1L Substantive Law Questions (c/o 2017) Forum

[FKASunny]

Pedantic AF up in here

[p3aceandl0v3]

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

[Stylistics]

alright my fingers are tired of typing long posts but if you think the answer is simple then it's probably this:

The plaintiff who wants it back in state court can argue that 1441c authorizes (and maybe even encourages) the judge to pitch it back to state court if

1. the judge resolves the federal question and then, using 1367c, declines SuppJ over everything else. He remands.
2. he looks at all the claims and, if matters of state law & state claims predominate the federal one(s), then he can rule on the fed issue only and then remand all the state stuff.
3. if it was originally removed on the condition that the defendant isn't a citizen of the state where the suit began, and the federal judge realizes that the state judge who removed it screwed up the citizenship analysis, then the fed judge has no choice but to remand because it never should've been removed in the first place.

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

[lakers180]

Civ Pro Question:

Was doing a Erie question an realized I’m a little unclear about how to determine if there is a conflict under the REA.

So assume that state x has a rule of procedure stating that plaintiff is guaranteed to have limited discovery prior to the court deciding a motion to dismiss. Fed court x is deciding a case in diversity. Do they have to apply the state law?

From a practice exam so I can give more info if needed but that’s what I think is crux of the problem.

[lakers180]

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

From my understanding this is a SMJ question. Removal is proper if the federal court has original SMJ so if there isn't then you remand.

[p3aceandl0v3]

alright my fingers are tired of typing long posts but if you think the answer is simple then it's probably this:

The plaintiff who wants it back in state court can argue that 1441c authorizes (and maybe even encourages) the judge to pitch it back to state court if

1. the judge resolves the federal question and then, using 1367c, declines SuppJ over everything else. He remands.
2. he looks at all the claims and, if matters of state law & state claims predominate the federal one(s), then he can rule on the fed issue only and then remand all the state stuff.
3. if it was originally removed on the condition that the defendant isn't a citizen of the state where the suit began, and the federal judge realizes that the state judge who removed it screwed up the citizenship analysis, then the fed judge has no choice but to remand because it never should've been removed in the first place.

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

It's not a Supp. J situation, could this be a prompt for a discussion of Federal Question Jurisdiction?

[p3aceandl0v3]

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

From my understanding this is a SMJ question. Removal is proper if the federal court has original SMJ so if there isn't then you remand.

This seems right - discussion of federal question or diversity, whichever is appropriate in the situation? I've noticed my professor has used this question on nearly every old exam.

[Stylistics]

Hey all, found a question on an old Civ Pro exam: Defendant removes to federal court, plaintiff then wants to remand to state court. What kind of analysis would you do here? I feel as though I am missing something very obvious.

From my understanding this is a SMJ question. Removal is proper if the federal court has original SMJ so if there isn't then you remand.

Yea that was my #3. above. If the case is removed based on diversity jurisdiction, but then the federal judges realizes whoever removed it messed up the citizenship analysis, if he finds that diversity is lacking then he must remand.

But there's also discretionary remand when there's a federal issue and a host of tagalong state issues that got removed as an entire case. The fed court technically can exercise SuppJ over the tagalong state issues.

When this happens, the fed judge has the discretion to.
1. Resolve the federal issue, then he follows the 1367c criteria to decline exercising SuppJ.
2. Resolve the fed issue, then he does a 1441c (which is the provision that sent the entire case + tagalongs up in the first place) analysis and finds that the state issues actually predominate the case so he thinks a state court should decide it.

[03152016]

@lakers
when you say "conflict under the REA"
are you asking whether there is a collision between the federal rule and state law
or whether the federal rule itself conflicts with §2072

[lakers180]

@lakers
when you say "conflict under the REA"
are you asking whether there is a collision between the federal rule and state law
or whether the federal rule itself conflicts with §2072

I think I'm asking about collision between federal rule and state law.

I'm not sure what you mean whether the federal rule conflicts with 2072, is that just when it enlarges, abridges, modifies, etc. I thought that this was what you use to determine what to do with there is a collision between federal rule and state law.

[Stylistics]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

If you're sure there's no SuppJ going on, then the fed judge doesn't consider the 1367c factors in determining whether he should exercise his discretion to decline SuppJ.

But the removal statute, 1441, specifically 1441c, gives him an alternative discretion to remand it if he finds that matters of state law predominate. You asked if I were the plaintiff who wants to remand it back down to state court, what would I argue. I'd concede that it the removal was technically allowed but I'd still argue (1) the state law matters here predominate so (2) 1441c authorizes and encourages the fed judge to exercise his discretion and remand it.

If you post the fact pattern it'll help. But 1441c def gives the fed judge discretion to remand.

It's not a Supp. J situation, could this be a prompt for a discussion of Federal Question Jurisdiction?

[lakers180]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

I don't think that's true. Procedurally, when someone removes the state court ceases action and the federal court proceeds, regardless of whether the removal was proper. This is to prevent an overlap in jurisdiction at one time, and reduce confusion about where the case is. This means its the federal courts job to decide whether there was FedQ or Diversity authorizing removal. When someone motions to remand the fed court then has to decide that issue.

[03152016]

@lakers
when you say "conflict under the REA"
are you asking whether there is a collision between the federal rule and state law
or whether the federal rule itself conflicts with §2072

I think I'm asking about collision between federal rule and state law.

I'm not sure what you mean whether the federal rule conflicts with 2072, is that just when it enlarges, abridges, modifies, etc. I thought that this was what you use to determine what to do with there is a collision between federal rule and state law.

1) you don't even need to worry about 2072 if the federal and state rules can exist side by side
for there to be a conflict, the federal provision needs to be on point – broad enough to control the issue, causing a collision with state law
so for example, in gasperini, the court looked at rule 59 and the ny law and found no necessary collision
contrast that with the holding in shady grove

2) then you can dig into 2072
the question of whether a rule is validly procedurally and under statute is identical for federal rules
you simply ask whether the rule is really procedural
in shady grove, stevens argues for a deeper 2072(b) analysis, that's where the "enlarges, abridges, modifies" part comes in
scalia thinks that question is answered by asking whether the rule is "really procedural"
when in doubt, the court will interpret a federal rule narrowly to avoid it being held invalid under 2072

[03152016]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

I don't think that's true. Procedurally, when someone removes the state court ceases action and the federal court proceeds, regardless of whether the removal was proper. This is to prevent an overlap in jurisdiction at one time, and reduce confusion about where the case is. This means its the federal courts job to decide whether there was FedQ or Diversity authorizing removal. When someone motions to remand the fed court then has to decide that issue.

that's my understanding of it too

[BmoreOrLess]

Is the statute of limitations tolled for a compulsory counterclaim? Seems like it would be if it invokes supplemental jx under § 1367(d), but what if the counterclaim involves a federal question and doesn't need §1367? Can the counterclaimant use §1367 instead of §1331, or will §1331 automatically be invoked? Is there another tolling provision then?

Bump.

[BVest]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

I don't think that's true. Procedurally, when someone removes the state court ceases action and the federal court proceeds, regardless of whether the removal was proper. This is to prevent an overlap in jurisdiction at one time, and reduce confusion about where the case is. This means its the federal courts job to decide whether there was FedQ or Diversity authorizing removal. When someone motions to remand the fed court then has to decide that issue.

Right. Removal is automatic, even if removal is improper. It is the fed court that decides on the propriety of removal.

Here's my outline on Removal/Remand:



(If you're having trouble understanding any of the outline, feel free to ask. That bit about bad faith is basically if you've kept a D in the case just so you don't have diversity, and then after 366 days you drop claims against that D, that would be an example of bad faith that would allow the other Ds to remove after the 1-year limit.

[p3aceandl0v3]

Thanks everyone, pretty sure i get it now

[heythatslife]

A tort question on causation and comparative negligence.

So my understanding is that when you have a chain of events where BOTH the plaintiff and the defendant acted negligently with equal culpability, and the jurisdiction allows full comparative negligence, then plaintiff and defendant would each bear 50% of the liability.

But in an accident that could have been caused by the negligence of EITHER the plaintiff or the defendant, with 50/50 probability for each, what happens? Defendant gets away because of failure to establish his causation by preponderance of evidence?

[Br3v]

A tort question on causation and comparative negligence.

So my understanding is that when you have a chain of events where BOTH the plaintiff and the defendant acted negligently with equal culpability, and the jurisdiction allows full comparative negligence, then plaintiff and defendant would each bear 50% of the liability.

From what I remember, yes.

But in an accident that could have been caused by the negligence of EITHER the plaintiff or the defendant, with 50/50 probability for each, what happens? Defendant gets away because of failure to establish his causation by preponderance of evidence?

I think yes, defendant gets a SJ win because plaintiff failed to present a prima facie case (no causation shown)

[heythatslife]

Cool, thanks for confirmation.

[foundingfather]

For the case to have been removed in the first place, there needed to have been either FedQ or Diversity independently authorizing the removal of at least one claim within fed courts' competency.

I don't think that's true. Procedurally, when someone removes the state court ceases action and the federal court proceeds, regardless of whether the removal was proper. This is to prevent an overlap in jurisdiction at one time, and reduce confusion about where the case is. This means its the federal courts job to decide whether there was FedQ or Diversity authorizing removal. When someone motions to remand the fed court then has to decide that issue.

Right. Removal is automatic, even if removal is improper. It is the fed court that decides on the propriety of removal.

Here's my outline on Removal/Remand:

[outline]

(If you're having trouble understanding any of the outline, feel free to ask. That bit about bad faith is basically if you've kept a D in the case just so you don't have diversity, and then after 366 days you drop claims against that D, that would be an example of bad faith that would allow the other Ds to remove after the 1-year limit.

that's a solid outline. do you have one for pleadings and discovery perchance?

[nothingtosee]

So let's say I want to bring a state law claim against Book Co., which is incorporated in Deleware, but has its principal place of business in Washington state.
I want to sue in federal district court in Washington state.

Can I use the fact of Delaware incorporation to establish diversity jurisdiction, but use the principal place of business in WA to establish personal jurisdiction?

[pancakes3]

So let's say I want to bring a state law claim against Book Co., which is incorporated in Deleware, but has its principal place of business in Washington state.
I want to sue in federal district court in Washington state.

Can I use the fact of Delaware incorporation to establish diversity jurisdiction, but use the principal place of business in WA to establish personal jurisdiction?

Where are you?

[heythatslife]

So let's say I want to bring a state law claim against Book Co., which is incorporated in Deleware, but has its principal place of business in Washington state.
I want to sue in federal district court in Washington state.

Can I use the fact of Delaware incorporation to establish diversity jurisdiction, but use the principal place of business in WA to establish personal jurisdiction?

Are you domiciled in WA? I'm assuming you are, because if you were in neither DE nor WA there would be no question about diversity.
Then I don't think you get to invoke diversity jurisdiction, because complete diversity requirement from Strawbridge is not satisfied.

[BmoreOrLess]

So let's say I want to bring a state law claim against Book Co., which is incorporated in Deleware, but has its principal place of business in Washington state.
I want to sue in federal district court in Washington state.

Can I use the fact of Delaware incorporation to establish diversity jurisdiction, but use the principal place of business in WA to establish personal jurisdiction?

Are you domiciled in WA? I'm assuming you are, because if you were in neither DE nor WA there would be no question about diversity.
Then I don't think you get to invoke diversity jurisdiction, because complete diversity requirement from Strawbridge is not satisfied.

This. For diversity they are citizens of DE and WA, not or WA.