Instructions: answer all questions before looking at explanations. A federal district court map may be found at https://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf. These questions will require careful reading of the statutes, particularly for questions 9 and 10!
Question 1.
P (citizen of California) plans to sue D Phord Motor Co. (incorporated in Delaware with principal place of business in Michigan) for injuries suffered in an auto accident. P believes that problems with the Phord vehicle caused the accident. If P sues Phord in California state court seeking $100K damages, can D remove? (Hint: see 28 U.S.C. § 1441(a) and (b).)
A. No, because the well-pleaded complaint rule indicates that a plaintiff is the master of his complaint.
B. Yes, because defendants can always remove from state court to federal court.
C. No, because no federal question is involved.
D. Yes, because the federal court would have had original jurisdiction over P’s claim had P filed there originally.
Correct answer: D
• D is correct. 1441(a) permits removal of a civil action brought in a state court of which the district courts of the U.S. have original jurisdiction. The limits in 1441(b) don’t apply here. (Why?)
• A is wrong because here the plaintiff doesn’t have control over where the suit is litigated — the whole purpose of removal is to give D a veto power in cases that are removable. Moreover, the well-pleaded complaint rule is used to determine whether the plaintiff’s claims state a federal question. It’s not a principle that permits Ps to veto removal if the case is otherwise removable.
• B is wrong because it overstates the law. Removal under 1441(a) requires that the state suit could have been filed in federal court, and even then, 1441(b) limits the scope of removal in diversity-only cases where any D is a citizen of the state where the suit was filed.
• C is wrong because a “federal question” isn’t the only basis for removal. 1332 can often be a basis for removal as well.
Question 2.
P (California) sues Phord (Delaware and Detroit, Michigan) in a state court in Anchorage, Alaska for products liability for $100K. P was injured when his car fell apart in Las Vegas. Look at the map of federal districts (link here). D may remove to which district(s)? (Hint: see 28 U.S.C. § 1441(a).)
A. The United States District Court for the District of Nevada.
B. The United States District Court for the Central District of California.
C. The United States District Court for the District of Delaware OR the United States District Court for the Eastern District of Michigan.
D. The United States District Court for the District of Alaska.
Correct answer: D
• D is correct. The proper venue for a removed action under 1441 is the district court of the U.S. for the district and division embracing the place where the action is pending. Later on, we will study venue and the general venue statute, 28 U.S.C. § 1391. However, section 1391 is irrelevant to a removed case because the proper venue for a removed case is determined by 1441(a). (This doesn’t mean that the case can’t be transferred: as we’ll soon learn, the federal court may choose to transfer the case to another district under 28 U.S.C. § 1404!)
• The other answers are incorrect for the reasons noted above.
Question 3.
P (California) is angry at Phord (Delaware & Michigan) for making what he believes are defective cars. He registers the domain name PHORDSUCKS.COM and posts information about Phord. Later, P sues Phord in Pennsylvania state court alleging product liability and seeking $100K damages. Phord files a counterclaim against P for copyright infringement under federal law for using pictures of Phord vehicles on the PHORDSUCKS.COM website. P is concerned that Pennsylvania state judges don’t know anything about federal copyright law and wants to remove. Can P remove the case? (Hint: compare 28 U.S.C. § 1441(a), with 28 U.S.C. § 1454.)
A. No, only defendants can remove.
B. No, removal is measured by original jurisdiction, which in turn depends on whether the well-pleaded complaint contains a federal question. Here, the plaintiff’s complaint only contains a state-law claim.
C. Yes, because the original claim was removable.
D. Yes, because P can remove. Cool, huh?
Correct Answer: D
• D is correct because of 28 U.S.C. § 1454, which permits any party to remove a case when “any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.” 28 U.S.C. § 1454(a), (b)(1) (emphasis added).
• A is correct for cases removed under the general removal statute, section 1441. However, section 1454 provides an exception, permitting any party to remove for patents and copyrights.
• B is correct for cases removed under the general removal statute, section 1441. However, section 1454 permits removal to be based on a copyright claim asserted by any party, such as a counterclaim (“any party assert a claim for relief”). This statute was enacted in 2011 to overrule some of the implications of Holmes v. Vornado.
• C is correct for cases removed under the general removal statute, section 1441. But section 1441 would only permit D to remove on the basis of diversity, but D didn’t remove. Here, P removed. So section 1454 is the rare example of a case where a plaintiff can remove.
Question 4.
P (California) sues Phord (Delaware & Michigan) in California state court alleging negligence (Count I); products liability (Count II); and a federal statute permitting suits against carmakers for defective auto manufacturing (Count III). P seeks $100K. If Phord wants to remove, it may remove what? (Hint: see 28 U.S.C. § 1441(a).)
A. The entire case.
B. Nothing.
C. Only the claims that it wants to litigate in federal court.
D. Only claims involving federal questions.
Correct answer: A
• A is correct. You remove a whole case, not parts.
• B is wrong because removal would be proper here. The parties are diverse, the amount in controversy is over $75K, D is not a citizen of California, and Count II states a federal question.
• C is wrong because a defendant can’t pick & choose which claims to remove.
• D is wrong because removal isn’t always limited to federal questions. (Indeed, peek at 1441(c): what scenario might that statute apply to?)
Question 5.
Remember, P is a citizen of California and Phord is incorporated in Delaware and has its principal place of business in Michigan. P’s damages are for $100K and he wants to file a claim for products liability under state law. P wants to litigate in state court and wants to make sure that Phord can’t remove. His best course of action is to do what? (Hint: see 28 U.S.C. § 1441(b)(2), 1446(c)(2) and (3).)
A. There is nothing P can do.
B. Only claim $75,000 in damages.
C. File in state court in any state except California, Delaware, or Michigan.
D. File in Delaware or Michigan state court.
Correct answer: D
• D is correct. In a diversity-only case, the case cannot be removed if any D is a citizen of the state in which the suit was filed. See 1441(b)(2). This is the “forum defendant rule.”
• A is wrong. P can file in Michigan or Delaware to prevent removal.
• B is not the best answer. For one thing, why would P want to limit his damages? For another, in many states, a plaintiff’s demanded recovery amount does not limit the amount the plaintiff might ultimately recover. In such cases, courts tend to permit defendant to make a “clear showing that the plaintiff’s claim in fact meets the jurisdiction amount requirement.” Freer, Introduction to Civil Procedure, 4.8, at 222. In addition, revised 1446(c)(2) states: “(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 demand for a specific sum or permits recovery of damages in excess of the amount demanded.” (Emphasis added.)
• C is wrong — if filed in California, D can remove because it’s not a citizen of California.
FOLLOW-UP QUESTION: What if there were 10 Ds, from 10 different states? Then filing a diversity-only claim in any of those states would prevent removal!
Question 6.
Remember, P is a citizen of California and Phord is incorporated in Delaware and has its principal place of business in Michigan. P’s damages are for $100K and he wants to file a claim for products liability under state law (Count I) and a federal statute permitting suits against carmakers for defective auto manufacturing (Count II). P wants to litigate in state court and wants to make sure that Phord can’t remove. His best course of action is to do what? (Hint: see 28 U.S.C. § 1441(b)(2).)
A. File in Michigan or Delaware.
B. Don’t pursue Count II.
C. File in Michigan or Delaware, and additionally, pursue Count I only.
D. File in Michigan or Delaware, and additionally, pursue Count II only.
Correct answer: C
• C is correct. File in Michigan or Delaware to take advantage of the forum defendant rule. However, the forum defendant rule applies only when original jurisdiction is premised “solely” on diversity. See 1441(b)(2) (note the word “solely”). So including Count II would make the suit removable, even if filed in Delaware or Michigan state court! So P will need to forgo the federal claim to stay in state court.
• A is incorrect because pursuing Count II side-steps the forum defendant rule.
• B is incorrect because diversity jurisdiction would permit removal if the suit were filed outside of Delaware or Michigan.
• D is incorrect because it’s upside-down: P needs to omit Count II, not rely on it.
Question 7.
P (California) sues Phord (Delaware & Michigan) in state court in Arizona for products liability and seeking $100K. The complaint further indicates that P is seeking $100K in damages. Six months after being served, Phord removes to federal court. Plaintiff immediately moved for remand to state court. Should the motion be granted? (Hint: see 28 U.S.C. §§ 1446(b)(1), 1447(c).)
A. Yes, because removal was done too late.
B. No, because subject matter jurisdiction would be proper in federal court.
C. Yes, because a defendant may never remove beyond 30 days of receiving notice of the state-court complaint.
D. No, because remand would not be in the interest of justice.
Correct answer: A
• A is correct. Phord waited too long to remove, a procedural defect in removal. The complaint indicated everything Phord needed to know to file a notice of removal, and Phord took 6 months instead of 30 days. See 1446(b)(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.”). P had only 30 days to seek remand, which P sought immediately. See 1447(c), which states “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . .” Although the 30-day period is excused when there is a lack of SMJ, here SMJ is proper. (Thus, what if the complaint named a second, California defendant?)
• B is incorrect. Phord waited too long to remove (a procedural defect). The fact that SMJ would be proper is irrelevant. Phord made a procedural error in removal, and proper SMJ does not excuse that defect.
• C is incorrect: sometimes a defendant can remove after the 30 day period such as when there is not initially SMJ but later SMJ is perfected, i.e., the case “first becomes removable” after the 30 day period.
• D is incorrect because “justice” is not a statutory reason for retaining or remanding a civil action.
Question 8.
Paula (Florida) sues her former employer, Artie’s Lawnmower Service (Florida), in Florida state court for common-law breach of contract due to her firing and seeks $100K damages. The defendant does not remove. Six months later, Paula is granted leave by the state court to join a claim for federal employment discrimination seeking $100K arising from the same firing. May Artie’s Lawnmower Service remove the case? (Hint: see 28 U.S.C. § 1446(b)(1), (3).)
A. No, because defendant is a citizen of Florida.
B. No, because a defendant only has 30 days to remove.
C. Yes, even though the case wasn’t originally removable.
D. Yes, because the amount in controversy now exceeds $75,000 exclusive of interest and costs.
Correct answer: C
• C is correct. A case that isn’t removable may become removable later on. Subject to an exception that arises in the next question, if the case is not removable, it can be removed by filing a notice of removal within 30 days after receipt “of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3) (emphasis added.) Here, the case was not originally removable (non-diverse, no federal question.) However, later on the case became removable when a federal question was added. In fact, the whole case likely can be heard by the federal court: federal discrimination (1331 federal question) and state-law breach of contract for the same firing (1367 supplemental jurisdiction).
• A is wrong because 1441(b)(2) bars removal if any D is a citizen of the state where the suit is brought, but only if original subject matter jurisdiction premised solely on diversity. Here, there’s a federal question.
• B is wrong because the 30 days wasn’t triggered here until the original suit was amended to include the federal claim.
• D is wrong because it’s irrelevant. Removal is based on the presence of a federal question in the well-pleaded amended complaint.
Question 9.
Maurice (Georgia) sues Robin (Georgia) and Barry (Florida) in Georgia state court alleging battery and seeking $100K in damages. Eighteen months later and in good faith, Maurice settles with Robin, who is dismissed from the suit. After Robin’s dismissal, may Barry remove to federal court? (Hint: see 28 U.S.C. §§ 1446(b)(3) & (c)(1).)
A. Hey, aren’t these the Bee Gees?
B. Didn’t they record the soundtrack to Saturday Night Fever?
C. Yes.
D. No.
Correct answer: D
• D is correct, strangely enough. The original case lacked complete diversity. However, complete diversity was perfected by the dismissal of Robin. But there is a one-year time limit for removals premised on late-perfected diversity. 1446(c)(1) prevents removal conferred on the basis of diversity jurisdiction more than 1 year after commencement of the action. However, under the 2011 changes, the court can permit removal beyond the 1-year period if the court finds that he plaintiff acted in bad faith to prevent removal. “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c)(1). Here, the facts stipulate that the dismissal was in good faith.
• A and B are true facts of significance to the history of disco music and John Travolta’s early movie career, but do not inform the question presented.
• C is incorrect because D is correct.
• Counter-hypothetical: what if the facts indicated that six months after filing, Maurice and Robin secretly agreed to settle, but to time Robin’s dismissal for after the one-year mark? This would appear to be bad faith that would permit removal beyond the one-year mark.
Question 10.
Both P and D are citizens of the same state. P sues D in state court in that state for violating federal employment discrimination law and seeks $10,000 damages. P joins a claim against D for a completely unrelated battery that occurred six months before the employment discrimination. P seeks damages of $10 for the battery (the only damages P suffered was the wounding of his pride for a brief moment). The only thing common between the claims is the parties; the claims are otherwise factually and legally unrelated.
TRUE OR FALSE: D may remove the lawsuit. (Hint: see section 1441(c).)
A. True
B. False
Correct answer: A (true)
• True with a caveat. The federal court had subject-matter jurisdiction over the discrimination claim, right? But didn’t the court lack subject-matter jurisdiction over the battery claim? It does: no diversity jurisdiction, no federal question, and because the battery is unrelated to the discrimination claim, no supplemental jurisdiction either (no “sprinkles”). However, under 1441(c)(1), if an action includes a 1331 federal question, as well as one or more claims lacking original or supplemental jurisdiction, the entire action can be removed. Moreover, “[u]pon removal of an action described in paragraph (1), the district court shall sever from the action all claims [lacking subject-matter jurisdiction] and shall remand the severed claims to the State court from which the action was removed.” Id. § 1441(c)(2). Thus, the court will need to sever the battery claim and remand it back to the state court. The federal court will only hear the discrimination claim, over which it had original jurisdiction. This is how 1441(c) works: you remove the entire action, and send back down the claims over which SMJ is lacking.
• Under the former version of 1441(c), the federal court could arguably have statutory authority hear the entire case! However, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 fixed section 1441(c). The former statute contained a rarely-used, much criticized, and often-ignored provision: “Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.” (Emphasis added.) Here, there’s a federal discrimination cause of action joined with an unrelated battery claim for $10. The federal claim is a 1331 federal question that is separate and independent of the $10 state-law claim. Thus, former 1441(c) purported to provide statutory authority for the federal court to exercise jurisdiction over both claims. This seemed to flout the limits on subject matter jurisdiction in Article III by providing statutory authority to hear a case that involves a dispute that the federal court appears to lack constitutional authority to hear, namely, a state-law claim between non-diverse parties!!! That’s why it was fixed in 2011.
Revised Sept. 9, 2020 (updating links; culling questions); Sept. 20, 2018 (correcting breadcrumb in Q9); Revised Sept. 23, 2018 (changing second COA in Q17 from copyright to federal trademark to focus issue on revival and bypass considerations of section 1454)