CIVIL PROCEDURE CLASS 29
Professor Fischer
Columbus School of Law
The Catholic University of America
November 1, 2001
WRAP-UP OF LAST CLASSES
On Thursday we learned about the right
to trial by jury in civil actions. Slides
will be posted for this class for your
reference, though I did not show them
in class.
On Wedesday, we continued with our
study of subject matter jurisdiction by
learning about supplemental jurisdiction
WHAT WILL WE DO TODAY?
Continue with our study of subject
matter jurisdiction by learning a little
more about supplemental jurisdiction
and also about removal
SUPPLEMENTAL
JURISDICTION

Beyond federal question and
diversity/alienage jurisdiction, this doctrine
expands the subject-matter jurisdiction of
federal courts to claims over which there is
no independent basis for subject matter
jurisdiction
Originally a judicially-created doctrine
Codified in 1991. The current
supplemental jurisdiction statute is 28
U.S.C. section 1367.
Originally 3 kinds of
supplemental jurisdiction
Pendant claim jurisdiction e.g. P sues non-
diverse D for copyright infringement and also
wants to sue for state law claim against same
defendant
Pendant party jurisdiction As above, but
second state law claim against different D
Ancillary jurisdiction – Related claims asserted
by D as counterclaim or other additional
parties after initial complaint
Supplemental Jurisdiction
Statute
Codifies much of the prior law on pendant
and ancillary jurisiction as SUPPLEMENTAL
JURISDICTION.
2 step test in Gibbs has been
codified in section 1367
1. Does the court have jurisdictional POWER
to entertain the pendant claim in that it forms
part of one constitutional case with the
federal claim? Hint: look at relationship
between claims (1367(a))
2. If the court has that power, does the
exercise of sound DISCRETION indicate that
the federal court ought to assert that
discretion? (take into account factors in
1367(C))
OUTCOME of Gibbs
Did Gibbs succeed on the merits on the
state law claim?
Pendant Party Jurisdiction
Pendant Party Jurisdiction offends the traditional
rule against aggregating claims for amount in
controversy in diversity cases.
As I’ve previously said, it is unclear whether
these rules have been superceded by the
supplemental jurisdiction statute. In Zahn v. Int’l
Paper Co.: Supreme Court suggests without
deciding that pendant party jurisdiction can’t
normally be used to avoid the rule against
aggregation but in In re Abbott Labs, an equally
divided Supreme Court affirmed a fifth circuit
cases that permitted aggregation of pendant
party claim where at least P’s claim met the
amount in controversy requirements.
Pendant Party Jurisdiction: History
Supreme Court rejected extending Gibbs
doctrine to pendant party jurisdiction in Aldinger
v. Howard (1976) (federal question case that
sought to add non-diverse parties to state law
claims)
Left open one possibility that pendant party
jurisdiction OK where claim with independent
jurisdictional basis was one where statute that
provided for independent claim also provided for
exclusive subject matter jurisdiction
Finley v. United States (1989) rejected pendant
party jurisdiction in that circumstance
The result in Finley led to the supplemental
jurisdiction statute.
Ancillary Jurisdiction
Counterclaims, cross-claims, third party
complaints
Owen Equipment v. Kroger (1978) : Supreme
Court upheld limitation on diversity
supplemental jurisdiction over claim by P
against impleaded third party D where P
could not have sued that person originally in
federal court because diversity was lacking
Owen Equipment v. Kroger
(1978)
28 U.S.C. sect. 1367
Codifies pendant claim, pendant party
(in direct response to Scalia’s invitation
in Finley case that Congress could
change the scope of pendant party
jurisdiction), and ancillary jurisdiction
Now all types of jurisdiction are known
as “supplemental jurisdiction”
28 U.S.C. sect. 1367(b)
What is the limitation on subject matter
jurisdiction provided for in 28 U.S.C. s.
1367(b)?
Why was this limitation incorporated
into the supplemental jurisdiction
statute?
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?
PRACTICE EXERCISE 31
CB p. 839
Plaintiff: Nancy Carpenter (NH)
Ds: Dee (MA), Ultimate (MA)
3d Party Ds: McGills Garage (MA), Dale
McGill (NH)
Motion to dismiss for lack of subjectmatter jurisdiction
Motion to sever impleader
REMOVAL
What is removal?
What is the policy justification for
removal
a. For diversity cases?
b. For federal question cases?
LEGAL SOURCES FOR
REMOVAL PROCEDURE
NOT IN U.S. CONSTITUTION
So, removal is purely statutory.
There have been federal removal
statutes since 1789.
What is the current general removal
statute?
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?
Please see 28 U.S.C. sect. 1445
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?
NOTICE OF REMOVAL
What must be in a notice of removal?
Filing requirements
Notice requirements
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?
PROCEDURE AFTER REMOVAL
What happens after removal?