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Civil Procedure 2005

Civil Procedure 2005. Class 32: Removal, Personal Jurisdiction II Nov. 4, 2005. 28 U.S.C. sect. 1367(d). This is a tolling provision What is its effect? What is the reason for this tolling provision? Is it constitutional?. 28 U.S.C. sect. 1367(d).

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Civil Procedure 2005

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  1. Civil Procedure 2005 Class 32: Removal, Personal Jurisdiction II Nov. 4, 2005

  2. 28 U.S.C. sect. 1367(d) • This is a tolling provision • What is its effect? • What is the reason for this tolling provision? • Is it constitutional?

  3. 28 U.S.C. sect. 1367(d) • Is it constitutional? Yes – see Jinks v. Richland County, 349 S.Ct 298 (2003)(necessary and proper and does not violate state sovereignty)

  4. REMOVAL JURISDICTION • What is removal? • What is the policy justification for removal • a. For diversity cases? • b. For federal question cases?

  5. LEGAL SOURCES FOR REMOVAL JURIDCITION • NOT IN U.S. CONSTITUTION • So, removal is purely statutory. • There have been federal removal statutes since 1789.

  6. LIMITS ON REMOVAL • Can a plaintiff remove? • Can a plaintiff remove if there is a counterclaim? • Can a case be removed from federal to state court? • Any types of actions non-removable?

  7. WHEN IS A CASE REMOVABLE? • There must be original subject-matter jurisdiction in federal court • Basic rules of federal question and diversity/alienage apply • Well-pleaded complaint rule applies • Artful pleading rule

  8. WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION? • P brings action in state court • Can D remove? • See 28 U.S.C. section 1441(e)

  9. PROCEDURE FOR REMOVAL • How does a defendant remove ? (see 28 U.S.C. section 1446) • Can a defendant waive her right to remove? • How many defendants must agree to remove a case?

  10. WHERE IS CASE REMOVED TO? • What court(s) may hear a claim that is removed? • What is the applicable statutory provision determining this?

  11. CHALLENGING REMOVAL • How does a plaintiff challenge removal? • Can a plaintiff waive her right to challenge removal? • Are there any applicable time limits? If so what?

  12. Burnett v. Birmingham Board of Education (N.D. Ala. 1994)

  13. Personal Jurisdiction: A Review Hypo • Keanu is a citizen of Hawaii who travels to New York City on business. While here, he steps off the curb into the path of a taxi driven by Moe, a lifetime citizen of New York state. Keanu receives medical treatment in New York, returns to Hawaii and files suit against Moe there. Moe does no business in Hawaii, owns no property there, and has never visited the state. • Can a Hawaii state court entertain this case? • Can a Hawaii federal court entertain this case?

  14. COLLATERAL ATTACK • Can Moe take no part in the Hawaii proceedings and successfully resist enforcement of the Hawaii judgment in New York?

  15. World-Wide Volkswagen v. Woodson (1980) • For the whole story of the lawsuit, see Charles W. Adams, World-Wide Volkswagen v. Woodson – The Rest of the Story, 72 Neb. L. Rev. 1122 (1993). The article is a fascinating read.

  16. The Accident (1977) • 1976 Audi 100 LS

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