Instructions: answer all questions before looking at explanations. A federal district court map may be found at http://www.uscourts.gov/uscourts/images/CircuitMap.pdf.
P (citizen of California) plans to sue D Phord Motor Co. (incorporated in Delaware with principal place of business in Michigan) for injuries suffered in an auto accident. P believes that problems with the Phord vehicle caused the accident. If P sues Phord in California state court seeking $100K damages, can D remove? (Hint: see 28 U.S.C. § 1441(a) and (b).)
A. No, because the well-pleaded complaint rule indicates that a plaintiff is the master of his complaint.
B. Yes, because defendants can always remove from state court to federal court.
C. No, because no federal question is involved.
D. Yes, because the federal court would have had original jurisdiction over P’s claim had P filed there originally.
Correct answer: D
• D is correct. 1441(a) permits removal of a civil action brought in a state court of which the district courts of the U.S. have original jurisdiction. The limits in 1441(b) don’t apply here. (Why?)
• A is wrong because here the plaintiff doesn’t have control over where the suit is litigated — the whole purpose of removal is to give D a veto power in cases that are removable. Moreover, the well-pleaded complaint rule is used to determine whether the plaintiff’s claims state a federal question. It’s not a principle that permits Ps to veto removal if the case is otherwise removable.
• B is wrong because it overstates the law. Removal under 1441(a) requires that the state suit could have been filed in federal court, and even then, 1441(b) limits the scope of removal in diversity-only cases where any D is a citizen of the state where the suit was filed.
• C is wrong because a “federal question” isn’t the only basis for removal. 1332 can often be a basis for removal as well.
P (California) sues Phord (Delaware and Detroit, Michigan) in a state court in Anchorage, Alaska for products liability for $100K. P was injured when his car fell apart in Las Vegas. Look at the map of federal districts at the end of this document. D may remove to which district(s)? (Hint: see 28 U.S.C. § 1441(a).)
A. The United States District Court for the District of Nevada.
B. The United States District Court for the Central District of California.
C. The United States District Court for the District of Delaware OR the United States District Court for the Eastern District of Michigan.
D. The United States District Court for the District of Alaska.
Correct answer: D
• D is correct. The proper venue for a removed action under 1441 is the district court of the U.S. for the district and division embracing the place where the action is pending. Later on, we will study venue and the general venue statute, 28 U.S.C. § 1391. However, section 1391 is irrelevant to a removed case because the proper venue for a removed case is determined by 1441(a). (This doesn’t mean that the case can’t be transferred: as we’ll soon learn, the federal court may choose to transfer the case to another district under 28 U.S.C. § 1404!)
• The other answers are incorrect for the reasons noted above.
P (citizen of California) sues D Phord Motor Co. (Delaware and Michigan) in California state court for injuries suffered in an auto accident. D removes without bothering to seek permission to remove from the state court or the federal court. (Hint: see 28 U.S.C. § 1446(a) and (d).)
TRUE or FALSE: D’s failure to seek permission renders removal procedurally improper.
Correct answer: B (false)
• False. Permission is not required to remove. It takes effect automatically. See 1446(a), which discusses the filing of the notice of removal: “A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.”
• See also 1446(d), which discusses notice to the court and adverse parties, as well as its effect: “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
Same fact pattern as question 1, but P files suit in the federal district court in the U.S. District Court for the Central District of California. May D seek removal to a California state court? (Hint: see 28 U.S.C. § 1441(a).)
A. Yes, because the suit could have been filed in state court.
B. No, because removal can’t be done from federal court to state court.
C. No, because P is a citizen of California.
D. Yes, because if D believes it won’t be prejudiced by litigation in federal court, then state court is preferable for all parties.
Correct Answer: B
• B is correct. Removal is a one-way street. Remand to state court is possible, but remand happens only when the case is improperly removed from state court to federal court.
• A is incorrect. The suit could have been filed in state court, but P chose to file in federal court.
• C is incorrect because the “forum defendant rule” of 1441(b)(2) doesn’t apply to plaintiffs.
• D is incorrect because removal is done automatically upon filing the papers, and does not involve a court determining the “best” court to hear the case.
P (California) is angry at Phord (Delaware & Michigan) for making what he believes are defective cars. He registers the domain name PHORDSUCKS.COM and posts information about Phord. Later, P sues Phord in Pennsylvania state court alleging product liability and seeking $100K damages. Phord files a counterclaim against P for trademark infringement under federal law for using the PHORDSUCKS.COM domain name. P is concerned that Pennsylvania state judges don’t know anything about federal trademark law and wants to remove. Can P remove the case? (Hint: see 28 U.S.C. § 1441(a).)
A. No, only defendants can remove.
B. No, because by filing in state court, P has consented to venue in state court only.
C. Yes, because the original claim was removable.
D. Yes, because the counterclaim is based on a cause of action that arises under federal law (the “Holmes” test).
Correct Answer: A
• A is correct. The Supreme Court has read the “defendant or the defendants” language of 1441(a) to mean that only defendants can remove.
• B is wrong because removability does not hinge on whether P has consented to anything.
• C is wrong; the fact that the original claim was removable on the basis of diversity is irrelevant to who has the power to remove. Put differently, D could have removed on the basis of diversity but chose not to. P, however, lacks the power to remove.
• D is a red herring and also misstates the law. The well-pleaded complaint rule normally looks to the plaintiff’s complaint. Here, the plaintiff’s complaint contains a cause of action that was created by state tort law (products liability). The plaintiff’s complaint does not include a federal question. Regardless, P has no power to remove.
P (California) is angry at Phord (Delaware & Michigan) for making what he believes are defective cars. He registers the domain name PHORDSUCKS.COM and posts information about Phord. Later, P sues Phord in Pennsylvania state court alleging product liability and seeking $100K damages. Phord files a counterclaim against P for copyright infringement under federal law for using pictures of Phord vehicles on the PHORDSUCKS.COM website. P is concerned that Pennsylvania state judges don’t know anything about federal copyright law and wants to remove. Can P remove the case? (Hint: compare 28 U.S.C. § 1441(a), with 28 U.S.C. § 1454.)
A. No, only defendants can remove.
B. No, removal is measured by original jurisdiction, which in turn depends on whether the well-pleaded complaint contains a federal question. Here, the plaintiff’s complaint only contains a state-law claim.
C. Yes, because the original claim was removable.
D. Yes, because P can remove. Cool, huh?
Correct Answer: D
• D is correct because of 28 U.S.C. § 1454, which permits any party to remove a case when “any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.” 28 U.S.C. § 1454(a), (b)(1) (emphasis added).
• A is correct for cases removed under the general removal statute, section 1441. However, section 1454 provides an exception, permitting any party to remove for patents and copyrights.
• B is correct for cases removed under the general removal statute, section 1441. However, section 1454 permits removal to be based on a copyright claim asserted by any party, such as a counterclaim (“any party assert a claim for relief”). This statute was enacted in 2011 to overrule some of the implications of Holmes v. Vornado.
• C is correct for cases removed under the general removal statute, section 1441. But section 1441 would only permit D to remove on the basis of diversity, but D didn’t remove. Here, P removed. So section 1454 is the rare example of a case where a plaintiff can remove.
P (California) sues and serves process on Phord (Delaware and Michigan) and U-Love-Em Auto Sales (Arizona), in California state court seeking $100K over alleged products liability. Phord wants to remove but U-Love-Em refuses to join in the notice of removal. (Hint: see 28 U.S.C. §§ 1441(a), 1446(b)(2).)
TRUE or FALSE. Phord can remove the case.
Correct Answer: B (false)
• False — the courts have held that all defendants who have been served must join in the notice of removal.
• COMMENT: A defendant served after removal who does not want to be in federal court may be able to move for remand to state court.
P (California) sues Phord (Delaware & Michigan) in California state court alleging negligence (Count I); products liability (Count II); and a federal statute permitting suits against carmakers for defective auto manufacturing (Count III). P seeks $100K. If Phord wants to remove, it may remove what? (Hint: see 28 U.S.C. § 1441(a).)
A. The entire case.
C. Only the claims that it wants to litigate in federal court.
D. Only claims involving federal questions.
Correct answer: A
• A is correct. You remove a whole case, not parts.
• B is wrong because removal would be proper here. The parties are diverse, the amount in controversy is over $75K, D is not a citizen of California, and Count II states a federal question.
• C is wrong because a defendant can’t pick & choose which claims to remove.
• D is wrong because removal isn’t always limited to federal questions. (Indeed, peek at 1441(c): what scenario might that statute apply to?)
Remember, P is from California and Phord is incorporated in Delaware and has its principal place of business in Michigan. P’s damages are for $100K and he wants to file a claim for products liability under state law. P wants to litigate in state court and wants to make sure that Phord can’t remove. His best course of action is to do what? (Hint: see 28 U.S.C. § 1441(b)(2), (c)(2).)
A. There is nothing P can do.
B. Only claim $75,000 in damages.
C. File in state court in any state except California, Delaware, or Michigan.
D. File in Delaware or Michigan state court.
Correct answer: D
• D is correct. In a diversity-only case, the case cannot be removed if any D is a citizen of the state in which the suit was filed. See 1441(b)(2). This is the “forum defendant rule.”
• A is wrong. P can file in Michigan or Delaware to prevent removal.
• B is not the best answer. For one thing, why would P want to limit his damages? For another, in many states, a plaintiff’s demanded recovery amount does not limit the amount the plaintiff might ultimately recover. In such cases, courts tend to permit defendant to make a “clear showing that the plaintiff’s claim in fact meets the jurisdiction amount requirement.” Freer, Introduction to Civil Procedure, 4.8, at 222. In addition, revised 1446(c)(2) states: “(A) the notice of removal may assert the amount in controversy if the initial pleading seeks–(i) nonmonetary relief; or (ii) a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.” (Emphasis added.)
• C is wrong — if filed in California, D can remove because it’s not a citizen of California.
FOLLOW-UP QUESTION: What if there were 10 Ds, from 10 different states? Then filing a diversity-only claim in any of those states would prevent removal!
Remember, P is from California and Phord is incorporated in Delaware and has its principal place of business in Michigan. P’s damages are for $100K and he wants to file a claim for products liability under state law (Count I) and a federal statute permitting suits against carmakers for defective auto manufacturing (Count II). P wants to litigate in state court and wants to make sure that Phord can’t remove. His best course of action is to do what? (Hint: see 28 U.S.C. § 1441(b)(2).)
A. File in Michigan or Delaware.
B. Don’t pursue Count II.
C. File in Michigan or Delaware, and additionally, pursue Count I only.
D. File in Michigan or Delaware, and additionally, pursue Count II only.
Correct answer: C
• C is correct. File in Michigan or Delaware to take advantage of the forum defendant rule. However, the forum defendant rule applies only when original jurisdiction is premised “solely” on diversity. See 1441(b)(2) (note the word “solely”). So including Count II would make the suit removable, even if filed in Delaware or Michigan state court! So P will need to forgo the federal claim to stay in state court.
• A is incorrect because pursuing Count II side-steps the forum defendant rule.
• B is incorrect because diversity jurisdiction would permit removal if the suit were filed outside of Delaware or Michigan.
• D is incorrect because it’s upside-down: P needs to omit Count II, not rely on it.
Two days before the relevant statute of limitations for copyright infringement expired, P sued D in Florida state court alleging copyright infringement. D removed the case to federal court. After removing, D moved for dismissal with prejudice, arguing that federal courts have exclusive jurisdiction over copyright disputes, that the state court lacked subject matter jurisdiction of the copyright case, and that any “derivative” subject matter jurisdiction before the federal court was therefore also void. Is D correct? (Hint: see 28 U.S.C. §§ 1441(f) and 1454(c).)
A. No, because D consented to subject matter jurisdiction in the federal court.
B. No, because subject matter jurisdiction is now proper in the federal court.
C. Yes, because subject matter jurisdiction can be challenged at any time.
D. Yes, because improper subject matter jurisdiction cannot be cured by removal.
Correct answer: B
• B is correct. 1441(f) states “The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.” Even though the state court didn’t have subject matter jurisdiction over the copyright claim, the federal court did, and the earlier lack of jurisdiction didn’t bar the federal court from exercising its otherwise proper subject matter jurisdiction. The same result is reached under new 1454(c) states essentially the same thing for copyright, patent, and plaint variety cases: “The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in the civil action because the State court from which the civil action is removed did not have jurisdiction over that claim.”
• A is wrong because consent is irrelevant to subject matter jurisdiction.
• C is true as a general proposition but here subject matter jurisdiction isn’t improper. Removing “cured” the subject-matter jurisdiction.
• D is wrong for the reasons cited above.
P (California) sues Phord (Delaware and Michigan) in California state court for products liability for $100K. After removal, P seeks leave to amend to join Titan Auto Parts (California) as a defendant to the same claim. (Hint: see 28 U.S.C. § 1447(a) and (e). You might also want to skim Fed. R. Civ. P. 19 [relevant but not assigned].)
TRUE or FALSE: If the court grants leave to amend, the court may retain jurisdiction over the suit.
Correct answer: B (false)
• False. The court has discretion under 1447(a) to permit joinder of additional defendants. (“In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.”). But here, such joinder would destroy diversity jurisdiction. If the court permits joinder, it should remand the action to state court (and not dismiss). See 1447(e) (“If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.”).
• Compare what would happen if the case was originally filed in federal court. If a non-diverse party was added, the court would have two choices: 1) dismiss the suit (and not remand); or 2) dismiss Titan to perfect subject-matter jurisdiction. Whether option # 2 would be possible would require determination of whether Titan is a “necessary” and “indispensable” party under FRCP Rule 19, something we’ll discuss later this year.
P (California) sues Phord (Delaware & Michigan) in state court in Arizona for products liability and seeking $100K. The complaint indicates that P is from California and Phord is from Delaware and Michigan. It further indicates that P is seeking $100K in damages. Six months after being served, Phord removes to federal court. Six months later, P moves to remand to state court. The court should do what? (Hint: see 28 U.S.C. §§ 1446(b)(1), 1447(c).)
A. Deny the motion.
B. Deny the motion because Phord waited too long to remove.
C. Grant the motion because Phord waited too long to remove.
D. Grant the motion if it is in the interest of justice.
Correct answer: A
• A is correct. Phord did wait too long to remove. That’s a procedural defect in removal. The complaint indicated everything Phord needed to know to file a notice of removal, and Phord took 6 months instead of 30 days. See 1446(b)(1) (“The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”). But P also waited too long to seek remand, which should be done within 30 days after the filing of the notice of removal. See 1447(c), which states “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . .” Although the 30-day period is excused when there is a lack of SMJ, here SMJ is proper.
• B is incorrect. Even though Phord waited too long to remove (a procedural defect), that defect was waived when P waited too long to move for remand.
• C is incorrect: Phord did remove too late, but P’s objection to the late removal was waived by P for the reasons noted above.
• D is incorrect because “justice” is not a statutory reason for remand.
P (California) sues Phord (Delaware & Michigan) and component manufacturer Isawhe (California) in state court in Arizona for products liability and seeking $100K. The complaint avers that P is from California, that Phord is from Delaware and Michigan, and that Isawhe is from California. It further avers that P is seeking $100K in damages against each. Six months after being served, defendants remove to federal court. Six months later, P moves to remand to state court. The court should do what? (Hint: see 28 U.S.C. §§ 1446(b)(1), 1447(c).)
A. Deny the motion.
B. Grant the motion.
C. Deny the motion because P waited too long.
D. Grant the motion because Phord waited too long.
Correct answer: B
• B is correct because the court lacks subject matter jurisdiction. Although remand for a procedural defect in removal must be sought within 30 days of filing the notice of removal, remand may be made at any time before final judgment if the court lacks subject matter jurisdiction here. The parties’ mutual delay is irrelevant under these facts. The other answers are incorrect for the reasons noted above.
• COMMENT on “cure” of SMJ: In Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996), a case was removed even though complete diversity was lacking. Before entry of judgment, the defect in complete diversity was cured via dismissal of the claim against the non-diverse defendant. The Court held that this cured any defect in subject matter jurisdiction. Here, if Isawhe was dismissed before entry of final judgment, diversity jurisdiction would be ok and the removed case could remain in federal court.
Paula (Florida) sues her former employer, Artie’s Lawnmower Service (Florida), in Florida state court for common-law breach of contract due to her firing and seeks $100K damages. The defendant does not remove. Six months later, Paula is granted leave by the state court to join a claim for federal employment discrimination seeking $100K arising from the same firing. May Artie’s Lawnmower Service remove the case? (Hint: see 28 U.S.C. § 1446(b)(1), (3).)
A. No, because defendant is a citizen of Florida.
B. No, because a defendant only has 30 days to remove.
C. Yes, even though the case wasn’t originally removable.
D. Yes, because the amount in controversy now exceeds $75,000 exclusive of interest and costs.
Correct answer: C
• C is correct. A case that isn’t removable may become removable later on. Subject to an exception that arises in the next question, if the case is not removable, it can be removed by filing a notice of removal within 30 days after receipt “of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added.) Here, the case was not originally removable (non-diverse, no federal question.) However, later on the case became removable when a federal question was added. In fact, the whole case likely can be heard by the federal court: federal discrimination (1331 federal question) and state-law breach of contract for the same firing (1367 supplemental jurisdiction).
• A is wrong because 1441(b)(2) bars removal if any D is a citizen of the state where the suit is brought, but only if original subject matter jurisdiction premised solely on diversity. Here, there’s a federal question.
• B is wrong because the 30 days wasn’t triggered here until the original suit was amended to include the federal claim.
• D is wrong because it’s irrelevant. Removal is based on the presence of a federal question in the well-pleaded amended complaint.
Maurice (Georgia) sues Robin (Georgia) and Barry (Florida) in Georgia state court alleging battery and seeking $100K in damages. Eighteen months later and in good faith, Maurice settles with Robin, who is dismissed from the suit. After Robin’s dismissal, may Barry remove to federal court? (Hint: see 28 U.S.C. §§ 1446(b)(3) & (c)(1).)
A. Hey, aren’t these the Bee Gees?
B. Didn’t they record the soundtrack to Saturday Night Fever?
Correct answer: D
• D is correct, strangely enough. The original case lacked complete diversity. However, complete diversity was perfected by the dismissal of Robin. But there is a one-year time limit for removals premised on late-perfected diversity. 1446(c)(1) prevents removal conferred on the basis of diversity jurisdiction more than 1 year after commencement of the action. However, under the 2011 changes, the court can permit removal beyond the 1-year period if the court finds that he plaintiff acted in bad faith to prevent removal. “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c)(1). Here, the facts stipulate that the dismissal was in good faith.
• A and B are true facts of significance to the history of disco music and John Travolta’s early movie career, but do not inform the question presented.
• C is incorrect because D is correct.
• Counter-hypothetical: what if the facts indicated that six months after filing, Maurice and Robin secretly agreed to settle, but to time Robin’s dismissal for after the one-year mark? This would appear to be bad faith that would permit removal beyond the one-year mark.
Question: Maurice (Georgia) sues Barry (Florida) in Georgia state court alleging battery and seeking $100K in damages. Barry doesn’t remove. Eighteen months later, Maurice amends to join a claim for copyright infringement against Barry. Barry removes the action and Maurice moves for remand, arguing that the removal was done too late. What is Barry’s best argument that removal was proper? (Hint: you won’t find the answer in the casebook, and 1446(c)(1) appears to be irrelevant because removal would not be on the basis of diversity, so formulate the best argument you can.)
A. That Maurice deliberately withheld filing the copyright claim earlier in an attempt to prevent removal.
B. Barry has no viable argument.
C. That the case wasn’t originally removable but became so upon filing of the federal claim.
D. That the amendment changed the character of litigation so as to make it substantially a new suit.
Correct answer: D
• D is arguably correct. Some — but not all — courts may permit “revival” of the right to remove. Here, Barry could have but failed to remove on the basis of diversity of citizenship. 18 months later, Maurice added a federal cause of action. Some courts permit a revived right to remove where the amendment changed the character of litigation so as to make it substantially a new suit. Would such a right survive the current text of the statutes (as amended in 2011)?
• A is incorrect because the case was originally removable (and there’s nothing to suggest Maurice acted improperly anyway).
• B is incorrect because Barry does have a good argument.
• C is incorrect because the case was originally removable.
Both P and D are citizens of the same state. P sues D in state court in that state for violating federal employment discrimination law and seeks $10,000 damages. P joins a claim against D for a completely unrelated battery that occurred six months before the employment discrimination. P seeks damages of $10 for the battery (the only damages P suffered was the wounding of his pride for a brief moment). The only thing common between the claims is the parties; the claims are otherwise factually and legally unrelated.
TRUE OR FALSE: D may remove the lawsuit. (Hint: see section 1441(c).)
Correct answer: A (true)
• True with a caveat. The federal court had subject-matter jurisdiction over the discrimination claim, right? But didn’t the court lack subject-matter jurisdiction over the battery claim? It does: no diversity jurisdiction, no federal question, and because the battery is unrelated to the discrimination claim, no supplemental jurisdiction either (no “sprinkles”). However, under 1441(c)(1), if an action includes a 1331 federal question, as well as one or more claims lacking original or supplemental jurisdiction, the entire action can be removed. Moreover, “[u]pon removal of an action described in paragraph (1), the district court shall sever from the action all claims [lacking subject-matter jurisdiction] and shall remand the severed claims to the State court from which the action was removed.” Id. § 1441(c)(2). Thus, the court will need to sever the battery claim and remand it back to the state court. The federal court will only hear the discrimination claim, over which it had original jurisdiction. This is how 1441(c) works: you remove the entire action, and send back down the claims over which SMJ is lacking.
• Under the former version of 1441(c), the federal court could arguably have statutory authority hear the entire case! However, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 fixed section 1441(c). The former statute contained a rarely-used, much criticized, and often-ignored provision: “Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.” (Emphasis added.) Here, there’s a federal discrimination cause of action joined with an unrelated battery claim for $10. The federal claim is a 1331 federal question that is separate and independent of the $10 state-law claim. Thus, former 1441(c) purported to provide statutory authority for the federal court to exercise jurisdiction over both claims. This seemed to flout the limits on subject matter jurisdiction in Article III by providing statutory authority to hear a case that involves a dispute that the federal court appears to lack constitutional authority to hear, namely, a state-law claim between non-diverse parties!!! That’s why it was fixed in 2011.
Revised Aug. 31, 2016