Civil Procedure Learning Questions - Set 8 Flashcards
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
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
C
Not be permitted under any circumstances
D
Be permitted, because subject matter jurisdiction is not required for removal
B
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.
Select the statement that best describes the relationship between removal and venue:
A
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
B
In a properly removed case, venue is proper in the federal court of the state where the case was pending, but only if venue would have been proper had the plaintiff originally filed the action in the federal district court of that state
C
Venue and removal have no correlation
A
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.” Hence, it is not correct to state that venue and removal have no correlation.
Which party or parties can exercise the right of removal?
A
The plaintiff, the defendant, or the court
B
Only the plaintiff
C
Only the defendant
D
The plaintiff or the defendant
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.
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
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.
On August 1, the plaintiff, a resident of State A, sued two defendants in State A for personal injuries arising out of an automobile accident. One defendant is a citizen of State A while the other is a citizen of State B. The lawsuit claimed damages of $500,000. The plaintiff quickly reached a settlement agreement with the defendant from State A, and the court dismissed that defendant by order on August 16. The order is served on the remaining defendant on August 20. On September 18, the remaining defendant files a notice of removal with the court, which the plaintiff opposes.
How should the court rule on the defendant’s notice of removal?
A For the remaining defendant, because she filed her notice of removal within 30 days after she discovered the case had become removable.
B For the remaining defendant, because there are no time restrictions on removing a case to federal court.
C For the plaintiff, because a plaintiff has the right to choose his own forum.
D For the plaintiff, because more than 30 days have passed since the case became removable.
A
The court should rule for the remaining defendant. There are essentially two time restrictions on removal of a diversity case to federal court: (1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court. [28 U.S.C. §1446] Here, it is the 30-day time limit that is in question; i.e., specifically, whether the 30-day clock starts to tick on August 16 (when the case became removable) or on August 20 (when the defendant learned that the case became removable). As stated above, it is the latter. The clock starts to tick when the defendant learns by service of any paper that the case has become removable. Because she requested removal within this 30-day period, the court should rule in favor of the remaining defendant.
A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, in state court in State B for breach of a contract to build a house for $200,000. The defendant counterclaimed for $300,000, alleging that the plaintiff breached an earlier contract by failing to pay for a house that the defendant had built. The plaintiff files a notice of removal to federal court in State B.
Can the case properly be removed to the federal court in State B?
A Yes, because all plaintiffs are of diverse citizenships from all defendants.
B Yes, unless the defendant objects to removal.
C No, unless the defendant joins in the removal.
D No, because only defendants may remove.
D
Removal is not proper. A plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court. Additionally, only defendants may remove a case to federal court. For these reasons, (A) and (B) are incorrect. (C) is incorrect because removal by a plaintiff is improper even if the defendant joins in removal. An argument could be made that, because the defendant has her own right to seek removal, the court should treat her “joining” the plaintiff’s removal request as her own request for removal. Here, however, the defendant has no independent right of removal because she is a citizen of the forum state.
On January 15, a patient sued his doctor and his surgeon in State A state court for medical malpractice. All acts of malpractice took place in State A. The patient and the surgeon are citizens of State A; the doctor is a citizen of State B. Fifteen months later, it was learned after extensive discovery that the surgeon was only peripherally involved in the patient’s treatment and was in no way negligent, so the patient dismissed the cause of action against the surgeon. Two weeks later, the doctor seeks to remove the case against him to federal court in State A, alleging diversity jurisdiction.
May the doctor successfully remove the case to a federal district court?
A Yes, because removal was sought within 30 days of the date that the doctor first learned that the case had become removable.
B Yes, because removal was sought within one year of the case becoming removable.
C No, because a case may not be removed to federal court more than one year after the action was commenced.
D No, because a defendant may not seek removal if the cause of action accrued in the forum state.
C
The doctor may not remove the case. If a diversity action is not initially removable but later becomes removable (as by dismissal of a nondiverse defendant), it may not be removed more than one year after it was commenced in state court. (A) is incorrect. In all cases, the defendant has 30 days after a case becomes removable to file a notice of removal; however, for diversity cases only, removal must also occur within one year from the date the case is commenced. (B) is incorrect. The one-year limit begins when the action is commenced, not when the case first became removable. (D) is incorrect. There is no such rule.
A State A citizen and a State B citizen were in an automobile accident in State B. The State B citizen filed a negligence action for $500,000 against the State A citizen in a federal district court located in State B. The State A defendant would prefer to litigate the case in a State B state court. The State A defendant thus filed a notice of removal, seeking to transfer the case to a State B state court.
Should the federal court grant the motion?
A Yes, because federal diversity jurisdiction is not needed to protect the State A citizen from the potential bias of State B courts if the State A citizen requests that the matter be litigated in the State B state courts.
B Yes, because tort actions arising from accidents in State B should be litigated in State B state courts.
C No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction.
D No, because removal to state court is not available when one of the parties is a citizen of the state in which the action is pending.
C
The court should not grant the motion. Under 28 U.S.C. section 1441, a defendant may remove an action that could originally have been brought in the federal courts, based on either a federal question being presented or on diversity of citizenship. However, there is no similar provision that allows a case initially filed in federal court to be moved to state court. (An action that was wrongfully removed from state court to federal court may be remanded back to state court, but that procedure is not applicable here because the case was initially filed in federal court.) (A) is incorrect. As stated, although one goal behind diversity jurisdiction is to lessen an in-state prejudice against out-of-state defendants, the lack of that potential prejudice does not provide a basis for moving a case from federal court to state court. (B) is an incorrect statement of the law. A case based on diversity jurisdiction may include a tort action that arose in the jurisdiction. (D) is an incorrect statement of the law. An in-state defendant is prevented from removing a case to federal court based on diversity. The fact that the plaintiff may be a citizen of the state in which the state case was filed does not prevent removal.
