Pg 11 Flashcards
What is involved in removal?
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.
Who can ask for removal?
Only the defendant
Is it possible to get removal to federal court even if the case has both federal and state law claims?
Yes
What is the rationale behind removal?
To give both parties the chance to go federal
What is the removal process?
- 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
Removal only goes from what court to what court?
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
What are some possible bases for removal?
Diversity, federal question, supplemental jurisdiction
The plaintiff initially chooses the location of a suit subject to limitations like what?
Personal jurisdiction, subject matter jurisdiction, and venue
Who is the master of a claim?
The plaintiff
When is a case not removable?
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.
What is the artfully pled doctrine?
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
Does removal only apply to a portion of the case, or the entire case?
It applies to cases, not claims. So you cannot dissect and send only parts of the case
What are situations when a plaintiff can move to have a case remanded back to state court?
If the plaintiff claims that the case lacks subject matter jurisdiction or that the defendant didn’t follow proper removal requirements.
If the P waits more than 30 days after removal to federal court to make an objection to it, what happens?
The objection is waived
When can you make a motion to remand a case back to state court after it has been removed?
As long as the reasoning is for lack of subject matter jurisdiction, it can happen anytime before final judgement on the case is made.
Are remand orders appealable?
No
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?
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
What are the rules regarding consent in relation to removal?
All defendants must consent to removal. If one does not, the case stays in state court
If all defendants are served at the same time, how can each defendant prevent removal to federal court?
By refusing to join.
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?
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
What is a smart way to try to prevent removal of a case?
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
What are the rules for removal with regard to federal question, diversity, and separate and independent federal claims?
– 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.
What is venue?
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
What is the idea behind venue?
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
What are the rules regarding venue?
A plaintiff can locate a case where the defendant resides or the event took place
Is venue waivable?
Yes
If the defendant wants to challenge that venue is improper, when does it have to happen?
Before he answers or with his answer. If it doesn’t happen in that timeframe then it is lost
Are states and the federal government free to have their own venue rules?
Yes, because venue is specific to each jurisdiction
What is supposed to be the focus of venue?
Pragmatism and commonsense
Who lays venue?
The plaintiff’s lawyer selects the place of trial by using statute, constitutional provisions, or trial of court
Is it possible to have more than one residence or domicile for venue?
No
What is involved in state venue?
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
Where is venue proper in local cases?
In the county where the subject of the action is. For local cases it usually involves land because it doesn’t move
If crops are still attached to the land, is venue considered to be local or not local?
Local. If they are severed, it would be not local
Venue statutes often have special provisions for what kinds of things?
Divorce, recovery of property, residents and nonresidents, corporations, etc.
What kinds of things is venue usually based on?
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.
If venue is challenged, where can it be moved to?
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
