Only $35.99/year


Terms in this set (88)

• First
o All defendants properly joined and served must consent to removal
• If not served then they do not have to consent with that defendant
• Second
o Defendants must file proper notice of removal in federal court within 30 days of the date they received a paper (ex. Pleading) from which it may first be ascertained that the state court case was removable
o If suit was already removable originally when filed, each defendant has 30 days from the date they received formal service (from state court suit) to file the notice of removal in fed court.
o If there are multiple defendant served at multiple times an earlier served defendant may consent to removal when a later served defendant files the notice of removal even thought the first defendant did not initiate or consent to removal previously
• Third
o The notice must provide a short and plain statement stating the jurisdictional grounds that the case should be removed (such as facts that fit the SMJ requirements)
• Fourth
o The defendant/defendants must sign the notice and must attach a copy of all state court process, pleadings, and orders to the notice
• Fifth
o The notice and attached documents must be filed in federal district court in the correct court
• Six
o The plaintiff must be served with a notice and attached documents along with a memo explaining why the suit was removed
• Seventh
o A copy of the notice and attached documents, including a copy of the memo sent to the plaintiff must be filed promptly with the state court
• The case is removed on the completion of this last step
• NO
o because there are two defects in the plaintiff's claims against D2:
• she is not a diverse party and
• the plaintiff's claim of 50k does not meet the amount in controversy
• the federal court can however dismiss the claim against D2 because she is not a necessary party under rule 19
o after this then the court will have good SMJ against plaintiff's claims against D1
• the first defect is because both the plaintiff and D2 are from Tx so there is not complete diversity
• the second defect is that the plaintiffs claims of 50k is not more than 75k which is required
o although the claim against D1 meets the amount, a single plaintiff such as the plaintiff, cannot invoke supplemental jurisdiction against his claim against D2 because the law does not allow supplemental jurisdiction when the original claimed is based on SMJ of diversity and a third party is joined by the plaintiff to defend the suit.
• The court could however dismiss the plaintiff's claim against D2 and have SMJ over D1 because under rule 19(a) D2 is not a necessary party that must be joined in order to accord relief in the remaining suit by plaintiff against D1
o Neither is the joinder necessary under the second part of 19(a);
• that a party must be joined is that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may as a practical matter impair or impeded the persons ability to protect interest or
• failure to join leaves the original parties (Plaintiff/D1) subject to substantial risk of incurring double, multiple, o otherwise inconsistent obligations.
• The claim against D2 is separate from D1's so if this proceeding went without D2 it will not impair or imped D2's ability to protect her interest defending the claim again him
• Once D2 is removed do analysis for SMJ for plaintiff v D1 and why court has SMJ