Civ Pro Question

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smichael
Posts: 1
Joined: Mon Dec 13, 2010 4:05 pm

Civ Pro Question

Postby smichael » Mon Dec 13, 2010 4:49 pm

I'm working through hypos and came accross one that I'm not sure about. Here are the relevant facts:

P files suit claiming violation of federal statute in CA state court, which sits in the S. District of CA, against Corp. incorporated in DE with its ppb in N. District of CA. D has no contacts in the S. District of CA. D removes case to federal district court (which would remove the case to the S. District of CA). P moves to remand case. Should the court allow the remand to state court?

I'm confused because the suit was properly filed in state court, personal jurisdiction exists, as does subject matter, but after removal, the problem arises of the corp. D does not having any contacts in the S. district of CA. I know that lack of subject matter jurisdiction and not following proper procedure (30 days, not all defendant agree to removal, etc) are grounds for remanding a case, but what about improper venue due to the case being removed? The case was proper in state court but now lacks personal jurisdiction in the S. District of CA according to 1391(c). Is this irrelevant since the court would likely transfer the case to the proper venue and would have no bearing on remanding the case? Any help would be great.

random5483
Posts: 684
Joined: Sat Mar 20, 2010 8:17 pm

Re: Civ Pro Question

Postby random5483 » Mon Dec 13, 2010 6:46 pm

Your question is a little unclear, but I am going to try and clarify.

Your question is a venue question and not a personal/subject matter jxd question. Any federal court has subject matter jxd over an issue that is either a federal question or a diversity case. If the N. Dist of CA court has jxd, then so does the S. Dist of CA court. Personal jxd is based on state. Since they are both located in CA, personal jxd exists in either court (FRCP 4 gives federal court jxd if the state court in the same district has jxd).


Your question is one of venue? 28 U.S.C. 1391 refers to venue as well. A remand from federal to state court only occurs if the federal court has no jxd. Therefore, the improper venue will not result in the judge remanding the case back to state court.


Venue rules that apply here are outlined in 28 U.S.C 1404 and 1406. If the original venue is proper the judge may grant a motion to change venues. If the original venue is improper the judge must either transfer the case to the appropriate venue or dismiss the case. Here, unless the venue is proper the judge will be required to either dismiss the case or move it to a proper venue. Note that there can be multiple proper venues.

uci2013
Posts: 226
Joined: Fri Sep 03, 2010 12:32 am

Re: Civ Pro Question

Postby uci2013 » Mon Dec 13, 2010 10:12 pm

random5483 wrote:Your question is a little unclear, but I am going to try and clarify.

Your question is a venue question and not a personal/subject matter jxd question. Any federal court has subject matter jxd over an issue that is either a federal question or a diversity case. If the N. Dist of CA court has jxd, then so does the S. Dist of CA court. Personal jxd is based on state. Since they are both located in CA, personal jxd exists in either court (FRCP 4 gives federal court jxd if the state court in the same district has jxd).


Your question is one of venue? 28 U.S.C. 1391 refers to venue as well. A remand from federal to state court only occurs if the federal court has no jxd. Therefore, the improper venue will not result in the judge remanding the case back to state court.


Venue rules that apply here are outlined in 28 U.S.C 1404 and 1406. If the original venue is proper the judge may grant a motion to change venues. If the original venue is improper the judge must either transfer the case to the appropriate venue or dismiss the case. Here, unless the venue is proper the judge will be required to either dismiss the case or move it to a proper venue. Note that there can be multiple proper venues.


This is my understanding as well. I was also confused by the remand back to state court part. Given it is a federal question, diversity doesn't matter. Once the case is in Fed Ct it can be transferred to a more convenient venue.

nyknicks
Posts: 114
Joined: Sat Sep 26, 2009 6:47 pm

Re: Civ Pro Question

Postby nyknicks » Mon Dec 13, 2010 10:34 pm

My take:
Venue is auto established under Removal. So venue is proper. However, a defendant can not properly remove a claim based on 1332 if the case is filed in a defendant's home state. Therefore, the judge should grant the motion to remand.

uci2013
Posts: 226
Joined: Fri Sep 03, 2010 12:32 am

Re: Civ Pro Question

Postby uci2013 » Mon Dec 13, 2010 10:48 pm

nyknicks wrote:My take:
Venue is auto established under Removal. So venue is proper. However, a defendant can not properly remove a claim based on 1332 if the case is filed in a defendant's home state. Therefore, the judge should grant the motion to remand.


I believe this is a 1331 federal question case, not a diversity case.

nyknicks
Posts: 114
Joined: Sat Sep 26, 2009 6:47 pm

Re: Civ Pro Question

Postby nyknicks » Mon Dec 13, 2010 10:51 pm

uci2013 wrote:
nyknicks wrote:My take:
Venue is auto established under Removal. So venue is proper. However, a defendant can not properly remove a claim based on 1332 if the case is filed in a defendant's home state. Therefore, the judge should grant the motion to remand.


I believe this is a 1331 federal question case, not a diversity case.


Oh good call. So then I'm not really sure why a judge would remand? or what the question is getting at? I'd say no, the judge shouldn't remand.. I can't think of an argument why he should?




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