Removal 1441(b) Question

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JDcandidate
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Removal 1441(b) Question

Postby JDcandidate » Sat May 07, 2011 6:21 pm

Can somebody please explain the relationship between diversity jurisdiction and removal? I'm not seeing it...

Under 1441, if the defendant is a citizen of State A (where the claim was brought by a citizen of state B), and the federal court to which the defendant removed would thus be sitting in diversity, is removal not an option? If you have to remove to the federal district embracing the state court where the case was filed, how would defendants in diversity cases ever be able to remove? Or is 1441 pretty much saying removal isn't an option if the court would be sitting in diversity? As you can probably tell by the clusterf*%k of that question, I'm not seeing this... Pretty much, what's the deal with diversity jurisdiction and removal?

A second question: under 1441(c), a single defendant can remove if there is a separate and independent federal claim against her. Is there anyway the inverse of this could work (i.e. all defendants removed except for one defendant who wants to stay in state court with her separate claim independent of the claim that followed the other defendants' to federal court)?

If anyone could help me through either or both of these questions, I'd really appreciate it.

Thanks.

zomginternets
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Re: Removal 1441(b) Question

Postby zomginternets » Sat May 07, 2011 6:39 pm

Wrong forum for the question.

Diversity cases are the only cases that can be removed from state to federal court (a case involving federal law shouldn't be filed in a state court to begin with). I don't really know what you mean by the "federal district embracing the state court." The point of removal is to allow a defendant the option of having their case heard by a federal judge (who is presumably more impartial to out-of-state defendants). The fact that the federal court is physically located within a particular state does not factor into this (at least doctrinally, I'm sure you could argue that a federal court sitting in a particular state might still exhibit some in-state bias).

CyLaw
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Re: Removal 1441(b) Question

Postby CyLaw » Sat May 07, 2011 6:53 pm

Removal can happen in both diversity cases and federal question cases. State courts have jurisdiction over federal question cases unless the federal law creating the claim or right states federal courts are to have exclusive jurisdiction.

In the case of a federal question case, the case may be removed by the defendant without regard to citizenship.

For diversity cases, the case may be removed to federal court only if none of the defendants are citizens of the state in which the action was brought.

With regard to the second question, the case may be removed only if all defendants consent to removal. The relevant language comes from part (a) which says "may be removed by the defendant or the defendants...." Notice there is no option for removal by only some of the defendants. (c) meaning is simply that if there is a federal question and any other number of state claims, the state claims come with the federal claim to federal court.
Last edited by CyLaw on Sat May 07, 2011 6:57 pm, edited 1 time in total.

jkay
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Re: Removal 1441(b) Question

Postby jkay » Sat May 07, 2011 6:54 pm

zomginternets wrote:(a case involving federal law shouldn't be filed in a state court to begin with)



What? There is only a narrow category of cases where state courts do not have concurrent jurisdiction: admiralty, bankruptcy, intellectual property, etc. Plenty of "federal question" issues can be heard in state courts.

To the OP: Short version - if a case meets all the requirements for diversity, but the P files in state court, D can remove to federal court that sits in the same geographic area as the state court.

I hope I have all this right, because closed book CivPro is imminent.

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MrKappus
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Re: Removal 1441(b) Question

Postby MrKappus » Sat May 07, 2011 6:57 pm

JDcandidate wrote:Under 1441, if the defendant is a citizen of State A (where the claim was brought by a citizen of state B), and the federal court to which the defendant removed would thus be sitting in diversity, is removal not an option?


If D is a citizen of State A (where claim was brought), he cannot remove because the policy behind removal is inapplicable.

JDcandidate wrote:If you have to remove to the federal district embracing the state court where the case was filed, how would defendants in diversity cases ever be able to remove?


If there's diversity, D's can remove when they are sued by P's in states where D is not domiciled. Again, policy reason is to remove bias against the out of state D.

JDcandidate wrote:Or is 1441 pretty much saying removal isn't an option if the court would be sitting in diversity?


1441 says removal is an option if the District Court would have had original jurisdiction over the action (either for fed question, diversity, joinder to a 1331 case, or foreign states as D's).

JDcandidate wrote:A second question: under 1441(c), a single defendant can remove if there is a separate and independent federal claim against her. Is there anyway the inverse of this could work (i.e. all defendants removed except for one defendant who wants to stay in state court with her separate claim independent of the claim that followed the other defendants' to federal court)?


1441(c) is not about parties. It's about claims. If a non-fed question claim is joined to a fed question claim, then the action can be removed, regardless of diversity. That's all 1441(c) says.

*Edited to fix some quoting problems.

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vanwinkle
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Re: Removal 1441(b) Question

Postby vanwinkle » Sat May 07, 2011 6:59 pm

Moved to the right forum.

Also, this is correct as the short version:

jkay wrote:There is only a narrow category of cases where state courts do not have concurrent jurisdiction: admiralty, bankruptcy, intellectual property, etc. Plenty of "federal question" issues can be heard in state courts.

To the OP: Short version - if a case meets all the requirements for diversity, but the P files in state court, D can remove to federal court that sits in the same geographic area as the state court.

JDcandidate
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Re: Removal 1441(b) Question

Postby JDcandidate » Sat May 07, 2011 7:25 pm

Thanks for all the timely help, everyone. I really appreciate it.

I'm getting mixed feedback - can a diversity case be removed by D from his state court to the his federal court? Or can D only file for removal if the case is brought in P's state court?

My thinking is this:
• 1441(b) reads that they will be removable "only if none of the . . . defendants is a citizen of the state in which such action is brought."

• The rule for removal is that cases MUST be removed to "to the district court . . . embracing the place where such action is pending" (i.e. the same federal district as the location of the state court from which the case was removed). 1441(a),

• This means that if...

NY citizen sues CA citizen for breach of contract in NY state court = CA citizen can remove to NY federal district court; BUT

if NY citizen sued CA citizen for breach of contract in CA = CA citizen cannot remove and is stuck in state court.

Is this right? Just wanna be sure here.

Also, I'm new to this place, so if you don't mind my ignorance, how do you post things in the right forum? I apologize for what I know is pretty stupid question.

Lastly, a closed book CivPro exam? I'd rather be punched in the face by Mike Tyson.

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Rock Chalk
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Re: Removal 1441(b) Question

Postby Rock Chalk » Sat May 07, 2011 7:36 pm

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Last edited by Rock Chalk on Wed May 16, 2012 1:44 am, edited 1 time in total.

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MrKappus
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Re: Removal 1441(b) Question

Postby MrKappus » Sat May 07, 2011 7:40 pm

The statute answers your question (when can a D remove vis-a-vis his own citizenship?).

United States Congress wrote:(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

CyLaw
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Re: Removal 1441(b) Question

Postby CyLaw » Sat May 07, 2011 7:49 pm

JDcandidate wrote:... can a diversity case be removed by D from his state court to the his federal court? Or can D only file for removal if the case is brought in P's state court?
...
NY citizen sues CA citizen for breach of contract in NY state court = CA citizen can remove to NY federal district court; BUT

if NY citizen sued CA citizen for breach of contract in CA = CA citizen cannot remove and is stuck in state court.

Is this right?


Your hypos are correct, but the answer to both questions are no. D can file for removal as long as it is not his state court. Meaning in addition to your hypos already

NY citizen sues CA citizen for tort in VA state court = CA citizen can remove to VA federal district court.

jkay
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Re: Removal 1441(b) Question

Postby jkay » Sat May 07, 2011 8:00 pm

Lastly, a closed book CivPro exam? I'd rather be punched in the face by Mike Tyson.


Coming up shortly. I would rather have Mike Tyson eat my children, but alas, I have none.

So he's just going to fuck me till I love him.

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vamedic03
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Re: Removal 1441(b) Question

Postby vamedic03 » Sat May 07, 2011 8:33 pm

zomginternets wrote:Wrong forum for the question.

Diversity cases are the only cases that can be removed from state to federal court (a case involving federal law shouldn't be filed in a state court to begin with). I don't really know what you mean by the "federal district embracing the state court." The point of removal is to allow a defendant the option of having their case heard by a federal judge (who is presumably more impartial to out-of-state defendants). The fact that the federal court is physically located within a particular state does not factor into this (at least doctrinally, I'm sure you could argue that a federal court sitting in a particular state might still exhibit some in-state bias).


Take federal courts.

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vanwinkle
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Re: Removal 1441(b) Question

Postby vanwinkle » Sat May 07, 2011 9:10 pm

vamedic03 wrote:
zomginternets wrote:Wrong forum for the question.

Diversity cases are the only cases that can be removed from state to federal court (a case involving federal law shouldn't be filed in a state court to begin with). I don't really know what you mean by the "federal district embracing the state court." The point of removal is to allow a defendant the option of having their case heard by a federal judge (who is presumably more impartial to out-of-state defendants). The fact that the federal court is physically located within a particular state does not factor into this (at least doctrinally, I'm sure you could argue that a federal court sitting in a particular state might still exhibit some in-state bias).

Take federal courts.

Dude, I learned enough to know this was wrong in CivPro.

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daesonesb
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Re: Removal 1441(b) Question

Postby daesonesb » Sun May 08, 2011 1:44 pm

First, on a slightly unrelated note, you can bring federal law claims in state court, unless the statute specifies that they are exclusive to federal court (such as a patent suit). State courts have general subject matter jurisdiction.

Second, you can get a case into federal court under federal question jurisdiction using 1441(a) if the plaintiff has brought a federal law claim, or if plaintiff brings a state law claim that raises an important issue of federal law which a federal court could hear without overly affecting the jurisdictional balance between federal and state courts (see Grable v. Darue).

Third, you can get state law claims removed to federal court through supplemental jurisdiction using 1441(c), if the state law claims share a common nucleus of operative fact with federal claims.

Fourth, diversity cases can be removed to federal court under 1441(a), because they arise out of the constitution Art. III sec. 2 (assuming you've met 1332, have complete diversity, and an amount in controversy that satisfies Exxon v. Allapatah).

Finally, note that 1441(b) does not allow a 1332 diversity case to be removed to federal court if one of the defendants is a citizen of the same state as the state court which is hearing the lawsuit. The reason for this is that diversity jurisdiction is given to defendants as a means to avoid having to litigate in a hostile state court (ie. an NY coporation litigating in Miss. state court will want to remove to Miss district court).

http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00001441----000-.html
Last edited by daesonesb on Sun May 08, 2011 1:48 pm, edited 2 times in total.

reverendt
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Re: Removal 1441(b) Question

Postby reverendt » Sun May 08, 2011 1:46 pm

zomginternets wrote:Wrong forum for the question.

Diversity cases are the only cases that can be removed from state to federal court (a case involving federal law shouldn't be filed in a state court to begin with). I don't really know what you mean by the "federal district embracing the state court." The point of removal is to allow a defendant the option of having their case heard by a federal judge (who is presumably more impartial to out-of-state defendants). The fact that the federal court is physically located within a particular state does not factor into this (at least doctrinally, I'm sure you could argue that a federal court sitting in a particular state might still exhibit some in-state bias).

No.
If a federal question is raised, but plaintiff brings it in state court, defendant CAN REMOVE.

thescienceguy
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Re: Removal 1441(b) Question

Postby thescienceguy » Sun May 08, 2011 6:29 pm

daesonesb wrote:First, on a slightly unrelated note, you can bring federal law claims in state court, unless the statute specifies that they are exclusive to federal court (such as a patent suit). State courts have general subject matter jurisdiction.

Second, you can get a case into federal court under federal question jurisdiction using 1441(a) if the plaintiff has brought a federal law claim, or if plaintiff brings a state law claim that raises an important issue of federal law which a federal court could hear without overly affecting the jurisdictional balance between federal and state courts (see Grable v. Darue).

Third, you can get state law claims removed to federal court through supplemental jurisdiction using 1441(c), if the state law claims share a common nucleus of operative fact with federal claims.

Fourth, diversity cases can be removed to federal court under 1441(a), because they arise out of the constitution Art. III sec. 2 (assuming you've met 1332, have complete diversity, and an amount in controversy that satisfies Exxon v. Allapatah).

Finally, note that 1441(b) does not allow a 1332 diversity case to be removed to federal court if one of the defendants is a citizen of the same state as the state court which is hearing the lawsuit. The reason for this is that diversity jurisdiction is given to defendants as a means to avoid having to litigate in a hostile state court (ie. an NY coporation litigating in Miss. state court will want to remove to Miss district court).

http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00001441----000-.html


I'm a little confused by your third point. Doesn't 1441(c) only apply to claims that are separate and independent? So if the state claim and the federal claim share a common nucleus of operative fact, then by definition, it's not separate and independent. I thought that if a state claim is within pendant jurisdiction, then it would go to federal court via 1441(a), not 1441(c). Am I wrong about this?

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daesonesb
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Re: Removal 1441(b) Question

Postby daesonesb » Tue May 10, 2011 11:08 am

thescienceguy wrote:
daesonesb wrote:First, on a slightly unrelated note, you can bring federal law claims in state court, unless the statute specifies that they are exclusive to federal court (such as a patent suit). State courts have general subject matter jurisdiction.

Second, you can get a case into federal court under federal question jurisdiction using 1441(a) if the plaintiff has brought a federal law claim, or if plaintiff brings a state law claim that raises an important issue of federal law which a federal court could hear without overly affecting the jurisdictional balance between federal and state courts (see Grable v. Darue).

Third, you can get state law claims removed to federal court through supplemental jurisdiction using 1441(c), if the state law claims share a common nucleus of operative fact with federal claims.

Fourth, diversity cases can be removed to federal court under 1441(a), because they arise out of the constitution Art. III sec. 2 (assuming you've met 1332, have complete diversity, and an amount in controversy that satisfies Exxon v. Allapatah).

Finally, note that 1441(b) does not allow a 1332 diversity case to be removed to federal court if one of the defendants is a citizen of the same state as the state court which is hearing the lawsuit. The reason for this is that diversity jurisdiction is given to defendants as a means to avoid having to litigate in a hostile state court (ie. an NY coporation litigating in Miss. state court will want to remove to Miss district court).

http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00001441----000-.html


I'm a little confused by your third point. Doesn't 1441(c) only apply to claims that are separate and independent? So if the state claim and the federal claim share a common nucleus of operative fact, then by definition, it's not separate and independent. I thought that if a state claim is within pendant jurisdiction, then it would go to federal court via 1441(a), not 1441(c). Am I wrong about this?


My mistake. I was trying to freestyle my response using my memory and the statute, and I forgot all about the seperate and independent claims issue. We glossed over that in class really quickly.

My turn for a question: are you sure 1367 state law claims are removed under 1441(a)? I don't see how that works with the text of the statute.




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