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Q&As (Verified Answers) 2025
Earp, From Kansas, sues Dillion, also a Kansan in a state court in Kansas. His claim is based on his violation of his federal civil rights. May Dillion Remove? - correct answer ✅Earp has asserted a right to relief under federal law. Had he chosen to do so, eh could have commenced the case in federal court under 28 USC §1331. Thus, the cases satisfies the requirements of §1441 (a) that the federal courts have original jurisdiction over the action ( or more accurately would have had original jurisdiction over it had it been brought in federal court.) However, §1441(b)(2) must also be considered since it places some further restrictions on removal jurisdiction. That section does not restrict removal of Earp's suit, since it only applies to diversity cases. Since Earp's claim is based on a federal question, it is irrelevant that the parties are not diverse and that there is an in state defendant in the action. Removal is proper. Suppose Earp (Still from Kansas) sues Carson from Colorado in the Colorado state court on a state law assault claim. May Carson remove? - correct answer ✅This is a striaghtfoward diversity case. A federal district court would have original jurisdiction over the case, but it illustrates the situation in which the federal courts removal jurisdiction is narrower than their original jurisdiciton. Section 1441 (b) (2) provides that actions based on diversity cannot be removed if any defendant is from the forum state. Under this provisison , Carson is barred from removing. The logic is that diversity jurisdiciton is intended to protect out of state parties from local prejudice so there is no need to allow it if the suit is brough in the defendant's home state. Of course, that rationale would support a similar restruction on original diversity jurisdcition in the plaintiff's home state. But in that case there is no restrictions.
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Suppose Earp (Still from Kansas) sues Carson from Colorado and a second D, Hickok from Missouri in Colorado State Court on a state law assault. Can the Defendants remove? - correct answer ✅No. This example makes one narrow point: §1441 (b) precludes removal of a diversity case if any defendant is from the state where the state court action is brought ("only if none of the parties..."). Carson is still in the case, ergo, no removal. Here again, Earp could have intitated the action in federal court as a diversity action in Colorado or elsewhere, but removal is narrower. Suppose Earp (Still from Kansas) sues Carson from Colorado and Hickcok from Missouri on the assualt claims in Kansas State court. Can the Defendants remove?
- correct answer ✅Moving the case back to Kansas changes the result. The case is still within the federal court's diversity jurisdiction, but now no defendant is from the forum state, so they may remove despite §1441 (b). Note that this configuration with the Kansas plaintiff using the Kansas sate courts to recover from two non-Kansas defendants presents the strongest risk of prejudice to the defendant's and therefore is the best candidate for removal jurisdiction. Chester, from Iowa, sues Carson a Coloradan, and James a Kansan in Kansas State Court on a federal civil rights claim? a. May the D's remove? b. If so, to which court? - correct answer ✅a. This case is a federal question case and is still removable as such. Here, however, there is also a diversity of citizenship a separate basis for FJ. The interpretative problem is raised is whether it is removable, even though there is an instate defendant where there is both a claim for federal law and diversity. The answer is yes, the case may be removed because it is just as squarely founded on a claim under Federal Law when there is diversity
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defendant or defendants to remove a case requires that all defendants consent to removal. Congress codifed this long standing requirment in 28 USC §1446(b)(2)(a): "When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." If Hickok will not agree to remove, Carson will be stuck in the state court, even though he may be subject to prejudice as an out of stater. This provision prevents removal in cases in which the policy underlying diversity jurisdiction would support. Earp sues James, a fellow Kansan, on a state law assualt claim. Six months later Earp's lawyers decides on the basiss of his further knoweldge of the case gleaned from discovery, that Earp also has a claim agsint James for a federal civil rights violation arising out of the same facts. Earp amends to asser the federal claim. May James now remove? - correct answer ✅Again, removal jurisdiction turns on original jurisdiction. In this example, there was no original FJ over the case when it was filed, the claim was based on state law and was between nondiverse parties. However, once Earp amends to assert a federal claim, the case looks different. Earp is now relying on federal law as a basis for relief. If the case had been brought in this amended form initially, it would have been removable as a federal question case with a supplemental state law claim. This removal statute specifically provides for removal in cases like this, when the case becomes removable after the filing of the original complaint. See 28 USC §1446 (b) (3), which gives the defendant 30 days from receipt of the amendment to file a notice of removal. This approach is clearly necessary, otherwise, plaintiffs could avoid removal by suing in state court on a state law theory alone, amending thirty-one days later to assert their federal claims.
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Once Earp's case is removed, both the federal claim and the related state assault claim will be heard in the federal court. if the combined action had been brought originally in federal court, the court could have heard the state law claim under the principles of supplemental jurisdiction. Earp, a Kansan, sues Bean a Texan, on state law abuse of process claim in an Iowa state court. Bean removes to federal court. Subsequently, Earp amends to add James a Fellow Kansan, as a second defendant. Should the federal court remand the case to state court? See 28 USC §1447 (e) - correct answer ✅Whatever answer you come up for this example is troubling. By adding a Kansas defendant after remvoal, Earp has destroyed diversity. If he ahd started this case in FC and later added James, the court would have dismissed for lack of SMJ. On the other hand, if Earp can win a remand by the device after Bean removes, it allows Earp to defeat the right to removal by his subsequent choice of defendants, a choice he was not inclined to make until the defendant invoked the removal jurisdiction. Because the addition of the non-diverse party destroys the basis for SMJ, the court will have to remand the case if it allows the amendment. In some cases, when the amendment was apparently offered for the sole purpose of defeating removal, courts have simply refused to allow the amendment thus preserving diversity. See Boyd v. Diebold (ED Mich. 1983). In other cases, however, , in which the non-diverse party was added in good faith for independent reasons (such as efficiency or belated discover of a claim against the added party), courts have allowed the amendment and then remanded the case to state court under 28 USC §1447 (c). See McIntyre v. Codman (1984). In 1988, Congress coifed these options by adopting 28 USC §1447 (e), which authorizes the court to refuse the amendment or allow it and remand the case. For a case analyzing this problem under §1447 (e), See Holehan where the court allowed the amendment and remanded the case to state court after concluding that the claims against the added defendants were viable, that the plaintiff had not been dilatory in adding
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11 (b) (2), (3). Such rules generally bar bringing an action agaisnt a party if there is no viable claim for releif against that party. Federal courts have consistently recognized that parties should be disregarded in determining removal jurisdiction if there is no viable claim against them. Thus, Bean should remove the case and argue that James was fradulently joined solely to defeat removal. If the court agrees, it will accept removal jurisdiction based on diversity between Earp and Bean (and presumably dismiss James form the case). As a practical matter, however, it may not be immediatley clear to Bean that Earp's claim against the other defendant, James is frivolous. Since he only has thirty days to remove, Bean's counsel will have to be alert to the possibilty of removal, investigate the possible claim against James immediately, and prepare a notice of removal that appropriately sets forth the basis for removing a case that appears non-removable on its face -- all this within thirty days, while tending to the usual round of events in other cases as well. Suppose, on the facts of Example 9, that Earp sues Bean in state court. Anticipating removal, Earp seeks only $70,000 in damages, leaving out a demand for certain consequential damages worth 8,000. May bean remove? Example 9: Earp, a Kansan, sues Bean a Texan, on state law abuse of process claim in an Iowa state court. Bean removes to federal court. Subsequently, Earp amends to add James a Fellow Kansan, as a second defendant. Should the federal court remand the case to state court? See 28 USC §1447 (e) - correct answer ✅Here again Earp has structured his lawsuit to prevent removal by seeking damages that do not satisfy the AIC requirment of §1332. This is permissible even if Earp could have sought higher damages. If earp is willing to pay the price - foregoing his other $8,000 claim - to buy a state forum he may do so.
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However, the AIC can raise complex problems in removed cases. Under Civ Pro rules, in many states a P who seeks less than $75,000 in damages may still recover more, if the jury returns a verdict for more. Thus a demand for $70k would not bar higher recovery. In such a case, a D might still remove, arguing that the allegations in the plaintiffs complaint could stil support a higher award so that the AIC is met even though the P has not asked for more thats $75k. Under 28 USC §1446(c)(2) a D may remove this case and argue that the AIC is met. Section 1446(c)(2)(b) provides that the AIC is met in such cases if the district court finds that by the preponderance of the evidence that the amount in controversy exceeds $75k. Thus the Ps demand for less in a state court complaint does not always bar removal in such cases. James sues Earp, his fellow Kansan, on an assault claim. Earp counterclaims for damages for violation of his federal civil rights, arising out of the same encounter. See Federal Rules Civ Pro (a). Does §1441 allow James to remove? - correct answer ✅FLAG The issue here is whether a P can remove. James could not have started in federal court because he had no basis upon which to invoke FJ. However, if Earp had started the litigation by suing on the civil rights claim first, James could have removed. Shouldn't James have the same right to remove, whether as the original D or as the "D" on the counterclaim? The Supreme Court says "no" as a matter of statutory interpretation. Section 1441 (a) "authorizes removal by the D or Ds". In Shamrock Oil and Gas Corp v. Sheets (1941), the US Supreme Court concluded that only the original defendant satisfies this language, so that a plaintiff may not remove under the statute.
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c. In the case described in Example 13, the D tried to remove to FC based on a federal counterclaim. This author opined that this case would not be removable, sincee only a D can remove and only based on the original claim. Well, that is generally true, but Congress has created an exception for patent cases becasue it has decided that all patent claims should be heard in FC, no matter who raises them. So Congress enacted 28 USC §1454 (a), which provides that a civil action in which :any party" asserts a claim under the patent laws may be remove a case in which a patent claim is asserted. Thus, either Greeley or Dillon could remove the case in its entirety to FC. And they would be wise to do so because the state court now cannot decide the patent claim, even if raised on a coutner claim. 28 USC §1338 (a) (No state court shall have jurisdiction over any claim for releif under patent laws.) But this really is an exception, usually a counterclaim under Fed Law will not support removal. Chester, an Iowa citizen, sues Holiday, of Kansas for malpractice in a leg operation. Suit is brought in an Iowa state court. His complaint does not state a dollar demand for relief (some states don;t require it, others don;'t allow it) Holiday wants to remove. Can he? - correct answer ✅The problem for Holiday here is that removal turns on original FJ, in this case, Dj. The FC only has DJ if more than 75k is in dispute, but the court can't tell from the complaint whether the prerequisite is met, and Holiday must remove within 30 days or waive his right to do so. Section 1446 (a) allows the D in situations like this to include in his notice of removal any further allegation that are necessary to demonstrate his right to remove. Thus, Holiday could allege in the notice that Chester's claim might support damages in excess of 75k. Such allegations are subject to the same standards as the allegation in pleadings. See §1446(a) (Incorporating by reference the pleading standard in Fed. R. Civ P. 11)
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In some cases, the D may have no reason to predict that a state court case involves a claim for more than 75k until discovery reveals information about the Ps damages. The 2011 revision to §1446 address this problem, specifiying that "information relating to the amount in controversey in the record of the State proceeding, or in response to discovery shall be treated as an "other paper" under subsection (b)(3). 28 USC §1446 (c)(3)(A). Thus, receipt of discovery answers or court filing that clarify the amount of damages being sought may trigger a proper removal later in the case, if the new information demonstrates for the first time that the case is removable. Long Branch Saloons, a corporation, sues Holiday ( a Kansan) in Nebraska to collect $90,000 in rent due on Holiday's office above its saloon in Dodge City, Kansas. The State court complaint makes no allegation about Long Branch's PPB. Several months later Holiday discovers, much to his surprise, that hte Long Branch Saloon in Dodge City is the smallest of three such establishemtns run by Long Branch. Its PPB and state of incorporation is Colorado. Holiday removes on the basis of diversity. Can he do so? - correct answer ✅The smart aleck answer is "yes" you can always remove, even if you have no valid ground, by filing a notice of removal which automatically removes the action whether it is within FJ or not. But of course, it will be remanded on the Ps motion if that jurisdiction is lacking. The problem here, of course, is that the notice of removal was filed after thirty- day period in 28 USC §1446(b)(1) had gone by. But Holiday did not know the case was removable at that time. But, should he bear the burden to find out if the parties are diverse within the removal period? The cases takes the view that the thirty days for removal only commence when the D receives a pleading or other paper (such as a response to discovery) from which he should realize that the case is removable. In Lovern v. General Motors Corp (4th Cir 1997) for example the court held that the D who had not initially removed the case could remove within 30 days of receiving a police report that first put it on notice of the Ps diverse citizenship. See also Harris v. Bankers Life and Cas Co (9th Cir 2005) (case
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Masterson (Nebraska) sues Hickcok (Missouri), Earp (Kansas), and Bean (Texas) for assualt, arising out of a fight at a corral. He serves the complaint and summons on HickcoK on June 1, and Earp on June 15. As of June 25, Bean has not yen been served. If Earp wants to remove, what should he do? - correct answer ✅The problem here is that §1441 (a) has been interpreted to require all D's to join in the notice of removal. See Example 7. Bean has not even been informed of the suit yet. do the other Ds have to find Bean, tell him the bad news, and convince him to join in removing the case? Although it is not entirley clear from the statute, the cases hold that only the D's actually served need to join in the removal. See 28 USC §1446 (b) (2) (A). Thus, Hickcok and Earp can remove without obtaining consent from Bean. Assume these facts. Masterson (Nebraska) sues Hickcok (Missouri), Earp (Kansas), and Bean (Texas) for assualt, arising out of a fight at a corral. He serves the complaint and summons on HickcoK on June 1, and Earp on June 15. As of June 25, Bean has not been served. June 27th, the other two D's remove to federal court. On July 12th, Bean is served. If he prefers state court, does he have any recourse? Should he? - correct answer ✅If all D's are served at the same time, each will have the power to prevent removal by refusing to join in the removal. In this case, however, Bean finds himself in FC without having had the chance to forestall removal by refusing to agree to it. However, Bean may still prevent the case from being heard in FC by moving to remand on the ground that he does not consent to removal. See 28 USC §1448; Diversey Inc v. Maxwell (subsequently served D may move to remand to state court.) Masterson sues Hickcok, Earp, and Bean in state court. The Defendant's file a notice of removal in federal district court. Six weeks later, Masterson's counsel examines the docket and determines that notice of removal was filed on the thirty-third day after service of the complaint. He moves to remand the case on
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the ground that the case was not removed within the thirty day period for removal in 28 USC §1446 (b) (1). What should the court do? - correct answer ✅The Court should deny the motion. Masterson has fallen afoul of the separate 30 day period for the P to seek remand for nonjusrdicitonal defects in the removes. Under 28 USC §1447(c), a motion to remand "on the basis of any defect other than lack of subject matter" must be made within the 30 days after the notice of removal is filed in the FC. Because late filing of the notice of removal is not a defect in SMJ, Masterson's failure to move to remand within 30 days waives the objection. Chester (Iowa) sues Holiday (Kansas) in an Iowa state court. Holiday removes. Three days later, Holiday moves to dismiss the case, on the ground that the court lacks PJ over him. Is this motion permissible? - correct answer ✅Students often conclude that filing a notice of removal without first objecting to PJ waives the objection to personal jurisdsiciton. They remeber that you have to object to PJ right away or waive it under the old specail appearlce rule or under Fed Rule 12 (b) (g) and (h). So, they infer that filing the notice of removal is a response to the complaint and waives the personal objection. This is a reasonable inference, but it is not how the courts view it. Removal is ministerial act that transfers the case from state to federal court, not a response to the claim itself. Thus, removing does not waive a D's objection to a personal jurisdiction or any of the other pre-answers defenses. As long as Holiday did not waive the objection in state court before removing he may remove to FC and then move to dismiss for lack of PJ. Note that, in most cases, the question of whether the D is subject to PJ in Iowa for the claim will be the same in the Iowa Fed Court as it is in the Iowa state court, because in most cases the Fed Court only excersises PJ if the Iowa court may do so. See Fed R Civ P 4(k)(1)(a)
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- If it is a federal question, they can remove NH v. DE-CA-NY in NH State Court - correct answer ✅= yes all diverse and wnat to remove they can remove
