SUBJECT MATTER JURISDICTION

Transcription

1 SUBJECT MATTER JURISDICTION

2 28 United States Code Federal question The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

3 Summary of Federal Question Jurisdiction Prof. Gregory Sisk Constitutional Limitations -- Article III The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.... U.S. Const., Art. III, sec. 2. Question: Is federal law an ingredient in the case? (Osborn v. Bank of United States, 22 U.S. 738 (1824)). If yes, then the case falls within the constitutional judicial power authorized by Article III. If no, then authority over the case may not constitutionally be conferred by Congress upon the federal courts, absent some other basis for federal subject matter jurisdiction. Statutory Limitations U.S.C The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C Question: Does the federal law question appear on the face of the plaintiff s well-pleaded complaint, i.e., (1) is it contained within the complaint as drafted by the plaintiff, and (2) is it raised as part of the properly pleaded elements of the plaintiff s affirmative cause of action rather than as a reply to an anticipated defense? (Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908))

4 28 United States Code Diversity of citizenship; amount in controversy; costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) For the purposes of this section and section 1441 of this title (1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of (A) every State and foreign state of which the insured is a citizen; (B) every State and foreign state by which the insurer has been incorporated; and - 3 -

5 (C) the State or foreign state where the insurer has its principal place of business; and (2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent

6 Jean Paul Mas and Judy Mas v. Oliver H. Perry United States Court of Appeals for the Fifth Circuit 489 F.2d 1396 (5th Cir. 1974) AINSWORTH, Circuit Judge: This case presents questions pertaining to federal diversity jurisdiction under 28 U.S.C. 1332, which, pursuant to article III, section II of the Constitution, provides for original jurisdiction in federal district courts of all civil actions that are between, inter alia, citizens of different States or citizens of a State and citizens of foreign states and in which the amount in controversy is more than $10,000.[*] Appellees Jean Paul Mas, a citizen of France, and Judy Mas were married at her home in Jackson, Mississippi. Prior to their marriage, Mr. and Mrs. Mas were graduate assistants, pursuing coursework as well as performing teaching duties, for approximately nine months and one year, respectively, at Louisiana State University in Baton Rouge, Louisiana. Shortly after their marriage, they returned to Baton Rouge to resume their duties as graduate assistants at LSU. They remained in Baton Rouge for approximately two more years, after which they moved to Park Ridge, Illinois. At the time of the trial in this case, it was their intention to return to Baton Rouge while Mr. Mas finished his studies for the degree of Doctor of Philosophy. Mr. and Mrs. Mas were undecided as to where they would reside after that. Upon their return to Baton Rouge after their marriage, appellees rented an apartment from appellant Oliver H. Perry, a citizen of Louisiana. This appeal arises from a final judgment entered on a jury verdict awarding $5,000 to Mr. Mas and $15,000 to Mrs. Mas for damages incurred by them as a result of the discovery that their bedroom and bathroom contained twoway mirrors and that they had been watched through them by the appellant during three of the first four months of their marriage. [*] [The amount in controvery requirement has since been raised by Congress to $75,000.] - 5 -

7 At the close of the appellees case at trial, appellant made an oral motion to dismiss for lack of jurisdiction. The motion was denied by the district court. Before this Court, appellant challenges the final judgment below solely on jurisdictional grounds, contending that appellees failed to prove diversity of citizenship among the parties and that the requisite jurisdictional amount is lacking with respect to Mr. Mas. Finding no merit to these contentions, we affirm. Under section 1332(a)(2), the federal judicial power extends to the claim of Mr. Mas, a citizen of France, against the appellant, a citizen of Louisiana. Since we conclude that Mrs. Mas is a citizen of Mississippi for diversity purposes, the district court also properly had jurisdiction under section 1332(a)(1) of her claim. It has long been the general rule that complete diversity of parties is required in order that diversity jurisdiction obtain; that is, no party on one side may be a citizen of the same State as any party on the other side. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). This determination of one s State Citizenship for diversity purposes is controlled by federal law, not by the law of any State. As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction, and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof. To be a citizen of a State within the meaning of section 1332, a natural person must be both a citizen of the United States, and a domiciliary of that State. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient. A person s domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom.... Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448. A change of domicile may be effected only by a combination of two elements: (a) taking up residence in a different domicile with (b) the intention to remain there. It is clear that at the time of her marriage, Mrs. Mas was a domiciliary of the State of Mississippi. While it is generally the case that the domicile of the wife and, consequently, her State citizenship for purposes of diversity jurisdiction is deemed to be that of her husband, we find no precedent for - 6 -

8 extending this concept to the situation here, in which the husband is a citizen of a foreign state but resides in the United States. Indeed, such a fiction would work absurd results on the facts before us. If Mr. Mas were considered a domiciliary of France as he would be since he had lived in Louisiana as a student-teaching assistant prior to filing this suit then Mrs. Mas would also be deemed a domiciliary, and thus, fictionally at least, a citizen of France. She would not be a citizen of any State and could not sue in a federal court on that basis; nor could she invoke the alienage jurisdiction to bring her claim in federal court, since she is not an alien. On the other hand, if Mrs. Mas s domicile were Louisiana, she would become a Louisiana citizen for diversity purposes and could not bring suit with her husband against appellant, also a Louisiana citizen, on the basis of diversity jurisdiction. These are curious results under a rule arising from the theoretical identity of person and interest of the married couple. An American woman is not deemed to have lost her United States citizenship solely by reason of her marriage to an alien. Similarly, we conclude that for diversity purposes a woman does not have her domicile or State Citizenship changed solely by reason of her marriage to an alien. Mrs. Mas s Mississippi domicile was disturbed neither by her year in Louisiana prior to her marriage nor as a result of the time she and her husband spent at LSU after their marriage, since for both periods she was a graduate assistant at LSU. Though she testified that after her marriage she had no intention of returning to her parents home in Mississippi, Mrs. Mas did not effect a change of domicile since she and Mr. Mas were in Louisiana only as students and lacked the requisite intention to remain there. Until she acquires a new domicile, she remains a domiciliary, and thus a citizen, of Mississippi.2 Appellant also contends that Mr. Mas's claim should have been dismissed for failure to establish the requisite jurisdictional amount for diversity cases of more than $10,000. In their complaint Mr. and Mrs. Mas alleged that they had each been damaged in the amount of $100,000. As we 2 The original complaint in this case was filed within several days of Mr. and Mrs. Mas s realization that they had been watched through the mirrors, quite some time before they moved to Park Ridge, Illinois. Because the district court s jurisdiction is not affected by actions of the parties subsequent to the commencement of the suit, the testimony concerning Mr. and Mrs. Mas s moves after that time is not determinative of the issue of diverse citizenship, though it is of interest insofar as it supports their lack of intent to remain permanently in Louisiana

9 have noted, Mr. Mas ultimately recovered $5,000. It is well settled that the amount in controversy is determined by the amount claimed by the plaintiff in good faith. KVOS, Inc. v. Associated Press, 299 U.S. 269 (1936). Federal jurisdiction is not lost because a judgment of less than the jurisdictional amount is awarded. That Mr. Mas recovered only $5,000 is, therefore, not compelling. As the Supreme Court stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, (1938): The sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of the plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction His good faith in choosing the federal forum is open to challenge not only by resort to the face of his complaint, but by the facts disclosed at trial, and if from either source it is clear that his claim never could have amounted to the sum necessary to give jurisdiction there is no injustice in dismissing the suit. Having heard the evidence presented at the trial, the district court concluded that the appellees properly met the requirements of section 1332 with respect to jurisdictional amount. Upon examination of the record in this case, we are also satisfied that the requisite amount was in controversy. * * * Affirmed

10 Summary of Diversity of Citizenship Jurisdiction Prof. Gregory Sisk I. CONSTITUTIONAL LIMITATIONS ARTICLE III The judicial Power shall extend... to Controversies... between Citizens of different States;... and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects. U.S. Const., Art. III, sec. 2. Article III has been interpreted to require only minimal diversity between the parties, i.e., that at least one plaintiff is diverse in citizenship from at least one defendant. II. STATUTORY LIMITATIONS U.S.C (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. A. Rule of Complete Diversity The U.S. Supreme Court has interpreted 28 U.S.C to require complete diversity, that is, all plaintiffs must be diverse from all defendants. If any one of the plaintiffs is from the same state as any one of - 9 -

11 the defendants, then this rule is not satisfied and federal subject matter jurisdiction is lacking. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). B. Citizenship Since the issue is one of diversity in citizenship, the threshold and essential issue is the citizenship of the litigants. Citizenship is determined as of the time the complaint is filed. 1. Citizenship of Natural Persons For a natural person, citizenship must be established in either a state or a foreign nation for diversity of citizenship or alienage jurisdiction to lie. a. Diversity of Citizenship U.S. Citizenship and Domicile To invoke diversity of citizenship jurisdiction, we must determine whether each plaintiff is a citizen of a different state than each defendant. Citizenship in a state turns upon two factors: (1) U.S. citizenship, and (2) domicile in a state. A person who is not a U.S. citizen is not a citizen of any state (although the person may be a citizen or subject of a foreign nation for purposes of alienage jurisdiction). A person who is a U.S. citizen but is not domiciled in any state (such as an American citizen who is domiciled overseas) is also not a citizen of any state. Domicile. To determine whether an American citizen is domiciled in a state, there are two elements: (1) residence in fact, and (2) an intention to make that state one s home for an indefinite period. There is a physical element and a mental element. A person may have multiple residences but can have only one domicile at a time. Once a domicile is established, that domicile remains until a new one is established. b. Alienage Jurisdiction To invoke alienage jurisdiction, there must be a controversy between a U.S. citizen domiciled in a state (i.e., a citizen of a state) and an alien who is a

12 citizen or subject of another country according to the laws of that country. (A person who is not a citizen of any nation may not invoke alienage jurisdiction.) However, in an amendment to the statute enacted in 2011, Congress provided that alienage or diversity of citizenship jurisdiction is withdrawn when the action is between an American citizen and a permanent resident alien who are domiciled in the same state. 2. Citizenship of Artificial Entities a. Corporations A corporation has dual citizenship. It is a citizen of any state in which (1) it is incorporated, and (2) it has its principal place of business. 28 U.S.C. 1332(c)(1). Of course, both could be in the same state. State of Incorporation. The state of incorporation is determined by a simple review of the state incorporation records. Principal Place of Business. Although a corporation may do business in many states, it has only one principal place of business. Until recently, the lower courts were divided on how to make this determination, with many looking for the central location of manufacturing or services, while others focused on the location of the corporate headquarters. In Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186 (2010), the Supreme Court adopted the nerve center test: [W]e conclude that the phrase principal place of business refers to the place where the corporation s high level officers direct, control, and coordinate the corporation s activities. * * * We believe the nerve center will typically be found at a corporation s headquarters. Corporations With Foreign Connections. If a foreign corporation (that is, an entity incorporated in another nation) has its principal place of business in an American state, then diversity of citizenship jurisdiction is lacking if any citizen of that state is on the opposing side. Similarly, if a corporation incorporated in an American state has its principal place of business in any foreign country, then alienage jurisdiction to sue that corporation is not available to any citizen of any foreign country (not just citizens of the same foreign country), with certain exceptions

13 b. Partnerships, Associations, and Other Artificial Entities The citizenship of all other artificial entities whether general partnerships, limited partnerships, labor unions, associations, or something else is established by determining the state of citizenship of each of its members. C. Amount in Controversy Under 28 U.S.C. 1332(a), diversity of citizenship and alienage jurisdiction may be invoked only over claims involving more than $75,000, exclusive of interest and costs. Good Faith Test. Under the good faith test, the plaintiff s allegation that more than $75,000 is in controversy will be taken at face value unless it appears to a legal certainty that the plaintiff cannot recover more than that amount. Non-Monetary Relief. When the suit involves a claim for equitable or declaratory relief, the amount in controversy will be determined by reducing the relief sought to its monetary value and asking the likely economic value to the plaintiff of receiving that relief. Aggregation of Claims. A single plaintiff may aggregate any number of unrelated claims together against a single defendant to reach the more than $75,000 level. However, separate plaintiffs may not aggregate their claims together, even if the claims are related and arise out of the same transaction or occurrence except when the plaintiffs have a common and undivided interest, such as a joint tenancy in a single piece of property. Moreover, the amount in controversy requirement must be separately satisfied for each defendant. However, with the advent of supplemental jurisdiction under 28 U.S.C. 1367, about which we ll talk next in the course, if one plaintiff can fully satisfy the amount in controversy, the district court may exercise supplemental jurisdiction over claims by additional plaintiffs who do not satisfy the amount in controversy requirement, provided that they otherwise meet the requirements of diversity jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005)

14 D. The Erie Doctrine There are exceptions to the following general statement and determining when those exceptions apply can become very complicated. But, as a general rule, established in the famous case of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), a federal district court sitting in diversity (that is, hearing a state law claim because the parties are diverse) will apply the state law of the state in which that federal district court sits. So if a diversity suit is filed in the District of Minnesota, the federal court will apply the state law of Minnesota in the case. The application of the state s law includes the state s choice of law rules (a topic addressed in upperlevel courses in Civil Procedure II and Conflicts of Law). Thus, if the Minnesota state courts would apply, for example, Wisconsin tort law because the parties or events from which the tort claim arose have the strongest ties to Wisconsin, then the United States District Court for the District of Minnesota will also choose Wisconsin tort law in that case if brought in federal court in diversity

15 28 United States Code Supplemental jurisdiction (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. (e) As used in this section, the term State includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States

16 Summary of Supplemental Jurisdiction Prof. Gregory Sisk THE CONCEPT OF SUPPLEMENTAL JURISDICTION When there is (1) an anchoring claim that falls within the subject matter jurisdiction of the federal courts, and (2) another claim that is not independently within federal subject matter jurisdiction but is sufficiently related as to be part of a single case or controversy as the underlying claim, then the federal courts may with some limitations hear the related claim through the exercise of supplemental jurisdiction. THE SUPPLEMENTAL JURISDICTION STATUTE, 28 U.S.C The supplement jurisdiction statute is 28 U.S.C The key provisions are as follows: Creation of Supplemental Jurisdiction. In Subsection (a), Congress broadly grants power to the federal courts over supplemental claims to the full constitutional limit. Under the generic rubric of supplemental jurisdiction, Subsection (a) authorizes a federal court with independent subject matter jurisdiction over an underlying claim to hear related claims, including related claims that require joinder of additional parties. The constitutional requirement that both the underlying and the supplemental claim be sufficiently related as to be part of the same case or controversy is satisfied by establishing that both claims arise from a common nucleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715 (1966). Under the Federal Rules of Civil Procedure, the relationship inquiry is stated as whether the claims arise out of the same transaction or occurrence. Both tests, which are essentially identical, look to the logical relationship between the two claims

17 Supplemental Claims by Plaintiffs in Diversity Cases. In Subsection (b), Congress established a key limitation upon supplemental jurisdiction in the context of diversity of citizenship cases. If the plaintiff s underlying claim is based upon diversity of citizenship, the plaintiff may not assert any supplemental claim against any nondiverse party, even if the non-diverse party was joined to the lawsuit by the defendant, such as by a third-party claim. However, a defendant is not restricted by Subsection (b) in asserting related claims against nondiverse parties. Subsection (b) thus codifies the principles of Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978). Discretion of Court to Decline Supplemental Jurisdiction. Under Subsection (c), the federal court has the discretion to decline supplemental jurisdiction. Subsection (c) authorizes a federal court to dismiss the supplemental state-law claims (1) where the state-law claims raise a novel or complex issue, (2) where the state-law claims predominate over the federal claims, (3) where the federal claims are dismissed before trial, or (4) for other exceptional reasons. Tolling of Statute of Limitations for Dismissed Claims. If a supplemental claim is dismissed, Subsection (d) of the statute provides that any statute of limitations is tolled for 30 days to allow the plaintiff to re-file the claims in state court without penalty. Similarly, if the plaintiff then chooses to voluntarily dismiss the underlying federal subject matter jurisdiction claim in order to prosecute both claims together in state court, the statute of limitations is also tolled as to that underlying claim provided that the plaintiff re-files the action within 30 days. (The constitutionality of this tolling of the state statute of limitations was unanimously upheld by the Supreme Court in Jinks v. Richland County, 538 U.S. 456 (2003).)

18 28 United States Code Removal of civil actions (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 United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. (b) Removal based on diversity of citizenship. (1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Joinder of Federal law claims and State law claims. (1) If a civil action includes (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1)

19 28 United States Code Procedure for removal of civil actions (a) Generally. A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. (b) Requirements; generally. (1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. (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

20 Summary of Removal Jurisdiction Prof. Gregory Sisk INTRODUCTION TO REMOVAL JURISDICTION In order to preserve the authority of the federal courts over federal question and diversity cases, Congress has authorized defendants to remove certain cases from a state court to a federal court when the case could have been heard originally in federal court. If the removal is determined to be improper, it must be remanded back to state court. There is no provision for transfer of a case mistakenly filed in federal court to a state court. THE REMOVAL STATUTE 28 U.S.C A. The General Rule As a general rule, any civil action which could have been brought originally in federal court may be removed from state court. 28 U.S.C. 1441(a). In other words, removability depends upon the existence of original federal subject matter jurisdiction. Everything we have learned about the limitations on original federal court jurisdiction including the well-pleaded complaint rule, the complete diversity rule, the amount in controversy requirement in diversity cases, etc. continues to apply with full force in the removal context. B. Removal Jurisdiction May Be Narrower Than Original Federal Jurisdiction Federal Question Cases. Unless Congress has enacted a statute prohibiting removal of a certain type of case, any case involving a federal question claim may be removed by a defendant regardless of citizenship of the parties. 28 U.S.C. 1441(c). Diversity of Citizenship Case. In a diversity of citizenship case, the case may not be removed if the plaintiff files the lawsuit in the home state of one of the defendants. 28 U.S.C. 1441(b)

21 C. Only Defendants May Remove Only a defendant may remove an action from state to federal court, and all defendants must join together in the removal petition. Even if a defendant later asserts a counterclaim that raises a federal question, the plaintiff may not remove the case from state to federal court. PROCEDURE FOR REMOVAL AND REMAND Removal Petition. Under 28 U.S.C. 1446, a defendant removes a case by filing a removal petition in the federal district court for the district in which the state court action is pending and by filing a copy of the petition with the state court, with notice to all parties. This filing effects the removal, without any need for approval by the state court. Once removal has been effected, the state court has no further authority to act. Time for Removal. Ordinarily, a defendant must remove a case within 30 days after the defendant has been served or otherwise received notice of the complaint. 28 U.S.C. 1446(b). Remand. Once a case has been removed, the federal court is obliged to ascertain the basis for federal subject matter jurisdiction. If removal is determined to be improper either because the action does not fall within the original jurisdiction of the federal courts or because the case was not removable the court must remand the action to the state court. The case then proceeds in state court