Civil procedure question re: Removal Forum

[Outlawed]

An action originally filed in state court may be removed to federal court if the case could have originally been filed in federal court. Do you analyze Personal Jurisdiction in deciding whether the case could have been originally filed in federal court? In all the sample answers I've looked at, it seems that only Subject Matter Jx is analyzed.

If PJ does not need to be analyzed, why is it not analyzed?

Please help. Thanks!

[JuniperCreekEsq]

An action originally filed in state court may be removed to federal court if the case could have originally been filed in federal court. Do you analyze Personal Jurisdiction in deciding whether the case could have been originally filed in federal court? In all the sample answers I've looked at, it seems that only Subject Matter Jx is analyzed.

If PJ does not need to be analyzed, why is it not analyzed?

Please help. Thanks!

"if the case could have originally been filed in federal court" presuposes that the federal court has PJ. With some exceptions, yuo might just think of it as follows: if the state court has PJ over a defendant, then the federal court in that same venue will have PJ over that defendant. why? because state court PJ will never exceed federal court PJ - state PJ statutes are all limited by the US Constitution.

at that point, the only question regarding removal is whether the federal court has SMJ over the case (diversity can be a killer).

this is my knee-jerk response based on my memory of CivPro many, many months ago.

[Zero99]

Iirc fed court personal jurisdiction uses same rules as the state they reside in

[andythefir]

But if defendant didn't waive the argument it would still work in the federal court if there truly was no personal jurisdiction. Unconstitutional for any court to hear something they don't have the power to hear.

[JuniperCreekEsq]

But if defendant didn't waive the argument it would still work in the federal court if there truly was no personal jurisdiction. Unconstitutional for any court to hear something they don't have the power to hear.

Depends on the state rules. If the state rules work the same way as FRCP 12b2, and if defendant failed to raise lack of PJ as a defense, the PJ argument may be waived and defendant may be barred from raising it in response to removal.

On a separate note: under some circumstances, i could see PJ being created just by virtue of the defendant's presence in the state court action. let's say the defendant is in the venue fighting the state court action over a course of months; might that conduct itself confer upon the federal court PJ over the defendant? i think so.

[bandenjamin]

But if defendant didn't waive the argument it would still work in the federal court if there truly was no personal jurisdiction. Unconstitutional for any court to hear something they don't have the power to hear.

Depends on the state rules. If the state rules work the same way as FRCP 12b2, and if defendant failed to raise lack of PJ as a defense, the PJ argument may be waived and defendant may be barred from raising it in response to removal.

On a separate note: under some circumstances, i could see PJ being created just by virtue of the defendant's presence in the state court action. let's say the defendant is in the venue fighting the state court action over a course of months; might that conduct itself confer upon the federal court PJ over the defendant? i think so.

Generally you won't fight for months to assert that a court lacks PJ. In fact once you start fighting any other point you've in effect conceeded to PJ. In order to appear to fight PJ you have to "Appear specially" to contest that, and ONLY THAT, part of the litigation. I remember this one well as it was covered on a day where I missed class and was called on the very next day to explain it (of course I had no idea what the hell he was talking about). Once I got that explanation it sorta stuck with my (I guess that's one perq of the socratic method).

[tww909]

But if defendant didn't waive the argument it would still work in the federal court if there truly was no personal jurisdiction. Unconstitutional for any court to hear something they don't have the power to hear.

Depends on the state rules. If the state rules work the same way as FRCP 12b2, and if defendant failed to raise lack of PJ as a defense, the PJ argument may be waived and defendant may be barred from raising it in response to removal.

On a separate note: under some circumstances, i could see PJ being created just by virtue of the defendant's presence in the state court action. let's say the defendant is in the venue fighting the state court action over a course of months; might that conduct itself confer upon the federal court PJ over the defendant? i think so.

Generally you won't fight for months to assert that a court lacks PJ. In fact once you start fighting any other point you've in effect conceeded to PJ. In order to appear to fight PJ you have to "Appear specially" to contest that, and ONLY THAT, part of the litigation. I remember this one well as it was covered on a day where I missed class and was called on the very next day to explain it (of course I had no idea what the hell he was talking about). Once I got that explanation it sorta stuck with my (I guess that's one perq of the socratic method).

This is nonsense. See 5B wright & miller section 1344.

While you don't ordinarily see this for reasons others here have cited, there is no doctrinal barrier to considering PJ prior to SMJ in a removed action. See 526 U.S. 574.

[Yukos]

But if defendant didn't waive the argument it would still work in the federal court if there truly was no personal jurisdiction. Unconstitutional for any court to hear something they don't have the power to hear.

Depends on the state rules. If the state rules work the same way as FRCP 12b2, and if defendant failed to raise lack of PJ as a defense, the PJ argument may be waived and defendant may be barred from raising it in response to removal.

On a separate note: under some circumstances, i could see PJ being created just by virtue of the defendant's presence in the state court action. let's say the defendant is in the venue fighting the state court action over a course of months; might that conduct itself confer upon the federal court PJ over the defendant? i think so.

Generally you won't fight for months to assert that a court lacks PJ. In fact once you start fighting any other point you've in effect conceeded to PJ. In order to appear to fight PJ you have to "Appear specially" to contest that, and ONLY THAT, part of the litigation. I remember this one well as it was covered on a day where I missed class and was called on the very next day to explain it (of course I had no idea what the hell he was talking about). Once I got that explanation it sorta stuck with my (I guess that's one perq of the socratic method).

This is nonsense. See 5B wright & miller section 1344.

While you don't ordinarily see this for reasons others here have cited, there is no doctrinal barrier to considering PJ prior to SMJ in a removed action. See 526 U.S. 574.

Yeah special appearances were killed by the FRCP. You should be skeptical about any code pleading/magic word shit, most of it has been removed from the system by this point.

[alphasteve]

An action originally filed in state court may be removed to federal court if the case could have originally been filed in federal court. Do you analyze Personal Jurisdiction in deciding whether the case could have been originally filed in federal court? In all the sample answers I've looked at, it seems that only Subject Matter Jx is analyzed.

If PJ does not need to be analyzed, why is it not analyzed?

Please help. Thanks!

I think PJ isn't analyzed in those situations because it isn't what is being asked. May an action be removed is an independent analysis from PJ.

And PJ is not necessarily waived by filing a removal or the process. It depends on what the defendant did in state court, and defers to that. For example, if the state has general and specific appearances, and the defendant makes a general appearance prior to removal, they've waived PJ arguments at the federal court. If not, they they still have a PJ argument live until they file their first responsive pleading or otherwise constructively consent (which does not include filing the removal, itself) to PJ at the federal court.