Confused about civ pro removal/venue distinction

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
greenchair
Posts: 150
Joined: Sat May 08, 2010 1:04 am

Confused about civ pro removal/venue distinction

Postby greenchair » Wed Oct 24, 2012 7:23 pm

This is a fact pattern I simplified and shortened to just its relevant points:

P is domiciled in Georgia.
D is a corporation where principal place of business is South Carolina. Incorporated in Delaware.
Assume the case is a state law case.
Relevant documents, witnesses, etc. are in South Carolina.

D removes the case from Georgia state court to the U.S. District Court for the Eastern District of Georgia pursuant to 28 U.S.C. Section 1332 (Diversity Jx). D asks the court to transfer this case to the U.S. District Court for the District of South Carolina. As a judge for the Eastern District of Georgia, determine whether the court should grant D’s motion to transfer.

I understand why D can’t transfer to SC federal court. It’s because the D resides in SC, and you can’t transfer to a district where the D resides. It breaks the diversity.

But my professor says we have to analyze this based on Section 1441 (b)(2), under REMOVAL. I don’t understand this. I thought removal was already done and over with when the D removed from GA state court to GA federal court. Why do I have to consider the removal statute when I am looking to TRANSFER from GA federal court to SC federal court?

I asked the professor and both of his TAs, but I am still confused. I hope one of you can better explain this…

Professor says you have to analyze under 1441 because 1441(b)(2) states:

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332 (a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

My question is, why is this even relevant? We aren’t trying to remove a case. I thought removal was already done.

Why is this not governed by 1404 change of venue? Isn’t that what’s happening? I tried to find language in the federal venue statute saying it doesn’t apply to cases that originate in state court, but I can’t find it.

Any help would be greatly appreciated!

User avatar
stillwater
Posts: 3811
Joined: Tue Jun 28, 2011 2:59 pm

Re: Confused about civ pro removal/venue distinction

Postby stillwater » Wed Oct 24, 2012 10:49 pm

It doesn't "break diversity" because the parties are still diverse. They haven't brought in any new parties. The prohibition is against removal when the D is sued originally in their state of domicile (good reference here is to look at Reyno v. Piper Aircraft). Transfer is a question of venue. There are 1404 and 1406 transfers, one is from an improper venue to a proper one and one from a proper venue to a proper and better venue. You could argue SC is the better venue for the case based on the evidence being there (not sure where the dispute arouse in your hypo), assuming PJ is satisfied.

User avatar
greenchair
Posts: 150
Joined: Sat May 08, 2010 1:04 am

Re: Confused about civ pro removal/venue distinction

Postby greenchair » Wed Oct 24, 2012 10:54 pm

stillwater wrote:It doesn't "break diversity" because the parties are still diverse. They haven't brought in any new parties. The prohibition is against removal when the D is sued originally in their state of domicile (good reference here is to look at Reyno v. Piper Aircraft). Transfer is a question of venue. There are 1404 and 1406 transfers, one is from an improper venue to a proper one and one from a proper venue to a proper and better venue. You could argue SC is the better venue for the case based on the evidence being there (not sure where the dispute arouse in your hypo), assuming PJ is satisfied.


Thanks for the response.

The dispute arose in GA and was filed in GA state court. It was then removed to GA federal. The answer says you cannot transfer venue to SC because of 1441(b)(2) -- which says you can't remove if D is a citizen of the state in which such action is brought (which D is -- in SC).

I'm confused about why 1441 is relevant, since 1441 is removal, and removal is already complete, according to the fact pattern.

User avatar
stillwater
Posts: 3811
Joined: Tue Jun 28, 2011 2:59 pm

Re: Confused about civ pro removal/venue distinction

Postby stillwater » Wed Oct 24, 2012 10:56 pm

greenchair wrote:
stillwater wrote:It doesn't "break diversity" because the parties are still diverse. They haven't brought in any new parties. The prohibition is against removal when the D is sued originally in their state of domicile (good reference here is to look at Reyno v. Piper Aircraft). Transfer is a question of venue. There are 1404 and 1406 transfers, one is from an improper venue to a proper one and one from a proper venue to a proper and better venue. You could argue SC is the better venue for the case based on the evidence being there (not sure where the dispute arouse in your hypo), assuming PJ is satisfied.


Thanks for the response.

The dispute arose in GA and was filed in GA state court. It was then removed to GA federal. The answer says you cannot transfer venue to SC because of 1441(b)(2) -- which says you can't remove if D is a citizen of the state in which such action is brought (which D is -- in SC).

I'm confused about why 1441 is relevant, since 1441 is removal, and removal is already complete, according to the fact pattern.


I am not sure that's right. 1441 governs removal. Take a peek at Reyno v. Piper Aircraft. Filed in CA court, D (Piper Aircraft is domiciled in PA) removes to federal court in CA, then transfers to PA (evidence was there, etc.) and gets its dismissed for forum non conveniens. If you can follow that case, you got your removal/transfer stuff down.

User avatar
greenchair
Posts: 150
Joined: Sat May 08, 2010 1:04 am

Re: Confused about civ pro removal/venue distinction

Postby greenchair » Wed Oct 24, 2012 10:59 pm

stillwater wrote:
greenchair wrote:
stillwater wrote:It doesn't "break diversity" because the parties are still diverse. They haven't brought in any new parties. The prohibition is against removal when the D is sued originally in their state of domicile (good reference here is to look at Reyno v. Piper Aircraft). Transfer is a question of venue. There are 1404 and 1406 transfers, one is from an improper venue to a proper one and one from a proper venue to a proper and better venue. You could argue SC is the better venue for the case based on the evidence being there (not sure where the dispute arouse in your hypo), assuming PJ is satisfied.


Thanks for the response.

The dispute arose in GA and was filed in GA state court. It was then removed to GA federal. The answer says you cannot transfer venue to SC because of 1441(b)(2) -- which says you can't remove if D is a citizen of the state in which such action is brought (which D is -- in SC).

I'm confused about why 1441 is relevant, since 1441 is removal, and removal is already complete, according to the fact pattern.


I am not sure that's right. 1441 governs removal. Take a peek at Reyno v. Piper Aircraft. Filed in CA court, D (Piper Aircraft is domiciled in PA) removes to federal court in CA, then transfers to PA (evidence was there, etc.) and gets its dismissed for forum non conveniens. If you can follow that case, you got your removal/transfer stuff down.


I agree with you... but my prof doesn't. That's why I'm so confused! haha

User avatar
Blessedassurance
Posts: 2081
Joined: Mon Jun 27, 2011 3:42 pm

Re: Confused about civ pro removal/venue distinction

Postby Blessedassurance » Wed Oct 24, 2012 11:54 pm

greenchair wrote:
The dispute arose in GA and was filed in GA state court. It was then removed to GA federal. The answer says you cannot transfer venue to SC because of 1441(b)(2) -- which says you can't remove if D is a citizen of the state in which such action is brought (which D is -- in SC).


I'm interpreting that to mean the case cannot be transferred if D is a citizen of Georgia (where the suit was brought) but go with your professor. I could be wrong.

User avatar
Tom Joad
Posts: 4542
Joined: Thu Dec 04, 2008 5:56 pm

Re: Confused about civ pro removal/venue distinction

Postby Tom Joad » Thu Oct 25, 2012 1:32 am

Blessedassurance wrote:
greenchair wrote:
The dispute arose in GA and was filed in GA state court. It was then removed to GA federal. The answer says you cannot transfer venue to SC because of 1441(b)(2) -- which says you can't remove if D is a citizen of the state in which such action is brought (which D is -- in SC).


I'm interpreting that to mean the case cannot be transferred if D is a citizen of Georgia (where the suit was brought) but go with your professor. I could be wrong.

Yeah, you are. No biggie though.

User avatar
Blessedassurance
Posts: 2081
Joined: Mon Jun 27, 2011 3:42 pm

Re: Confused about civ pro removal/venue distinction

Postby Blessedassurance » Thu Oct 25, 2012 2:43 am

Tom Joad wrote:
Yeah, you are. No biggie though.


See Piper v Reyno.

I was hesitant to refer him to the above case because it doesn't technically say Piper was a citizen of PA. The thingy was manufactured there but transferring to PA could have been based on continuous and systematic contacts etc not citizenship (Hartzell wasn't a citizen of PA but was still subject to PJ there). I think Piper's headquarters was in FL then but I'm not sure.

Also, 1441(b)(2) governs removal. I'm not sure how that relates to venue transfer.

Venue is covered by 1391...1406.

User avatar
Lawquacious
Posts: 2037
Joined: Fri Oct 23, 2009 10:36 am

Re: Confused about civ pro removal/venue distinction

Postby Lawquacious » Thu Oct 25, 2012 4:27 am

I'm glad I forgot this shit.

User avatar
Tom Joad
Posts: 4542
Joined: Thu Dec 04, 2008 5:56 pm

Re: Confused about civ pro removal/venue distinction

Postby Tom Joad » Thu Oct 25, 2012 11:39 am

Blessedassurance wrote:
Tom Joad wrote:
Yeah, you are. No biggie though.


See Piper v Reyno.

I was hesitant to refer him to the above case because it doesn't technically say Piper was a citizen of PA. The thingy was manufactured there but transferring to PA could have been based on continuous and systematic contacts etc not citizenship (Hartzell wasn't a citizen of PA but was still subject to PJ there). I think Piper's headquarters was in FL then but I'm not sure.

Also, 1441(b)(2) governs removal. I'm not sure how that relates to venue transfer.

Venue is covered by 1391...1406.

Oh, I thought you were saying an in state defendant in state could could remove to fed. court. Nevermind everything I ever said.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: No registered users and 2 guests