ilovesf wrote:crossarmant wrote:ph14 wrote:crossarmant wrote:Now how does this work if such an assertion is a compulsory counterclaim? Fed courts have exclusive JDX over FQ issues, wouldn't that allow for removal?
Fed courts have exclusive jurisdiction over certain special actions (patents, etc.). Federal and state courts have concurrent subject matter jurisdiction over a federal question case.
So I think (correct me if i'm wrong), what you are asking is how would this would if a plaintiff sued a defendant for a state law claim, and the defendant asserted a compulsory counterclaim with a cause of action under which federal courts have exclusive jurisdiction.
I have no idea how that would work out. My only thought really is that under the Grable 3 part test to see if a state law claim can have federal question jurisdiction, then you would probably have federal jurisdiction under that test if the counterclaim is compulsory.
PH, god of CivPro, yeah, Grabel case. I had forgotten about this one.
Edit: Wait, going over it now it doesn't seem quite right. The Fed issue in Grabel is in the cause of action, as well as a defense. What if a suit is based on a mere breach of contract, but say someone counterclaims with a federal question as a matter of law, can they remove to federal court? I didn't think that state court has concurrent JDX over FQ issues... maybe I'm wrong, CivPro is my shaky class.
Look at my link - you can't.
Okay I was talking about 2 different things. Just to be a little clearer:
You can't remove unless the plaintiff could have brought the claim there originally, looking only to the plaintiff's well-pleaded complaint. So if a P sued a D on a state cause of action and the D counterclaims with a federal question defense, that couldn't have been brought there originally so it can't be removed.
According to Grable, a state law claim can have federal question jurisdiction (rarely), if it satisfies the 3 part test. What I was hypothesizing was that, if the defendant could have properly asserted a compulsory counterclaim based on an exclusive federal jurisdiction (patent, copyright) then perhaps the plaintiff's claim would satisfy that test, meaning that it could have been brought there originally and thus removed. Anyways, not sure if that is right, and I have no idea how it plays out with exclusive federal question jurisdiction. So anyways, ignore all discussion regarding an exclusive federal compulsory counterclaim. I don't think it would be likely to come up on an exam.
But I am pretty sure you could do something like this:
Plaintiff sued Defendant on a state law cause of action. Defendant counterclaims with a federal question defense. If this is the rare case where the Grable 3 part test, you can get federal question jurisdiction over the plaintiff's state law claim, and therefore it could have been brought in federal court originally, and thus it could be removed there. So I think there is a small number of situations where a plaintiff pleads a state law claim but you can still remove.