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Civil Procedure 2005. Class 31: Subject Matter Jurisdiction: Supplemental Jurisdiction II, Removal Nov. 2, 2005. TENSION BETWEEN. Liberal joinder rules Subject matter jurisdiction requirement GAVE RISE TO SUPPLEMENTAL JURISDICTION. SUPPLEMENTAL JURISDICTION STATUTE 28 U.S.C. § 1367.
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Civil Procedure 2005 Class 31: Subject Matter Jurisdiction: Supplemental Jurisdiction II, Removal Nov. 2, 2005
TENSION BETWEEN • Liberal joinder rules • Subject matter jurisdiction requirement GAVE RISE TO SUPPLEMENTAL JURISDICTION
Does Supplemental Jurisdiction Statute Trump Traditional Aggregation Rules? • Zahn – 414 U.S. 291 (1975) (predates statute) no ancillary jurisdiction over claims without independent jurisdictional basis in class action, where 1 class member had claim meeting jurisdictional amount, but other class members did not) • Split in circuits on whether s. 1367 overrules Zahn. S. Ct resolves split in Exxon (2005)
TRADITIONAL AGGREGATION RULES CONT’D • Multiple Ps sue the same D for different claims: e.g. Dorothy – ME (passenger) sues George- TX (driver) in federal court for $45,000 for damages suffered in a car crash. • A. Is there subject matter jurisdiction? What if Laura- DC, also a passenger in George’s car, wants to join as a plaintiff to sue George for $35,000 for her injuries arising from the same accident? • B. Will the supplemental jurisdiction statute change the result?
TRADITIONAL AGGREGATION RULES CONT’D • Would it make any difference to your answers in the previous hypothetical if Dorothy’s claim was for $90,000?
Does 1367(b) apply? • Multiple Ps sue the same D for different claims • P sues multiple Ds for different claims; one claim meets the requirements of diversity but the others do not • D counterclaims and P wants to implead a nondiverse third party for indemnification/contribution • P wants to cross-claim against a nondiverse P
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) • Is it constitutional? Yes – see Jinks v. Richland County, 349 S.Ct 298 (2003)(necessary and proper and does not violate state sovereignty)
PRACTICE EXERCISE 34 • CB p. 716 • Plaintiff: Nancy Carpenter (NH) • Ds: Dee (MA), Ultimate (MA) • 3d Party Ds: McGills Garage (MA), Dale McGill (NH) • Motion to dismiss Carpenter and Ultimate’s claims for lack of subject-matter jurisdiction by Garage and McGill
REMOVAL JURISDICTION • What is removal? • What is the policy justification for removal • a. For diversity cases? • b. For federal question cases?
LEGAL SOURCES FOR REMOVAL JURIDCITION • NOT IN U.S. CONSTITUTION • So, removal is purely statutory. • There have been federal removal statutes since 1789.
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?
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
WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION? • P brings action in state court • Can D remove? • See 28 U.S.C. section 1441(e)
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?
WHERE IS CASE REMOVED TO? • What court(s) may hear a claim that is removed? • What is the applicable statutory provision determining this?
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?
