Top Law Schools

This is from taking existing hypos and tweaking them a bit to make them more complicated. I ended up confusing myself in the process:

HYPO 1:
So P1 is from CA, D1 is from OR - claim is for $100K. P1 has a questionably valid but related claim against D2 who lives in CA, and joins D2 to the claim in order to prevent removal to fed court. After discovery D2 files a motion for SJ and the case against D2 is dismissed. At this stage can D1 now request removal to fed court based on diversity since D2 is no longer part of the claim or is it too late?

HYPO 2:
P1-CA sues D1-OR on a diversity claim of $100K. D1 under Rule 14 impleads D2-CA. D2 now files a claim against P1 as a result. P1 now files a counterclaim in response to D2s claim. So first of all is D2s claim against P1 considered a counterclaim and therefore allowed under 1367B because it is being brought as a defendant - or is D2 now considered a plaintiff for the purposes of the D2-P1 claim and would it not be allowed under 1367B? So now P1 wants to respond to the claim with a counterclaim against D2 as well. This is also prohibited under 1367B because P1 is bringing the claim pursuant to FRCP 14 - that seems wrong. So for purposes of this claim is P1 now acting as a D?? Somehow this scenario really confuses me. . .

Thanks for your thoughts and help

I'm just reviewing my notes on removal so I could be very much wrong but my understanding is as follows:

Hypo 1. Once defendant takes a substantial defensive action on the merits, removal is waived. So most likely, you won't be able to remove. However, our prof suggested that a federal Court may have found the non-diverse defendant to not be a real party in interest and grant removal anyway.

Hypo 2. Our prof strongly suggested that 1367(b) refers to "original" plaintiffs only and that in making a Rule 14 claim, the party doesn't become a plaintiff. So under this logic, D2 can make a claim against P1, but can't return since an original plaintiff can't bring a claim against a party brought in under Rule 14--the compulsory counter-claim rule wouldn't apply since you can't get SMJ and presumably the claim P1 has against D2 could be brought in State Court.

straxen wrote: Hypo 1. Once defendant takes a substantial defensive action on the merits, removal is waived. So most likely, you won't be able to remove. However, our prof suggested that a federal Court may have found the non-diverse defendant to not be a real party in interest and grant removal anyway.

I think there is an exception to this, which applies here: I believe removal is allowed under a sudden change in subject matter jurisdiction, as long as it is within one year of original filing, and within 30 days of subject matter jurisdiction changing. At least that's how I understand it. (This second part I am less sure about, someone please confirm- I don't see it in my rule book).

Of course, the defendant removing is also contingent on where the case was brought. If it was brought in California the home-state defendant rules disbars removal here, since it is based on 1332 JX, and the policies behind 1332 are irrelevant (fairness for an out of state defendant).

Thanks for the help. I suspect hypo one can vary based on how well it is argued by the parties. Balance of efficiency vs fairness to the defendant.

Fortunately none of the situations presented on the final today were as tricky as the 2nd hypo.