SMJ and removal/remand Flashcards
SMJ
court’s power over the CASE (not the parties)
fed courts have limited SMJ; state cts have general SMJ (there are a few fed cases that state courts can’t hear such as bankruptcy – but most cases arising under fed law can be heard by state courts)
2 main types of cases heard in fed court
- FQ
- diversity of citizenship
remember that lack of SMJ (unlike PJ) CANNOT BE WAIVED
diversity of citizenship
- case is either between citizens of diff US states; or between a citizen of US state and citizen of foreign country; AND
- amount in controversy EXCEEDS 75k (determined by amount pleaded in good faith in pff’s complaint – gotta be a possibility that recovery will exceed 75k)
*if ANY pff is a citizen of same state as ANY D, then div of citizenship doesn’t exist
*watch for citizen of a foreign state who is lawfully admitted for permanent residence and domiciled in same US state…
citizenship
- citizenship of person who is US citizen: one US state where she is domiciled at the time the suit is filed
***legal representative of a decedent assumes the state citizenship of the decedent
- citizenship of corp: of any state/country in which it is incorporated AND of the one state or country in which it has its principal place of business
cocporations can have MULTIPLE states of citizenship
- citizenship of unincorporated associations (partnership, LLC, etc): takes on the citizenships of all of its members (if an LP, you include citizenships of general and limited partners)
THERE MUST BE COMPLETE DIVERSITY - EACH PFF IS A CITIZEN OF A DIFFERENT STATE FROM EVERY DEFENDANT (NONE OF THE PFFS AND NONE OF THE D’S CAN BE FROM SAME STATE)
natural persons domicile
- where a person was last both (1) present and (2) intending to remain indefinitely
amount in controversy requirement
- in addition to complete diversity/alienage, the pff’s claim(s) must exceed 75k
- any single pff may aggregate all of her claims against a single D (claims don’t have to be related to each other)
- joint claims: use the total value of the claim (number of parties is irrelevant; you sue tortfeasors X, Y and Z for 80k)
equitable relief and the amount in contro
2 tests (if either is met, courts will find that it is met)
1. pff’s viewpoint (if granted, does the relief requested have a value of more than 75k to pff)
2. D’s viewpoint (if granted, will the relief requested by pff cost the D more than 75k)
federal question cases
- pff’s claim must arise under fed law
- pleader must follow well-pleaded complaint rule (pff’s claim itself must arise under fed law)
- is pff enforcing a fed right? if yes, case can go to fed court under FQ jdx
removal and HOW can the D do it?
D can remove the case FROM STATE TO FEDERAL COURT
- can be removed when case could’ve been filed in a fed court
- D files a notice of removal in federal court, stating grounds of removal, which means federal SMJ
- D then serves copy of the notice of removal on adverse parties and files a copy in state court
timing of removal
- D must remove no later than THIRTY DAYS after SERVICE!!!!!!!! of first paper that shows case is removable - it’s usually service of process b/c case is removable at the very outset
who must join in the removal
- all D’s who have been served with process must join in removal
- if D’s are served at diff times and a later D initiates timely removal, the earlier served D can join in the removal even though her 30 day period may have been expired
who cannot remove?
Pffs CAN NEVER remove (this is true even if D files counterclaim against pff that, by itself, could be heard in fed ct)
what cases may be removed?
- D can remove a case from state to fed ct that meets requirements for diversity or FQ
- limit to removing case from state to fed court based solely on diversity:
- case should not be removed if any D is a citizen of the forum state (e.g., one of the D’s is a citizen of Alabama and it’s in Alabama state court)
- if diversity action is not initially removable but later becomes removable (as by dismissal of a nondiverse D), the case shouldn’t be removed more than one year after case was filed in state court
removal venue
D removes to the fed district court “embracing” the state court where case was filed
remand back to state ct
- if pff thinks case shouldn’t have been removed, she can remand back to state court
- if removal by the defendant to fed court was improper b/c fed ct lacked SMJ, no time limit on ordering remand back to state court
