1441
Who gets's to decide where a lawsuit starts?
The plaintiff! Even if the plaintiff asserts a federal question, the plaintiff can still be in a state court if he chooses.
Remand (definition)
return from federal, back to state court AFTER it has been removed.
If you file a suit in Grand Forks, ND and you file removal where are you going?
The Federal District Court of ND!
What happens if I file a claim in state court when congress has exclusive jurisdiction over the dispute?
If you file in state court, one of the claims that cannot be heard in state court (cases involving railroads, workers comp, and cases involving violence against women act) then you can transfer or remove under 1441(f) to federal court and proceed to on case.
Professor will tell us on the exam if Congress is allowed to do something!
Professor will tell us on the exam if Congress is allowed to do something!
A citizen of Ohio is suing a citizen of Iowa... for $80,000 on the basis of state law and they are suing in an Ohio court.
Yes! There is diversity and the amount in controversy is over $75,000. We meet the requirements of 1332 (so this case COULD have been filed in a federal court) and the home state advantage rule does not apply because the defendant is from Iowa and we are in an Ohio state court.
Removal must be requested by ALL of the defendants. T or F?
True! If removal is not requested by ALL of the defendants, it is not eligible for removal. If even one defendant does not cooperate, you must STAY in state court.
If the plaintiff chooses to be in state court, what is the defendant allowed to do?
They are allowed to use removal to be in federal court when ALL of the defendants agree and there is subject matter jurisdiction in a federal court. Then if the defendants join together and ask to be removed from state to federal court.
What is the test for removal?
1. do all the parties agree?
2. COULD we have brought the claim in a federal court? (under 1331 must arise from federal law and arise in the persons well-pled complaint)
You only remove if...
if the plaintiff could have been filed there originally.
If I file in state court and some of my claims can be heard in federal court but not all of them... Can I remove those claims that are eligible for removal?
The claims that it does not have SMJ over are going to be remanded back to state court. The claims that DO have SMJ will proceed in the federal courts.
Homestate advantage rule... 1441(b)
1441(b) says if you start in state court and the defendant is at home in state court, then the defendant does not get to go ahead and remove IF jurisdiction is based ONLY on diversity.
A citizen of Ohio is suing a citizen of Iowa... for $50 on the basis of a federal question and they are suing in an Ohio court.
Yes! This could have been filed in a federal court under 1441(a) and the defendant is not at home in Ohio since they are from Iowa 1141(b).
What happens if a state court issues a decision after a request for removal is filed and the ruling the issue the state court has entered has no effect whatsoever... (what happens)
When you ASK a court to remove the case, the state court loses all authority and the state court takes over UNTIL or UNLESS it has been remanded back.
1441(a) basically says...
If the plaintiff has already filed a lawsuit in state court but we would rather be in federal court, and (1) ALL of the defendants agree and the (2) case COULD have been heard in federal court, we can remove ourselves from state to federal court.
A defendant cannot merely by injecting a federal question into an action (which plainly asserts a state law claim) transform the action into one arising under federal law thereby selecting the forum in which the claim shall be litigated. T or F?
True! If the plaintiff COULD have filed their lawsuit in federal court, the defendant can remove the case from state to federal court. BUT if the defendant could not have filed their case in federal court, then the defendant cannot remove it to a federal court.
1441(a) is a tool that helps... (who)
the defendant!
You have the right to remove the claims that could have been heard in federal court to federal court (when you have a lawsuit that has both state and federal claims). T or F?
True!
If the plaintiff goes to the defendant's home state and says "I will litigate in your backyard." then...
there is LESS of a reason to allow that claim to be removed from state to federal court. BEcause we are not as concerned about unfairness because the defendant is AT HOME.
A citizen of Ohio is suing a citizen of Iowa... for $80,000 on the basis of state law and they are suing in an Iowa state court. Is this removable?
No! The Ohio plaintiff is in federal court based on diversity jurisdiction so 1441(b) will not allow for removal because the defendant is at home in Iowa where the lawsuit has been filed. This case is not removable.
Remember: Acknowledge these cases met the requirements of 1441(a) - They COULD have been removed under either 1331 or 1332.
Removal gets you from state court to...
to whatever federal court has authority over that state court.
Who decides whether removal is proper?
The federal court. As soon as you final the notice of removal, everything goes to the federal court and it is the federal court that determines if it stays there.
To conclude a removal analysis... if removal is NOT proper, you need to put what... (think about remand)
Federal courts should remand this back and this case is going to proceed in state court.
1441 "Except as otherwise expressly provided by an act of congress..."
Congress CAN change these rules.
What about a state law claim that presents a new or novel application of state law... the defendant tries to remove that claim on the basis of supplemental jurisdiction... does the federal court have to hear it? Can the federal court hear it if it wanted to?
Supplemental jurisdiction is discretionary. So if you remove a claim that could supplement one of the claims that is there, the court can keep it or decide to send it back. 1367(c) gives the court that discretion.
1441(b) does not allow removal IF...
the basis of jurisdiction is diversity jurisdiction. You cannot remove on the basis of diversity if ANY of the defendants is a citizen of the state in which the court action is pending.
Remember: If even one defendant is at home, you are not allowed to remove based on diversity jurisdiction.
1446 tells us...
Removal is limited to a request within 30 days of the case becoming eligible for removal. If it starts out as eligible for removal, that's 30 days of notice from the lawsuit. If there is a non-diverse party (maybe it is 90 days in and you add a federal question) then you get 30 days from whenever it becomes eligible to file.
Remember: Everything has to be complete within ONE year!!!
Does it matter if one of the defendants is at home in litigation and another defendant is not at home if they joined together?
No. If even one defendant is at home then home state advantage rule applies.
Removal (definition)
is going from state to federal court.
Wherever you filed in state court... if you remove... (where do you go)
you go to the federal court wherever that state court is located.
What are some cases that cannot be removed to federal courts?
Cases involving railroads and other common carriers, cases involving workers compensation and cases alleging the violence against women act... (even if these could have been brought in a federal court if the plaintiff chooses to bring them in state court, they will stay in STATE court.) These are NOT removable!
True! Claims that are not removable - claims that involve railroads, workman's comp, and violence against women act - congress can allow these cases to be removable.
A citizen of Ohio is suing a citizen of Iowa... for $50 on the basis of a federal question in an Ohio state court. Can our Iowa defendant remove to federal court?
Yes! the defendant is not at home in Ohio and the claim COULD have been filed in a federal court because we have a federal question under 1331.
Under 1446... after a year has passed...
It does NOT matter if it becomes eligible for removal, you MUST stay in state court.