removal question

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soda mayor
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removal question

Postby soda mayor » Sat Nov 13, 2010 2:48 am

If the A and B are diverse and A sues B for 100k in state court and then B counterclaims for 30k--can B remove both claims?

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vanwinkle
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Re: removal question

Postby vanwinkle » Sat Nov 13, 2010 3:17 am

The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place) and 2) the defendant in a pure diversity case is not being sued in their home state (the purpose of removal is to escape the bias another state's courts might have against your interests; there's no such bias if you're being sued in your home state).

I'll do #2 first since it's easier. In your case, A and B are in different states, so it depends on whether B is being sued in his home court or not. If B is facing this suit in his own state's court, then he cannot remove on either claim. If B is not (if he is facing this in A's state or another state), then removal is possible; then we can return to issue #1, whether or not a federal court would've had original jurisdiction over both claims.

Regarding the original suit: A sues B for $100K. A and B are in different states and the amount in controversy is over $75K. That fits into § 1332 diversity jurisdiction, so A could've originally filed in federal court. Thus, the federal courts would have had original jurisdiction over the case, and B can remove it.

Regarding the counterclaim: The counterclaim that B brings would depend on whether it was part of the same "case or controversy". The $30K claim is below the jurisdictional minimum in § 1332 and B could not have filed that claim in court under diversity jurisdiction, but you don't stop there. Federal courts can have supplemental jurisdiction under § 1367 if the subject of B's counterclaim is part of the same "case or controversy" as A's suit. The "case or controversy" requirement necessitates some analysis of what B's suit is for and how it's related to A's suit.

If B's counterclaim is part of the same "case or controversy" then it can be removed, too. (In that case, if A had originally sued B in federal court, B could've brought the counterclaim under § 1367; it goes back to the original question of, "Could this have originally been brought in federal court?") If B's counterclaim is not part of the same "case or controversy", then there's no § 1367 supplemental jurisdiction, and the counterclaim can't be removed.

de5igual
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Re: removal question

Postby de5igual » Sat Nov 13, 2010 10:58 am

couldn't he remove it under §1441(c) if the counterclaim doesn't arise from "one constitutional case"?

Between 1367 and 1441(c), assuming the original claim could properly be brought into federal court, will allow most supplemental claims in.

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Cupidity
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Re: removal question

Postby Cupidity » Sat Nov 13, 2010 11:12 am

vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place) and 2) the defendant in a pure diversity case is not being sued in their home state (the purpose of removal is to escape the bias another state's courts might have against your interests; there's no such bias if you're being sued in your home state).

I'll do #2 first since it's easier. In your case, A and B are in different states, so it depends on whether B is being sued in his home court or not. If B is facing this suit in his own state's court, then he cannot remove on either claim. If B is not (if he is facing this in A's state or another state), then removal is possible; then we can return to issue #1, whether or not a federal court would've had original jurisdiction over both claims.

Regarding the original suit: A sues B for $100K. A and B are in different states and the amount in controversy is over $75K. That fits into § 1332 diversity jurisdiction, so A could've originally filed in federal court. Thus, the federal courts would have had original jurisdiction over the case, and B can remove it.

Regarding the counterclaim: The counterclaim that B brings would depend on whether it was part of the same "case or controversy". The $30K claim is below the jurisdictional minimum in § 1332 and B could not have filed that claim in court under diversity jurisdiction, but you don't stop there. Federal courts can have supplemental jurisdiction under § 1367 if the subject of B's counterclaim is part of the same "case or controversy" as A's suit. The "case or controversy" requirement necessitates some analysis of what B's suit is for and how it's related to A's suit.

If B's counterclaim is part of the same "case or controversy" then it can be removed, too. (In that case, if A had originally sued B in federal court, B could've brought the counterclaim under § 1367; it goes back to the original question of, "Could this have originally been brought in federal court?") If B's counterclaim is not part of the same "case or controversy", then there's no § 1367 supplemental jurisdiction, and the counterclaim can't be removed.


This is an absolutely excellent answer.

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patrickd139
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Re: removal question

Postby patrickd139 » Sat Nov 13, 2010 11:18 am

vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place) and 2) the defendant in a pure diversity case is not being sued in their home state (the purpose of removal is to escape the bias another state's courts might have against your interests; there's no such bias if you're being sued in your home state).

I'll do #2 first since it's easier. In your case, A and B are in different states, so it depends on whether B is being sued in his home court or not. If B is facing this suit in his own state's court, then he cannot remove on either claim. If B is not (if he is facing this in A's state or another state), then removal is possible; then we can return to issue #1, whether or not a federal court would've had original jurisdiction over both claims.

Regarding the original suit: A sues B for $100K. A and B are in different states and the amount in controversy is over $75K. That fits into § 1332 diversity jurisdiction, so A could've originally filed in federal court. Thus, the federal courts would have had original jurisdiction over the case, and B can remove it.

Regarding the counterclaim: The counterclaim that B brings would depend on whether it was part of the same "case or controversy". The $30K claim is below the jurisdictional minimum in § 1332 and B could not have filed that claim in court under diversity jurisdiction, but you don't stop there. Federal courts can have supplemental jurisdiction under § 1367 if the subject of B's counterclaim is part of the same "case or controversy" as A's suit. The "case or controversy" requirement necessitates some analysis of what B's suit is for and how it's related to A's suit.

If B's counterclaim is part of the same "case or controversy" then it can be removed, too. (In that case, if A had originally sued B in federal court, B could've brought the counterclaim under § 1367; it goes back to the original question of, "Could this have originally been brought in federal court?") If B's counterclaim is not part of the same "case or controversy", then there's no § 1367 supplemental jurisdiction, and the counterclaim can't be removed.

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vanwinkle
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Re: removal question

Postby vanwinkle » Sat Nov 13, 2010 12:14 pm

f0bolous wrote:couldn't he remove it under §1441(c) if the counterclaim doesn't arise from "one constitutional case"?

Between 1367 and 1441(c), assuming the original claim could properly be brought into federal court, will allow most supplemental claims in.

No, not quite. This is a place where you really have to be careful. § 1441(c) only applies in certain circumstances, and to understand why you have to think about the rationale for federal jurisdiction in different claims.

§ 1441(c) says that you can remove non-removable claims that are joined to a § 1331 (federal question) claim. This is extremely important. Federal courts can have jurisdiction over all federal question cases, even if there is no diversity, and we want federal courts to be able to resolve federal questions because it's their field of expertise. This is, at least for Civ Pro exam purposes, pretty unlimited; if it's a federal question, you can take it to federal court under § 1331, and remove it under § 1441.

On the other hand, § 1332 diversity jurisdiction is about state law claims, and we don't think federal courts are better experts at state law than state courts. The reason for diversity jurisdiction to ensure parties have a neutral forum and don't face a state court that might be biased against residents of another state. It's an entirely different rationale, and one which Congress has limited the use of ($75,001 minimum, "same case or controversy" requirement for related claims, B cannot remove if he's in his own state) because it's about fairness and not about the federal courts being best to resolve it.

Thus, it's considered more important to make sure § 1331 federal question cases can get into federal court and less important to make sure § 1332 diversity cases can. That's why § 1441(c) is there; since we really think federal question cases are best handled by federal courts, we want to be able to remove them there, even if doing so means having to bring along ordinarily non-removable claims that come with it. But it's limited to situations where the non-removable claim is joined to a federal question claim. Notice how § 1441(c) requires a § 1331 (federal question) claim for the otherwise non-removable claims to be removable.

Let's talk about some examples now:

Example 1 wrote:Both A and B are filing related state tort claims. A files his claim in his home state, state A.

This is what I was assuming was going on with my original response. A's claim is between parties of different states, and he's asking for over $75K, so this fits within §1332 diversity jurisdiction. B could remove this under § 1441(b).

However, if instead he filed in B's home state, B can't remove. § 1441(b) says that a defendant can't remove if you're in your home state. This is because of that fairness rationale for diversity jurisdiction I mentioned above; you're not really facing the potential bias of another state's court if you're in your home state, so there's no need to flee to federal court to get a fair trial. In B's home state, B can't remove.

§ 1441(c) simply does not apply here. There's no federal question that A's claim is joined to.

Example 2 wrote:A is filing two separate claims: $20K for patent violations and $80K under state tort law for damages from a car accident. B is filing a $30K counterclaim on the car accident. A files his claim in his home state, state A.

Here, A's claim is a federal claim. Patent law is exclusively federal, so this would fall under the "arising under federal law" provision of § 1331 federal question jurisdiction. B can remove that case easily under § 1441. A's diversity claim is joined to his federal question claim, so it comes along too under § 1441(c), which ensures removal of joined claims whether they were individually removable or not. With the diversity claim also removed, B would have supplemental jurisdiction on his counterclaim and can remove it as well.

Note here that § 1441(c) ensures A's diversity claim comes along, but that's not even necessary. In this situation B would be able to remove under § 1441(b) rules for removing diversity claims, and have supplemental jurisdiction on his counterclaim since the two claims are based on the same "case or controversy". This begs the question: When does § 1441(c) matter?

Example 3 wrote:A is filing two separate claims: $20K for patent violations and $80K under state tort law for damages from a car accident. B is filing a $30K counterclaim on the car accident. A files his claim in B's home state.

Here, we have the § 1331 original jurisdiction again because patent claims are "arising under federal law" for the patent claim, and we also have § 1332 diversity jurisdiction for the car accident. Both of A's claims could have originally been brought in federal court, making them potentially removable. But there's a problem for B here.

B can easily remove the patent claim. § 1441(b) allows for removal of all federal claims regardless of amount or diversity of parties. But how can he remove A's state tort claim, or his own counterclaim? Neither are part of the same "case or controversy" as the federal patent claim, so he can't remove them under § 1367 as supplemental to the patent case. He can't treat A's tort suit like a § 1332 diversity case and his related claim as a § 1367 supplemental claim, because it's filed in his own state, and as mentioned above, § 1441(b) won't allow defendants to remove diversity cases they face in their home state.

This seems unfair to B. He can remove one case but not the other. If he removes the federal claim, then he faces the expense of running two different trials. If he stays in state court, he forfeits his right to a federal forum on the federal claim. We really want him to have that right, since we really consider federal courts the best place to resolve federal claims.

This is where § 1441(c) comes in. Because B can remove one claim under § 1331 federal question jurisdiction, the other diversity claims can come along too, even though they're otherwise non-removable. So § 1441 only applies in specific circumstances.

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Re: removal question

Postby stayway » Sat Nov 13, 2010 12:29 pm

Win.

stayway
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Re: removal question

Postby stayway » Sat Nov 13, 2010 12:52 pm

vanwinkle wrote:This is where § 1441(c) comes in. Because B can remove one claim under § 1331 federal question jurisdiction, the other diversity claims can come along too, even though they're otherwise non-removable. So § 1441 only applies in specific circumstances.


Question. 1441(c) says "...this title is joined with one or more otherwise non-removable claims/causes..."

I understand that the tort claim by A and counterclaim by B can't be "joined" under 1367 with the FQ claim. But what does the word "joined" mean in 1441(c)? Can the non-removable diversity claim just "come along" with the removable FQ claim? Or does the non-removable claim have to be "joined" by some formal means?

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vanwinkle
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Re: removal question

Postby vanwinkle » Sat Nov 13, 2010 2:42 pm

nooyyllib wrote:
vanwinkle wrote:This is where § 1441(c) comes in. Because B can remove one claim under § 1331 federal question jurisdiction, the other diversity claims can come along too, even though they're otherwise non-removable. So § 1441 only applies in specific circumstances.


Question. 1441(c) says "...this title is joined with one or more otherwise non-removable claims/causes..."

I understand that the tort claim by A and counterclaim by B can't be "joined" under 1367 with the FQ claim. But what does the word "joined" mean in 1441(c)? Can the non-removable diversity claim just "come along" with the removable FQ claim? Or does the non-removable claim have to be "joined" by some formal means?

It matters that A's claims are joined, and that all the claims are things the federal courts could have jurisdiction over (federal for A's first claim, diversity for the second, and supplemental for B's counterclaim). A has brought these two claims together in state court, so I'm presuming that they were joined, and it does matter that his non-removable diversity claim was joined to the removable 1331 claim.

A's diversity claim is non-removable because of the 1441(b) limitation on B removing cases against him in his own state but the courts would otherwise have diversity jurisdiction over it. If it were removable, B's counterclaim would be supplemental to it and removable also. That's why B's counterclaim also comes along; once you make A's claim removable under 1441(c), the counterclaim is supplementary and fits under 1367. This only works because A's diversity claim, which is otherwise non-removable under 1441(b), is joined to his federal claim.

If it was just A filing a federal claim and B trying to counterclaim with a totally unrelated state claim, 1441(c) would not help with B's non-removable counterclaim because it's not joined to A's claim or related to anything that is.

stayway
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Re: removal question

Postby stayway » Sat Nov 13, 2010 3:25 pm

vanwinkle wrote:
nooyyllib wrote:
vanwinkle wrote:This is where § 1441(c) comes in. Because B can remove one claim under § 1331 federal question jurisdiction, the other diversity claims can come along too, even though they're otherwise non-removable. So § 1441 only applies in specific circumstances.


Question. 1441(c) says "...this title is joined with one or more otherwise non-removable claims/causes..."

I understand that the tort claim by A and counterclaim by B can't be "joined" under 1367 with the FQ claim. But what does the word "joined" mean in 1441(c)? Can the non-removable diversity claim just "come along" with the removable FQ claim? Or does the non-removable claim have to be "joined" by some formal means?

It matters that A's claims are joined, and that all the claims are things the federal courts could have jurisdiction over (federal for A's first claim, diversity for the second, and supplemental for B's counterclaim). A has brought these two claims together in state court, so I'm presuming that they were joined, and it does matter that his non-removable diversity claim was joined to the removable 1331 claim.

A's diversity claim is non-removable because of the 1441(b) limitation on B removing cases against him in his own state but the courts would otherwise have diversity jurisdiction over it. If it were removable, B's counterclaim would be supplemental to it and removable also. That's why B's counterclaim also comes along; once you make A's claim removable under 1441(c), the counterclaim is supplementary and fits under 1367. This only works because A's diversity claim, which is otherwise non-removable under 1441(b), is joined to his federal claim.

If it was just A filing a federal claim and B trying to counterclaim with a totally unrelated state claim, 1441(c) would not help with B's non-removable counterclaim because it's not joined to A's claim or related to anything that is.


Thanks, I didn't realize that A filed the two claims together.

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vanwinkle
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Re: removal question

Postby vanwinkle » Sat Nov 13, 2010 4:42 pm

nooyyllib wrote:Thanks, I didn't realize that A filed the two claims together.

Now that you've said this, I realized I had a massive fail in my examples (for some reason I ignored the joinder requirement in one example and made it sound like it wasn't required when it was). I fucked up, and I have substantially revised my examples above to account for the mistake you caught.

Anyone who read my 1441(c) example should reread it so they don't make the mistake I made before.

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Re: removal question

Postby Gamecubesupreme » Sat Nov 13, 2010 6:41 pm

vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place)


Wait, isn't that a removal of venue, not a removal from state to federal court?

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vamedic03
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Re: removal question

Postby vamedic03 » Sat Nov 13, 2010 7:05 pm

Gamecubesupreme wrote:
vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place)


Wait, isn't that a removal of venue, not a removal from state to federal court?


Change of venue would be § 1404

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Gamecubesupreme
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Re: removal question

Postby Gamecubesupreme » Sat Nov 13, 2010 7:08 pm

vamedic03 wrote:
Gamecubesupreme wrote:
vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place)


Wait, isn't that a removal of venue, not a removal from state to federal court?


Change of venue would be § 1404


I mean, I thought the question the TC posed was for removal from state to federal, not a removal of venue. Otherwise the counter-claim with less than $75,000 wouldn't make sense.

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beach_terror
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Re: removal question

Postby beach_terror » Sat Nov 13, 2010 7:17 pm

Gamecubesupreme wrote:
vamedic03 wrote:
Gamecubesupreme wrote:
vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place)


Wait, isn't that a removal of venue, not a removal from state to federal court?


Change of venue would be § 1404


I mean, I thought the question the TC posed was for removal from state to federal, not a removal of venue. Otherwise the counter-claim with less than $75,000 wouldn't make sense.


What? You don't "remove" venue, you transfer it. You have to be in the right court system for venue transfers, you can't go from Ohio state court to federal district court in California via transfers. The counterclaim was a supplemental jurisdiction issue.

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vamedic03
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Re: removal question

Postby vamedic03 » Sat Nov 13, 2010 7:22 pm

Gamecubesupreme wrote:
vamedic03 wrote:
Gamecubesupreme wrote:
vanwinkle wrote:The basic rule for § 1441 removal is that you can remove the case if 1) the federal court would've had original jurisdiction (meaning the case could have been filed there in the first place)


Wait, isn't that a removal of venue, not a removal from state to federal court?


Change of venue would be § 1404


I mean, I thought the question the TC posed was for removal from state to federal, not a removal of venue. Otherwise the counter-claim with less than $75,000 wouldn't make sense.


huh?

1) amount in controversy is 100K, so its removable. . .

2) Change of venue - transferring from 1 court in a system to another court - so from 1 federal district court to another federal district court (or, in a state, from 1 state trial court to another state trial court)

3) Don't confuse venue and jurisdiction.

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Re: removal question

Postby stayway » Sat Nov 13, 2010 7:55 pm

.

Cherith Cutestory
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Re: removal question

Postby Cherith Cutestory » Sat Nov 13, 2010 9:52 pm

Just to piggy back on the thread, I present my own (probably stupid) removal question.

Federal question case is filed in state court. Defendants successfully remove. Can plaintiffs immediately appeal the removal decision?

I know it's an interlocutory decision for the federal court, but could it be argued that by effectively ending the State case it's a final decision? Or am I trying to find hidden trickery in an obvious question? I hate that Civ Pro is my first exam.

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danidancer
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Re: removal question

Postby danidancer » Sat Nov 13, 2010 9:58 pm

Who needs Glannon? Lets all just get vanwinkle to teach us Civ Pro. :mrgreen:

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JazzOne
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Re: removal question

Postby JazzOne » Sat Nov 13, 2010 10:04 pm

danidancer wrote:Who needs Glannon? Lets all just get vanwinkle to teach us Civ Pro. :mrgreen:

+1

And that's +1 from someone who got an A+ in civ pro.

Vanwinkle should make some outlines for every class and sell them to incoming 1Ls. Modest price x a few hundred = nice spare change

Think about Van. Seriously. Where are you working this summer?

stayway
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Re: removal question

Postby stayway » Sat Nov 13, 2010 10:05 pm

Cherith Cutestory wrote:Federal question case is filed in state court. Defendants successfully remove. Can plaintiffs immediately appeal the removal decision?


I thought Federal question cases had to be heard in the federal court. As for your question, I don't think the plaintiff can "appeal" a FQ case that is being removed. However, the federal court can remand the case back to the state court if it decides that it lacks SMJ.

As for 1332, I know that the plaintiff can thwart removal by filing for less than or exactly $75k.

Discretion: I'm an 1L learning Civ Pro as well.

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JazzOne
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Re: removal question

Postby JazzOne » Sat Nov 13, 2010 10:06 pm

soda mayor wrote:If the A and B are diverse and A sues B for 100k in state court and then B counterclaims for 30k--can B remove both claims?

lol

Cool handle

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beach_terror
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Re: removal question

Postby beach_terror » Sat Nov 13, 2010 10:09 pm

Cherith Cutestory wrote:Just to piggy back on the thread, I present my own (probably stupid) removal question.

Federal question case is filed in state court. Defendants successfully remove. Can plaintiffs immediately appeal the removal decision?

I know it's an interlocutory decision for the federal court, but could it be argued that by effectively ending the State case it's a final decision? Or am I trying to find hidden trickery in an obvious question? I hate that Civ Pro is my first exam.

Are you asking if P can appeal to the State court after the case is removed to federal court? :?

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Unitas
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Re: removal question

Postby Unitas » Sat Nov 13, 2010 10:31 pm

nooyyllib wrote:
Cherith Cutestory wrote:Federal question case is filed in state court. Defendants successfully remove. Can plaintiffs immediately appeal the removal decision?


I thought Federal question cases had to be heard in the federal court. As for your question, I don't think the plaintiff can "appeal" a FQ case that is being removed. However, the federal court can remand the case back to the state court if it decides that it lacks SMJ.

As for 1332, I know that the plaintiff can thwart removal by filing for less than or exactly $75k.

Discretion: I'm an 1L learning Civ Pro as well.


LoL wut? Only a few types of cases must be heard in federal court "exclusive juris." Patents and trademarks are the standard examples.

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JazzOne
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Re: removal question

Postby JazzOne » Sat Nov 13, 2010 10:33 pm

beach_terror wrote:
Cherith Cutestory wrote:Just to piggy back on the thread, I present my own (probably stupid) removal question.

Federal question case is filed in state court. Defendants successfully remove. Can plaintiffs immediately appeal the removal decision?

I know it's an interlocutory decision for the federal court, but could it be argued that by effectively ending the State case it's a final decision? Or am I trying to find hidden trickery in an obvious question? I hate that Civ Pro is my first exam.

Are you asking if P can appeal to the State court after the case is removed to federal court? :?

I think the plain answer is "no." You cannot make an interlocutory appeal of the removal. It's not a final judgment, and I know of no exception pertaining to federal question removal.




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