Civ Pro Removal Question

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cool
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Joined: Mon Dec 12, 2011 9:48 pm

Civ Pro Removal Question

Postby cool » Tue Dec 13, 2011 8:27 pm

Ok, so the P files suit in state court alleging a state law breach of contract claim against D1, and a state law tort claim against D2 that has nestled in it a federal issue concerning the interpretation of EPA environmental guidelines. These two claims stem from the same case or controversy. None of the parties are diverse.

D1 and D2 want to remove to federal court under 1441. Can they?

My theory is that the claim against D2 can get into federal court under a 1331 Grable analysis, and that the claim against D1 can piggyback in under 1367. If this is the case, I believe the entire case can be removed under 1441(c).

rklafehn
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Re: Civ Pro Removal Question

Postby rklafehn » Tue Dec 13, 2011 8:38 pm

cool wrote:Ok, so the P files suit in state court alleging a state law breach of contract claim against D1, and a state law tort claim against D2 that has nestled in it a federal issue concerning the interpretation of EPA environmental guidelines. These two claims stem from the same case or controversy. None of the parties are diverse.

D1 and D2 want to remove to federal court under 1441. Can they?

My theory is that the claim against D2 can get into federal court under a 1331 Grable analysis, and that the claim against D1 can piggyback in under 1367. If this is the case, I believe the entire case can be removed under 1441(c).


I think your analysis is good. The D2 claim has a "federal ingredient" and proving a federal proposition appears to be essential to resolution. However, remember two things:

(1) If either D is does not want it to be removed, they may remand it.
(2) Even with a federal ingredient, the judge has discretion in determining if it is a substantial federal issue (weighs issue importance, not wanting to interfere with state jurisdiction, the want of uniform federal interpretation, and the federal court case load). Thus, even if removal is technically proper, the judge could send it right back.
Last edited by rklafehn on Tue Dec 13, 2011 8:49 pm, edited 1 time in total.

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cool
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Re: Civ Pro Removal Question

Postby cool » Tue Dec 13, 2011 8:43 pm

Thanks for the reply.

rklafehn wrote:(1) If either D is from the state that the claim is filed in, then removal is improper.


I thought this only applied if the suit was brought under 1332. No?

thsmthcrmnl
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Joined: Fri Dec 25, 2009 3:07 am

Re: Civ Pro Removal Question

Postby thsmthcrmnl » Tue Dec 13, 2011 8:49 pm

FWIW, I think this sounds less like Grable and more like Merrill Dow. I.e., that stuff in part (2) of the response.
Last edited by thsmthcrmnl on Tue Dec 13, 2011 8:52 pm, edited 1 time in total.

rklafehn
Posts: 129
Joined: Mon May 17, 2010 6:59 pm

Re: Civ Pro Removal Question

Postby rklafehn » Tue Dec 13, 2011 8:50 pm

Fixed.

28 USC 1441(b) exception pertaining to removal being improper if a D is from the forum state only applies to cases that are attempted to be removed to federal court based on diversity jurisdiction.

WayBryson
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Re: Civ Pro Removal Question

Postby WayBryson » Tue Dec 13, 2011 11:51 pm

1367(a) provides for supplemental jurisdiction over related claims where there is a Federal question, as is the case here.
Don't let 1441(c) trip you up. Its application is actually quite narrow--when removal would be constitutional but otherwise prevented by Federal statute. The typical examples are statutory requirements for complete diversity, e.g. 1441(b), or issues barred by statute, e.g. ss 1445. Hope that helps.

Edit: for and or are not the same word.




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