Pg 11

Question 1

What is involved in removal?

Answer 1

This allows any civil suit that is filed in state court to be transferred to federal court by the defendant in the district and division of the state court where the case is pending. The federal court needs to have original jurisdiction. This is for cases that could’ve been brought in federal court but were filed, either properly or improperly, in state court.

Question 2

Who can ask for removal?

Answer 2

Only the defendant

Question 3

Is it possible to get removal to federal court even if the case has both federal and state law claims?

Answer 3

Yes

Question 4

What is the rationale behind removal?

Answer 4

To give both parties the chance to go federal

Question 5

What is the removal process?

Answer 5

• the defendant files a document in federal court within 30 days of getting the plaintiff’s pleading in state court
• the federal court automatically gets the case and jurisdiction is transferred to them and is taken away from the state court
• if the plaintiff wants to object to the removal he must make this objection in federal court. If the objection is upheld, the court remands back to state court

Question 6

Removal only goes from what court to what court?

Answer 6

This is a one-way street from state court to federal court. You cannot remove to a different state, or from Federal court to state court

Question 7

What are some possible bases for removal?

Answer 7

Diversity, federal question, supplemental jurisdiction

Question 8

The plaintiff initially chooses the location of a suit subject to limitations like what?

Answer 8

Personal jurisdiction, subject matter jurisdiction, and venue

Question 9

Who is the master of a claim?

Answer 9

The plaintiff

Question 10

When is a case not removable?

Answer 10

When the basis of jurisdiction is diversity and any of the defendants is a citizen of the state where the suit is brought. The reasoning is that the defendant doesn’t need federal protection from his own state.

Question 11

What is the artfully pled doctrine?

Answer 11

The plaintiff cannot cover up real issues in the complaint just because he doesn’t want the case to be in federal court. This can happen if he pleads the complaint by only using facts or legal complaints that don’t reference federal issues with the hope that the courts won’t have a basis for federal jurisdiction

Question 12

Does removal only apply to a portion of the case, or the entire case?

Answer 12

It applies to cases, not claims. So you cannot dissect and send only parts of the case

Question 13

What are situations when a plaintiff can move to have a case remanded back to state court?

Answer 13

If the plaintiff claims that the case lacks subject matter jurisdiction or that the defendant didn’t follow proper removal requirements.

Question 14

If the P waits more than 30 days after removal to federal court to make an objection to it, what happens?

Answer 14

The objection is waived

Question 15

When can you make a motion to remand a case back to state court after it has been removed?

Answer 15

As long as the reasoning is for lack of subject matter jurisdiction, it can happen anytime before final judgement on the case is made.

Question 16

Are remand orders appealable?

Answer 16

No

Question 17

If the plaintiff is making a motion to remand the case back to state court after it has been removed to federal court, as long as the reasoning doesn’t have to do with subject matter jurisdiction, what are the rules?

Answer 17

He must make the motion within 30 days after notice of removal is filed in federal court. If he doesn’t make it within that time frame, his chance to object is waived

Question 18

What are the rules regarding consent in relation to removal?

Answer 18

All defendants must consent to removal. If one does not, the case stays in state court

Question 19

If all defendants are served at the same time, how can each defendant prevent removal to federal court?

Answer 19

By refusing to join.

Question 20

If there are multiple defendants and some are served earlier than others and those early ones remove the case to federal court, once the last one is served, if he doesn’t consent to removal because it happened without him, what can he do?

Answer 20

He can prevent the case from being heard in federal court by moving to remand on the ground that he doesn’t consent to removal

Question 21

What is a smart way to try to prevent removal of a case?

Answer 21

Seek damages below $75,000. Although this is tricky because if it is possible to recover more [the jury might give more], then the defendant can argue that the complaint could support a higher award that would meet the AIC

Question 22

What are the rules for removal with regard to federal question, diversity, and separate and independent federal claims?

Answer 22

– federal question: removal is only proper if the case could’ve been brought originally in federal court [either federal question or diversity with AIC]
– diversity: defendant can only remove if he is not a citizen of the forum state.
– separate and independent federal claim: if the plaintiff brings a separate or independent federal claim plus a state claim, the defendant can remove all the claims.

Question 23

What is venue?

Answer 23

The place where the trial is held. In one jx there can be many places within a state to hold trial. The rules say where you can locate a case within a court system, assuming there is PJ and SMJ

Question 24

What is the idea behind venue?

Answer 24

To put the case in a rational location that there’s a sensible relationship to the claims asserted or to the parties. It is meant to be convenient for all the parties and to distribute the workload amongst courts according to common sense. This is about geography and the best or most convenient location in the system to hear the case

Question 25

What are the rules regarding venue?

Answer 25

A plaintiff can locate a case where the defendant resides or the event took place

Question 26

Is venue waivable?

Answer 26

Yes

Question 27

If the defendant wants to challenge that venue is improper, when does it have to happen?

Answer 27

Before he answers or with his answer. If it doesn’t happen in that timeframe then it is lost

Question 28

Are states and the federal government free to have their own venue rules?

Answer 28

Yes, because venue is specific to each jurisdiction

Question 29

What is supposed to be the focus of venue?

Answer 29

Pragmatism and commonsense

Question 30

Who lays venue?

Answer 30

The plaintiff’s lawyer selects the place of trial by using statute, constitutional provisions, or trial of court

Question 31

Is it possible to have more than one residence or domicile for venue?

Answer 31

No

Question 32

What is involved in state venue?

Answer 32

Within a state, venue is done by the county where one party resides or does business, where the claim arose, or where property in dispute is located

Question 33

Where is venue proper in local cases?

Answer 33

In the county where the subject of the action is. For local cases it usually involves land because it doesn’t move

Question 34

If crops are still attached to the land, is venue considered to be local or not local?

Answer 34

Local. If they are severed, it would be not local

Question 35

Venue statutes often have special provisions for what kinds of things?

Answer 35

Divorce, recovery of property, residents and nonresidents, corporations, etc.

Question 36

What kinds of things is venue usually based on?

Answer 36

The subject of the action, where the cause of action arose, where the facts happened, where the defendant resides, or the defendant does business or has an office, where the plaintiff resides or does business, where the defendant can be found or served, the county that is designated in the plaintiffs complaint, where the seat of government is, etc.

Question 37

If venue is challenged, where can it be moved to?

Answer 37

The best county in the state for trial depending on where the defendant resides, or where the cause of action happened, or if the fight is over real property, then venue is only proper in the county that the property is located