Removal ?

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
RR320
Posts: 65
Joined: Wed Nov 09, 2011 6:07 pm

Removal ?

Postby RR320 » Fri Dec 02, 2011 5:36 pm

Lets say Plaintiff (CA resident) sues D ( NY resident) in NY state court on either a diversity claim or federal question claim. I am under the impression that Defendant cannot remove to federal court for diversity, but if it was based on federal question, could they then have it removed to federal court?

User avatar
homestyle28
Posts: 2312
Joined: Thu Jun 04, 2009 12:48 pm

Re: Removal ?

Postby homestyle28 » Fri Dec 02, 2011 5:42 pm

1441 (b): (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.

I'm going to say yeah, home state bar rule doesn't apply to fed question claims

User avatar
beachbum
Posts: 2766
Joined: Tue Jun 29, 2010 9:35 pm

Re: Removal ?

Postby beachbum » Fri Dec 02, 2011 5:53 pm

Yep. The justification behind the home state D rule is that, if D is already in his home state, the state courts are not going to be biased against D (which is the policy behind diversity jurisdiction). In federal question jurisdiction, no such bias rationale exists.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: No registered users and 9 guests