ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.•

__________

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT