Removal problem set: questions

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.

Question 1.

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.

Question 2.

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.

Question 3.

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.

A. True
B. False

Question 4.

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.

Question 5.

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).

Question 6.

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?

Question 7.

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.

A. True
B. False

Question 8.

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.
B. Nothing.
C. Only the claims that it wants to litigate in federal court.
D. Only claims involving federal questions.

Question 9.

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.

Question 10.

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.

Question 11.

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.

Question 12.

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.

A. True
B. False

Question 13.

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.

Question 14.

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.

Question 15.

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.

Question 16.

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?
C. Yes.
D. No.

Question 17.

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.

Question 18.

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).)

A. True
B. False

Revised Sept. 10, 2015 (“Detroit” s.b. “Delaware,” adding 1446(b)(2) to Q7).