GOVT 407- CIV PRO EXAM 2 WITH
COMPLETE SOLUTION
who controls the lawsuit? - Answer plaintiff is the master of their claim
what does the plaintiff control? - Answer - forum/venue
- defs
- claims
- relief req
- jury or bench trial
removal - Answer - *28 USC S1441*
(a) generally, except as otherwise expressly provided by act of congress, any civil
action brought in state court of which the district courts of the US have OG juris *may be
removed by the def or the defs* to the district courts of the US for the district and
division EMBRACING the place where such action is pending
- removal DOES NOT expand fed juris
- merely says if you have juris, you may INVOKE that juris
-- juris comes from S1331 and S1332 instead
*removal* of civil actions - Answer 28 USC S1441
*procedure* for removal of civil actions - Answer 28 USC S1446
why would congress permit removal by a def? - Answer - if fed juris exists to protect the
parties, then it should protect both of them (plaintiff and def)
removal juris is simple, but it is NOT a right - Answer in order for fed court to receive the
case:
- there must be juris in fed court
- all defs must consent
- a notice of removal must be filed and the parties notified
jurisdictional bases - Answer -diversity of citizenship juris
- "arising under" fed question
- supplemental juris
-- whole cases are removed, not just claims; thus, supplemental juris is a thing
who wrote the complaint? - Answer plaintiff
,why is juris a prerequisite for removal? - Answer - can't remove someone if you don't
have juris bc no power / authority to do so
28 USC S1441(b)(2) - Answer (b) removal based on diversity of citizenship
(2) civil action otherwise removable solely on the basis of the juris under S1332(a) of
this title MAY NOT be removed if any of the parties in interest properly joined and
served as defs is a citizen of the state in which such action is brought
28 USC S1446 (c)(2) - Answer (c) req- amount in controversy
(2) if removal of a civil action is sought on the basis of the juris conferred by S1332(a),
the sum demanded in good faith in the initial pleading shall be deemed to be the amt in
controversy except that-
(A) the notice of removal may assert the amount in controversy if the initial pleading
seeks:
(i) nonmonetary relief OR
(ii) a money judgment but the state practice either does not permit the demand for a
specific sum or permits recovery of damages in excess of the amt demanded and
(B) removal of the action is proper on the basis of an amt in controversy asserted under
(a) if the district court finds, by the preponderance of the evidence, that the amt in
controversy exceeds the amt in S1332(a)
28 USC S1367 - Answer supplemental juris
(a) except as provided in (b) and (c) or as provided otherwise by fed statute, in any civil
action of which the district courts have OG juris, the district courts shall have
SUPPLEMENTAL JURIS over all other CLAIMS that are SO RELATED TO THE
CLAIMS IN ACTION within such OG juris that they form part of the SAME CASE OR
CONTROVERSY under article III of the US const; such sup juris shall incl claims that
involve the JOINDER or intervention of addtl parties
(b) cannot exercise juris over claims founded solely upon S1332 that would be
inconsistent w diversity of citizenship juris
(c) district courts MAY DECLINE to exercise sup juris over a claim under (a) if:
(1) claim raises novel or complex issue of state law
(2) claim substantially predominates over the claim or claims over which the district
court has the OG juris
(3) the district court has dismissed all claims over which it has OG juris or
(4) in exceptional circumstances, there are other compelling reasons for declining juris
28 USC S1441 (c) - Answer joinder of fed claims and state law claims
(1) if civil actions includes:
(A) a claim *arising under* the const, laws or treaties of the US (within the meaning of
S1331) and
(B) a claim not within the OG or supplemental juris of the district court or a claim that
has been made non-removable by statute
- the *entire action* may be removed if the action would be removable without the
inclusion of the claim described in (B)
, (2) upon removal of an action described in (1), the district court shall sever from the
action all claims described in (1)(B) and shall be remand the severed claims to the state
court from which the action was removed
- only defs against whom a claim described in (1)(A) has been asserted are req to join in
or consent to the removal under (1)
what if the state lacks juris over the OG action? - Answer *S1441 (f)*- derivative
removal juris
- the court to which a civil action is removed under this section is not precluded from
hearing and determining any claim in such action bc the state court from which such
civil action is removed did not have juris over that claim
28 USC S1441- defendants - Answer defendants
(a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in state court of which the district courts of the US have OG juris, *may
be removed by the def or the defs* to the district court of the US for the district and
division embracing the place where such action is pending
28 USC S1446(b)(2)(A) - Answer (b)(2)(A) when a civil action is removed solely under
section 1441(a), *all defs* who have been *properly joined and served* MUST join in or
CONSENT to the removal of the action
- fed courts have, however, long recognized an exception to the rule of unanimity, which
states that a nominal party need not consent to removal
-- this *"nominal party exception"* ensures that ONLY those parties w a *palpable
interest* in the outcome of a case, and not those without any real stake, determine
whether a fed court can hear a case
-- this exception helps to prevent a party from overriding congressionally prescribed
bases for removal thru strategic pleading
--- Hartford fire ins. co. v. Harleysville mut. ins. co.
28 USC S1441- location - Answer location
- (a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in a state court of which the district courts of the US have OG juris, may
be removed by the def or defs, *to the district court of the US for the district and division
embracing the place where such action is pending*
removal vs. transfer - Answer 28 USC S1441- removal
(a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in a state court of which the district courts of the US have OG juris, may
be removed by the def or defs, to the district court of the US for the district and division
embracing the place where such action is pending
28 USC S1404- transfer
(a) for the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented
COMPLETE SOLUTION
who controls the lawsuit? - Answer plaintiff is the master of their claim
what does the plaintiff control? - Answer - forum/venue
- defs
- claims
- relief req
- jury or bench trial
removal - Answer - *28 USC S1441*
(a) generally, except as otherwise expressly provided by act of congress, any civil
action brought in state court of which the district courts of the US have OG juris *may be
removed by the def or the defs* to the district courts of the US for the district and
division EMBRACING the place where such action is pending
- removal DOES NOT expand fed juris
- merely says if you have juris, you may INVOKE that juris
-- juris comes from S1331 and S1332 instead
*removal* of civil actions - Answer 28 USC S1441
*procedure* for removal of civil actions - Answer 28 USC S1446
why would congress permit removal by a def? - Answer - if fed juris exists to protect the
parties, then it should protect both of them (plaintiff and def)
removal juris is simple, but it is NOT a right - Answer in order for fed court to receive the
case:
- there must be juris in fed court
- all defs must consent
- a notice of removal must be filed and the parties notified
jurisdictional bases - Answer -diversity of citizenship juris
- "arising under" fed question
- supplemental juris
-- whole cases are removed, not just claims; thus, supplemental juris is a thing
who wrote the complaint? - Answer plaintiff
,why is juris a prerequisite for removal? - Answer - can't remove someone if you don't
have juris bc no power / authority to do so
28 USC S1441(b)(2) - Answer (b) removal based on diversity of citizenship
(2) civil action otherwise removable solely on the basis of the juris under S1332(a) of
this title MAY NOT be removed if any of the parties in interest properly joined and
served as defs is a citizen of the state in which such action is brought
28 USC S1446 (c)(2) - Answer (c) req- amount in controversy
(2) if removal of a civil action is sought on the basis of the juris conferred by S1332(a),
the sum demanded in good faith in the initial pleading shall be deemed to be the amt in
controversy except that-
(A) the notice of removal may assert the amount in controversy if the initial pleading
seeks:
(i) nonmonetary relief OR
(ii) a money judgment but the state practice either does not permit the demand for a
specific sum or permits recovery of damages in excess of the amt demanded and
(B) removal of the action is proper on the basis of an amt in controversy asserted under
(a) if the district court finds, by the preponderance of the evidence, that the amt in
controversy exceeds the amt in S1332(a)
28 USC S1367 - Answer supplemental juris
(a) except as provided in (b) and (c) or as provided otherwise by fed statute, in any civil
action of which the district courts have OG juris, the district courts shall have
SUPPLEMENTAL JURIS over all other CLAIMS that are SO RELATED TO THE
CLAIMS IN ACTION within such OG juris that they form part of the SAME CASE OR
CONTROVERSY under article III of the US const; such sup juris shall incl claims that
involve the JOINDER or intervention of addtl parties
(b) cannot exercise juris over claims founded solely upon S1332 that would be
inconsistent w diversity of citizenship juris
(c) district courts MAY DECLINE to exercise sup juris over a claim under (a) if:
(1) claim raises novel or complex issue of state law
(2) claim substantially predominates over the claim or claims over which the district
court has the OG juris
(3) the district court has dismissed all claims over which it has OG juris or
(4) in exceptional circumstances, there are other compelling reasons for declining juris
28 USC S1441 (c) - Answer joinder of fed claims and state law claims
(1) if civil actions includes:
(A) a claim *arising under* the const, laws or treaties of the US (within the meaning of
S1331) and
(B) a claim not within the OG or supplemental juris of the district court or a claim that
has been made non-removable by statute
- the *entire action* may be removed if the action would be removable without the
inclusion of the claim described in (B)
, (2) upon removal of an action described in (1), the district court shall sever from the
action all claims described in (1)(B) and shall be remand the severed claims to the state
court from which the action was removed
- only defs against whom a claim described in (1)(A) has been asserted are req to join in
or consent to the removal under (1)
what if the state lacks juris over the OG action? - Answer *S1441 (f)*- derivative
removal juris
- the court to which a civil action is removed under this section is not precluded from
hearing and determining any claim in such action bc the state court from which such
civil action is removed did not have juris over that claim
28 USC S1441- defendants - Answer defendants
(a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in state court of which the district courts of the US have OG juris, *may
be removed by the def or the defs* to the district court of the US for the district and
division embracing the place where such action is pending
28 USC S1446(b)(2)(A) - Answer (b)(2)(A) when a civil action is removed solely under
section 1441(a), *all defs* who have been *properly joined and served* MUST join in or
CONSENT to the removal of the action
- fed courts have, however, long recognized an exception to the rule of unanimity, which
states that a nominal party need not consent to removal
-- this *"nominal party exception"* ensures that ONLY those parties w a *palpable
interest* in the outcome of a case, and not those without any real stake, determine
whether a fed court can hear a case
-- this exception helps to prevent a party from overriding congressionally prescribed
bases for removal thru strategic pleading
--- Hartford fire ins. co. v. Harleysville mut. ins. co.
28 USC S1441- location - Answer location
- (a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in a state court of which the district courts of the US have OG juris, may
be removed by the def or defs, *to the district court of the US for the district and division
embracing the place where such action is pending*
removal vs. transfer - Answer 28 USC S1441- removal
(a) generally- except as otherwise expressly provided by act of congress, any civil
action brought in a state court of which the district courts of the US have OG juris, may
be removed by the def or defs, to the district court of the US for the district and division
embracing the place where such action is pending
28 USC S1404- transfer
(a) for the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented
