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)
• Is it constitutional? Yes – see Jinks v.
Richland County, 349 S.Ct 298 (2003)
(necessary and proper and does not violate
state sovereignty)
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?
Burnett v. Birmingham Board of
Education (N.D. Ala. 1994)
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?
COLLATERAL ATTACK
• Can Moe take no part in the Hawaii
proceedings and successfully resist
enforcement of the Hawaii judgment in New
York?
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.
The Accident (1977)
• 1976 Audi 100 LS