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Flashcards in Subject Matter Jurisdiction Deck (82):
1

How many kinds of Subject Matter Jurisdiction in Federal Courts are there and what are they?

1. Federal Question
2. Diversity Jurisdiction
3. Supplemental Jurisdiction
4. Removal Jurisdiction
5. Legislative Jurisidiction

2

What does SMJ mean in CA courts?

In CA courts Subject Matter Jurisdiction means whether a civil case is limited or unlimited. The amount in controversy for a limited case is $25,000 or less.

3

What is the Subject Matter Presumption?

A federal court must presume that there is no jurisdiction until it can determine that the matter falls within its rightful jurisdiction. The burden is on the party seeking to invoke the court's jurisdiction

4

Can SMJ be waived?

NO. SMJ cannot be waived or agreed to by the parties (unlike personal jurisdiction)

5

How can SMJ be objected to?

An objection to SMJ can be presented by any party, including the court, at any stage, including on appeal. BUT, if there has not been an objection you cannot ordinarily challenge a judgment collaterally on that basis.

6

What if a federal court has SMJ but there is a pending, similar, matter in state court?

In general, A federal court is required to adjudicate the controversy despite a similar suit pending in state court.

7

When can a federal court abstain from hearing a case or stay a matter pending the outcome of a state court action?

4 total:

1. When resolution of a state law issue by the state court would eliminate the need for the fed court to decide a fed constitutional issue

2. In order to avoid fed involvement in a complex state regulatory scheme or other matter of great importance to the state

3. The state action involves punishment of an individual for criminal activity, contempt of court or a civil fine AND the fed court is being asked to enjoin such activity

4. Parallel proceedings that go beyond the waste of judicial resources, like when there is a federal policy of unitary adjudication on the issues.

8

When is federal intervention appropriate?

There are limited circumstances when federal intervention is appropriate: if a plaintiff can demonstrate unusual circumstances calling for federal equitable relief, significant and dire personal injury, or prosecutorial bad faith.

9

What is the basis for federal question jurisdiction?

Article III, Sec 2 of the U.S. Constitution: federal judicial power shall extend to all cases 'arising under the Constitution, laws and treaties of the U.S....'

10

What is concurrent versus exclusive federal question jurisdiction?

In general, state and federal court always have concurrent jurisdiction under federal question claims. Congress may expressly provide exclusive jdx, as they have in:

1.Securities and Exchange act of 1964
2. Patent cases
3. Bankruptcy proceedings

(Case law puts it like this: nothing prevents state courts from enforcing federal law)

11

What is the scope of federal question jurisdiction?

If the cause of action is expressly created under federal law, and federal law provides the underlying right, then yes, BUT no bright line rule

Likely yes: right was created under federal law and cause of action reasonably implies



1.

12

When is federal intervention appropriate?

There are limited circumstances when federal intervention is appropriate: if a plaintiff can demonstrate unusual circumstances calling for federal equitable relief, significant and dire personal injury, or prosecutorial bad faith.

13

What is the basis for federal question jurisdiction?

Article III, Sec 2 of the U.S. Constitution: federal judicial power shall extend to all cases 'arising under the Constitution, laws and treaties of the U.S....'

14

What is concurrent versus exclusive federal question jurisdiction?

In general, state and federal court always have concurrent jurisdiction under federal question claims. Congress may expressly provide exclusive jdx, as they have in:

1.Securities and Exchange act of 1964
2. Patent cases
3. Bankruptcy proceedings

(Case law puts it like this: nothing prevents state courts from enforcing federal law)

15

What is the scope of federal question jurisdiction?

If the cause of action is expressly created under federal law, and federal law provides the underlying right, then yes, BUT no bright line rule

Likely yes:

1. Right was created under federal law and cause of action reasonably implied and intended by congress.

2. The cause of action was not expressly or implicitly created by federal law, but the complaint involves a real and substantial issue of federal law and its determination must necessarily depend on resolution of the federal issue.

3. If the US owns more than 50% of a corporation, then that corporate entity is considered a federal agency and must be sued in federal court.

NO:

1. just because it's a federal corporation (a corporate entity incorporated through an act of Congress)

16

When can a cause of action be found to be within the scope of federal question jurisdiction if it was not implicitly or explicitly created by federal law?

if the complaint involves a real and substantial issue of federal law, and its determination must necessarily depend on resolution of the federal issue.

17

What is considered federal law for purposes of Federal Question Jurisdiction?

YES: US Constitution, federal statutes, federal administrative regulations and U.S. treaties.

NO: State laws incorporating federal law (Merrell Dow Pharmaceuticals). In these cases federal courts have discretion as to whether a federal interest or issue is important enough to justify the exercise of jurisdiction.

18

federal jurisdiction exists only when a federal question is presented on the face of the properly pleaded complaint. What is the 'well-pleaded complaint' rule?

1. Consider only the elements of the claim, not the defenses (even if it's partial federal preemption, and that's the only substantial issue in the case)
2. The federal question must appear on the face of the complaint.
3. An action for declarative relief only falls within the scope of federal question jurisdiction if the underlying cause of action would also qualify.
4. Do not consider answers and counterclaims
5. The well-pleaded complaint rule applies to original and removal jurisdiction

19

What is the amount-in-controversy requirement for federal question jdx?

There is no amount-in-controversy

20

CA DISTINCTION

What are the three jurisdictional classifications for SMJx in state courts?

In CA there is one superior court in each county that has general subject matter jurisdiction over all civil matters. The three classifications are:

1. Limited ($25k or less)
2. Unlimited (more than $25k amount in controversy)
3. small claims cases: ($10k or less for individuals, 5k or less for others)

**all amounts are determined exclusive of attorney's fees, interest and cost.

21

CA DISTINCTION

How are CA cases reclassified?



Parties or the court must file a motion, and notice and hearing are required. At the hearing, the court may not consider the merits of the action, but may consider matters outside the pleadings, like arbitration awards and settlement conference statements. An award outside the classification must be virtually impossible.

OR: parties may amend their complaints.

22

CA DISTINCTION

Are amounts in controversy in CA civil cases aggregated across claims?

yes, across claims and across defendants.

23

What is the basis of diversity jurisdiction?

Under Art III, Section 2 of Constitution and federal law, diversity jurisdiction exists between citizens/governments of different states, and between US citizens and foreign citizens WHEN the amount in controversy is OVER 75k.

24

What areas of state law are generally excepted from diversity jurisdiction?

Probate law and Family law, though the cases must be PRIMARILY probate or family law disputes.

25

What is the general rule of complete diversity?

Diversity Jurisdiction requires complete diversity between opposing parties in a case. Diversity does not exist if ANY opposing parties are citizens of the same state OR are both aliens (defined as subjects or citizens of a foreign country). States include DC, Puerto Rico and the U.S. territories.

26

What are the exceptions to the general rule of complete diversity?

1) Interpleader
2) Class actions greater than $5million
3) Multiparty, Multi-Forum Jurisdiction Act of 2002
4) "Realignment"
5) Date of determination of diversity

I C Many Realignments to Date

27

What is the Interpleader exception to complete diversity?

Under the Interpleader Act, the holder of property that is claimed by two or more persons may deposit the property with a court to determine ownership as long as ANY two adverse claimants are of diverse citizenship.

28

What is the Class Actions exception to complete diversity?

For certain class actions over $5mil, any two adverse parties of diverse citizenship will satisfy diversity purposes.

29

What is the Multi-party, Multi-forum Jurisdiction Act of 2002 exception to complete diversity?

Under the Multi-party, Multi-forum Jurisdiction act of 2002, two adverse parties of diverse citizenship will satisfy diversity requirements WHEN:
1. There is a civil action where at least 75 people have died in one place as a result of one discrete accident AND
a. At least one defendant resides in a different state from where the accident took place, even if that D also resides where the accident took place,
b. any two defendants reside in different states, even if they are also residents of the same states, OR
c. substantial parts of the accident took place in different states.

BUT EVEN IF THAT IS MET, DISTRICT COURT MUST ABSTAIN FROM HEARING THE CASE IF:
1. The substantial majority of Ps are citizens of are citizens of a single state of which the primary Ds are also citizens AND
2. The claims asserted will be governed primarily by the laws of that state

Unrelated:
1) Anyone involved is allowed to intervene as a P
2) Act provides for nationwide service of process

30

What is the realignment exception to complete diversity?

Courts will look beyond the face of the pleadings to determine the 'ultimate interests' of the parties involved in a dispute to avoid false diversity.

31

What is the Date of Determination of Diversity Exception to complete diversity?

Diversity is determined at the time the case is filed. Diversity doesn't have to exist at the time the cause of action arose and a change of parties due to substitution or intervention will not affect diversity.

32

How does a party establish citizenship of a state for purposes of 1332 diversity jurisdiction?

To be a citizen of a state for purposes of 1332, a person must be a citizen of the United States and a domiciliary of the state. (But permanent residency plus domiciliary defeats diversity)

33

How does one establish a domicile for purposes of 1332 diversity jurisdiction?

In general, a person is a domiciliary of the state in which she is present and intends to reside in for an indefinite period of time.
Notes:
1) a person can only have one domicile at a time. In order to change the presumption of domicile, a person must establish a presence in the new place AND manifest the intent to remain their indefinitely. Prison, etc don't count.

34

When is domicile determined?

at the time the action is commenced. Moving after subject matter jdx is established won't change jdx.

35

What are the factors taken into account when determining domicile?

Some of the factors include: whether the party exercises civil and political rights (registering to vote, for instance), pays taxes, owns real property or personal property, or is employed in the new state.

36

When does diversity jdx based on alienage exist?

When there are one or more citizens or subjects of a foreign country on one side of the lawsuit and one or more citizens of a state on the other.

37

Tell me about stateless persons and diversity jurisdiction

Diversity jurisdiction does not exist for stateless persons. Stateless persons are aliens who are in the US but is not a citizen or subject of a foreign country OR a US citizen who is domiciled in a foreign country.

38

How do you determine the citizenship of minors, incompetents, decedents and trusts?

Minors: custodial parents

legal representatives of minors, incompetents or estates take on the citizenship of their client.

Trusts: Traditionally, the same state as the trustee, but more recent caselaw suggests that citizenship of unincorporated associates is determined by the citizenship of all of its members. In applying this rule to trusts, then, diversity is defeated if, in a suit against a trust, any beneficiary of the trust is a citizen of the same state as the plaintiff. (Carden v Arkoma)

39

How is diversity jurisdiction determined in a class action suit?

Generally, diversity is established by the citizenship of the named members of the suit.

However, for class actions above 5 million, diversity will be met if any member of the plaintiff class is diverse to ANY member of the defendant class.

40

How is diversity determined for corporations?

Corporations are deemed citizens of every state and foreign state where it has been incorporated and of any state where it has its principal place of business.

Note: unlike individuals, corporations are citizens of
more than one state, and all places must be listed in the pleading.

(Every state of incorporation plus 1 principal place of business; foreign corporations are citizens of their nation of incorporation and could also be a citizen of a US state if that is where their nerve center is)

41

For purposes of establishing 1332 Diversity jurisdiction, how is a corporation's principal place of business determined?

The principal place of business is usually refers to the 'nerve center' of the corporation. The nerve center is usually where high-level officials direct and coordinate the activities of the corporation and is most often the headquarters of the corporation.

42

What is the special rule for liability insurers when determining diversity jurisdiction?

When a plaintiff injured by an insured party brings a direct action against the insurer, the insurer becomes a citizen of the state of their client, in ADDITION to the other states or foreign countries where it has citizenship.

43

How is the citizenship of a partnership or other unincorporated associate determined for the purposes of diversity jurisdiction?

Unincorporated associations, such as partnerships, are citizens of EACH state in which its members are domiciled. Holds for both general and limited partnerships.

Exception: An unincorporated association WHO CANNOT BE SUED OR SUE AS AN ENTITY may be treated as a class when 'it appears that the representative parties will fairly and adequately protect the interests of the association and its members.' In that case, the citizenship of the representative parties controls (for purposes of diversity). This rule cannot be used merely the create diversity.

44

What are the prohibited collusive devices that would create or destroy diversity jurisdiction?

There are 4: Asivs

1) Assignment of claims: there can be true assignment of claims, but cannot be used where the nominal party has no interest and the assignment is only to create/destroy diversity. That is collusive assignment and cannot be used to effectively create diversity.

2. Failure to name indispensable parties (see compulsory joinder rules)

3. Voluntary change of state citizenship: You can legitimately change states after the accrual of the cause of action but before filing the claim in order to create diversity, but the change in citizenship must be legitimate (permanent)

4. Substitution versus replacement of parties: when a party must be SUBSTITUTED, then the original (dead or incompetent) party's citizenship controls for diversity. But when a party must be REPLACED, then citizenship is adjusted and diversity may be now created or destroyed.

45

In 1332 Diversity cases, what is the general rule for establishing the amount in controversy?

The amount in controversy must EXCEED (75k does count) 75k exclusive of interests, costs, and collateral effects of a judgment. The amount in in controversy may Include attorney's fees IF the fees are recoverable by statute or contract. Includes punitive damages.

Amount in controversy is determined at the time the claim reaches federal court, so at commencement or removal of the suit.

46

In 1332 Diversity cases, how do you satisfy the amount in controversy requirement for injunctive relief cases?

When it is difficult to assess a dollar amount, the court determines both the value of the plaintiff's harm if an injunction is not imposed and the defendant's cost of complying with the injuction.

47

What is the standard of proof for establishing the amount in controversy in diversity cases?

In general, a plaintiff's good-faith assertion in the complaint is sufficient except where it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.

If challenged, the burden is on the party asserting jurisdiction merely to show that it is not a legal certainty that the claim involves less than the statutory amount.

Given good faith at the start, jurisdiction will not be lost if the amount in controversy is later reversed, or less than the amount in controversy is eventually recovered.

48

In meeting the amount in controversy requirements for diversity jurisdiction, how are claims generally aggregated?

Single Plaintiff/Single defendant: Plaintiff's claims only are counted

Multiple Plaintiffs: Only can be aggregated if they are enforcing a single title or right in which they have a common undivided interest

Single Plaintiff/Multiple Defendants: Claims against each D can only be aggregated if the Ds are jointly liable.

49

In meeting the amount in controversy requirement for diversity jurisdiction, how are class action claims aggregated?

In general, ALL members of the putative class must have individual claims exceeding the amount in controversy.

But, the Class Action Fairness Act of 2005 permits aggregation of claims in certain class actions that:

1. Have at least 100 members
2. the primary defendants are not states, state officials, or other government entities against whom the district court may be foreclosed from ordering relief;
3. the case does not involve certain securities-related cases or litigation concerning the internal affairs or governance of a corporation
3. the amount in controversy, aggregated, exceeds $5million, exclusive of interests and costs
4. AS LONG AS MINIMUM DIVERSITY EXISTS

Supplemental jurisdiction also allows other Ps to join when one P in a putative class has a claim that meets the amount in controversy requirements.

50

In Diversity jurisdiction, can counterclaims contribute to meeting the minimum amount in controversy?

Generally, counterclaims cannot be aggregated and count toward meeting the >75k amount.

51

When are counterclaims permissible under diversity jurisdiction and when do they have to independently meet the amount in controversy requirement?

Compulsory Counterclaims: Compulsory counterclaims, which generally arise under the same transaction or occurrence as the plaintiff's claim, do not have the meet the statutory jurisdictional amount requirement to be considered by the court. The court will have supplemental jurisdiction.

Permissive counterclaims: A permissive counterclaim, which is a claim unrelated to the transaction or occurrence in the plaintiff's claim, DOES need to meet the minimum amount-in-controversy requirement.

52

In diversity cases, when is removal based on a counterclaim permitted?

If the plaintiff tries to remove based on the defendant's counterclaim being over the minimum amount in controversy, NO. Only D's can remove.

Defendant, Permissive Counterclaim: When a diverse defendant makes a permissive counterclaim under state law for more than the federal statutory jurisdictional amount, and the Plaintiff's claim is for less than the federal statutory jurisdictional amount, the defendant CANNOT remove to federal court.

Defendant, Compulsory Counterclaim: When a diverse defendant makes a compulsory counterclaim that DOES meet minimum amount in controversy but the P's claim does NOT, courts are SPLIT, but mostly no.

53

What is supplemental jurisdiction generally?

A district court with jurisdiction may exercise "supplemental jurisdiction" over additional claims over which the court would not independently have subject matter jurisdiction (usually state law claims against a non-diverse defendant) but taht arise out of a COMMON NUCLEUS OF OPERATING FACT such that all claims should be tried together in a single judicial proceeding.

54

When can supplemental jurisdiction apply in federal question jurisdiction cases?

When the district court's subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of supplemental jurisdiction if the common-nucleus-of-operative-fact test is met.

(ex: P sues employer/company for title VII discrimination. P then would also like to sue for assault under state law. Fed court can choose to hear both claims through supplemental jurisdiction because they have a common nucleus of operating fact.)

55

What is pendent-party jurisdiction?

pendent-party jurisdiction is a type of supplemental jurisdiction that allows federal court to have jurisdiction over claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if the claims involving the parties satisfy the common-nucleus-of-operative-fact test.

example: P sues employer/company for discrimination, and then also direct supervisor for assault

56

What if the federal claim is dismissed but there is a pendant party state law case still pending

dismissal of a federal claim on the merits does not preclude a federal court from exercising pendant jurisdiction over the state claim.

57

How does supplemental jurisdiction generally apply to cases in federal court under diversity jurisdiction?

When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule also applies to determine whether the court can exercise supplemental jurisdiction over an additional claim.

58

How does supplemental jurisdiction apply to permissive joinder in diversity cases?

Although the additional claim is not required to satisfy the amount-in-controversy requirement for purposes of supplemental jurisdiction, when the additional claim is asserted by a party under permissive joinder, the party cannot be added if doing so would defeat diversity.

59

When can a district court assert valid supplemental jurisdiction over counterclaims in diversity cases?

(first, CNOOF rule, then) A counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount when the counterclaim is compulsory.

BUT: Permissive counterclaims do not qualify for supplemental jurisdiction--permissive counterclaims must be able to meet diversity jurisdiction requirements on their own (complete diversity + amount-in-controversy)

60

When can a district court assert valid supplemental jurisdiction over cross-claims in diversity cases?

A cross-claim that arises out of the same transaction or occurrence may be asserted by one defendant against another defendant without regard to the amount in controversy or the citizenship, as long as the federal court would otherwise have subject matter jurisdiction. In other words, it is allowed even if it defeats diversity, as long as independent subject matter jurisdiction applies.

61

When is supplemental jurisdication precluded for claims in diversity cases?

Under Section 1367b, in action s in which the original jurisdiction of the federal court is based solely on diversity jurisdiction, supplemental jurisdiction is precluded for:

-Claims by PLAINTIFFS (not Ds) against people who are only parties because of: interpleader, compulsory joinder, permissive joinder or intervention.

-Claims by persons to be joined as plaintiffs b/c of compulsory joinder

-Claims by people seeking to intervene as plaintiffs through intervention, when the exercise of supplemental jurisdiction would be inconsistent with the requirements for diversity jurisdiction under 1332

62

When can a federal court decline to exercise supplemental jurisdiction?

Under Section 1367c, a district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: 1. novel or complex issues of law 2. the supplemental claim substantially predominates over the claims within original federal jurisdiction 3. all of the original jurisdiction claims have been dismissed or 4. other compelling reasons in exceptional circumstances (a novel issue will predominate until it has been dismissed for a compelling reason)

63

What is the basis for removal jurisdiction?

Any civil action commenced in state court that is within the original jurisdiction of a US district court may generally be removed by the defendant to the district court for the district in which the state action was commenced. This right is available only to the defendant; even a plaintiff defending a counterclaim may not remove. Removal is not a substitute for jurisdiction.

64

When and how is the the right of removal determined?

In general, the right of removal is determined by the pleadings filed as of the time of the filing of the petition of removal. In diversity cases, however, diversity must exist at the time of the filing of the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed jurisdiction. In othe words, removal is permitted when a party who prevents diversity jurisdiction is removed from an action. The federal court to which the action is removed is not precluded from hearing and determining a claim in the action because the state court from which the action was removed did not have jurisdiction over that claim.

65

Other than the general rule, when is removal otherwise authorized by statute?

1. Suits against the united states, any federal agency or federal officers for acts under the color of office 2. suits against federal employees for injuries caused by their operatio of a motor vehicle within the scope of their employment 3. actions involving international banking

66

When has statute prohibited removal for otherwise-removable actions?

1. actions arising unde the Employers' Liability Act and unst the Jones Act against a railroad or its receivers or trustees 2. Actions against carriers for delay, loss, or damage in shipments when the amount in controversy is not for OVER 10k 3. Actions arising under the workers' compensation laws of the state in which the action is brought 4. actions arising under section 40302 of the VAWA of 1994

67

What is the specific limit on removal in diversity cases?

If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen in the state in which the action was filed. There is no similar restriction in federal question jdx.

68

What about removal of separate and independent claims in a federal question jurisdiction case?

if removal is sought on the basis of federal questions jurisdiction, and the federal question claims in the state action are joined with claims that are not independently removeable, then the entire case may be removed. The district court must then sever and remand to the state court any claims in which state law predominates.

69

What are the time constraints generally for filing a notice of removal?

Under Section 1446, a defendant who wants to remove a state court action to federal district court must file a notice of removal with the distric court within 30 days after receipt by or service on that defendant of the initial pleadings or summons.

70

What constitutes a sufficient notice of removal?

A notice of removal must be: 1. signed according to Rule 11 and contain a short and plain statement of the grounds for removal. Rule 11 calls for at least one attorney of record signing, or a party if personally represented. The signature must also include a signor's address, email address and phone number. Improperly signed documents will be struck unless promptly corrected after being called to the attention of the signor. 2. Filed in the district court for the division and district in which the state action in pending and 3. accompanied by all process, pleadings and orders served on the defendant's seeking removal.

71

In cases of removal when there are multiple defendants, must they all agree?

In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not

72

How long does a D have to remove a matter to federal court based on diversity of citizenship after the action is commenced?

D's have a one-year window to remove.

Exception: the one year rule does not apply if the district court finds that the plaintiff has acted in bad faith, such as deliberately failing to disclose the actual amount in controversy so as to prevent the D from lawfully removing the matter.

73

How can a D remove based on diversity if the P has not specifically demanded $75k/satisfied the amount in controversy requirement?

If removal is based on diversity and the plaintiff EITHER

1. seeks non-monetary relief,
2. is not require under state law to demand a specific sum, OR
3. is permitted by state law to recover more than the amount demanded,

THEN, the notice of removal may assert that the amount in controversy exceeds $75k and the district court with have jurisdiction IF it finds, by a preponderance of the evidence, that the amount does exceed $75k

74

What is the general flow for removal based on diversity?

1. File a notice of removal with the district within 30 days of service
2. D must give written notice of the filing to all adverse parties and file a copy of the notice of removal with the clerk of the state court (removal then acts as a stay and no further action may be taken; fed court may enjoin any actions)
3. Once an action is removed, Federal Rules of Civil Procedure apply; new pleadings are not generally required, though district court could request otherwise
4. District court may issue all necessary orders and processes to bring before it all the proper parties, regardless if those parties have already been served in state court. Defective or no service is not a barrier; parties can simply be served as if the matter originated in fed court
5. State court orders issued before removal remain in effect but are subject to modification by district court.
6. removing party has 14 days to request a jury trial; non-removing party also has 14 days, but from service.

75

when a matter is removed to district court based on diversity, both parties have 14 days to request a jury. When does the clock start counting and what is the exception?

Removing party has 14 days from filing for removal, and non-removing party has 14 days from being served the notice of removal. The right is otherwise waived.

However, there is no need to re-request if the right was already asserted in state court.

76

What is the general rule on remand for lack of subject matter jurisdiction?

If at any time before a final judgment it appears that the district court lacks subject matter jurisdiction, then the case must be remanded to the state court from which it came.

For the purposes of 1447(c) and (d), however, when a case is remanded to state court because the federal district court declines to exercise supplemental jdx, the remand is not based on a lack of subject matter jurisdiction.

77

How does a party move to remand on a basis other than lack of subject matter jurisdiction?

A party must make any motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within 30 days after the filing of the notice of removal

78

Who carries the burden of proof in a proceeding to remand?

If the propriety of the removal is challenged, then the burden of establishing proper removal is on the party who removed the case

79

Who pays the attorney's fees in a remand proceeding?

The district court's order remanding the case may require payment of costs, including attorney's fees, incurred as a result of the removal. However, the SC has found that absent unusual circumstances, federal courts may aware attorney's fees only when the removing party lacked an objectively reasonable basis for seeking removal.

80

What is the procedure for removal?

A certified copy of the remand order must be mailed by the district court clerk to the clerk of the state court. The state court may thereafter proceed with the case.

81

Are remand orders appealable?

Generally, no. Under 1447(d) a remand order is not reviewable on appeal or otherwise, EXCEPT:

1) there is a statutory exception for an order remanding civil rights cases removed under 1443, or

2) in a class action, if the application for review is made to the court of appeals no fewer than 7 days after the entry of the order

82

What about when a case is removed but then proposed joinder would destroy diversity?

Under 1447(e), if, after removal, the plaintiff seeks to join a defendant who would destroy the federal court's diversity jurisdiction, then the court has discretion to deny the joinder and proceed with the action in federal court, or to permit the joinder and remand the action to state court.