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2015 NJSBA ANNUAL MEETING Civil Litigation Track Tides A, B Navigating Removal and Remand in the New Jersey State and Federal Co

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2015 NJSBA ANNUAL MEETING Civil Litigation Track Tides A, B Navigating Removal and Remand in the New Jersey State and Federal Co 2015 NJSBA ANNUAL MEETING Civil Litigation Track Tides A, B Navigating Removal and Remand in the New Jersey State and Federal Courts Co-Sponsored by the Federal Practice and Procedure Section Moderator/Speaker: Kerri Chewning, Esq. Archer & Greiner, PC, Haddonfield Speakers: Hon. Garrett E. Brown, Jr., U.S.D.J. (ret.) Hon. Maria Sypek, J.S.C. (ret.) Keith J. Miller, Esq. Robinson Wettre & Miller, LLC, Newark © 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research. Hon. Garrett E. Brown, Jr., U.S.D.J. (ret.) JAMS, New York Hon. Maria Sypek, J.S.C. (ret.) JAMS, Philadelphia Keith J. Miller, Esq. Robinson Miller, LLC, Newark Kerri Chewning, Esq. Archer & Greiner, PC, Haddonfield Presented by Federal Practice Section New Jersey State Bar Association May 14, 2015 Process by which a defendant may move a case filed in state court to federal court. Statutory source: 28 U.S.C. §§ 1441-1455. 2 Avoid Local Bias (the original reason for federal removal jurisdiction) To obtain a transfer under 28 U.S.C. § 1404(a) (change of venue/forum non conveniens) Application of the Twombly/Iqbal standard on motions to dismiss Individualized case management (magistrate judges) Discovery (subpoenas, e-discovery, initial disclosures) “Expertise” with regard to “federal questions” (e.g., ERISA, RICO, civil rights, intellectual property, securities, and anti-trust laws) Increased chance of success on dispositive motions Easier to enforce judgments 3 1330 – foreign states 1331 – federal question 28 U.S.C. § 1441(a): 1332 – diversity any civil action within 1333 – admiralty 1334 – bankruptcy the original 1335 – interpleader jurisdiction of the 1337 – antitrust 1338 – patents federal district court is 1339 –postal matters removable 1340 – internal revenue 1343 – civil rights 1344 – election disputes 1345 – US as plaintiff 1346 – US as defendant 1350 – Alien’s Tort Claim Act 1351 – diplomats 1352 – federal bonds 1353 – Indian allotments 1354 – land grants 1358 – eminent domain 4 Subject to statutory and common law exceptions (28 U.S.C. § 1445) Railroads Common carriers Worker’s compensation Violence Against Women Act Certain Class Actions (28 U.S.C. §1332(d)(4)) 5 Simplest situation - federal courts have exclusive original or removal jurisdiction by statute (28 U.S.C. §§ 1441(d)(foreign state), 1443 (civil rights)). Plaintiff’s complaint usually controls BUT not always (e.g., complete preemption – some aspects of ERISA, NLRA, SLUSA). 6 The Federal Courts Jurisdiction and Clarification Act of 2011 amended 28 U.S.C. § 1441(c). 28 U.S.C. § 1441(c)(1) – Civil actions involving removable claims under 28 U.S.C. §1331 and non- removable claims are removable if the action would be removable without the inclusion of the non-removable claims. 28 U.S.C. § 1441(c)(2) – Upon removal, non-removable claims must be severed and remanded to state court. 7 In Third Circuit unclear whether third-party claims are removable (A sues B, B sues C: can C remove?) 28 U.S.C. § 1446(b)(3) – A case may become removable – must reassess when plaintiff files amended complaint, motion, or “other paper” making the case removable (within one year for diversity removal, unless there is bad faith) 8 Forum Defendant Rule: Diversity cases cannot be removed if any of the defendants “is a citizen of the State in which such action is brought.” (28 U.S.C. § 1441(b)) Local defendant cannot remove. Citizenship is tested on two dates: when state action is filed and when action is removed. Different rules apply for removing class actions under CAFA. (28 U.S.C. §1453(b)) 9 Citizenship of fictitious parties is ignored (28 U.S.C. § 1441(b)(1)). 28 U.S.C. §1332 and §1441 govern diversity question. If plaintiff voluntarily dismisses a non-diverse party, case may become removable. Hoffman v. Metro. Ins. & Annuity Co., No. 12-2303, 2012 U.S. Dist. LEXIS 108287 (D.N.J. Aug. 1, 2012). If non-diverse defendant is dismissed, case not removable, unless non-diverse defendant was fraudulently joined. 10 Hertz Corp. v. Friend, 559 U.S. 77 (2010) For 28 U.S.C. § 1332(c)(1), the "principal place of business" is where a "corporation's high level officers direct, control, and coordinate the corporation's activities,“ sometimes called the "nerve center," typically corporation headquarters 11 28 U.S.C. § 1446(c)(2) sets out requirements. Must exceed $75,000 exclusive of interest and costs. (28 U.S.C. § 1332). Court must evaluate claim if not alleged (value of rights being litigated). Burden is on defendant. 28 U.S.C. § 1446(c)(2)(B) – jurisdictional amount must be proven by a preponderance of the evidence. Problems arise: equitable relief, unliquidated damages, aggregation of claims. 12 Defendant files Notice of Removal with district court, serves it on counsel, and “promptly” files a Notice of Filing of Notice of Removal with state court. Notice must state grounds for removal (short and plain) and attach copy of complaint and state court process, pleadings, motions, and orders. Must also comply with Local Civil Rules 11.2 (other actions), 201.1 (arbitration). Must comply with corporate disclosure requirements. (Fed. R. Civ. P. 7.1). “Notice of Filing” in state court. 13 E-file all documents, with Civil Cover Sheet; pay filing fee electronically. Consider filing application for “Breathing Room” Clerk’s Order at the time of removal to extend time to respond to Complaint (Local Civil Rule 6.1). Beware of All Defendants Rule (see below). 14 Notice MUST be filed within 30 days after defendant receives notice, through service or otherwise, of the case, a motion, an amendment, or an “order or other paper” that indicates the case is removable! (28 U.S.C. § 1446(b)). Mandatory, not waivable (even with consent). State court rules or orders do not affect the 30-day deadline. Clock starts with service of summons, not just copy of complaint. (Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)). 15 Overall 1-year limit for removal in diversity cases, unless plaintiff acted in bad faith to prevent removal. (28 U.S.C. § 1446(c)) 28 U.S.C. § 1446(c)(3) – Thirty-day period for removal after receiving discovery indicating amount is met. 16 All served defendants must join in or consent to removal. (28 U.S.C. § 1446(b)(2)(A)) Does not include fictional parties, fraudulently joined parties, non-resident defendants not served at time of removal, statutorily created exceptions (e.g., CAFA). Consent must be documented – but rules are not clear as to format. Safest course is to have all defendants sign notice of removal. 17 28 U.S.C. § 1446(b)(2)(C) “If defendants are served at different times, and a later- served defendant files a notice of removal, any earlier- served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.” 18 District court allocates case to 1 of 3 vicinages, based on county in which state action was pending. Further transfer may be sought or occur. (28 U.S.C. § 1406(a)) Service must be completed pursuant to Fed. R. Civ. P. 4. (28 U.S.C. § 1448) 19 Fed. R. Civ. P. 81(c) governs. Once removed, time to answer is LONGEST of: 7 days after notice of removal is filed 21 days after service of summons for filed initial pleading 21 days after receiving a copy of the initial pleading. Good practice to request Clerk’s Order at time of removal to maximize available time. (Local Civil Rule 6.1) 20 28 U.S.C. § 1450 and Federal Rule 65(b). State court TROs remain in effect, but federal TROs expire after 14 days unless renewed. State-ordered temporary restraints (which can be indefinite) expire not more than 14 days after removal unless federal court extends. Pending motions transfer, may get new schedule or request that the motion be re-filed. 21 28 U.S.C. § 1447 – permits remand to state court if removal was defective; motion must be made within 30 days of removal. Defects are waivable, other than subject-matter jurisdiction Daly v. Norfolk Southern Railroad Co., No. 09-4609, 2010 U.S. Dist. LEXIS 13553 (D.N.J. Feb. 17, 2010) - Wrongful death and survival action, asserted in part under the Federal Employee Liability Act ("FELA"). Defendant removed to federal court; court questioned the propriety of the removal sua sponte at a hearing and invited the parties to submit supplemental briefing addressing whether a FELA action, which is removed contrary to 28 U.S.C. §1445(a), may remain in federal court after Plaintiff fails to object to removal within the thirty-day period set forth in 28 U.S.C. §1447(c). Held: Plaintiff's failure to object to Defendant's improper removal waived this procedural defect. Accordingly, the case, while removed in clear contravention of 28 U.S.C. §1445(a), will not be remanded. 22 Decided by district court judge unless parties consent to magistrate judge. Court may award attorneys’ fees under 28 U.S.C. § 1447(c), if removing party lacked an “objectively reasonable basis for seeking removal.” 23 Remand orders generally are not appealable.
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