Civil Procedure AMP - Removal Jurisdiction

Question 1

When the jurisdiction of the federal court is based solely on diversity and one of the defendants is a citizen of the state in which the state action was brought, the action:

A Is not removable

B May be removed if the plaintiff consents

C Is removable

Answer 1

A

When the jurisdiction of the federal court is based solely on diversity and one of the defendants is a citizen of the state in which the state action was brought, the action is not removable. The plaintiff cannot confer removal jurisdiction (a form of subject matter jurisdiction) on the court by consenting; thus, the answer that the action may be removed if the plaintiff consents is incorrect. In contrast, when the original jurisdiction of the district court would have been based on a federal question, the defendants can remove without regard to the citizenship of the parties. J0509 Additional Learning

Question 2

If no federal question is involved and diversity does not exist when a case is commenced, removal will:

A Be permitted if the nondiverse parties are thereafter dismissed from the action and the requirements for diversity jurisdiction are then present

B Not be permitted under any circumstances

C Be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court

D Be permitted, because subject matter jurisdiction is not required for removal

Answer 2

C

If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party (but the amount in controversy is satisfied), removal will be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court. This rule is subject to certain limitations. Removal will not be permitted in all cases; i.e., subject matter jurisdiction is required for removal. J0508 Additional Learning

Question 3

In a properly removed case, venue is __________ in the federal court of the state where the case was pending, __________ had the plaintiff originally filed the action in the federal district court of that state

A Improper; unless venue would have been proper

B Proper; even if venue would have been improper

C Improper; even if venue would have been proper

Answer 3

B

In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.” J0505A Additional Learning

Question 4

A case may not be removed on the basis of diversity of citizenship jurisdiction more than ___________ after it was commenced in state court.

A Two years

B One year
C Six months
D 30 days

Answer 4

B

A case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court. Because most cases will be removable, if at all, at commencement of the action, the one-year deadline generally will not be difficult to meet. J0510 Additional Learning

Question 5

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, what portion of the case (if any) can be removed to federal court?

A Only the state law claims

B The entire case

C None of the claims

D Only the claims that arise under federal law

Answer 5

B

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. The federal court, however, must then sever and remand the state law claims to state court. J0506B Additional Learning

Question 6

A party must file a demand for jury trial after the case has been removed to federal court unless:

A The party made an express demand for trial by jury in accordance with state law OR applicable state law does not require an express demand to claim trial by jury

B The party made an express demand for trial by jury in accordance with state law

C Applicable state law does not require an express demand to claim trial by jury

Answer 6

A

A party who, prior to removal, has made an express demand for trial by jury in accordance with state law need not repeat the demand after removal. Also, if state law applicable in the court from which the case is removed does not require the parties to make an express demand to claim trial by jury, they need not make such demand after removal unless the court directs that they do so. J0512A Additional Learning

Question 7

If no federal question is involved and diversity does not exist at the time the action is commenced, is removal ever permitted?

A Yes, if the nondiverse parties are thereafter dismissed from the action and there is complete diversity between the remaining parties

B Yes, because subject matter jurisdiction is not required for removal

C Yes, if the nondiverse parties are thereafter dismissed from the action, there is complete diversity between the remaining parties, and not more than one year has passed since the case was commenced in state court

D No, not under any circumstances

Answer 7

C

If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party, removal will be permitted if the nondiverse parties are thereafter dismissed from the action, there is complete diversity between the remaining parties, and not more than one year has passed since the case was commenced in state court. Removal will not be permitted in all cases; i.e., subject matter jurisdiction is required for removal. J0508A Additional Learning

Question 8

When a defendant attempts to remove a case from state court to federal court, the state court _______ have had subject matter jurisdiction over the case.

A Need not

B Must

C Must not

Answer 8

A

By statute, the state court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction. Hence, it is not correct that the state court must or must not have had subject matter jurisdiction over the case. J0502 Additional Learning

Question 9

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction:

A None of the case can be removed to federal court

B The entire case can be removed to federal court

C Only the claims that arise under federal law can be removed to federal court

Answer 9

B

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. The federal court, however, must then sever and remand the state law claims to state court. J0506 Additional Learning

Question 10

What does a federal court usually consider first?

A Subject matter jurisdiction

B Personal jurisdiction

C The merits of the case

Answer 10

A

Ordinarily, a federal court will determine whether it has subject matter jurisdiction before it considers the merits of the case. The Supreme Court has held that a federal court could address the issue of personal jurisdiction before assessing subject matter jurisdiction. This is not, however, the norm. J0514A Additional Learning

Question 11

Which party or parties can exercise the right of removal?

A The plaintiff, the defendant, or the court

B The plaintiff or the defendant

C Only the defendant

D Only the plaintiff

Answer 11

C

Only the defendant can exercise the right of removal. A plaintiff cannot exercise the right of removal, even on the ground that a counterclaim against him could have been brought independently in a federal court. The court cannot remove a case on its own motion. J0503 Additional Learning

Question 12

A defendant generally must file a notice of removal within __________ after receipt by or service on that defendant of the initial pleading or summons.

A One year

B Six months

C Two years

D 30 days

Answer 12

D

A defendant generally must file a notice of removal within 30 days after receipt by or service on that defendant of the initial pleading or summons. Note this is much shorter than the deadline for removing a case on the basis of diversity of citizenship jurisdiction, which is no more than one-year after it was commenced in state court. The one-year deadline is a ceiling, but it rarely comes into play because the 30-day deadline usually arises first. The provision may be important, however, if the case is not removable at the outset, but becomes removable later. J0511 Additional Learning

Question 13

A federal court will ordinarily determine:

A The merits of the case before it considers subject matter jurisdiction

B The merits of the case before it considers any jurisdictional questions

C Subject matter jurisdiction before it considers the merits of the case

D Personal jurisdiction before it considers subject matter jurisdiction

Answer 13

C

Ordinarily, a federal court will determine whether it has subject matter jurisdiction before it considers the merits of the case. The Supreme Court has held that a federal court could address the issue of personal jurisdiction before it considers subject matter jurisdiction. This is not, however, the norm. J0514 Additional Learning

Question 14

The __________ exercise the right of removal.

A Defendant may

B Plaintiff, defendant, or court may

C Defendant may not

D Plaintiff may

Answer 14

A

Only the defendant may exercise the right of removal. A plaintiff may not remove even on the ground that a counterclaim against him could have been brought independently in a federal court. The court may not remove a case on its own motion. J0503BA Additional Learning

Question 15

To remove a case involving more than one defendant, how many defendants must consent to removal?

A One

B All

C The majority

D At least two

Answer 15

B

If there is more than one defendant, all defendants who have been properly joined and served must join in or consent to the removal. (Note: The Class Action Fairness Act relaxes this rule for some class actions.) J0504 Additional Learning

Question 16

A defendant may remove to federal court an action that could have originally been brought in:

A Federal court

B Federal court, but only if based on prejudice against an out-of-state defendant

C Federal court, but only if based on the presence of a federal question

D Any court

Answer 16

A

Under 28 U.S.C. section 1441(a), a defendant may remove to federal court an action that could have originally been brought by the plaintiff in federal court. This means that if a federal court would have had federal subject matter jurisdiction (e.g., federal question or diversity jurisdiction) originally, the case may be removed to federal court. Any court is an incorrect answer because there must be a basis for federal subject matter jurisdiction before the case may be removed. Federal court, but only if based on the presence of a federal question is incorrect because it ignores the possibility of the court having removal jurisdiction based on diversity jurisdiction being present. Federal court, but only if based on prejudice against an out-of-state defendant is incorrect. Prejudice against out-of-state defendants is part of the reasoning behind the need for diversity jurisdiction, but it does not affect a defendant’s ability to remove an action. J0501B Additional Learning

Question 17

If federal subject matter jurisdiction is present for an action, the lack of subject matter jurisdiction in state court:

A Prevents the federal court from exercising removal jurisdiction

B Does not prevent the federal court from exercising removal jurisdiction

C Requires the federal court to dismiss the action

Answer 17

B

By statute, the federal court may hear and decide a claim in a removed civil action even when the state court had no jurisdiction. Thus, the lack of subject matter jurisdiction in state court does not prevent the federal court from exercising removal jurisdiction. Thus, the statements that the lack of subject matter jurisdiction in state court prevents the federal court from exercising removal jurisdiction or requires the federal court to dismiss the action are incorrect. J0502B Additional Learning

Question 18

If a case involving multiple defendants is removed to federal court on the basis of a federal question being presented, and some of the defendants have only state law claims that cannot invoke diversity or supplemental jurisdiction, _______ are required to join in the removal.

A Only those defendants against whom a state claim is asserted

B Only those defendants against whom a federal claim is asserted

C No defendants

D All defendants

Answer 18

B

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. Only those defendants against whom a federal claim is asserted are required to join in the removal. J0507B Additional Learning

Question 19

By statute, certain claims against federal officers are:

A Removable to federal court as long as they could originally have been brought in federal court

B Not removable to federal court unless they could originally have been brought in federal court

C Not removable to federal court even if they could originally have been brought in federal court

D Removable to federal court even if they could not originally have been brought in federal court

Answer 19

D

By statute, some claims against federal officers are removable to federal court even if they could not originally have been brought in federal court. Statutes allow removal of certain actions against federal officers when they were allegedly acting under color of law [28 U.S.C. §1442] and federal employees for torts by motor vehicle committed in the scope of employment [28 U.S.C. §2679(d)]. J0515 Additional Learning

Question 20

Is an action removable when the jurisdiction of the federal court is based solely on diversity and one of the defendants is a citizen of the state in which the state action was brought?

A No

B Yes

C Yes, if the plaintiff consents

D No, unless the court grants removal in its discretion

Answer 20

A

No. When the jurisdiction of the federal court is based solely on diversity and one of the defendants is a citizen of the state in which the state action was brought, the action is not removable. The consent of the plaintiff does not change this outcome, and the court cannot grant removal in its discretion. In contrast, when the original jurisdiction of the district court would have been based on a federal question, the defendants can remove without regard to the citizenship of the parties. J0509A Additional Learning

Question 21

If a party has made an express demand for a jury trial prior to removal of the action to federal court, she:

A May file a jury demand with leave of court

B Must make an express demand in federal court

C Need not repeat the demand in federal court

Answer 21

C

A party who, prior to removal, has made an express demand for trial by jury in accordance with state law need not repeat the demand after removal. Leave of court is not required. If a party has not made an express demand prior to removal and state law so requires, then the party must make an express demand after removal or it will be waived. J0512 Additional Learning

Question 22

Once a case is removed to federal court, a plaintiff:

A Can file a motion to have the case remanded back to state court, but only if the motion is based on lack of subject matter jurisdiction

B Cannot file a motion to have the case remanded back to state court unless the motion is based on lack of personal jurisdiction

C Can file a motion to have the case remanded back to state court

D Cannot file a motion to have the case remanded back to state court

Answer 22

C

Once the case is removed to federal court, a plaintiff can file a motion to have the case remanded (sent back) to the state court. The plaintiff is not limited to filing motions based only on lack of subject matter jurisdiction. However, if the plaintiff bases this motion on a defect other than subject matter jurisdiction (e.g., a defect in removal procedures), the motion must be brought within 30 days of removal. The court must remand whenever it is shown that there was no federal subject matter jurisdiction. Because a lack of personal jurisdiction is not a basis for remand, the statement that the plaintiff cannot file a motion to have the case remanded unless the motion is based on lack of personal jurisdiction is incorrect. J0513 Additional Learning

Question 23

The lack of subject matter jurisdiction in state court _______ removal to federal court.

A Requires

B Defeats

C Is not relevant to

Answer 23

C

By statute, the federal court may hear and decide a claim in a removed civil action even when the state court had no jurisdiction. Thus, the lack of subject matter jurisdiction in state court is not relevant to removal to federal court. Thus, it is incorrect to state that the lack of subject matter jurisdiction in state court defeats removal to federal court. The lack of subject matter jurisdiction in state court does not require removal to federal court. The action may also be dismissed for lack of subject matter jurisdiction. J0502A Additional Learning