Removal Question

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RR320
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Removal Question

Postby RR320 » Sun Dec 11, 2011 1:40 pm

Just want to make sure that I have this correct....

1. NY v. GA & FL, files in NJ state court over diversity suit....they can remove to federal court because neither defendant is a citizen of NJ ( Also, can plaintiff even bring in NJ to begin with if nothing occured there?)

2. NY v. GA & FL, files in FL state court over diversity suit....they cannot remove because it's a diversity suit and one of the defendants is a citizen of FL

3. NY v. GA & FL, files in FL state court over federal question....they can remove even though one of the defendants it a citizen because it's under federal question

I think I have # 1 wrong...

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ph14
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Re: Removal Question

Postby ph14 » Sun Dec 11, 2011 1:57 pm

RR320 wrote:Just want to make sure that I have this correct....

1. NY v. GA & FL, files in NJ state court over diversity suit....they can remove to federal court because neither defendant is a citizen of NJ ( Also, can plaintiff even bring in NJ to begin with if nothing occured there?)

2. NY v. GA & FL, files in FL state court over diversity suit....they cannot remove because it's a diversity suit and one of the defendants is a citizen of FL

3. NY v. GA & FL, files in FL state court over federal question....they can remove even though one of the defendants it a citizen because it's under federal question

I think I have # 1 wrong...


1. They can remove if all (both) defendants agree, since they are not in-state defendants (as determined by citizenship). Whether the defendants can remove to federal court will depend on if the plaintiff could have brought his claim in NJ federal court as judged by his well-pleaded complaint. If he filed properly in NJ state court, then they had personal jurisdiction over the defendants in NJ, so they will also have personal jurisdiction over the defendants in NJ federal court. If nothing occurred in NJ and they don't have any of the other bases of personal jurisdiction (consent, waiver, etc.), then they probably don't have personal jurisdiction there.

2. Correct.

3. Correct, assuming that the FL federal court could have heard the claim in the first place as judged by the plaintiff's well-pleaded complaint (all defendants must agree to the removal however).

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acrossthelake
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Re: Removal Question

Postby acrossthelake » Sun Dec 11, 2011 1:58 pm

ph14 is correct.

RR320
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Re: Removal Question

Postby RR320 » Sun Dec 11, 2011 2:20 pm

one more question....what if the plaintiff files in NY over diversity, could they remove it to federal court?

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ph14
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Re: Removal Question

Postby ph14 » Sun Dec 11, 2011 2:25 pm

RR320 wrote:one more question....what if the plaintiff files in NY over diversity, could they remove it to federal court?


Plaintiffs can't remove, if that's what you're asking (even if the defendants filed a counterclaim and the plaintiff was a defendant on that counterclaim).

RR320
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Re: Removal Question

Postby RR320 » Sun Dec 11, 2011 3:05 pm

sorry, i meant could the defendants remove then?

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ph14
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Re: Removal Question

Postby ph14 » Sun Dec 11, 2011 3:07 pm

RR320 wrote:sorry, i meant could the defendants remove then?


So it looks like this: NY v. GA & FL, files in NY state court over diversity suit. No in-state defendants, so they can remove if they all agree and it could be brought there originally (meaning it must meet the $75k amount in controversy). If so, then they can remove.

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booboo
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Re: Removal Question

Postby booboo » Sun Dec 11, 2011 3:13 pm

ph14 wrote:
RR320 wrote:Just want to make sure that I have this correct....

1. NY v. GA & FL, files in NJ state court over diversity suit....they can remove to federal court because neither defendant is a citizen of NJ ( Also, can plaintiff even bring in NJ to begin with if nothing occured there?)

2. NY v. GA & FL, files in FL state court over diversity suit....they cannot remove because it's a diversity suit and one of the defendants is a citizen of FL

3. NY v. GA & FL, files in FL state court over federal question....they can remove even though one of the defendants it a citizen because it's under federal question

I think I have # 1 wrong...


1. They can remove if all (both) defendants agree, since they are not in-state defendants (as determined by citizenship). Whether the defendants can remove to federal court will depend on if the plaintiff could have brought his claim in NJ federal court as judged by his well-pleaded complaint. If he filed properly in NJ state court, then they had personal jurisdiction over the defendants in NJ, so they will also have personal jurisdiction over the defendants in NJ federal court. If nothing occurred in NJ and they don't have any of the other bases of personal jurisdiction (consent, waiver, etc.), then they probably don't have personal jurisdiction there.

2. Correct.

3. Correct, assuming that the FL federal court could have heard the claim in the first place as judged by the plaintiff's well-pleaded complaint (all defendants must agree to the removal however).


I don't believe the well-pleaded complaint rule of Mottley is applicable in diversity cases.

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ph14
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Re: Removal Question

Postby ph14 » Sun Dec 11, 2011 3:15 pm

booboo wrote:
ph14 wrote:
RR320 wrote:Just want to make sure that I have this correct....

1. NY v. GA & FL, files in NJ state court over diversity suit....they can remove to federal court because neither defendant is a citizen of NJ ( Also, can plaintiff even bring in NJ to begin with if nothing occured there?)

2. NY v. GA & FL, files in FL state court over diversity suit....they cannot remove because it's a diversity suit and one of the defendants is a citizen of FL

3. NY v. GA & FL, files in FL state court over federal question....they can remove even though one of the defendants it a citizen because it's under federal question

I think I have # 1 wrong...


1. They can remove if all (both) defendants agree, since they are not in-state defendants (as determined by citizenship). Whether the defendants can remove to federal court will depend on if the plaintiff could have brought his claim in NJ federal court as judged by his well-pleaded complaint. If he filed properly in NJ state court, then they had personal jurisdiction over the defendants in NJ, so they will also have personal jurisdiction over the defendants in NJ federal court. If nothing occurred in NJ and they don't have any of the other bases of personal jurisdiction (consent, waiver, etc.), then they probably don't have personal jurisdiction there.

2. Correct.

3. Correct, assuming that the FL federal court could have heard the claim in the first place as judged by the plaintiff's well-pleaded complaint (all defendants must agree to the removal however).


I don't believe the well-pleaded complaint rule of Mottley is applicable in diversity cases.


I guess in practical effect it doesn't really matter, but I think it's a still good habit to always go to that analysis.

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booboo
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Re: Removal Question

Postby booboo » Sun Dec 11, 2011 3:18 pm

ph14 wrote:
booboo wrote:
ph14 wrote:
RR320 wrote:Just want to make sure that I have this correct....

1. NY v. GA & FL, files in NJ state court over diversity suit....they can remove to federal court because neither defendant is a citizen of NJ ( Also, can plaintiff even bring in NJ to begin with if nothing occured there?)

2. NY v. GA & FL, files in FL state court over diversity suit....they cannot remove because it's a diversity suit and one of the defendants is a citizen of FL

3. NY v. GA & FL, files in FL state court over federal question....they can remove even though one of the defendants it a citizen because it's under federal question

I think I have # 1 wrong...


1. They can remove if all (both) defendants agree, since they are not in-state defendants (as determined by citizenship). Whether the defendants can remove to federal court will depend on if the plaintiff could have brought his claim in NJ federal court as judged by his well-pleaded complaint. If he filed properly in NJ state court, then they had personal jurisdiction over the defendants in NJ, so they will also have personal jurisdiction over the defendants in NJ federal court. If nothing occurred in NJ and they don't have any of the other bases of personal jurisdiction (consent, waiver, etc.), then they probably don't have personal jurisdiction there.

2. Correct.

3. Correct, assuming that the FL federal court could have heard the claim in the first place as judged by the plaintiff's well-pleaded complaint (all defendants must agree to the removal however).


I don't believe the well-pleaded complaint rule of Mottley is applicable in diversity cases.


I guess in practical effect it doesn't really matter, but I think it's a still good habit to always go to that analysis.


Rather, the well-pleaded complaint rule arose from a case where two non-diverse parties (through the plaintiff) attempted to have their case heard under federal question jurisdiction, based on the anticipatory pleadings of the plaintiff that the defendant would file a Federal defense. In diversity cases, the state claims and the amount of controversy are the only things needed.

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sundance95
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Re: Removal Question

Postby sundance95 » Sun Dec 11, 2011 3:18 pm

booboo wrote:I don't believe the well-pleaded complaint rule of Mottley is applicable in diversity cases.

That's correct, but SCOTUS has held (in Shamrock) that as a matter of statutory interpretation that only original defendants may remove. Check out E&E example 13, pg. 129, explanation pg. 136.

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acrossthelake
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Re: Removal Question

Postby acrossthelake » Sun Dec 11, 2011 3:19 pm

ph14 wrote:
booboo wrote:
I don't believe the well-pleaded complaint rule of Mottley is applicable in diversity cases.


I guess in practical effect it doesn't really matter, but I think it's a still good habit to always go to that analysis.


I'm with booboo on this one. Well-pleaded complaint has to do with FQ...




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