Civ Pro - Removal Flashcards
(4 cards)
Select the statement that best describes the relationship between removal and venue:
A. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state
B In a properly removed case, venue is proper in the federal court of the state where the case was pending, but only if venue would have been proper had the plaintiff originally filed the action in the federal district court of that state
C Venue and removal have no correlation
A In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state
In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.” Hence, it is not correct to state that venue and removal have no correlation.
When a defendant attempts to remove a case from state court to federal court, the state court _______ have had subject matter jurisdiction over the case.
A Need not
B Must
C Must not
A Need not
By statute, the state court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction.
Hence, it is not correct that the state court must or must not have had subject matter jurisdiction over the case.
On August 1, the plaintiff, a resident of State A, sued two defendants in State A for personal injuries arising out of an automobile accident. One defendant is a citizen of State A while the other is a citizen of State B. The lawsuit claimed damages of $500,000. The plaintiff quickly reached a settlement agreement with the defendant from State A, and the court dismissed that defendant by order on August 16. The order is served on the remaining defendant on August 20. On September 18, the remaining defendant files a notice of removal with the court, which the plaintiff opposes.
How should the court rule on the defendant’s notice of removal?
A For the remaining defendant, because she filed her notice of removal within 30 days after she discovered the case had become removable.
B For the remaining defendant, because there are no time restrictions on removing a case to federal court.
C For the plaintiff, because a plaintiff has the right to choose his own forum.
D For the plaintiff, because more than 30 days have passed since the case became removable.
A For the remaining defendant, because she filed her notice of removal within 30 days after she discovered the case had become removable.
The court should rule for the remaining defendant. There are essentially two time restrictions on removal of a diversity case to federal court: (1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court. [28 U.S.C. §1446] Here, it is the 30-day time limit that is in question; i.e., specifically, whether the 30-day clock starts to tick on August 16 (when the case became removable) or on August 20 (when the defendant learned that the case became removable). As stated above, it is the latter. The clock starts to tick when the defendant learns by service of any paper that the case has become removable. Because she requested removal within this 30-day period, the court should rule in favor of the remaining defendant.
A plaintiff, a citizen of State A, sued a defendant, a citizen of State B, in state court in State B for breach of a contract to build a house for $200,000. The defendant counterclaimed for $300,000, alleging that the plaintiff breached an earlier contract by failing to pay for a house that the defendant had built. The plaintiff files a notice of removal to federal court in State B.
Can the case properly be removed to the federal court in State B?
A Yes, because all plaintiffs are of diverse citizenships from all defendants.
B Yes, unless the defendant objects to removal.
C No, unless the defendant joins in the removal.
D No, because only defendants may remove.
D No, because only defendants may remove.
Removal is not proper. A plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court. Additionally, only defendants may remove a case to federal court. For these reasons, (A) and (B) are incorrect. (C) is incorrect because removal by a plaintiff is improper even if the defendant joins in removal. An argument could be made that, because the defendant has her own right to seek removal, the court should treat her “joining” the plaintiff’s removal request as her own request for removal. Here, however, the defendant has no independent right of removal because she is a citizen of the forum state.
