Removal/Venue

Question 1

General Rule of Removal

Answer 1

§1441(a)
- A defendant can remove if the case could have been brought in federal court
Exception:
- can’t remove a diversity case if any D is a citizen of the forum

Question 2

How long does a Defendant have to remove?

Answer 2

§1446

• D must remove within 30 days of service of process
• All Ds who have been served with process must join in the removal
• 30 days for removal restarts for each newly served D - 1446
• A diversity case cannot be removed more than 1 year after commencement of the action - unless the district court finds that P acted in bad faith in order to prevent D from removing an action

Question 3

Where can a case be removed?

Answer 3

§1441(e)

- only to the federal district that embraces the state court where the case was filed

Question 4

How long does a Plaintiff have to remand a case back to state court?

Answer 4

§1447

- P can file a motion to remand within 30 days after defendant’s filing of removal to fed court

Question 5

Where is Venue Proper?

Answer 5

§1391(b)

(b) (1): A judicial district where all defendants reside
(b) (2): Any district in which a substantial part of the claim arose
(b) (3): Fallback venue - almost never applies

Question 6

Where does an individual reside for purposes of venue?

Answer 6

district in which they are domiciled

Question 7

Where does an entity reside for purposes of venue?

Answer 7

all districts in which a substantial part of the claim arose

Question 8

Where can a case be transferred?

Answer 8

1404

• to any other district or division where it might have been brought
• or to which the parties have consented

Question 9

What law applies on a 1404 transfer?

Answer 9

When a defendant seeks a 1404 transfer, that transfer is simply a change of court room and should not change the law that is applied (Van Dusen)

Question 10

What law applies on a 1406 transfer?

Answer 10

usually the state law where the case is transferred

Question 11

What factors must a court consider in deciding whether to transfer a case pursuant to 1404?

Answer 11

• Convenience of parties, witnesses, and in the interests of justice
• P’s choice of forum is entitled to some weight
• Courts have considerable discretion in weighing these factors, which draw on forum non conveniens analysis from Gulf Oil
• A forum selection clause can trump consideration of private interest factors, which will rarely defeat enforcement of the forum selection clause - Atlantic Marine

Question 12

Forum Non Conveniens: Private Interest Factors

Answer 12

• how easy it is to obtain evidence/witnesses
• what is the cost of getting people who will testify
• what will be the enforceability of the judgment
• what are the advantages and obstacles to a fair trial
• burden on D with respect to expense of litigating in forum

Question 13

Forum Non Conveniens: Public Interest Factors

Answer 13

• what are the administrative difficulties of the court?
• we don’t want to to congest courts
• want to hold a trial in place where the public is interested
• what law will be applied