Civ Pro Question (Removal: Unanimity Rule)

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musashino

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Civ Pro Question (Removal: Unanimity Rule)

Postby musashino » Sat Feb 04, 2017 2:01 am

"Now let’s say the case is filed on May 10. D-1 is served with process on May 15. D-2 is not yet served with process. Can D-1 alone remove? Yes. She is the only defendant who has been served—the 30 days runs from when you are served with the document that makes the case removable. So D-1 may remove the case to federal court. D-2 need not join in the removal because D-2 has not yet been served with process."


This is from Freer's, "A Short and Happy Guide" Book to Civ Pro. It's a distilled version of his much larger book, and it closely follows his Barbri Outline except for this passage.

I have a very good grasp on removal, but I don't really follow this at all.

So the Unanimity Rule (The rule that ALL defendants must unanimously agree within 30 days of service of process to remove) is basically useless unless ALL defendants were served on the same day?

Unless I'm misreading - and I'm def. starting to think I am - Defendant(s) who gets served first can just remove by herself. I mean... how many Defendants get served on the exact same day? So... wouldn't this be the norm rather than the Unanimity Rule?

So doesn't that mean that the Unanimity Rule is barely in play?

wwwcol

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby wwwcol » Sun Feb 05, 2017 5:06 pm

You're not reading it wrong. If you're thinking the rule would permit collusion between P and a D about forum, no. P could've just filed in federal court anyways.

Also, P controls when service happens. It's very common, typical really, for P to serve Ds at the same time.

YalteseFalcon

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby YalteseFalcon » Sun Feb 05, 2017 9:14 pm

musashino wrote:So the Unanimity Rule (The rule that ALL defendants must unanimously agree within 30 days of service of process to remove) is basically useless unless ALL defendants were served on the same day?


I don't think that's what the explanation is saying. Instead, I think it says that D1 here can remove because D2 hasn't been fully brought into the claim. It doesn't say that if D2 HAD been served, even if on a different day, D1 could remove without D2 agreeing.

So, if D1 is served on May 15, and D2 has not been served yet, D1 can remove without D2 agreeing.
But if D1 is served on May 15, and D2 is served on May 18, and on May 19 D1 decides he wants to remove, D2 must now agree to removal.

umichman

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby umichman » Sun Feb 05, 2017 9:47 pm

Not trying to be dismissive, im just wondering, does the bar actually get this specific? I have not come accross questions that go into this much detail. Maybe it is one or two but not really

YalteseFalcon

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby YalteseFalcon » Mon Feb 06, 2017 3:15 am

My sense is that you are correct. Based on every Civ Pro practice question I've completed, which must be---I don't know, 300 in that one subject area by now--I don't recall (certainly not with any regularity) any question so hyper-detailed. There are tricky questions that require recall of the nuance of some rules. But the overwhelming majority will ask about the more mainstream application of the fundamentally important rules, and reasonably common exceptions to those rules. A few questions might strike you with an obscure exception or application to an highly abnormal circumstance, but those seem to be few and far between.

Remember, my man, try to see the forest through the trees. At this point, with a few weeks left to go, don't become to fussed over the weeds, wildlife, pinecones, or a fascinating mushroom that looks like RBG.

Are you following an MBE program or working through an MBE book? Stick with that for now, and do as many essays as you can. Make flash cards for the rules you're missing, and don't sweat the things that seem so far out in left field that you can't make heads or tails. Write the rule of law for such a question/answer on a flashcard, return to it later if you have time. If not, and the question doesn't come up too frequently in your MBE exercises or your essay outlining, it's probably not important. Your flashcard may still give you enough memory of the obscure rule that if it does come up on the exam, you'll recall the card, and give the correct answer without ever really understanding it.

In any event, you were probably a much better law student than me, because I NEVER had the discipline to dive into these kinds of obscure possibilities. That's a great skill for an attorney, and you should feel good about that. In the mean time, gird your loins, and make sure you can master the really big trees in that forest.

Seriously reflect on whether your method has produced the results you're looking for, and consider the advice in this thread. I'll bet you're going to do great in Civ Pro. Now scoot on over to my personal bugaboo, Contracts.

Good hunting.

musashino

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby musashino » Sun Feb 12, 2017 7:35 pm

umichman wrote:Not trying to be dismissive, im just wondering, does the bar actually get this specific? I have not come accross questions that go into this much detail. Maybe it is one or two but not really


God no. That's why I'm not really getting into it per se. I just reserve for myself max 3 questions that bother me per subject.

In the case of Property, Franzese actually responds back to even some fairly lengthy questions within a day or 2, but Prof. Freer specifically said he'll only take calls, so I was gonna try asking here first.

In fact, getting into the nuances is incredibly dangerous because you start seeing them even in the simplest problems, not to mention they're a massive time sink. It's kinda like.. sure you could've just spent 3 hours basically "mastering" Agency & Partnership, but instead you maniacally spent that time on a minor groove on the Confrontations Clause based on recent Supreme Ct. modifications... uh... yeah...

musashino

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Re: Civ Pro Question (Removal: Unanimity Rule)

Postby musashino » Sun Feb 12, 2017 7:40 pm

YalteseFalcon wrote:My sense is that you are correct. Based on every Civ Pro practice question I've completed, which must be---I don't know, 300 in that one subject area by now--I don't recall (certainly not with any regularity) any question so hyper-detailed. There are tricky questions that require recall of the nuance of some rules. But the overwhelming majority will ask about the more mainstream application of the fundamentally important rules, and reasonably common exceptions to those rules. A few questions might strike you with an obscure exception or application to an highly abnormal circumstance, but those seem to be few and far between.

Remember, my man, try to see the forest through the trees. At this point, with a few weeks left to go, don't become to fussed over the weeds, wildlife, pinecones, or a fascinating mushroom that looks like RBG.

Are you following an MBE program or working through an MBE book? Stick with that for now, and do as many essays as you can. Make flash cards for the rules you're missing, and don't sweat the things that seem so far out in left field that you can't make heads or tails. Write the rule of law for such a question/answer on a flashcard, return to it later if you have time. If not, and the question doesn't come up too frequently in your MBE exercises or your essay outlining, it's probably not important. Your flashcard may still give you enough memory of the obscure rule that if it does come up on the exam, you'll recall the card, and give the correct answer without ever really understanding it.

In any event, you were probably a much better law student than me, because I NEVER had the discipline to dive into these kinds of obscure possibilities. That's a great skill for an attorney, and you should feel good about that. In the mean time, gird your loins, and make sure you can master the really big trees in that forest.

Seriously reflect on whether your method has produced the results you're looking for, and consider the advice in this thread. I'll bet you're going to do great in Civ Pro. Now scoot on over to my personal bugaboo, Contracts.

Good hunting.



Thanks for the wise words. While I do have a tendency to mire myself in the obscure details, I assure you it's thankfully not the case here. I just thought I'd ask and uh.. outsource the task to smarter people than me.

It's funny you think I might be a "much better law student" than yourself as I'm quite possibly one of the worst law students to come out of a T-20 in the past decade (even my friends think so, and they know i'm otherwise a smart guy). It's precisely because I learned close to nothing from my J.D. that I'm virtually self-taught, and being self-taught forces you to try to understand the rationale behind decisions in order to put everything together in a cognizable framework.

Overall, I'm doing pretty decent in the MBE (well above average), and am slightly below average on my exclusively MEE subjects, so I'll give myself better than a 65% shot considering I'm in a 50/50 jx.



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