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Federal Bar Update: Removal and venue changes are on the horizon

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Federal Bar UpdateMost key procedural changes in federal practice derive from rule amendments and case law. Rarely (and probably thankfully) do we expect Congress to be in the mix. With the recent passage of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, however, key statutory changes to removal and venue are on the horizon.

History

In 2005, the chairman of the House Judiciary Committee authored the predecessor to this new legislation. After several years of bouncing through committee, in 2010, the Judicial Conference actively vetted the bill with interested stakeholders, including the American Bar Association, the Federal Bar Association, the U.S. Chamber of Commerce and legal scholars. In 2011, the bill worked its way through Congress, was passed by the Senate in November and signed by the president on Dec. 7. The Act takes effect on Jan. 6, 30 days after enactment, and shall apply to any action commenced on or after that date. The legislative history describes the purpose of these changes to “bring more clarity to the operation of Federal jurisdictional statutes” while facilitating the appropriate court where actions should be brought. The history recites, “Judges believe the current rules force them to waste time determining jurisdictional issues at the expense of adjudicating underlying litigation.”

Removal changes

The Act amends the removal statutes in many respects, including:

• upon removal of an action that has federal claims combined with claims that are not within the court’s supplemental jurisdiction, the District Court shall sever and remand those non-federal, non-supplemental claims;

• all defendants who have been served must join in or consent to removal (codifying current practice);

• each defendant has 30 days after “receipt by or service on that defendant of the initial pleading or summons”; 

• 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 it did not previously initiate or consent to removal;

• the Act still has a one-year cap on diversity removals unless the District Court finds that the plaintiff acted in bad faith to prevent removal, and if the court finds that plaintiff failed to disclose the amount in controversy to avoid removal, that is bad faith; and 

• the Act speaks to how to treat the amount in controversy on removal, including for jurisdictions (like Indiana) where in some types of cases the amount of damages cannot be set forth in the state court complaint, the notice of removal can set forth the amount in controversy.

Venue changes

The Act also amends venue provisions:

• the Act creates a new provision, 28 USC Section 1390 describing venue generally; and

• Section 1391 is re-written, collapsing (a) (diversity) and (b) (federal question) into a new (b) that has the same three standards.

Where to find the statute

Practitioners will have difficulty finding a clean version of the amended statutes. The Act is complicated and technical, deleting some provisions, adding others, and of course not providing a “clean” final version of the rewritten Code sections. Practitioners should be very careful to ensure that the statutory sections referred to from Jan. 6 forward are accurate and up to date. In the meantime, anyone desiring a copy of the Act can email the undersigned for a pdf copy.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. The opinions expressed are those of the author.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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