Civ Pro Removal Hypo - Assistance

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cool
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Civ Pro Removal Hypo - Assistance

Postby cool » Wed Dec 14, 2011 8:01 pm

A sues B in state court in tort for 80k. A also sues C in state court for breach of contract for 20k. Both suits arise out of the same controversy. A, B and C are all diverse. Neither B nor C are citizens of the state in which the suit takes place.

B and C want to remove to federal court. Can they?

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ggocat
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Re: Civ Pro Removal Hypo - Assistance

Postby ggocat » Fri Dec 23, 2011 5:06 pm

cool wrote:A sues B in state court in tort for 80k. A also sues C in state court for breach of contract for 20k. Both suits arise out of the same controversy. A, B and C are all diverse. Neither B nor C are citizens of the state in which the suit takes place.

B and C want to remove to federal court. Can they?

I'm not looking at any cases, so there might be real law out there on these issues. Here is my gut response:

First, B can obviously remove because there is original jurisdiction over its claim based on 1332. Section 1441(a) allows removal, and subsection (b) does not defeat removal.

So long as B and C were sued in different state courts and the cases are not consolidated/transferred under state rules, C definitely cannot remove because there is no original jurisdiction over any of A's claims that are part of the same civil action against C.

Now, if B and C are codefendants in the same suit in state court, one potential issue is whether any claims based solely on supplemental jurisdiction may be removed when original jurisdiction is based solely on diversity. See, for example, section 1441(a) and (c). Subsection (a) allows removal of civil actions for which there is original jurisdiction. Subsection (c) specifically allows other claims to be removed if jurisdiction is based on section 1331. But there is no similar "other claims" removal statute when original jurisdiction is based on section 1332. Here, the original-jurisdiction claim (A vs. B for $80K) is based solely on section 1332. An argument could be made (probably a loser, if I'm remembering correctly) that defendants cannot remove non-original-jurisdiction claims when the original-jurisdiction claim is based on diversity.

There may also be a problem with section 1367(b) itself. B and C were joined (essentially) under Rule 20. The issue is thus whether exercising jurisdiction over a state law claim for $20K would be "inconsistent with the jurisdictional requirements of section 1332."




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