SMJ and removal/remand

Question 1

SMJ

Answer 1

court’s power over the CASE (not the parties)

fed courts have limited SMJ; state cts have general SMJ (there are a few fed cases that state courts can’t hear such as bankruptcy – but most cases arising under fed law can be heard by state courts)

Question 2

2 main types of cases heard in fed court

Answer 2

• FQ
• diversity of citizenship

remember that lack of SMJ (unlike PJ) CANNOT BE WAIVED

Question 3

diversity of citizenship

Answer 3

• case is either between citizens of diff US states; or between a citizen of US state and citizen of foreign country; AND
• amount in controversy EXCEEDS 75k (determined by amount pleaded in good faith in pff’s complaint – gotta be a possibility that recovery will exceed 75k)

*if ANY pff is a citizen of same state as ANY D, then div of citizenship doesn’t exist
*watch for citizen of a foreign state who is lawfully admitted for permanent residence and domiciled in same US state…

Question 4

citizenship

Answer 4

• citizenship of person who is US citizen: one US state where she is domiciled at the time the suit is filed

***legal representative of a decedent assumes the state citizenship of the decedent

• citizenship of corp: of any state/country in which it is incorporated AND of the one state or country in which it has its principal place of business

cocporations can have MULTIPLE states of citizenship

• citizenship of unincorporated associations (partnership, LLC, etc): takes on the citizenships of all of its members (if an LP, you include citizenships of general and limited partners)

THERE MUST BE COMPLETE DIVERSITY - EACH PFF IS A CITIZEN OF A DIFFERENT STATE FROM EVERY DEFENDANT (NONE OF THE PFFS AND NONE OF THE D’S CAN BE FROM SAME STATE)

Question 5

natural persons domicile

Answer 5

• where a person was last both (1) present and (2) intending to remain indefinitely

Question 6

amount in controversy requirement

Answer 6

• in addition to complete diversity/alienage, the pff’s claim(s) must exceed 75k
• any single pff may aggregate all of her claims against a single D (claims don’t have to be related to each other)
• joint claims: use the total value of the claim (number of parties is irrelevant; you sue tortfeasors X, Y and Z for 80k)

Question 7

equitable relief and the amount in contro

Answer 7

2 tests (if either is met, courts will find that it is met)
1. pff’s viewpoint (if granted, does the relief requested have a value of more than 75k to pff)
2. D’s viewpoint (if granted, will the relief requested by pff cost the D more than 75k)

Question 8

federal question cases

Answer 8

• pff’s claim must arise under fed law
• pleader must follow well-pleaded complaint rule (pff’s claim itself must arise under fed law)
• is pff enforcing a fed right? if yes, case can go to fed court under FQ jdx

Question 9

removal and HOW can the D do it?

Answer 9

D can remove the case FROM STATE TO FEDERAL COURT
- can be removed when case could’ve been filed in a fed court
- D files a notice of removal in federal court, stating grounds of removal, which means federal SMJ
- D then serves copy of the notice of removal on adverse parties and files a copy in state court

Question 10

timing of removal

Answer 10

• D must remove no later than THIRTY DAYS after SERVICE!!!!!!!! of first paper that shows case is removable - it’s usually service of process b/c case is removable at the very outset

Question 11

who must join in the removal

Answer 11

• all D’s who have been served with process must join in removal
• if D’s are served at diff times and a later D initiates timely removal, the earlier served D can join in the removal even though her 30 day period may have been expired

Question 12

who cannot remove?

Answer 12

Pffs CAN NEVER remove (this is true even if D files counterclaim against pff that, by itself, could be heard in fed ct)

Question 13

what cases may be removed?

Answer 13

• D can remove a case from state to fed ct that meets requirements for diversity or FQ
• limit to removing case from state to fed court based solely on diversity:

1. case should not be removed if any D is a citizen of the forum state (e.g., one of the D’s is a citizen of Alabama and it’s in Alabama state court)
2. if diversity action is not initially removable but later becomes removable (as by dismissal of a nondiverse D), the case shouldn’t be removed more than one year after case was filed in state court

Question 14

removal venue

Answer 14

D removes to the fed district court “embracing” the state court where case was filed

Question 15

remand back to state ct

Answer 15

• if pff thinks case shouldn’t have been removed, she can remand back to state court
• if removal by the defendant to fed court was improper b/c fed ct lacked SMJ, no time limit on ordering remand back to state court