Civpro Removal & Venue.txt

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Author:
stimmel49
ID:
51482
Filename:
Civpro Removal & Venue.txt
Updated:
2010-11-24 03:25:36
Tags:
Removal Venue
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Description:
Removal & Venue
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  1. Removal - 1441
    • D may remove an action to federal court where the state court is located as long as the case could have been filed there originally.
    • o If multiple defendants not from the forum state, then all must consent to removal
  2. Removal (Federal question)
    Always remove if all defendant’s agree
  3. Removal (Diversity)
    • 1. Can’t be removed if filed in any defendant’s home state to avoid prejudice to out of state D
    • 2. must be removed within 1 year (1446)
  4. Removal (Venue)
    When a case is removed from state court to federal court venue is appropriate in the district court servicing the area where the state court is located.
  5. Removal (Procedure)
    • To remove must certify under rule 11 that complaint arises under federal law or has diversity
    • - Must file within 30 days after service of defendant
  6. Remand – 1441 (c)
    • Federal may remand portions back to state where state Q predominates
    • - Case can be remanded if:
    • 1. cause of action was improperly removed
    • 2. lack of subject matter jurisdiction
    • 3. at the court’s discretion if state law predominates
    • 4. must file for remand within 30 days of removal
    • - (Brought by the plaintiff only)
  7. Venue – 1391
    • As the appropriate place for trial, venue is generally good where
    • 1) any D resides, if all Ds reside in the same state;
    • 2) or where a substantial number of events giving rise to the claim occurred.
  8. Venue (Diversity)
    • 1) Where any defendant resides if all from the same state,
    • 2) where a substantial part of the events or omissions giving rise to the claim occurred or where the party is situated,
    • 3) where any defendant is subject to personal jurisdiction
  9. Venue (Federal Question)
    • 1) Where any defendant resides if all from the same state,
    • 2) where a substantial part of the events or omissions giving rise to the claim occurred or where the party is situated,
    • 3) where any defendant can be found
  10. Venue (Corporations)
    • 1) Where a corporation is subject to personal jurisdiction (principle place of business, state of incorporation),
    • 2) if state has multiple districts, choose where there is the most significant contacts
  11. Venue (Aliens and Foreign Corp.)
  12. - Anywhere in U.S.
    o There is only one kind of alien (unlike diversity jurisdiction)
  13. Venue (Related or Unrelated Claims)
    If venue is appropriate in the original suit, venue will be appropriate for any transactionally related third party claims.
  14. Venue (Removal – 1441)
    When a case is removed from state court to federal court venue is appropriate in the district court servicing the area where the state court is located
  15. Venue (Defect)
    If a defendant fails to object to a defect in venue in the first motion or pleading, any such defect is waived

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