Civil Procedure 2005

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Civil Procedure 2005

• Class 31 Subject Matter Jurisdiction
  Supplemental Jurisdiction II, Removal
• Nov. 2, 2005

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TENSION BETWEEN

• Liberal joinder rules
• Subject matter jurisdiction requirement
• GAVE RISE TO SUPPLEMENTAL JURISDICTION

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SUPPLEMENTAL JURISDICTION STATUTE 28 U.S.C. 1367
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Does Supplemental Jurisdiction Statute Trump
Traditional Aggregation Rules?

• Zahn 414 U.S. 291 (1975) (predates statute) no
  ancillary jurisdiction over claims without
  independent jurisdictional basis in class action,
  where 1 class member had claim meeting
  jurisdictional amount, but other class members
  did not)
• Split in circuits on whether s. 1367 overrules
  Zahn. S. Ct resolves split in Exxon (2005)

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TRADITIONAL AGGREGATION RULES CONTD

• Multiple Ps sue the same D for different claims
  e.g. Dorothy ME (passenger) sues George- TX
  (driver) in federal court for 45,000 for damages
  suffered in a car crash.
• A. Is there subject matter jurisdiction? What
  if Laura- DC, also a passenger in Georges car,
  wants to join as a plaintiff to sue George for
  35,000 for her injuries arising from the same
  accident?
• B. Will the supplemental jurisdiction statute
  change the result?

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TRADITIONAL AGGREGATION RULES CONTD

• Would it make any difference to your answers in
  the previous hypothetical if Dorothys claim was
  for 90,000?

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Does 1367(b) apply?

• Multiple Ps sue the same D for different claims
• P sues multiple Ds for different claims one
  claim meets the requirements of diversity but the
  others do not
• D counterclaims and P wants to implead a
  nondiverse third party for indemnification/contri
  bution
• P wants to cross-claim against a nondiverse P

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28 U.S.C. sect. 1367(d)

• This is a tolling provision
• What is its effect?
• What is the reason for this tolling provision?
• Is it constitutional?

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28 U.S.C. sect. 1367(d)

• Is it constitutional? Yes see Jinks v. Richland
  County, 349 S.Ct 298 (2003) (necessary and proper
  and does not violate state sovereignty)

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PRACTICE EXERCISE 34

• CB p. 716
• Plaintiff Nancy Carpenter (NH)
• Ds Dee (MA), Ultimate (MA)
• 3d Party Ds McGills Garage (MA), Dale McGill
  (NH)
• Motion to dismiss Carpenter and Ultimates claims
  for lack of subject-matter jurisdiction by Garage
  and McGill

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REMOVAL JURISDICTION

• What is removal?
• What is the policy justification for removal
• a. For diversity cases?
• b. For federal question cases?

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LEGAL SOURCES FOR REMOVAL JURIDCITION

• NOT IN U.S. CONSTITUTION
• So, removal is purely statutory.
• There have been federal removal statutes since
  1789.

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LIMITS ON REMOVAL

• Can a plaintiff remove?
• Can a plaintiff remove if there is a
  counterclaim?
• Can a case be removed from federal to state
  court?
• Any types of actions non-removable?

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WHEN IS A CASE REMOVABLE?

• There must be original subject-matter
  jurisdiction in federal court
• Basic rules of federal question and
  diversity/alienage apply
• Well-pleaded complaint rule applies
• Artful pleading rule

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WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION?

• P brings action in state court
• Can D remove?
• See 28 U.S.C. section 1441(e)

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PROCEDURE FOR REMOVAL

• How does a defendant remove ? (see 28 U.S.C.
  section 1446)
• Can a defendant waive her right to remove?
• How many defendants must agree to remove a case?

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WHERE IS CASE REMOVED TO?

• What court(s) may hear a claim that is removed?
• What is the applicable statutory provision
  determining this?

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CHALLENGING REMOVAL

• How does a plaintiff challenge removal?
• Can a plaintiff waive her right to challenge
  removal?
• Are there any applicable time limits? If so what?

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Burnett v. Birmingham Board of Education (N.D.
Ala. 1994)