1. Civil Procedure 2005 Class 31: Subject Matter Jurisdiction: Supplemental Jurisdiction II, Removal Nov. 2, 2005

2. TENSION BETWEEN Liberal joinder rules Subject matter jurisdiction requirement GAVE RISE TO SUPPLEMENTAL JURISDICTION

3. SUPPLEMENTAL JURISDICTION STATUTE 28 U.S.C. § 1367

4. Does Supplemental Jurisdiction Statute Trump Traditional Aggregation Rules? Zahn – 414 U.S. 291 (1975) (predates statute) no ancillary jurisdiction over claims without independent jurisdictional basis in class action, where 1 class member had claim meeting jurisdictional amount, but other class members did not) Split in circuits on whether s. 1367 overrules Zahn. S. Ct resolves split in Exxon (2005)

5. TRADITIONAL AGGREGATION RULES CONT’D Multiple Ps sue the same D for different claims: e.g. Dorothy – ME (passenger) sues George- TX (driver) in federal court for $45,000 for damages suffered in a car crash. A. Is there subject matter jurisdiction? What if Laura- DC, also a passenger in George’s car, wants to join as a plaintiff to sue George for $35,000 for her injuries arising from the same accident? B. Will the supplemental jurisdiction statute change the result?

6. TRADITIONAL AGGREGATION RULES CONT’D Would it make any difference to your answers in the previous hypothetical if Dorothy’s claim was for $90,000?

7. Does 1367(b) apply? Multiple Ps sue the same D for different claims P sues multiple Ds for different claims; one claim meets the requirements of diversity but the others do not D counterclaims and P wants to implead a nondiverse third party for indemnification/contribution P wants to cross-claim against a nondiverse P

8. 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?

9. 28 U.S.C. sect. 1367(d) Is it constitutional? Yes – see Jinks v. Richland County, 349 S.Ct 298 (2003) (necessary and proper and does not violate state sovereignty)

10. PRACTICE EXERCISE 34 CB p. 716 Plaintiff: Nancy Carpenter (NH) Ds: Dee (MA), Ultimate (MA) 3d Party Ds: McGills Garage (MA), Dale McGill (NH) Motion to dismiss Carpenter and Ultimate’s claims for lack of subject-matter jurisdiction by Garage and McGill

11. REMOVAL JURISDICTION What is removal? What is the policy justification for removal a. For diversity cases? b. For federal question cases?

12. LEGAL SOURCES FOR REMOVAL JURIDCITION NOT IN U.S. CONSTITUTION So, removal is purely statutory. There have been federal removal statutes since 1789.

13. 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?

14. 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

15. WHAT IF FEDERAL COURT HAS EXCLUSIVE JURISDICTION? P brings action in state court Can D remove? See 28 U.S.C. section 1441(e)

16. 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?

17. WHERE IS CASE REMOVED TO? What court(s) may hear a claim that is removed? What is the applicable statutory provision determining this?

18. 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?

19. Burnett v. Birmingham Board of Education (N.D. Ala. 1994)