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Federal Bar Update: Removal and venue changes now in effect

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Federal Bar UpdateAs noted in this column in December, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 was passed in early December and took effect Jan. 6. The Act amends the removal statutes in several important respects, including:

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 he 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.

The act also amends venue provisions:

The act creates a new provision, 28 U.S.C. 1390 describing venue generally; and 

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

The act applies to all cases commenced in federal court on or after Jan. 6, and for removed action, to any case that under applicable state law had been commenced on or after Jan. 6. The act has been cited in three federal opinions so far, but only in passing reference and noting that the act did not apply to the pending case. In the coming months, there are certain to be many cases addressing the act.

Where to find the statute – Even with the act now in effect, practitioners may 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. As of Jan. 12, not all online sources of U.S. Code (free or for pay) had updated versions of the affected sections (including, for instance, the Government Printing Office). Lexis does appear to have the amended statutes online now.

Practitioners should be very careful to ensure that the statutory sections referred to from Jan. 6 forward are accurate and up to date. The way to discern this is to check for 28 U.S.C. 1390, which did not exist as of Jan. 5, but came into effect as a new section as part of the act on Jan. 6. In the meantime, anyone desiring a copy of the act can email the undersigned for a PDF copy.

Local rules – In late December, both the S.D. of Indiana and the N.D. of Indiana separately announced that their Local Rule amendments would take effect Jan. 1. The updated versions of each court’s Local Rules – which include the restyling edits – are now posted on the courts’ websites.•

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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. 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.

  2. 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?

  3. 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

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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