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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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