CHANGES TO FEDERAL JURISDICTION AND PROCEDURE

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1 CHANGES TO FEDERAL JURISDICTION AND PROCEDURE Rob Moseley and Fredric Marcinak Smith Moore Leatherwood, LLP Greenville, SC The recently enacted Federal Courts Jurisdiction and Venue Clarification Act of 2011, P.L (December 7, 2011), significantly amends the federal jurisdictional statutes, including provisions covering diversity jurisdiction, venue, federal question jurisdiction, and removal. The Act was effective on January 6, The Act includes several changes that are significant for parties seeking to litigate in Federal Court, including changes that are beneficial for parties removing cases to Federal Court and for obtaining jurisdiction in Federal Court. Removal Procedure The Act begins by codifying the long-standing requirement that in order for an action to be removed to Federal Court there must be unanimity among the defendants removing an action. Thus, in keeping with prior case law, all defendants must agree and join together to remove a case to Federal Court. Importantly, however, the Act goes on to clarify the mechanics of the removal of a case by multiple defendants by resolving a split among the federal circuits as to the procedure by which such actions are removed. Previously, the majority of circuits had adopted the last served defendant rule, which provided that each defendant had a separate thirty (30) days in which to remove an action from its particular date of service. Thus, the last served defendant could remove within thirty (30) days of its date of service and previously served defendants could join in that removal, even though these earlier served defendants had not removed the action to Federal Court. In contrast, other circuits, including the United States Court of Appeals for the Fourth Circuit, adhered to the first served defendant rule. Under this rule,

2 the first served defendant had the option of removing the case within thirty (30) days of its date of service. Any defendant served after the initial thirty (30) days of service from the first served defendant had expired could not remove the action to Federal Court. The Act adopts the last served defendant rule. Thus, in jurisdictions such as the Fourth Circuit that had adopted the first served defendant rule, each party will now have thirty (30) days to remove the case to Federal Court after it has been served. Any earlier-served defendants must join in the laterserved defendants notice of removal so that unanimity is maintained. This change also prevents plaintiffs attorneys from manipulating the timing of service of process so that defendants less likely to remove are served first. Instead, each defendant will now have an equal opportunity to remove to Federal Court. The Act also makes modifications to the procedure for determining the amount in controversy. Currently, the amount in controversy in a particular case must exceed $75,000 in order for the case to be removable. The Act states that where a state court pleading does not specify an amount in controversy, or where state practice permits a plaintiff to recover more than the amount sought, the defendants may remove to Federal Court and file documentation along with their Notice of Removal to demonstrate that the amount in controversy exceeds $75,000. The removal will succeed if the defendants can show by a preponderance of the evidence that the amount in controversy exceeds $75,000. Alternatively, in this situation, the defendants can leave the action in state court and can remove the action at a later time if a document is produced which indicates that the amount in controversy exceeds $75,000. In those circumstances, the defendants must remove within thirty (30) days of receipt of the document indicating that the amount exceeds $75,000. On the other hand, where the state court pleadings state an amount sought in the lawsuit, that amount can be used to determine the amount in controversy and it will 2

3 be conclusive as to the amount in controversy, except in states where state law or procedure permits the plaintiff to recover an amount beyond the amount named in the Complaint. In those states, defendants may remove the matter to Federal Court and argue that the amount in controversy nonetheless exceeds $75,000 despite the amount claimed in the Complaint. Finally, the Act adds several provisions to ameliorate the harshness of the one-year bar on removal of cases to Federal Court based on diversity jurisdiction. Under current law, a party may not remove a case to Federal Court on the basis of diversity jurisdiction if more than one year has elapsed since the date the action was filed. The Act creates two exceptions. First, a party case remove a case to Federal Court after one year has passed where the plaintiff acted in bad faith to prevent removal of the case. Second, the Act provides that if the court finds that the plaintiff deliberately failed to disclose the amount in controversy to prevent removal, such action constitutes bad faith. Currently, it is common practice for attorneys who want to prevent removal of a lawsuit against a citizen of a different state to include a citizen even one whose liability to the plaintiff is tenuous of the same state of the plaintiff to defeat diversity jurisdiction. Oftentimes, the in-state defendant will be dismissed from the case after the one-year prohibition against removal has been triggered. In these situations, defendants will now be able to assert that the plaintiff has acted in bad faith to prevent removal and that the action should be removable, the one-year bar notwithstanding. Jurisdiction With regard to federal question jurisdiction, the Act makes one change that, upon first reading of the statute, appears to be broader than it is. The Act states that where a Complaint asserts a claim under federal law and also claims under state law, the entire action can be removed to Federal Court but that a District Court shall sever and shall remand any claim 3

4 that is not within the original or supplemental jurisdiction of the District Court. On first blush, this appears to require that any state law claims that are removed along with the federal claim must be remanded to District Court. However, the key phrase in the statute is the reference to supplemental jurisdiction. Supplemental jurisdiction, formerly known as ancillary or pendant jurisdiction, and currently embodied in 28 U.S.C. 1367, provides that state law claims that are so related to [federal] claims in the action... that they form a part of the same case or controversy may generally be removed to Federal Court along with the federal claim. Thus, even under the amendments made by the new Act, state law claims that are related to the claim that is removed on the basis of federal jurisdiction will remain in Federal Court. Only unrelated state law claims over which there is no diversity jurisdiction must be remanded to state court. It is certainly unusual to find a Complaint that pleads both related and unrelated claims, therefore the circumstances in which the Act will be invoked to remand state law claims to state court appear to be limited. However, the apparently broad terms in which the Act speaks are likely to lead to confusion in that arguments for remand of related state law claims are likely to be made, and the Act must be carefully parsed and briefed to the courts so that claims over which supplemental jurisdiction exists will be maintained in Federal Court. Venue Finally, the Act makes several changes to venue provisions. The most important of these is that District Courts now have the ability to transfer any civil action to any district or division to which all parties have consented for the convenience of the parties and witnesses and in the interest of justice. This statute allows the parties to consent to transfer to any venue that they can agree on. Further, the Act eliminates the distinction between federal question and diversity actions for purposes of venue and adopts a single, general venue statute. 4

5 Conclusion The changes made by the Act are likely to eliminate some of the confusion surrounding the timing and procedure for removal of actions to Federal Court and jurisdiction in Federal Court. Overall, these changes will likely work to the benefit of defendants who are seeking to have actions removed to Federal Court. These changes will be beneficial to parties who seek the uniformity of federal policy and procedure, the avoidance of bias in local state courts, and the ease and access of electronic filing in Federal Courts. GREENVILLE