Ricci Inc., 835 F.3d 388 (3d Cir. 2016): Affirms the time-of-filing/removal rule: subsequent events do not reduce the amount in controversy so as to strip federal diversity jurisdiction once established.
Kovalev v. Walmart Inc., No. 24-1459, 2025 WL 1743034 (3d Cir. June 24, 2025) (non-precedential): Another appeal by the same plaintiff; cited for the proposition that settlement offers do not defeat jurisdiction.
Korea Exchange Bank, N.Y. Branch v. Trackwise Sales Corp., 66 F.3d 46 (3d Cir. 1995): The lynchpin for the removal-defect analysis. It explains that removal irregularities are “jurisdictional” only if the suit could not have been filed in federal court initially; procedural defects can be waived. The court analogized and applied this to removal by a non-defendant.
In re Asbestos Products Liability Litigation (No. VI), 921 F.3d 98 (3d Cir. 2019): Cited by analogy: a party’s litigation conduct may amount to consent or submission to jurisdiction, even if that party initially objected—supporting the idea that the plaintiff’s amendment cured the removal defect.
Sikkelee v. Precision Airmotive Corp., 907 F.3d 701 (3d Cir. 2018): Provides the three elements of strict products liability under Pennsylvania law: defect, causation, and existence of the defect when the product left the seller’s control.
Nitkin v. Main Line Health, 67 F.4th 565 (3d Cir. 2023): Reiterates that to defeat summary judgment, a plaintiff must point to concrete record evidence, not bare assertions or suspicions.
Sodexo MAGIC, LLC v. Drexel University, 24 F.4th 183 (3d Cir. 2022): Confirms that state substantive law (here, Pennsylvania’s) governs in diversity cases.

Legal Reasoning

1) Timeliness of Removal Based on “Other Paper”

The removal clock under § 1446(b)(3) begins when the defendant receives an “other paper” that first makes removability ascertainable. Kovalev’s original state-court complaint did not specify damages, but his later case-management-conference memorandum did: over $100,000 in compensatory damages and $1 million in punitive damages. The panel treated that memorandum as qualifying “other paper.” Removal within 28 days of that memorandum was timely under the 30-day window.

Practical point: The court adds to the growing body of cases recognizing a broad range of materials as “other paper,” including various filings or litigant communications that, for the first time, illuminate removability—here, the amount in controversy. Defense counsel should monitor case-management submissions; plaintiff’s counsel should anticipate that such filings can trigger removal.

2) Settlement Offers Do Not Defeat Jurisdiction Once Established

Kovalev argued that his later willingness to settle below $75,000 undercut the amount in controversy, warranting remand. The court rejected this argument, reaffirming that the amount in controversy is determined at the time of filing/removal, and “subsequent events cannot reduce the amount in controversy so as to deprive the district court of jurisdiction.” Settlement dynamics are therefore irrelevant to ongoing jurisdiction once properly attached.

Practical point: Parties cannot use later settlement positions to oust diversity jurisdiction. Litigants seeking to avoid federal court must structure their initial pleadings and damages positions accordingly, bearing in mind good-faith pleading rules and state procedural requirements about damages ad damnum clauses.

3) Removal by a Non-Defendant: A Procedural Defect That Can Be Cured (Waiver-by-Amendment)

The more nuanced jurisdictional holding concerns who may remove. Section 1441(a) authorizes removal by “the defendant or the defendants.” Lidl US Operations, LLC removed the case before it had been named as a defendant. The district court later agreed that removal was improper for that reason. The Third Circuit characterized this as a procedural, not a jurisdictional, defect.

Crucially, the court held that Kovalev forfeited his objection to this procedural irregularity when he amended his complaint to add Lidl Operations as a defendant. Relying on Korea Exchange Bank and the broader principle that non-jurisdictional removal defects are waivable, the panel treated Kovalev’s amendment as curing the defect, analogizing to conduct that constitutes submission to jurisdiction (In re Asbestos). The case could have been filed in federal court initially (complete diversity and amount in controversy were present), so the irregularity was not “jurisdictional” and could be cured or waived. That is precisely what occurred.

Practical point: Plaintiffs who wish to preserve objections to removal irregularities should exercise extreme caution before amending to add the removing entity. Amending in that manner may retroactively “cure” the defect and forfeit the procedural objection. Conversely, removing defendants facing a challenge grounded in a technical irregularity may find the defect mooted if the plaintiff later amends to add the remover.

4) Strict Liability under Pennsylvania Law: Evidence of Defect, Timing, and Causation

On the merits, Pennsylvania strict liability requires proof that: (1) the product was defective; (2) the defect proximately caused the injury; and (3) the defect existed when the product left the seller’s control. Kovalev’s evidence fell short.

12-grain bread: No evidence that the bread was defective (moldy) at the time it left defendants’ hands. Without proof of the product’s condition at the relevant time, the claim cannot proceed.
White bread with “black substance”: No evidence that the substance proximately caused any injury. Mere suspicion or surmise cannot defeat summary judgment; concrete record evidence is required.

Practical point: In food and consumer product cases, plaintiffs must marshal admissible evidence tying the defect to the time of sale and to the alleged harm—e.g., expert opinion, testing, chain-of-custody facts, contemporaneous photos, or corroborating medical evidence. Generalized symptoms without linkage to a defect at the relevant time will not survive summary judgment.

5) Issue Preservation: Forfeiture on Appeal

The court’s threshold step—shrinking the scope of appellate review—carries a recurrent warning: arguments not developed in the opening brief are generally forfeited, and “passing references” or incorporation by reference will not suffice. Here, Kovalev’s 52-page brief did not meaningfully challenge the dismissal orders or three of the four summary-judgment rulings, so the court confined its review accordingly.

Practical point: Preserve issues meticulously. Identify each challenged ruling, articulate the legal standard, cite the record, and develop the argument in the opening brief. Do not rely on cross-referencing district court filings.

Impact and Implications

Removal practice in the Third Circuit: The opinion reinforces that the 30-day “other paper” rule is applied pragmatically; case-management materials can trigger removal. Defense counsel should treat all substantive docket filings as potential triggers. Plaintiffs should understand that pressing substantial damages in early case-management filings may open the federal courthouse doors.
Procedural vs. jurisdictional defects: The decision illustrates the practical consequences of the procedural/jurisdictional divide. Non-jurisdictional removal defects—such as removal by a non-party when federal jurisdiction otherwise exists—can be waived. Litigants must strategize accordingly: plaintiffs should avoid curative amendments if their goal is remand; defendants may find that plaintiffs’ amendments fix earlier irregularities.
Settlement dynamics and jurisdiction: The court’s reiteration of the time-of-filing/removal rule avoids gamesmanship. Parties cannot manipulate jurisdiction post hoc through settlement offers. This conclusion promotes stability and predictability in forum selection.
Products liability proof burdens at summary judgment: The case underscores the evidentiary burden on plaintiffs in food contamination contexts. Without admissible evidence of a defect at the time of sale and causation, strict liability claims will falter at summary judgment.
Pro se litigants and appellate pitfalls: The opinion is a cautionary tale about issue preservation. Even for frequent pro se litigants, the Third Circuit enforces briefing rules; undeveloped or referenced-only arguments are forfeited.
Persuasive, not binding: Although non-precedential, district courts and practitioners in the Third Circuit will likely cite this decision for its practical applications of § 1446(b)(3), time-of-filing/removal principles, and waiver-by-amendment in the face of removal irregularities.

Complex Concepts Simplified

“Other paper” (28 U.S.C. § 1446(b)(3)): After an initial pleading that does not establish removability, the 30-day removal clock can be triggered by receipt of another document in the case—such as a case-management memorandum—that first makes it clear the case is removable (e.g., it reveals the amount in controversy exceeds $75,000).
Amount in controversy and the time-of-filing/removal rule: For diversity cases, federal jurisdiction depends on the amount at stake when the case is filed (or removed). Later developments, like a settlement offer below $75,000, do not strip a federal court of jurisdiction once properly attached.
Procedural vs. jurisdictional defects in removal: A jurisdictional defect means the federal court lacks power to hear the case (e.g., no complete diversity). A procedural defect concerns the manner of removal (e.g., a non-defendant removed the case) and can be waived or cured by the parties’ actions. If the suit could have been filed in federal court in the first instance, the defect is more likely procedural and waivable.
Waiver-by-amendment: If a plaintiff objects to a procedural removal defect but later amends the complaint to add the removing non-party as a defendant, that conduct can “cure” the defect and forfeit the objection. The court treats the amendment as acquiescence to the federal forum.
Strict liability under Pennsylvania law: The plaintiff must prove (1) a defect, (2) proximate causation, and (3) that the defect existed when the product left the seller’s hands. This usually requires evidence beyond personal assertions—such as expert testimony, lab results, or contemporaneous documentation.
Summary judgment standard: To avoid summary judgment, the non-movant must point to specific, admissible record evidence supporting each essential element of the claim. Conclusory statements, suspicions, or mere allegations will not suffice.
Issue preservation on appeal: Appellate courts generally address only issues developed in the opening brief. Passing mentions or attempts to incorporate prior filings by reference will lead to forfeiture.

Conclusion

Though non-precedential, the Third Circuit’s decision in Kovalev v. Lidl US LLC offers a clear and practical roadmap for several recurring federal-court issues. First, it confirms that a plaintiff’s case-management-conference memorandum can be “other paper” triggering the 30-day removal period under § 1446(b)(3). Second, it reaffirms that post-removal settlement positions do not retroactively defeat diversity jurisdiction. Third—and most notably—it clarifies that removal by a non-defendant is a procedural, non-jurisdictional defect that can be forfeited when the plaintiff amends to add the removing entity, thereby curing the irregularity. Finally, on the merits, it emphasizes the evidentiary demands of Pennsylvania strict-liability claims at the summary-judgment stage: plaintiffs must offer concrete proof of a defect at the time of sale and of proximate causation.

The opinion’s most salient takeaway for practitioners is the waiver-by-amendment principle in the removal context: strategic pleading choices after removal can have jurisdictional consequences. Plaintiffs seeking remand should avoid amendments that implicitly ratify the removal, while defendants should recognize that certain plaintiff actions can retroactively validate an initially irregular removal. Coupled with the court’s firm stance on issue preservation and evidence sufficiency, Kovalev is a practical guide to litigating removal and products liability disputes in the Third Circuit.